QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PROFESSIONAL STANDARDS FOR HEALTH AND SOCIAL CARE
|- and -
|NURSING AND MIDWIFERY COUNCIL
|- and -
Miss Helen Fleck (instructed by NMC) for the First Respondent
The Second Respondent did not appear and was not represented.
Hearing dates: 14 December 2017
Crown Copyright ©
Mrs Justice Elisabeth Laing DBE :
i) It is right to say that the allegation did not directly relate to patient care, but wrong to imply that the allegation, if made out, could have no bearing on patient care. I note that the Employer could very clearly see the implications for patient care, and that is why the Employer dismissed the Second Respondent, as the investigators acknowledged, further down the same box. This error may have been contributed to by the investigators' complete failure to describe, and therefore to consider the implications of, the exact nature of Baby A's injuries, and, it follows, to acknowledge how serious they were. The only injuries the investigators refer to are bruises, creating an impression that the investigators considered that those were the only relevant injuries. The NMC apparently considered when it wrote its letter of 3 June 2016 to the Family Court that its concerns were 'serious'; but there is no reference to their seriousness in the Investigation Report.
ii) The fact that the Second Respondent did not have a criminal conviction is irrelevant. The standard of proof applied by the criminal court is stricter than the civil standard applied by the NMC. There had, in any event, been no trial.
The legal framework
The National Health Service Reform and Health Professions Act 2002 ('the 2002 Act')
The Nursing and Midwifery Order 2001, 2002 SI No 253 ('the 2001 Order')
The Nursing and Midwifery Council (Fitness to Practise) Rules Order 2004, 2004 SI No 1761 ('the Rules')
i) rule 24(6) requires the NMC to open the case; and
ii) rule 24(7) and rule 24(8) permit the Committee to accept a submission of no case to answer, but only (1) where the NMC has closed its case, and presented its evidence, and (2) only at the instigation of the registrant, or where the Committee does so 'of its own volition'. It is inherent in a submission of no case to answer that it can only be made at the end of the Council's evidence. The test in R v Galbraith  1 WLR 1039 can only be applied if a tribunal has considered evidence; if it has not, there is nothing to which that test can applied.
i) not to open the case (see paragraph 54, above); the absence of an opening of the case deprived the Committee of important information about, in particular,
a) what the injuries were, and
b) the significance of the fact that the Second Respondent accepted that the Family Court had found that they were non-accidental;
and prevented the Committee from supervising the decision to offer no evidence;
ii) to suggest that
a) the Committee had power to accept a submission of no case to answer (1) without hearing evidence and (2) at the instigation of the NMC (see paragraph 54, above);
b) the NMC had not been able to get information about the exact conclusion of the Family Court when, in truth, the NMC had made no effort to get it;
c) without the judgment of the Family Court charge 2 could not be proved, particularly since, as the NMC told the Committee, the NMC and the Second Respondent agreed that the Family Court, had found, in effect, that both parents were potential perpetrators of the non-accidental injuries and that both parents failed to protect Baby A, but in any event, there was other evidence from which charge 2 could have been proved, that is,
i) the documents which the NMC's case examiners had considered, and,
ii) other more direct evidence, such as evidence from the various professionals who had examined Baby A, and which the NMC had made no effort to obtain, from which the allegation could be proved;
d) to tell the Committee that the question for the Committee at that stage was whether the NMC could prove the charge; the question, rather, was whether there was evidence which raised a case to answer;
iii) to say that the NMC had 'no medical records in respect of [Baby A] which detail any injuries' when the NMC had made no effort to get any, as this statement suggested, inaccurately, either that no such records existed or that the NMC had tried to, but could not, get them;
iv) to say that there was no medical evidence which 'demonstrates that any injuries suffered by Baby A were non-accidental in nature', but only 'mere references' to non-accidental injuries in the documents which the NMC considered were not admissible, and that the Committee could not test their accuracy, when, given the seriousness of Baby A's injuries, the fact that Baby A was too young to be independently mobile, and the complete absence of any plausible explanation of the injuries, which Baby A had suffered over a period of time, it should have been obvious that the injuries must have been non-accidental;
v) for the reasons I have given above, to suggest to the Committee that there was no written record of the judgment of the Family Court, and that it was disproportionate to 'proceed with the request for further documents', in particular because 'it is far from clear if the NMC's application for further documents would succeed', when there was no basis for suggesting that an application, if made, was likely to fail, and the NMC had been told it could get a transcript of the oral judgment;
vi) at page 3E-F of the transcript, to quote selectively from what, it was agreed, the Family Court had concluded, and to omit the agreed finding that 'both parents had failed to protect [Baby A]', and to suggest that the issue raised by charge 2 was whether the Second Respondent had 'directly' or 'indirectly' caused non-accidental injuries to Baby A;
vii) to suggest that the NMC had made 'attempts' to obtain evidence which had failed when all the NMC had done was to write the 3 June 2016 letter.
i) It did not have an accurate picture of the steps taken by the NMC to get evidence.
ii) It did not know what positive case the NMC could have put forward on the basis of the material which the NMC did have. It is far from clear, I add, that the NMC itself knew.
iii) It did not know what evidence was available to the Case Examiners.
iv) It knew nothing about the extent, timing, and seriousness of Baby A's injuries. Miss Fleck had to accept (rightly) in her oral submissions that 'the nature of the harm was never before the Committee'.
v) It was not helped to understand the nature of the charge.