EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Nimmo Smith Lord Hardie Sir David Edward Q.C. XA177/07	[2009] CSIH 68 OPINION OF THE COURT delivered by LORD NIMMO SMITH in Appeal under section 12 of the Nurses, Midwives and Health Visitors Act 1997 by KATHARINE ANN GRAY GRAY Appellant; against a decision of the Professional Conduct Committee of the Nursing and Midwifery Council dated 19 November 2007 _______

Act: Duncan; Anderson Strathern LLP

Alt: Webster; Balfour + Manson LLP

23 July 2009

Introduction

[1] Prior to the decision which is the subject of this appeal, the appellant was a Registered Nurse (Adult). Between July 2002 and June 2003 she was employed as a deputy manager at Forebank Care Home in Dundee. On about 2 October 2003 the Nursing and Midwifery Council ("the Council") received a complaint from a former colleague of the appellant at Forebank Care Home, Heather Alison, making various allegations of misconduct on the part of the appellant in the course of her employment there. In due course an inquiry took place before the Professional Conduct Committee ("the Conduct Committee") of the Council on various dates between June and November 2007. On 9 November 2007 the Conduct Committee found the appellant guilty of misconduct in certain respects and instructed the Registrar to remove her name from the register. The Conduct Committee's decision was set out in a letter to the appellant dated 19 November 2007 (see paragraph [29] below). The appellant now appeals to this court against certain aspects of the decision. The appeal is opposed by the Council.

[2] Each member of the court has contributed substantially to this opinion.

The legal framework

[3] It is convenient at the outset to set out the legal framework governing the proceedings before the Committee and the appeal to this court.

[4] The primary legislation is contained in the Nurses, Midwives and Health Visitors Act 1997 ("the 1997 Act"). Despite repeals made by the Health Act 1999 and various Commencement Orders made thereunder, by the Nursing and Midwifery Order 2001 (Transitional Provisions) Order of Council 2004 (SI 2004 No. 1762) the relevant provisions of the 1997 Act and the Conduct Rules referred to below are kept in force where an allegation of misconduct has been received by the Council before 1 August 2004, as was the case here. What we are concerned with therefore are the relevant provisions of the 1997 Act and of the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 Approval Order 1993 (SI 1993 No. 893) ("the Conduct Rules"). Section 10 of the 1997 Act and the Conduct Rules are kept in force by Article 2 of the 2004 Order, and section 12 of the Act by Article 5 of the Order.

[5] Section 7 of the 1997 Act contains provisions relating to the maintenance of a register of qualified nurses, midwives and health visitors. Section 10 provides for the making of rules relating to the removal of a person from the register, whether or not for a specified period, and the subsequent restoration of that person to it. More detailed provision thereanent is made in the Conduct Rules.

[6] In Part I of the Conduct Rules, by rule 1 (2)(k) "misconduct" is defined as meaning conduct unworthy of a registered nurse, midwife or health visitor, as the case may be, and includes obtaining registration by fraud. By rule 2 (1) the circumstances in which a practitioner may be removed from the register are inter alia that she has been guilty of misconduct. By rule 2 (2) the means by which a practitioner may be removed from the register in such circumstances are that, in accordance with Parts I and II, the question of misconduct has been investigated and referred to the Conduct Committee and, in accordance with Part II, misconduct has been proved to the Conduct Committee's satisfaction and the Conduct Committee has directed the removal. Rules 2 and 4 relate respectively to the sanctions, in a case of misconduct, of removal from the register and caution as to future conduct. (It may be noted in passing that this range of disposals is more restricted than that now available under rule 29 of the Nursing and Midwifery Order 2001 (SI 2002 No. 253).)

[7] The Conduct Rules make detailed procedural provisions, an outline of which, so far as relevant for present purposes, is as follows. In Part I, by rule 6 the Council is to consider allegations of misconduct by practitioners referred to it with a view to proceedings for such practitioners to be removed from the register. By rule 7 a Preliminary Proceedings Committee is to be constituted in order inter alia to carry out investigation of cases of alleged misconduct and to determine whether or not to refer a case of alleged misconduct to the Conduct Committee with a view to removal of a practitioner from the register. By rule 8, "Initial consideration of allegations of misconduct", after an allegation of misconduct which the Council's officer considers may lead to removal from the register is received by the Council, the Registrar is to send, in writing, to the practitioner concerned inter alia a summary of the allegations and notice that the Preliminary Proceedings Committee will in due course consider the matter. The Council, if it considers it appropriate, is to conduct an investigation before the matter is first considered by the Preliminary Proceedings Committee and, if such an investigation indicates that the practitioner may be removed from the register, the Registrar is to send to her copies of statements obtained during the investigation, together with any other documents considered appropriate which are in the Council's possession. At each stage the practitioner is to be notified that she is entitled to submit a preliminary response for consideration by the Preliminary Proceedings Committee at its meeting. By rule 9, "Commencement of proceedings", the Preliminary Proceedings Committee is to consider allegations of misconduct and, where it considers that the allegations may lead to removal from the register, it is to direct the Registrar to send to the practitioner a notice of proceedings, copies of statements obtained by the Council during investigation of the allegations and any other documents the Preliminary Proceedings Committee considers appropriate which are in the Council's possession (unless such documents have already been sent to the practitioner), and a request that the practitioner respond, in writing, to the notice of proceedings. Where a notice of proceedings has been sent to the practitioner the Preliminary Proceedings Committee is to consider any written response by her and is inter alia to refer to the Conduct Committee a case which it considers justifies a hearing before the Conduct Committee with a view to removal from the register.

[8] Part II of the Conduct Rules contains provisions relating to the constitution of and procedure before the Conduct Committee. By rule 13 (6) the Council is to prosecute proceedings which have been referred to the Conduct Committee. By rules 12 (1) and 18 (6), the Conduct Committee is to determine whether by reason of the misconduct of the practitioner respondent the Registrar is to be directed to remove the respondent from the register (whether or not for a specified period) or whether it is appropriate to issue a caution as to the respondent's future conduct. By rule 25 (1):

"The Conduct Committee may receive oral, documentary or other evidence of any fact which appears to it relevant to the inquiry into the case before it; provided that, where a fact which it is sought to prove or the form in which any evidence is tendered is such that it would not be admissible in criminal proceedings in any ... Scottish Court where the proceedings are in Scotland ... the Conduct Committee shall not receive evidence of that fact or in that form, unless after consultation with the legal assessor it is satisfied that it is desirable in the interests of justice to receive it having regard to the difficulty or expense of obtaining evidence which would be so admissible."

By rule 13 (1), where a case has been referred to the Conduct Committee, the Registrar is to send to the respondent a notice of inquiry in writing in a specified form, specifying the nature and particulars of the charge against her and containing certain other information.

[9] It is convenient at this stage to note that before the Conduct Committee, and again before us, it was common ground that the burden of proof of the charges against the appellant (as she now is) lay on the Council as prosecutor, and that the standard of proof was the criminal standard of proof beyond reasonable doubt. It was also common ground, under reference to sections 1 (1) and 9 (1) (c) of the Civil Evidence (Scotland) Act 1988 and Peace v General Teaching Council for Scotland 2003 SC 299, that corroboration was not required. (The previous practice of the Conduct Committee had been to require corroboration.)

