England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		CO/38/2018 Royal Courts of Justice
		26th June 2018

MRS JUSTICE LAMBERT:

1. The appellant, Jowin John Antony, appeals under Article 38(1) of the Nursing & Midwifery Council Order 2001 from the determination of the Fitness to Practise Panel of the Nursing & Midwifery Council ("the Panel") of 1 March 2018 that his fitness to practise as a nurse was impaired by reason of misconduct and that the appropriate sanction was an order striking his name from the Nursing & Midwifery Register. The appellant challenges the conclusions of the Panel on the facts, the determination on impairment and the determination on sanction.
2. The appellant was represented before me by Ms Iyer who also appeared on the appellant's behalf at the Panel hearing which ran for 6 days from 4 -8 December 2017 and 1 March 2018. The respondent was represented by Mr Cassels who did not appear below.
3. The charges related to an incident which took place during the evening of 31 January 2016 when the appellant was on duty at the Bourne House Nursing Home. Bourne House is a residential home for around 40 elderly people. All of the residents suffer from dementia; many from serious related medical conditions also. One of those residents, Resident A, was a woman of 85 years of age and Bourne House had been her home for some time. She suffered from dementia and an associated behavioural disorder which could on occasions cause her to behave in an aggressive way. There is no doubt that, by reason of her condition she was highly vulnerable.
4. It was common ground in the proceedings before the Panel that Resident A had been reluctant to take her medication during the evening of 31 January 2016. The appellant had therefore resorted to mixing the medication into yoghurt which Resident A was, usually, happy to eat. Resident A, however, refused to take her medication even in this form and it was alleged against the appellant that while trying to persuade A to eat the yoghurt he assaulted her. In March 2017, he was acquitted of the criminal charge of ill-treating a patient contrary to s. 127(1) and (3) of the Mental Health Act 1983.
5. He faced 6 charges before the Panel, as follows:

1. grabbing the wrist of Resident A on more than one occasion;

2. telling Resident A words to the effect of "if you hit me again I am going to hit you back" or "if you do it again, I can do it to you";

3. throwing the yoghurt pot;

4. slapping Resident A;

5. spreading yoghurt on her face;

6. pinching Resident A.