[10] The possibility of proof beyond reasonable doubt on the basis of uncorroborated evidence gives rise to a number of considerations, on which we think it appropriate to comment at this stage. Subject to the provisions of rule 25 (1) of the Conduct Rules it is clearly desirable that contemporaneous documentary material relevant to the charge should be before the Conduct Committee. Where, as here, the charges relate to the practitioner's treatment of patients, contemporaneous records will presumably have been made by the appropriate persons concerned with the patient's care; that is to say, there will be a file, contributed to by a number of authors, maintained in respect of each patient. We would expect that such a file should, in the ordinary course, be before the Conduct Committee. This becomes all the more desirable where, with the passage of time, memories may have dimmed or recollections may have been affected by other considerations. Equally, if more than one person is in a position to speak to a patient's treatment, so far as relevant to a charge against the practitioner, evidence should be led from such person or persons. That is to say, corroboration, while not a legal requirement, is highly desirable. In the absence of such documents, and in the absence of corroboration, the Conduct Committee is faced with one person's word against the other's - that of the person making the allegation against that of the practitioner against whom it is made - a situation which always gives rise to difficulties even where proof is to the civil standard of the balance of probabilities and, as it appears to us, even greater difficulties where the required standard of proof is beyond reasonable doubt. We shall return to these observations in due course when we come to consider the present appeal.

[11] The powers of this court are provided by section 12 of the 1997 Act. This court "may give such directions in the matter as it thinks proper", and its order is to be final. The approach to appeals of this kind has been considered in a number of cases to which reference was made before us.

[12] In Gupta v General Medical Council [2002] 1 WLR 1691, a Privy Council decision, Lord Rodger of Earlsferry, in delivering the judgment of the Board, referred at paragraph 8 to the cases of Ghosh v General Medical Council [2001] 1 WLR 1915 and Preiss v General Dental Council [2001] 1 WLR 1926 in support of the proposition that the Board's jurisdiction was appellate rather than merely supervisory. He continued, at paragraph 10, to discuss the approach to findings of fact:

"The decisions in Ghosh and Priess are a reminder of the scope of the jurisdiction of this Board in appeals from professional conduct committees. They do indeed emphasise that the Board's role is truly appellate, but they also draw attention to the obvious fact that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas [1947] AC 484, 487-488 [reported sub nom. Thomas v Thomas 1948 SC (HL) 1, 54-55]."

[13] In Mallon v General Medical Council 2007 SC 426 the Second Division of this court had to consider inter alia the question of the entitlement of the Fitness to Practise Panel of the General Medical Council to make a finding that the appellant was guilty of serious professional misconduct. In delivering the opinion of the court, Lord Justice-Clerk Gill said:

"Serious professional misconduct

[18] ... In view of the infinite varieties of professional misconduct, and the infinite range of circumstances in which it can occur, it is better, in our opinion, not to pursue a definitional chimera. The decision in every case as to whether the misconduct is serious has to be made by the panel in the exercise of its own skilled judgment on the facts and circumstances and in the light of the evidence (Roylance v General Medical Council (No. 2) [2001] 1 AC 311, Lord Clyde, p.330f; Preiss v General Medical Council, Lord Cooke of Thorndon, para 28). Misconduct that the panel might otherwise consider to be serious may be held not to be in the special circumstances of the case (R (Campbell) v General Medical Council [2005] 1 WLR 3488, Judge L.J. para 19).

Powers of the Appellate Court

[19] Counsel agree that we have to apply the test set out in McMahon v Council of the Law Society of Scotland 2002 SC 475, (paras [13]-[16]; that is to say, we should look at the decision of the panel in the light of the whole circumstances of the case, always having due respect for the expertise of the panel and giving to its decision such weight as we should think appropriate. However, as the court observed in that case (para [16]), in following this approach it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist tribunals in appeals of this kind. When invited to disturb a finding of serious professional misconduct, we have to defer to the judgment of the panel to whatever extent is appropriate in the circumstances (Meadow v General Medical Council [2006] EWCA Civ 1390, Auld LJ, para [197]). In applying this agreed test we are entitled to substitute our own judgment on the facts for that of the panel; but whether such interference on our part is justified will often depend, in our view, on the nature of the misconduct. We have to take a similar approach to the question of penalty. As was conceded by the respondent in Ghosh v General Medical Council, it is open to the court on that question to consider all the matters raised by the appellant, to decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate, and in the latter case either to substitute some other penalty or to remit the case to the panel for reconsideration (para 34).

[20] The spectrum of serious professional misconduct can range from conduct that is entirely non-clinical, such as defrauding the National Health Service or sexually harassing an employee or colleague, to conduct in the course of clinical practice, such as the carrying out of a reckless surgical procedure. In a case of the former kind, a court might conclude that there was little to inhibit it from substituting its own judgment for that of the panel if it should have cause to differ from it. In a case of the latter kind, which involves a technical question of medical malpractice, the court is, we think, at a serious disadvantage to the panel whose decision is impugned."

[14] Finally, on the question of sanction, reference may be made to a recent decision of an Extra Division of this court, Graham v Nursing and Midwifery Council 2008 SC 659, in which the same statutory provisions were applicable as they are in the present case. At paragraphs 11 to 14 Lord Wheatley, in delivering the opinion of the court, said:

"[11] ... [I]n particular it is clear from the terms of sec.12 [of the 1997 Act] that the appellant's right of appeal is unrestricted, and is not confined to supposed errors of law on the part of the committee, but in effect can amount to a rehearing before the appellate court. In practice, the options on disposal available to the committee in the present case were to make no order, to issue the appellant with a caution, or to remove the appellant's name from the Nursing Register, with or without specification of time.

[12] The starting point, in considering an appeal of this kind, is to recognise that the appellate court will generally be reluctant to interfere with a decision made by a professional conduct committee. That reluctance will be particularly marked when the subject of the appeal is restricted to the question of the sanction imposed. It has long been accepted that a professional conduct committee will possess particular qualities of relevant experience and expertise and will normally be in a position to determine what is the appropriate disposal. To such experience proper regard should be paid, and also to the professional conduct committee's view as to what is required in the way of the protection of the public and the reputation of the profession. Accordingly, the appeal court should not interfere with the decision of a professional conduct committee if it comes to the view that another disposal might in the circumstances have been preferable, or that, given a free hand, it would have imposed a different penalty. It is well settled that the appropriate test which must be applied in an appeal of this kind if the disposal is to be set aside is that the penalty imposed can properly be described as excessive and disproportionate in all the circumstances of the case (see Ghosh v General Medical Council, para 34).

[13] Against that background it is necessary to consider the purposes of disposal, following a determination by a professional conduct committee, particularly in the case of health care professionals. These purposes will in broad terms include consideration of matters such as the punishment of the practitioner, the protection of the public, and protection of the reputation of the profession (see Gupta v General Medical Council, per Lord Rodger of Earlsferry, para 21). It is clear from that passage, following the opinion of Sir Thomas Bingham M.R. (as he then was) in Bolton v Law Society [1994] 1 WLR 512, pp 517-519), that the principal purposes of the disposal in a case before a professional conduct committee are concerned with the protection of the public, and the protection of the reputation of the profession. The need to impose punishment on the individual practitioner is, comparatively, of lesser importance. One consequence of this is that matters personal to the practitioner which would normally be prayed in aid in mitigation of sanction have less significance than in other forms of disposal.

[14] The question which arises before us in this appeal therefore is whether, having regard to the overarching need to protect the public and the reputation of the nursing profession, and to a much lesser extent the need to impose some appropriate measure of punishment on the offender, the disposal selected by the committee in the present case can in all the circumstances be described as excessive and disproportionate ..."

[15] On the basis of these authorities, counsel for the appellant submitted that this appeal is a rehearing and is not restricted to errors of law, although he recognised that he still had to demonstrate that the Conduct Committee had fallen into error. He accepted also that the advantage that the Conduct Committee had in seeing and hearing the witnesses must be kept in mind. Nevertheless, he submitted that it was open to this court to conclude, on the basis of the transcript of evidence, that the Conduct Committee had demonstrably fallen into error on important matters of fact. On the question whether a finding of serious professional misconduct was justified, counsel recognised that this court ought to pay appropriate respect to the expertise of the Conduct Committee, but only so far as was warranted. While the court might consider itself to be in some difficulty where the question was one of medical or nursing practice, it should not feel so constrained where the question whether there was serious professional misconduct turned, not on questions of practice, but on primary facts. Similar considerations arose, he submitted, in respect of an appeal against sanction. Moreover, an appellant must demonstrate that the sanction was excessive and disproportionate in all the circumstances.

[16] Counsel for the Council accepted that this court's jurisdiction is appellate, not supervisory. He submitted however that it was incumbent on the appellant to demonstrate some error in the proceedings in order to open the door to the appeal. In considering matters of fact, it was not for this court to interfere, unless the reasons given by the Conduct Committee were not satisfactory, or it unmistakably appeared from the transcript that they had not taken proper advantage of having seen and heard the witnesses. The reasoning of the Conduct Committee should not be scrutinised unduly strictly, given the nature of the statutory procedure under which the Conduct Committee functioned. Whilst submitting that the court ought to show the appropriate measure of respect or deference to a judgment of the Conduct Committee on questions of professional misconduct, counsel accepted that it was open to this court to reconsider all the matters raised in the appeal. Counsel further submitted that, in considering the question of sanction, this court should also show deference. Sanction was primarily, but not exclusively, concerned with the protection of the public and the protection of the reputation of the profession and should only be interfered with if the penalty which was imposed was excessive and disproportionate, bearing in mind that it was imposed by a body composed of the appellant's professional peers. Counsel submitted that the punishment component of the sanction might be seen to carry greater weight when there had been no criminal proceedings. Suspension, or striking-off for a specified period, allowed the practitioner time for contemplation on the improvement of her performance in the future. Striking-off simpliciter allowed for contemplation of a longer period.

[17] It can be seen from the two preceding paragraphs that there was little difference between counsel on the question how this court should approach its task. Such difference as there was was one of emphasis. We shall take account of their submissions when we come to consider the issues in this appeal.

Delay

[18] We were addressed at some length on the question of delay, a topic which we think it appropriate to consider at this point. This arises from the chronology in the present case. We shall outline this first. As already indicated, the appellant was employed at Forebank Care Home between July 2002 and June 2003. Thereafter she obtained employment as manager of Rose House Nursing Home, also in Dundee. The date when she obtained this employment is not clear, but the papers before us include a reference relating to the appellant dated 27 August 2003 given by Alan McDonald, manager of Forebank Care Home, the terms of which, while not entirely positive, were clearly regarded as satisfactory by her employers at Rose House Nursing Home.

[19] On 2 October 2003 the Council received a complaint by Heather Alison, the appellant's former colleague at Forebank Care Home. It appears that about the same time Heather Alison complained to the Care Commission about the fact that the appellant had obtained employment at Rose House Nursing Home. On 24 March 2004 officers of the Care Commission visited Rose House Nursing Home to carry out investigations there. By letter dated 19 May 2004 the Care Commission set out its conclusions. The officers could not find evidence which supported the concerns raised by the complainant about the recruitment procedure at Rose House Nursing Home, and about the disclosure by the appellant of her previous employment history. The letter stated that the owner of Rose House Nursing Home did not express any concerns about the appellant's current practice. The letter also recorded that contact was made by the Care Commission with the Council who could not find any record of a pending investigation about the appellant's practice.

[20] The Council had, as already stated, in fact received a complaint by Heather Alison. Counsel for the Council told us that the only explanation for inaction meantime was that there had been staff changes. It was not until 29 September 2004 that a case officer of the Council sent to the appellant a summary of the allegations and the other information required by rule 8 of the Conduct Rules. On 2 August 2005 the appellant was informed that the matter was to be put before the Preliminary Proceedings Committee. On 16 September 2005 a notice of proceedings was sent to the appellant, along with the other information required by rule 9. The appellant provided a written response on 13 October 2005. On 15 October 2005 the Preliminary Proceedings Committee considered the matter, and on 20 October 2005 the appellant was informed that it would now be referred to the Conduct Committee.

[21] It would appear that between September 2004 and September 2005 investigation of the allegations was being carried out by solicitors on behalf of the Council. Statements were taken from seven witnesses, and some documents were obtained. The investigation led to the charges set out below, relating to eight patients, identified by letters A to H. Counsel for the Council submitted that this was a relatively elaborate investigation. Consideration of the transcript of evidence and the other papers before us does not persuade us that it was any more elaborate than the many routine investigations in both civil and criminal cases of which we have had experience. In any event, it was not complete. Despite information that patients' records were kept in the archives of Forebank Care Home, the records (referred to as "care plans") of patients C, D and H were not before the Conduct Committee. No clear explanation was given as to why this was so. Counsel who appeared for the Council before the Conduct Committee was unable to give a detailed account of the steps which had been taken to obtain the records. She accepted that, if necessary, steps could have been taken to obtain a commission and diligence for recovery of the records, if need be under compulsion. She attempted to rely on rule 25 (1) of the Conduct Rules, quoted above at paragraph [8], with a view to inviting the Conduct Committee to receive hearsay evidence of the contents of records which were not before it, having regard to the alleged difficulty or expense of obtaining the records. The Conduct Committee did not accept this approach, and the absence of records was reflected in some aspects of its decision.

[22] The next contact with the appellant was on 6 February 2007, when her representatives were advised that there was to be a two-day hearing before the Conduct Committee in March 2007. Thereafter discussion about the dates for the hearing led to a notice of inquiry in terms of rule 13 of the Conduct Rules being sent to the appellant on 18 May 2007. The hearing commenced on 18 June 2007 and, after various adjournments, was concluded on 9 November 2007. It can be seen from this chronology that more than four years elapsed between the receipt of Heather Alison's complaint and the final determination of the proceedings against the appellant; and more than three years between the intimation in terms of rule 8 and the final determination.

[23] Article 6 of the European Convention on Human Rights provides inter alia that in the determination of her civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time. Counsel for the appellant submitted that the Council were a public body within the meaning of the Human Rights Act 1998, and accordingly, in terms of section 8 thereof, it was open to this court to grant such relief or remedy as it considered just and appropriate for the breach of the appellant's Article 6 rights arising from the delay. In support of his submissions, counsel referred to Dyer v Watson 2002 SC (PC) 89, per Lord Bingham of Cornhill at paragraphs 52-55, Council of the Law Society of Scotland v Hall 2002 SC 620, Haikel v General Medical Council [2002] UKPC 37 and Selvarajan v General Medical Council [2008] EWHC 182 (Admin).