6. All of the charges were disputed by the appellant before the Panel.

The Hearing Before the Panel

7. At the fact-finding stage, the Panel heard evidence from two witnesses for the Council: from Mr 1 who was a healthcare professional and who was present in Resident A's room at the time of the incident; and from Ms 2, the care home manager, to whom Mr 1 reported the incident on 3 February 2016, and who thereafter examined Resident A for injuries and reported the incident to the police. The Panel also heard evidence from the appellant himself and from character witnesses called on his behalf. Relevant documents were placed before the Panel including photographs of the injuries allegedly caused by the appellant, body maps depicting A's injuries, the minutes of the appellant's police interview, the minutes of other investigatory meetings and disciplinary hearings attended by the appellant and a transcript of the Crown Court proceedings.
8. I pause at this stage to note the following features of the evidence. First, as to the incident itself, the evidence came from two sources only: from Mr 1 and from the appellant himself. No others were present. Resident A was unable to make any contribution. Further, the evidence from Ms 2 was limited to what had been reported to her by Mr 1 after the incident and in relation to her inspection of Resident A's injuries. Photographs taken by Ms 2 on 3rd February when the incident was reported were not available to the Panel. There were, however, photographs taken by the police some time later, on 8 February but it is common ground that between 3 February and the 8 February Resident A had suffered another fall, also causing injury.
9. Following the evidence on the facts, the Panel retired and gave their conclusions on 7th December. The Panel found three of the six charges, 1,4 and 6, proven on the balance of probability.
10. In their reasons, the Panel noted the following general findings concerning the reliability and credibility of the witnesses:
11. 1. Mr 1 was a credible witness whose evidence that there had been mistreatment of Resident A had been accepted by the Panel. The Panel noted that there had been a two-day delay in him reporting the incident but concluded that this was satisfactorily explained: he had never before found himself in such a situation and recognised that becoming a whistle-blower in what could be a serious case was a big responsibility. The Panel acknowledged inconsistencies in the various accounts which he had given over the course of time but observed that this was to be expected given the close scrutiny to which his account of events had been exposed. Overall, they concluded that he was both an honest and reliable witness.
12. 2. Ms 2 had been clear and consistent in her reports of the injuries which she had observed on 3 February and that she appeared to have given a straightforward account of what she remembered of the allegations and concerns which had been reported to her. Although she was not a witness to the incident, and she had accepted in cross examination that there were other possible explanations for the injuries, the Panel noted that she remained consistent in her account and that her description of the injuries corroborated Mr 1's account of the incident.
13. 3. There was an inconsistency between the appellant's oral evidence to the Panel and his evidence (as recorded in the minutes) to the disciplinary hearing on 11 February 2016. Before the disciplinary hearing, he had conceded that he may have held Resident A's wrists in defending himself. Before the Panel, and for the first time, the appellant challenged the accuracy of the minutes of the disciplinary hearing. This was the only element of the minutes which he claimed to be inaccurate. The Panel noted their impression that the appellant appeared to have been "tailoring his evidence to suit his case".
14. In explaining its conclusion on the first charge (the wrist grabbing), the Panel recorded the following findings: (a) it had accepted the evidence of Mr 1 that the appellant had grabbed hold of A's wrist to restrain her; (b) the minutes of the disciplinary hearing of 11 February were an accurate record of what the appellant had said; (c) the note concerning the incident which had been made by the appellant in A's resident notes did not bear out his version of events; (d) Ms 2's evidence concerning the injuries which she had seen on 3 February was consistent with Mr 1's account of the incident; (e) a body map completed on 4 February recorded the presence of bruising on A's wrist and (f) they had also taken into account various photographs taken of Resident A's wrist.
15. In concluding that the fourth charge (the slapping of the shoulder) had been proven, the Panel recorded that it had taken into account Mr 1's evidence that, in response to A spitting, the appellant had lost his temper and given Resident A a big slap to the left shoulder; that Ms 2 had seen a very faint discolouration of the shoulder area when she inspected A's body for injuries on 3 February which corroborated Mr 1's account to a limited extent. The Panel also found that Mr 1's account concerning this aspect of the incident had not wavered throughout the various investigations at the home, the criminal trial and the NMC hearing. The Panel rejected the appellant's explanation that Resident A was prone to injuries and that there was an alternative, innocent, explanation for her injuries or that the resident's discolouration was due to the appearance of blue veins all over her body.
16. In concluding that charge 6 (the pinching) was proven, the Panel noted that Mr 1 had given various descriptions of how the appellant had pinched A but that it accepted overall his evidence that there had been some pinching of Resident A's thigh and the left wrist. The Panel took into account Ms 2's evidence that she had seen marks on Resident A's left wrist on 3 February and that, on 4 February, a physical examination revealed bruising on the left forearm. They did not however conclude that a linear scratch had been caused during the incident.
17. Having reached its conclusions on the facts, the Panel then moved on to its assessment of the appellant's fitness to practise. The appellant gave evidence and the Panel received further testimonial evidence. The Panel found that the proved facts demonstrated a significant falling short of professional standards and determined that a finding of impairment was necessary both to protect the public and to maintain public confidence in the profession and in the NMC as regulator.
18. After a hiatus of some months, the Panel then considered sanction. Once again, the appellant gave evidence and further supportive documentary evidence was provided on his behalf. The Panel considered the Sanctions Guidance. The Panel identified a number of aggravating and mitigating features. However, it concluded that the appellant had failed to demonstrate insight into the seriousness of the effect of his misconduct on A. It noted that the appellant's actions "constituted abuse towards a vulnerable elderly resident which was deplorable" and that "the misconduct was fundamentally incompatible with continuing to be a registered nurse." It recorded its view that assaulting a patient was a "never event" and that the particular circumstances leading up to the incident were not of an exceptional nature. Balancing these factors with the mitigating features, the Panel concluded that a striking off order was the only appropriate and proportionate sanction.