[24] In Haikel v General Medical Council Sir Philip Otton, in delivering the judgment of the Board, said at paragraphs 13-14:

"13. In reaching their conclusion, their Lordships recognise that the [Professional Conduct Committee] is a public authority for the purposes of the Human Rights Act and as such must act in a way which is not incompatible with a convention right. The proceedings against a registered practitioner for professional misconduct are hybrid, having the criminal burden and standard of proof and largely, although not exclusively, criminal rules of evidence and procedure, but they also involve a determination of the practitioner's civil rights and obligations. Accordingly they attract the protection of Article 6 (1) (see Ghosh v General Medical Council [2001] 1 WLR 1915).

14. In order to determine whether there has been a breach of the right to a hearing within a reasonable time, it is first necessary to establish the period of time over which the protection of Article 6 (1) applies. It is well established in the jurisprudence of the European Court of Justice [sic] and the Human Rights Act that Article 6 (1) is concerned with procedural delay in the course of the proceedings. It is not concerned with the delay between the commission of the allegedly wrongful actions and the commencement of the proceedings. Hence the material period for consideration is the time during which the administrative and judicial authorities were dealing with the case."

The Board thereafter proceeded on the basis that the relevant period was the time that elapsed between a letter from the General Medical Council to the appellant outlining in general terms the nature of the allegations and the date when the hearing commenced.

[25] There have been different approaches to the question when time starts running for this purpose. In Council of the Law Society of Scotland v Hall it was held that the jurisdiction of the Council was distinct from that of the Scottish Solicitors Discipline Tribunal, that the contestation which was the subject of proceedings before the Tribunal was distinct from any dispute which lay within the power of the Council to deal with, and that the date by reference to which it fell to be decided whether a reasonable time had elapsed was the date when the Council made the complaint to the Tribunal. On the other hand, in Selvarajan v General Medical Council it was accepted that the relevant starting date was the date when the appellant was informed that the information supplied by the health authority would be referred to the Preliminary Proceedings Committee of the GMC to consider disciplinary charges. Reference was also made, in a criminal context, to Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72, in which it was held that, as a general rule, the relevant period for the purposes of Article 6 will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him.

[26] Applying these cases to the procedure which was followed in the present case, counsel for the appellant submitted that the starting point was 29 September 2004, when the rule 8 intimation was sent to the appellant, while counsel for the Council submitted that it was 16 September 2005, when the rule 9 intimation was sent to her. In our opinion the earlier date is preferable. This is because that was the point at which the appellant was first made aware that an allegation of misconduct had been received which the Council's officer considered might lead to removal from the register, and the procedure which might lead to that result was thereby triggered. In any event, even if the later date is taken as the starting point, the effect of the passage of time thereafter must, as counsel for the Council accepted, be considered in the context of all that has gone before.

[27] Counsel for the appellant submitted that, once the period had been identified, the question was whether it gave real cause for concern (see Dyer v Watson) accepting that the threshold for the appellant to succeed was a high one. Prejudice to the appellant, though not required, might be relevant to determination of the question whether the period was unreasonable. If there was real cause for concern, it was necessary to consider the available information about the complexity of the case and the conduct of the parties. Although the point had not been taken before the Conduct Committee, counsel submitted that where delay had caused unfairness in the consideration of the charges against the appellant, the court ought to quash the findings of guilt; or in any event, it ought to reduce the sanction. In the present case, he submitted, these requirements were satisfied. This was particularly so as the appellant had obtained employment at Rose House Nursing Home and had worked there without criticism, despite the Care Commission investigation. Moreover, she had undertaken further training and in December 2006 had obtained a certificate in the Safe Handling of Medicines from Aberdeen College.

[28] We shall consider the significance of the passage of time more fully in due course; but in our view the cases referred to serve at the least to reinforce the observations we have already made about the caution to be exercised in considering uncorroborated evidence given by witnesses whose recollection may have been affected by the passage of time and in the absence of contemporaneous records.

The decisions appealed against

[29] We now turn to the decision of the Conduct Committee which is the subject of this appeal. As communicated in writing on 19 November 2007, it was in inter alia the following terms:

"Committee Decisions

·       To amend the charges as contained in the Notice of Inquiry as follows:

Whilst employed between July 2002 and June 2003 as a Deputy Manager at Forebank Care Home:

1a Between approximately October 2002 and June 2003 you failed to ensure that residents in the 'downstairs' area of the care home had adequate supplies of prescription medications, including more particularly:

i) in or around June 2003 you failed to ensure that Patient C had an adequate supply of Frusemide medication;

ii) you failed to carry out audits of drug stocks for the 'downstairs' area;

iii) you failed to ensure that appropriate actions were taken when the residents' drug supply ran out despite being informed by Staff Nurse Halkett that supplies had run out;

iv) you failed to ensure that Patient A's GP was notified that he was not receiving medication for cardiac failure and hypertension.

b having so failed to ensure that residents in the 'downstairs' area of the care home had adequate supplies of prescription medications you are guilty of misconduct;

2a you failed to ensure that Patient B received an appropriate level of care, including more particularly:

i) you instructed staff not to use Thick N Easy (TNE) in Patient B's fluids despite

a) it being prescribed by the Speech and Language Therapist;

b) being advised by Staff Nurse Kirsten Halkett that Patient B risked aspirating fluids without Thick N Easy.

ii) you failed to ensure that your reasons for withholding TNE were adequately documented in Patient B's records;

iii) you withheld aperients prescribed for Patient B;

iv) you failed to ensure that your reasons for withholding the medication were adequately documented in Patient B's records

b having so failed to ensure that Patient B received an appropriate level of care you are guilty of misconduct;

3a between 18 June 2003 and 20 June 2003 you failed to ensure that Patient C received appropriate care in respect of her leg ulcers, including more particularly:

i) you failed to ensure that the leg ulcers were appropriately dressed;

ii) you failed to follow the wound care instructions which were documented in Patient C's care plan;

iii) you failed to document your reasons for deviating from the agreed care plan in respect of the leg ulcers;

b having so failed to ensure that Patient C received appropriate care in respect of her leg ulcers you are guilty of misconduct;

4a on an unknown date you failed to ensure that patient D received appropriate care when she had received a head wound;

b having so failed to ensure that patient D received appropriate care when she had received a head wound you are guilty of misconduct;

5a on various unknown dates you failed to follow the plan of care of Patient E and Patient F in that:

i) you refused to nurse Patient E and Patient F on a mattress on the floor;

ii) you subsequently continued to refuse to have Patient E and Patient F nursed on the floor despite Patient E (or F) having fallen out of bed on two occasions;

b having so failed to follow the plan of care of Patient E and Patient F you are guilty of misconduct;

6a you failed to work co-operatively with other members of the team, including more particularly:

i) you failed to consider the treatment options discussed by Charge Nurse Fiona Campbell-Stones in relation to Patient C when this patient was grossly fluid overloaded;

ii) you failed to consult with the staff involved in the care of Patient E and Patient F prior to deciding that these patients would not be nursed on the floor;

iii) you failed to consider the opinion of Senior Carer Pat Tole in relation to her concerns about Patient G;

iv) you failed to ensure that Patient H was properly assessed following concerns raised by Senior Carer Pat Tole in relation to Patient H;

b having so failed to work co-operatively with other members of the team you are guilty of misconduct.