The Legal Framework

19. There is no disagreement concerning the general legal principles which govern this appeal.
20. Both Ms Iyer and Mr Cassell are in agreement that an appeal of this nature will be allowed if the court reaches the conclusion that the decision was (a) wrong or (b) unjust because of a serious procedural irregularity (CPR 52.21(3)).
21. It is also agreed that in respect of challenges to findings of fact which turn upon an assessment of oral evidence, considerable deference will be afforded to the decision of the Panel as it had the advantage of having seen and heard the witnesses, including the appellant himself. In these circumstances, the appellate court will be slow to interfere and will do so only if the decision is one which is plainly wrong. The hurdle is therefore a high one. In Southall v General Medical Council [2010] EWCA Civ 407, Leveson LJ, with whom the court agreed, described findings of fact as "virtually unassailable". In Jenyo v General Medical Council [2016] EWHC 1708 (Admin), Andrews J observed that the court will not conclude that a finding of fact was against the weight of the evidence unless it exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible. It is insufficient if the appellate court might have drawn a different conclusion. As Laws LJ put it in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44] , the true distinction is between a case where an appeal court might prefer a different view, perhaps on marginal grounds, from one where it concludes that the process of reasoning in the application of the relevant law require it to adopt a different view. The burden is on the appellant to show that the case falls within this latter category.

Grounds of Appeal:

(a) The Findings of Fact

22. The appeal grounds assert the existence of "grave inconsistencies in the Panel's reasoning"; the inherent irrationality of the conclusions reached by the Panel and the Panel's failure to provide reasons for its judgements concerning the credibility of witnesses.
23. The skeleton argument, served with the grounds, neither sought to differentiate between the grounds nor, in any meaningful way, link the various grounds of challenge with the findings made by the Panel. The document comprises a number of "jury points" which mirror the Ms Iyer's closing submissions at the hearing before the Panel. Nor did the skeleton argument identify any parts of the transcript upon which Ms Iyer intended to place reliance. Having had the opportunity to consider the skeleton argument before the hearing, I sought clarification from Ms Iyer and was provided with an amended skeleton argument early in the morning of the hearing. I also provided Ms Iyer with additional time during the hearing to enable her to identify the relevant parts of the transcript. I am satisfied that she had the opportunity to raise and develop all of the arguments that she wished to deploy before me.

Ground 1

24. Ground 1 was clarified by Ms Iyer as a challenge to charge 6 (the pinching). Ms Iyer submitted that the Panel's conclusions were internally contradictory: having found that it could not be satisfied that the linear scratch to Resident A's leg had been caused during the incident, she submitted that the Panel was wrong to then conclude that the appellant had pinched Resident A at all given the absence of any discernible mark caused by the alleged pinching.
25. I reject this challenge for the following reasons:
26. 1. Mr 1 gave evidence that the appellant had grabbed or pinched A's leg. It seems that he demonstrated what he had using his own body as model.
27. 2. The Panel recognised that Mr 1 had given "various descriptions" of how the appellant had pinched Resident A. He had variously described the appellant pinching A's thigh, digging his nails into the thigh and to a pinching of the area around the knee. In his demonstration of the appellant's actions to the Panel Mr 1 had not been able to specify the "exact spot" on the upper leg but had said it was around the area he was indicating and described a grabbing motion on to the leg. As the Panel found, there were only minor inconsistencies in Mr 1's account. They were entitled to accept his evidence that there had been an inappropriate grabbing or pinching in finding the charge proven.
28. 3. Further, the absence of evidence of a mark to the skin caused by the leg pinching is not evidence that no pinching took place. As Ms Iyer accepted there was no evidence before the Panel which suggested that the sort of touching described by Mr 1 (and demonstrated by him) would inevitably have led to a mark on the skin which would still have been apparent some days after the incident.
29. 4. I therefore reject Ground 1.