·       That the facts alleged in charges 2a(i)a & b(ii), 3a(ii)(iii) and 6a(iii) were not proved to the committee's satisfaction. Therefore you are not guilty of misconduct in relation to the matters raised in charges 2a(i)a & b(ii), 3a(ii)(iii) and 6a(iii).

·       That the facts alleged in charges 1 a (i)(ii)(iii)(iv), 2a (iii)(iv), 3a(i), 4a 5a(i)(ii) and 6a(i)(ii)(iv) were proved.

·       That, in relation to the facts found proved in charges 2a (iii), 5a (i) and 6a (i), you are not guilty of misconduct.

·       That, in relation to the facts found proved in charges 1 (i)(ii)(iii)(iv), 2(iv), 3(i), 4, 5(ii), 6 (ii)(iv), you are guilty of misconduct.

·       To instruct the Registrar to remove your name from the register.

·       Removal should not be for a specified period of time.

Reasons

The committee's reasons for this decision are:

It is easy for a nurse who is removed from the Register to conclude that we have deemed her to be a bad person, but let us reassure you that this is not the case. We are not here to punish nurses. Our only interest is in public protection. You have been found guilty of a series of serious charges, 10 in all, over an 11-month period, many of which resulted in direct harm to patients.

We have, of course, taken into account your previous good history, the acceptable references you presented, and some relevant training that you have undertaken since these incidents. We also take on board the fact that you have attended these proceedings over 9 days, and that in itself must have been exceedingly stressful for you. All of this is commendable. However, we cannot overlook our public protection role. Your actions affected the health and wellbeing of seven vulnerable patients, they were not isolated incidents and they demonstrated fundamental failures in your nursing practice. You departed from the NMC's Code of Professional Conduct on numerous occasions and this causes us great concern. The Code states that it is your duty 'to provide safe and effective care' and to 'protect and support the health' of patients. You did not do this and we are left with no option but to remove your name from the Register."

[30] It is clear that the words "That in relation to the facts found proved in charges 1 (i)(ii)(iii)(iv), 2 (iv), 3 (i), 4, 5 (ii), 6 (ii)(iv), you are guilty of misconduct" should read "That, in relation to the facts found proved in charges 1 a(i)(ii)(iii)(iv), 2 a(iv), 3 a(i), 4 a, 5 a(ii), 6 a(ii)(iv), you are guilty of misconduct."

The contested charges

[31] It was on three charges only that the findings of guilt and misconduct were contested before us: charges 3a (i), 5a (ii) and 6a (ii).

Background

[32] At the material time, as well as the Manager Alan McDonald, there were two Deputy Managers at Forebank Care Home, the appellant and Heather Alison. The appellant was in charge of the lower floor and Heather Alison of the upper floor. It is plain from the evidence that there was bad blood between Heather Alison and the appellant, culminating in the complaints made by Heather Alison to the Council and the Care Commission (see paragraph [19] above), and some of the staff took sides. In our opinion, that is a matter that must be taken into account in assessing the quality of the oral evidence and its sufficiency to establish, to a criminal standard, the charges against the appellant leading to her being struck off the nursing register.

[33] Further, it is clear that there were, at the material time, documents in existence setting out (a) the care plan for each patient and (b) the action taken by the nurses and carers in relation to each patient in the course of a shift. None of these documents were produced and no explanation for their absence was given, but parole evidence was allowed to be led, in spite of objection, as to their contents. After Heather Alison had given evidence, a document was produced showing the days and shifts on which the nursing staff (but not the carers) were present on the two floors during the fortnight between Monday 9 and Sunday 22 June 2003. (We refer to this document as the "duty roster".) In the course of Heather Alison's evidence, her letter of complaint to the Council - apparently written (or at any rate received by the Council) more than three months after the material events - was used without objection to establish dates, but objection was taken to any further use of that document. It was not produced to us.

[34] For the reasons we have discussed (see paragraph [10]), the fact that the case proceeded without the best evidence, using Heather Alison's letter of complaint as a guide to material dates, would have been troubling enough, even without the very long and unexplained delay between the incidents that formed the basis of the charges and the hearing. We take this into account in our consideration of the charges that were contested.

Charge 3a (i)

[35] Charge 3 concerned a lady known as patient C who suffered from dementia and had very severe leg ulcers. She was housed on the lower floor of the Care Home. As libelled at the beginning of the hearing before the Conduct Committee, the terms of charge 3a (i) were that "Between 17^th June 2003 and 20^th June 2003 you failed to ensure that patient C received appropriate care in respect of her leg ulcers, including more particularly: (i) you failed to ensure that the leg ulcers were appropriately dressed; ...[emphasis added]" Charges 3a (ii) and (iii) went on to allege that the appellant had failed to follow the wound care instructions in Patient C's care plan, and that she had failed to document her reasons for deviating from the agreed care plan.

[36] The Conduct Committee finally decided that charges 3a (ii) and (iii) could not proceed on the ground that the care plan had not been produced and that the evidence about its precise terms was confused and contradictory.

[37] The duty roster produced after Heather Alison had given evidence showed that, on 17 June 2003 the appellant had the day off. She could not therefore have been responsible for dressing Patient C's legs on that day. At the end of the hearing the charge was amended to read "Between 18^th June 2003 and 20^th June 2003 you failed to ensure ...[emphasis added]". In its final form, the only part of charge 3a that was held to have been proved was the very specific allegation that, on three days - namely Wednesday, Thursday and Friday, 18, 19 and 20 June 2003 - the appellant failed to ensure that Patient C's leg ulcers were appropriately dressed.

[38] The Conduct Committee's findings in relation to charge 3a (i) were as follows:

"[T]he Committee accepted the evidence of Heather Alison, Kirsten Halkett and Pat Tole about the condition of Patient C's legs between the 18^th and 20^th June 2003 and the evidence of Heather Alison that the dressings for Patient C remained untouched between the Tuesday and Friday of that week.

The Committee recognised that the [witnesses] spoke of differences in the type of dressings being used ... but consider that understandable given the passage of time since the events occurred. The Committee found the evidence of the [appellant] on this charge to be unreliable and contradictory."

[39] The duty roster shows that Heather Alison was off duty on Wednesday 18 and Thursday 19 June, and she could not therefore give direct evidence as to the state of Patient C's legs on those days. Her evidence was that on Tuesday 17 June (when the roster shows that she was on duty but the appellant was off duty) dressings which had been requested for Patient C's legs had come in. She "clerked in" the dressings, put them in the cupboard and ordered, or at least set aside, a supply of special bandages and wrote in the care plan how and when they were to be applied. At the end of the week she came downstairs to speak to one of the other nurses and saw that the lady was sitting in the lounge in the corner. The legs were not dressed.

"When I asked the nurse why they weren't dressed she just looked at me blankly, she didn't know anything, what I was referring to really. She was under the impression that they weren't to be dressed. So we took the lady into the treatment room to wash her legs and redress them and when I opened the dressings cupboard the dressings were sitting exactly the same way that I left them, the same numbers that I had clerked in minus the ones that I had used. I think I did it on the Tuesday and that was the Saturday."

After giving this evidence, she was shown her letter of complaint to the Council and agreed that the latter date must have been Friday 20 June, rather than Saturday 21 June. She also said that the care plan she had written was that daily dressings should be put on or as required "because the lady had dementia, her legs were uncomfortable, and she did remove them or try to remove them". She later said that she was "sure" that, on the Wednesday and Thursday, the appellant had been working double shifts and was the only nurse on duty.

[40] Clearly, if the appellant was, as Heather Alison alleged, the only nurse on duty for both shifts on both Wednesday and Thursday, she would have been responsible for dressing Patient C's legs on both days. The duty roster is, however, totally at variance with Heather Alison's evidence. It shows that the appellant did not work a double shift on either the Wednesday or the Thursday, and that there were other nurses on duty on the same shift as the appellant on both days. The appellant had a day off on Tuesday and returned to the late shift on Wednesday. Nurse Robertson and Staff Nurse Halkett, both of whom worked upstairs, and Nurse Campbell-Stones (whose surname by the time of the hearing was Campbell-Mowett; for the sake of clarity we shall use the name by which she was known when she worked at Forebank Care Home), who worked downstairs, had been on early shift that day, while Nurse Binnie, who was not led as a witness, was on late shift with the appellant. On Thursday, the appellant was on early shift, Staff Nurse Halkett was on early shift, Nurse Robertson was on double (early and late) shift, Nurse Binnie was on late shift with the appellant, and Nurse Campbell-Stones was off duty. On Friday, Nurse Robertson and Nurse Binnie were on early shift with the appellant, Nurse Campbell-Stones was again off duty, and Staff Nurse Halkett was on late shift with Heather Alison.

[41] Staff Nurse Halkett's evidence was as follows:

"I don't know if I'd been on days off or holidays but I had not been on the floor for a few days and I recall Heather Alison coming up to me, the other deputy manager, and asking me about Patient C's dressings on her legs. Because I had been off and because I hadn't had a report I knew nothing about this, nothing about the dressings or anything on her legs, and when I looked at her legs ... they were absolutely appalling, when the dressing stuff was there, it could have been done, it should have been done but it wasn't."

In the course of re-examination, the duty roster was produced and put to the witness who agreed in answer to a series of leading questions that she must have been on duty earlier in the week and that she had "hand-over" from the appellant when she started late shift on Friday. In answer to a question from a member of the Conduct Committee she said that the dressings for Patient C were very heavy compression dressings which were very secure and could not be taken off by the patient.

[42] Mrs Tole, a senior carer, was the other witness relied on by the Conduct Committee for proof of charge 3(a)(i). Because she was not a nurse, her name does not appear on the duty roster. Her evidence was as follows:

"[T]he other deputy [Heather Alison] had actually come down a couple of days before I noticed things and she had spent quite a lot of time doing dressings on patient C, and she requested that the dressings be changed on a daily basis. I came on shift and noticed that the dressings hadn't been changed and pointed out [to the appellant] that the dressings were needing changed. ... [The appellant] said that she would get round to doing it. ...As far as I remember she was only on the single shift that day but I was on a long day and it hadn't been done. So I went upstairs to the other area and asked [Heather Alison] if it could be changed. [She] came down and changed them."

She said that, although it had been put in the care plan that the dressings were to be changed on a daily basis, she did not know whether that had been done because she was off for two days. The dressings were "stretch ones" from the bottom of the foot straight up to the knees. She never saw Patient C take off her dressings.

[43] Nurse Campbell-Stones was examined extensively about the bandages on Patient C's legs. However, as noted above, her evidence was not relied on by the Committee. Indeed, it would have been of no assistance as to what was done or not done by the appellant on the three days in question since, as noted above (paragraph [40]), Nurse Campbell-Stones was off duty on Thursday and Friday 19 and 20 June, and had been on early shift on Wednesday 18 June, when the appellant was on late shift.

[44] In that state of the evidence, we do not see how it could possibly be held, on the criminal standard of proof, that on the three days in question the appellant failed to ensure that Patient C received appropriate care in respect of her leg ulcers and in particular failed to ensure that the leg ulcers were appropriately dressed. There was no basis on which the Conduct Committee could "accept the evidence of Heather Alison, Kirsten Halkett and Pat Tole about the condition of Patient C's legs between the 18th and 20th June 2003". At the very most, the evidence of those three witnesses was sufficient to show that, at the time of the hand-over from early to late shift on Friday 20 June, there were no dressings on Patient C's legs. Counsel for the Council urged us to hold that, in the absence of a requirement of corroboration, the evidence of Heather Alison alone was sufficient to establish this charge, but for the reasons discussed above, we cannot accept this submission.

[45] In our opinion, the uncertainties surrounding the state of affairs on the three days in question could have been cleared up by production of the contemporaneous records. In particular, it would have been possible to ascertain whether, and if so for what reason, there was no dressing on Patient C's legs on Friday 20 June. In the absence of those records, and having regard to the long and unexplained delay, we consider that Charge 3a (i) cannot stand and must be dismissed.

Charges 5a (ii) and 6a (ii)

[46] Charges 5a (i) and (ii) and charge 6a (ii) related to a practice, on the lower floor of Forebank Care Home, of putting some patients to sleep overnight on a mattress on the floor rather than on a bed. This was to avoid their injuring themselves by falling or climbing out of bed. The appellant felt that this was degrading for the patients and raised health and safety issues for the staff who had to nurse them on the floor. She felt that the patients concerned were frailer than they had been when the practice was started and were less likely to get out of bed. She therefore proposed to the manager, Mr McDonald, that an attempt should be made to nurse them in bed in the normal way. He said that she should go ahead and try. She therefore instructed that the patients should be nursed in bed rather than on the floor.

[47] It is not disputed that the appellant did not, before giving this instruction, "consult with" the members of the night staff who would be responsible for nursing the patients concerned, in the sense of seeking their views and taking their views into account before giving the instruction that the patients should be nursed in bed. The only direct evidence on this matter, apart from that of the appellant, was from David Mutty, a registered nurse who worked on the night shift. He said that he had expressed concern about the appellant's instruction and that "she listened to my point of view" but did not change the instruction. There was hearsay evidence from Nurse Robertson who worked on the day shift that the night staff had not been consulted. It is clear that there was considerable resistance from other members of staff to nursing these patients in bed, and it seems probable that one of the reasons for that resistance was the additional work involved for members of staff if they had to nurse these patients in bed rather than on the floor.

[48] It is also not disputed that, having been put in a bed overnight with cot sides in place, one (unidentified) patient used to shuffle down to the bottom of her bed and come out of the bottom of her bed onto the floor, but there was no evidence that either Patient E or Patient F had "fallen" out of bed. There was no evidence as to when these events occurred and there was no documentary evidence about them. The appellant's evidence was that these events occurred relatively soon after she went to work at Forebank.

[49] Against that background, it is of some importance to note precisely what was alleged against, and admitted or not admitted by, the appellant, and what it was that was found by the Conduct Committee to constitute misconduct.