Ground 2

30. This represents a wholesale and non-specific challenge to the findings. It boils down to a number of alleged inconsistencies and contradictions in Mr 1's evidence such that, Ms Iyer submits, his evidence should not have been considered to be reliable and should have been rejected by the Panel. I accept Mr Cassell's general submission that the assessment of credibility is, absent obvious error, the province of the first instance tribunal with which the appellate courts should not ordinarily interfere. I also note that, although not blind to the slight variations in the accounts which Mr 1 had given, the Panel did not reject any aspect of Mr 1's evidence: that some charges were found not proven reflected only that his evidence in chief did not support the charges formulated by the NMC.
31. Against this background, I deal with each of the points made by Ms Iyer.
32. The first concerns the profiling bed upon which A was lying at the time of the incident. The evidence before the Panel was that the remote-operated profiling bed on which Resident A was lying at the time of the incident had been positioned incorrectly so that the head-end of the bed was, in fact, situated at the resident's foot-end. It followed that, if activated, the end of the bed that would have moved up would have been that section under the resident's feet. Given this uncontroverted fact, it was submitted by Ms Iyer that the evidence of Mr 1 that A's head was supported by the raised bed must be wrong, and this was a specific point on which his evidence could be demonstrated as having been unreliable.
33. I reject the point. As Mr Cassel submitted, it is by no means clear, having reviewed the evidence that Mr 1 was asserting that A's head was elevated by the operation or activation of the mechanism raising the head-end of the profiling bed. His evidence was that A's head was raised on the bed but he did not say how it was raised. It was never put to him that he had misremembered this detail as, Ms Iyer told me, the point had only cropped up in cross-examination and she had had no time to deal with it. Miss Iyer is correct that the point is not covered in the Panel's determination. However, I accept Mr Cassels's submission that it was entitled not to do so: the conflict as now stated on appeal was never explored within the evidence before the Panel. Nor, in any event, does it amount to a potent challenge to the reasoning of the Panel as a whole. If there was an inconsistency or a misremembering by Mr 1, it concerned a peripheral detail and, viewed in the context of a witness who the Panel concluded had no axe to grind and who it regarded generally as honest and reliable, nothing turned on the point.
34. Ms Iyer's second point is that Mr 1 delayed reporting the incident and that he never satisfactorily explained the reason for this. This was a point which was explored at some length in the evidence before the Panel. It was dealt with by the Panel in their determination.
35. I reject this ground. Mr 1 was asked a number of questions in cross examination seeking his explanation for not having intervened to prevent or forestall the incident and for not having reported the incident more quickly. He said that he had been shocked by what he had seen; that he had seen the appellant as "a different character" and this frightened him; he had not felt confident in reporting the matter; on the night in question only he and the appellant were on duty with one other nurse and so he had taken his time to think about what had occurred and how he should react to the events. The Panel accepted his explanation. They were entitled to do so. I note in passing that the case advanced by the appellant before the Panel was that Mr 1 had been put up to making the complaint by his ex-girlfriend. The Panel rejected this.
36. The third ground concerns, as Ms Iyer put it, the Panel's "considerable reliance" on the photographs which had been taken on 8^th February.
37. I reject this ground also. The Panel did not place considerable reliance on the photographs or indeed of any other records of the injuries. The Panel's conclusion that there was independent corroboration of Mr 1's account was based on Ms 2's account of the injuries which she had seen when she inspected Resident A on 3^rd February. Photographs and body maps were additional and supplementary to this evidence.
38. 1. In respect of Count 1, the Panel was shown three coloured photographs illustrating an area of bruising over the wrist and a body map completed of Resident A on 4 February. The photographs supported: Mr 1's account that the appellant had grabbed Resident A's wrist and that the grabbing was very firm so she could not move; Miss 2's evidence of what she had seen when she examined Resident A and the appellant's own account to the internal disciplinary hearing that he had grabbed A's wrists (albeit in self-defence).
39. 2. In respect of Count 4, the Panel was shown two body maps, both completed on the same day (4^th February). One recorded some reddening around the shoulder, the other did not. However, the supporting evidence upon which the Panel relied in finding Count 4 proven was Ms 2's oral evidence that she had seen a faint discolouration of the should when she had inspected A on the morning of 3^rd February. The Panel accepted this evidence. It was entitled to do so.
40. Although there is a third ground of appeal (that the Panel failed to consider material evidence provided to them and provide reasons for its judgement on credibility issues), Ms Iyer made no separate submissions.
41. It, therefore, follows that I find that the Panel were not wrong to reach the conclusions which it recorded in its determination on the facts. Notwithstanding Ms Iyer's comprehensive submissions, the appellant's case came nowhere near the high bar that he must cross to appeal successfully findings of fact.