[50] Charge 5a - admitted as to fact but not as to misconduct - was that, "on various unknown dates [the appellant] failed to follow the care plan of Patient E and Patient F in that: (i) [she] refused to nurse Patient E and Patient F on a mattress on the floor; (ii) [she] subsequently continued to refuse to have Patient E and Patient F nursed on the floor despite Patient E (or F) having fallen out of bed on two occasions". Charge 6a (ii), which was not admitted, was that "[the appellant] failed to work co-operatively with other members of the team, including more particularly, ... (ii) [she] failed to consult with the staff involved in the care of Patient E and Patient F prior to deciding that these patients would not be nursed on the floor; ...". It was agreed by counsel on both sides that Charge 6a (ii) was logically prior to Charge 5a.

[51] The Conduct Committee's findings of fact as regards Charge 6a (ii) were as follows:

"[T]he Committee believed and accepted the evidence of Liz Robertson and David Mutty that the [appellant] failed to carry out prior consultation with the staff involved in the care of Patients E and F albeit that she may have had the prior approval of the Manager, Mr McDonald".

[52] As regards misconduct, the Conduct Committee held:

"Moving to charge 5a (i) we regard nursing patients on the floor as unnecessary and degrading. The Care Commission flagged this up as a concern and you had discussed it with the home manager. At the time of this incident specialist beds were available that would have dispensed with the need to nurse on the floor, although we recognise that these were unavailable at Forebank Nursing Home. We accept your arguments that it was undignified for patients to be nursed on the floor and that such practices raise serious moving and handling issues for staff and patients and therefore we cannot find that your actions constituted misconduct.

Looking now at charge 5a(ii) here we have found misconduct. Although we think you were right to wish to take patients off the floor for the reasons set out above we are concerned that in taking them off the floor you simply put them back into a situation of risk without introducing sufficient measures to reduce that risk. You talked about using bed rails and introducing more frequent checks but we do not consider these measures to be sufficient. It was quite reasonable to make a clinical judgment not to nurse patients on the floor. However, it then became your responsibility to ensure that any alternative put in place safeguarded patients. By failing to carry out a full risk assessment you did not demonstrate that patient safety was at the fore in your decision making. ....

[As regards charge 6a(ii)] we did find misconduct. We acknowledge that you discussed your decision to move patients off mattresses and into beds with the home manager and he was supportive. However, you failed to discuss it with those who would be providing the care, namely, the night staff. They could have provided a different perspective based on their experience of working with these patients and your failure to consult them was a sign of failure to work co-operatively with colleagues."

[53] Counsel for the appellant contended that, having regard to the delay, uncertainties, and lack of corroboration and documentary support, the evidence was insufficient to support the Conduct Committee's findings of fact on charge 6a (ii) or the findings of misconduct on charges 5a (ii) and 6a (ii). He noted, in particular, the absence of any reference in the charges to the matter of risk assessment relied on in relation to charge 5a (ii). Counsel for the Council urged us, on the other hand, to defer to the professional judgment of the Conduct Committee in assessing the significance of what were, very substantially, admitted facts.

[54] We have considerable reservations about the quality and sufficiency of the factual evidence that was led to support these charges. It was vague, diffuse and unspecific, particularly as to when these events occurred. However, the only formally contested issue of fact was in relation to charge 6a (ii) and on that matter the appellant did not really dispute that she had not consulted the staff before instructing that the patients be nursed in bed.

[55] As regards misconduct, the Conduct Committee itself said that nursing on the floor is "unnecessary and degrading" and, in our view, the situation that the appellant sought to remedy was a serious ground of criticism both of the care home and of the attitude of some members of the staff. We feel that the appellant was given insufficient credit for trying to do something about it. On the other hand, we must accept that the Conduct Committee were entitled to take the view, first, that a change such as that instituted by the appellant should not take place without prior consultation with the staff who have to implement it, and second, that the fact that a patient could wriggle out of bed onto the floor raised an issue of patient safety to which the appellant ought to have given greater consideration.

[56] Confining the findings of misconduct within those limits, we have concluded that we must defer to the professional judgment of the Conduct Committee that misconduct was established. On any view, however, the misconduct was at the lower end of the scale.

[57] It follows that we shall not overturn the Conduct Committee's decision on charges 5a (ii) and 6a (ii). We should add that, since the issue here was one of professional judgment applied to facts that were hardly, if at all, in dispute, the delay in pursuing the case against the appellant would not be a ground for quashing the decision of the Conduct Committee.

Sanction

[58] As a consequence of our decision on the merits of this appeal in relation to charge 3a (i), the issue of the appropriate sanction for the remaining charges is at large for this court: Graham v Nursing and Midwifery Council. The options available to us are the same as were available to the Conduct Committee on disposal of the complaint, namely (i) to make no order, (ii) to issue the appellant with a caution, or (iii) to remove the appellant's name from the Nursing Register, with or without specification of time.

[59] We have already outlined the circumstances of charges 5a (ii) and 6a (ii). We have dealt above (paragraphs [46] to [56]) with charges 5a (ii) and 6a (ii). As we have said, we consider that the misconduct that was held to have been established was at the lower end of the scale. The remaining part of charge 6 which the Conduct Committee found established and upon which they relied for their conclusion that the appellant was guilty of misconduct is charge 6a (iv). This charge involved a failure on the part of the appellant to ensure that patient H was properly assessed following concerns raised by a senior carer in relation to that patient. In her evidence before the Conduct Committee the appellant accepted that the senior carer had expressed concern to the appellant about the condition of this patient and wished her admitted to hospital. The appellant decided that it was appropriate to put the patient to bed and obtain a urine sample to be tested by Multistix as it was suspected that the patient might have a urinary tract infection. Patient H was put to bed after lunch and her catheter bag was changed. However the appellant did not take a urine sample for testing at that time but she passed responsibility for taking the urine sample to the later shift which was due to commence. On the evidence the Conduct Committee considered that the taking of a urine sample was an important part of the proper assessment of patient H given her past history. They accepted the appellant's evidence and that of Heather Alison that a urine sample was not taken in the course of the early shift and considered that there had been ample time and opportunity to do so during that shift. Following the intimation of the Conduct Committee's conclusion on the facts of charge 6a (iv) the appellant admitted that those findings amounted to misconduct.

[60] Charges 1a (i) to (iv) inclusive resulted from omissions to take appropriate action to ensure that patients had adequate supplies of prescription medication. At the commencement of the hearing before the Conduct Committee the appellant admitted the facts in charges 1a (ii) and (iv) and after hearing evidence the Conduct Committee found charges 1a (i) and (iii) proved. Charges 1a (ii) and (iv) are self-explanatory and arose from the appellant's managerial duties. From the transcript of the evidence it appears that the appellant, in her capacity as a deputy manager at Forebank Care Home, had overall responsibility for checking the supply of prescription drugs and for ensuring that drugs were ordered as required for the patients in the downstairs area of the home.