(b) Finding of Impairment

42. The challenge to the impairment finding is freestanding of the challenge to the facts. It is submitted that, even in the light of the findings made, the Panel was wrong to find that the appellant's fitness to practise was impaired.
43. During this phase of the hearing, the Panel heard testimonial evidence on behalf of the appellant. The Panel recorded that the appellant that had undergone training; that he recognised the incident as a wake-up call and that he had improved his nursing skills as a result of training and reflection. The Panel also noted that the appellant provided only a limited response to questioning on how he would ensure that the learning and the training undertaken would be embedded into to his practice and that in response to further Panel questions about how the public might regard him, he had said that the public would think that "it's a bad thing that has happened to the resident" but the main thing is that the incident would not be repeated. He described A's injuries as "a bad thing and unfortunate".
44. Having found misconduct, the Panel appropriately recorded that it bore in mind the need to take into account past and future risk of harm: in particular whether or not the appellant would bring, or had brought or would be liable to bring, the profession into disrepute and whether, in the past or in the future, he would be likely to breach one of the fundamental tenets of the profession.
45. In reaching its conclusion of impairment, the Panel noted that the appellant did not appear to have considered how his actions may have impacted on Resident A albeit that he accepted that his conduct was "a bad thing" and that A's injuries had been unfortunate, however they had come to be inflicted. The Panel recorded that it was not satisfied that the appellant had applied his training to his own personal circumstances and that he had shown very little recognition of the impact of his actions on others beyond himself and immediate family and very little reflection upon the consequences that his actions would have on Resident A, colleagues, the profession and the wider public. In reaching its conclusion, the Panel determined that the appellant had demonstrated a significant lack of understanding of his professional responsibilities as a nurse. On this basis the Panel could, therefore, not be satisfied that the behaviour would not be repeated in the future. It concluded that the finding of impairment was necessary for public protection and to maintain public confidence in the profession.
46. In the face of a detailed, and nuanced, conclusion on impairment, Ms Iyer nonetheless submits that there was no evidence before the Panel that the appellant was "currently" impaired. She submitted that the incident had been a "one off" incident which would not be repeated. The submission however demonstrates a misunderstanding of the Panel's basis for its conclusion which was the appellant's lack of insight on the effect of his actions (as found by the Panel) on Resident A, as opposed to the effect of the disciplinary process upon himself and his family. The submission also mischaracterises "current impairment" and does not recognise the range of ways in which a practitioners' fitness to practise can be found to be currently impaired. Although a threat to public safety is a basis for the finding, it is not the sole basis. The need to safeguard the wider public interest by maintaining public confidence in the profession and the upholding of proper standards of conduct by the NMC as regulator are also grounds for finding impairment. The Panel found that both public safety and the threat to the wider public interest required a finding of impairment.
47. Ms Iyer also submitted that it can be difficult for a practitioner to demonstrate insight when charges are denied. This problem was identified by the Panel. However, the Panel found that in spite of a period of reflection, the appellant had still been unable to demonstrate a proper recognition of how his behaviour impacted on others, residents and vulnerable residents in particular.
48. There was no error in the approach taken by the Panel on the issue of impairment. The determination on the point was not wrong and it cannot be impugned.

(c) Sanction Appeal

49. I move on, therefore, to consider the sanction challenge. Again, this is a freestanding challenge: that is, notwithstanding the findings on the facts and on impairment, the appellant submits that the sanction of striking-off was wrong.
50. The Panel considering the sanction options available, from the least serious to the most serious. It concluded that the only order which was appropriate was a striking-off order given: (a) that the appellant's behaviour represented a serious departure from relevant standards (b) that his behaviour had inflicted harm to another person (c) his behaviour involved an abuse of his position which involved a violent conduct. It found that, although a single one-off event, the facts found proven amounted to a "never-event": an assault on a vulnerable person. It categorised the incident as deplorable.
51. Ms Iyer submits that the Panel failed to take into account all the relevant matters of personal mitigation. The submission is misconceived. The Panel clearly recognised the considerable mitigation advanced and recorded it in the determination. The Panel recognised that the appellant had undergone a period of further training during the hiatus in the proceedings. However, it found that, crucially, notwithstanding the further training and the further time afforded by the hiatus in the proceedings for reflection, there had still been no progress in the appellant's understanding of the impact of his actions on others, including vulnerable elderly people. The Panel was entitled to reach this conclusion.
52. The Panel was entitled to conclude that the incident, involving an assault on a vulnerable patient, even though a one-off, was deplorable and fundamentally incompatible with registration on the grounds of public safety and the wider public interest.

Conclusion

53. I dismiss the appeal.