[61] Charge 1a (i) related to patient C, who had oedematous legs, the tissues of which had broken down and were secreting quite badly. Frusemide had been prescribed in an effort to remove fluid from her. Her Frusemide ran out and was allowed to be out of stock for a few days. The Conduct Committee accepted the evidence of Staff Nurse Halkett and Nurse Campbell-Stones that the Frusemide medication for patient C was out of stock for a number of days in or around June 2003. Patient C was a downstairs patient and the Conduct Committee concluded that the appellant was on duty in June 2003 and in any case they found that the appellant had the ultimate responsibility for adequate supplies of medication being ordered and stocked. Following the finding that charge 1a (i) had been proved the appellant admitted that amounted to misconduct. In making a finding of misconduct in respect of this charge the Conduct Committee observed that Frusemide was an important drug for this patient and the lack of supplies led to unnecessary suffering for her. They concluded that the appellant had a double duty to ensure that there was an adequate supply both as a nurse on duty and as deputy manager with responsibility for the downstairs area of the home.

[62] Charge 1a (iii) related to the appellant's failure to take action when she was told by Staff Nurse Halkett that supplies had run out. It appears from the evidence of Staff Nurse Halkett that any nurse could order such medication, although the deputy manager had responsibility for "chasing up" a monthly order of such drugs. It is also clear from her evidence that the system of working within the home adversely affected the continuity of care for the residents and the ordering and administration of prescribed medication. The Conduct Committee accepted the evidence of Staff Nurse Halkett that she advised the appellant that the supply of drugs for at least two residents had run out. They concluded that, irrespective of whether Staff Nurse Halkett could or should have re-ordered those drugs herself, it was the appellant's duty, as the person with ultimate responsibility, to ensure that appropriate action was taken as soon as she had been advised that any drug was running out. Accordingly they found that this charge was proved. In concluding that this amounted to misconduct they observed that parts (ii) and (iii) were similar to part (i) of charge 1a in that the appellant "had a management duty to take responsibility for the drug monitoring and ordering in the downstairs area ". They also stated:

"Whether or not this was set out in your job description, you were the duty manager with the ultimate responsibility for the downstairs area and for ensuring that it ran smoothly. In that leadership role you had the responsibility to resolve problems once you were aware of them."

[63] Charge 2a (iv) relates to the appellant's failure to record reasons for a nursing decision taken by her in respect of patient B. We note that the Conduct Committee concluded that although the appellant had withheld aperients prescribed for patient B they did not consider that amounted to professional misconduct. The Conduct Committee were satisfied that the appellant's decision to withhold the aperients was justified in terms of nursing practice. The sole basis for the finding of misconduct on charge 2a (iv) was that the appellant failed to ensure that her reasons for withholding that medication were "adequately documented" in patient B's records. At the commencement of the hearing the appellant admitted the facts in this charge but denied that it amounted to misconduct. The Conduct Committee's reason for concluding otherwise was that:

"It is important that clinical decisions are documented to ensure that colleagues know what decisions have been taken and how and why they were reached. This serves to protect patients and to assist colleagues in delivering appropriate care."

They also relied upon the appellant's acceptance that failure to document is serious.

We recognise that full and accurate records are important. However, in this case it seems to us that the failure to record reasons for withholding medication may be less culpable than other failures to make appropriate entries in a patient's records, for example medication that has or has not been administered or significant observations about a patient's condition.

[64] Charge 4 involved a failure to ensure that patient D received appropriate care when she had received a head wound. This patient had sustained a carpet burn on her forehead resulting in a skin flap. The appellant dressed the wound but the patient removed the dressing. The dressing was again applied but subsequently removed by the patient and the wound dried out overnight. The treatment administered by the appellant was not the optimum environment for healing wounds.

[65] We agree with the submission by counsel for the appellant that the proper approach is to consider each possible course of action open to us in sequence. In that regard Lord Bridge of Harwich, in delivering the opinion of the Board in Taylor v General Medical Council [1990] 2 AC 539 at 546 observed:

"When the committee have....judged that a practitioner has been guilty of serious professional misconduct the effect of rules 30 and 31 is to require them, in deciding what, if any direction to give, to consider each possible course of action open to them in sequence. The steps in the sequence are (1) to give no direction, (2) to direct that the practitioner's registration shall be subject to conditions, (3) to direct supervision, (4) to direct erasure. At each step the committee are to determine 'whether it shall be sufficient' to take that step. Only if they determine that it will not be sufficient are they to proceed to consider the next step."

We respectfully agree with these observations and shall adopt that approach in considering the appropriate sanction in this case, although the courses of action available to us are different than in that case.

[66] During the course of submissions we were provided with a document issued by the Council entitled "Indicative Sanctions for Professional Conduct Committee". The purpose of the document is to provide guidance for use by the Conduct Committee when considering what sanction, if any, to impose on a practitioner following a finding of professional misconduct. In determining the sanction to be imposed on the appellant it is appropriate that we follow such guidance in the interests of consistency of sanctions imposed upon such members of the nursing profession. The first possibility that is canvassed in the guidelines is that the Conduct Committee decides to take no action following a finding of professional misconduct. The guidance provided by the Council is that this sanction "should be very rare because the case has been referred by the Preliminary Proceedings Committee (PPC) with a view to removal of the registrant's name." Nevertheless the guidance recognises that there may be occasions where it is appropriate to take no action but in that event it is important that the reasons for the decision are clear. Applying that guidance and also having regard to the number and nature of the charges resulting in the finding of professional misconduct in this case we do not consider this option is an appropriate sanction.

[67] The guidance document also considers the possible sanctions of removal from the register and a caution and is in the following terms:

"3.3 Remove from the Register - under the current rules all allegations of misconduct are considered as to whether they are sufficiently serious to lead to removal from the Register if proven to the required standard.

Removal from the Register is used when the PCC concludes that this is necessary to protect the public and to maintain public confidence in the nursing, midwifery and health visiting professions.

Criteria for Removal from the Register

3.3.1 This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a nurse, midwife or health visitor and involves any of the following (this list is not exhaustive):

(a)   departure from the relevant standards as set out in the Code of Professional Conduct and/or other of the Council's standards;

(b)   doing harm to others (patients, clients or others), either deliberately or through unsafe practice and particularly where there is a continuing risk to patients/clients;

(c)   abuse of position/trust, particularly involving patients, clients or other vulnerable groups or gross violation of their rights;

(d)   dishonesty, especially where persistent and/or covered up; and

(e)   the reputation of the Council would be undermined if the person is not removed.

3.4 Caution - this sanction can only be applied under the current rules if misconduct is proven but the PCC deems that there is sufficient mitigation to render a caution appropriate. The caution applies to the registrant's future conduct and remains against his/her name for a period of five years. It can be drawn to the attention of any person making enquiries of the practitioner's registration, or to any future committee considering fresh allegations within the five year period.

Criteria for a caution

3.4.1 Following a finding of misconduct this sanction may be appropriate where most of the following factors are present (this list is not exhaustive);

(a)   evidence that behaviour would not have caused direct or indirect harm to patients/clients;

(b)   relevant and appropriate references and testimonials;

(c)   isolated incident which was not deliberate;

(d)   registrant has insight into failings;

(e)   genuine expressions of regret/apologies;

(f)     acting under duress;

(g)   previous good history;

(h)   rehabilitative/corrective steps have been taken; and

(i)     no repetition of behaviour since the incident."

[68] In applying the above criteria to the present case we recognise that there are a number of factors present which are listed in the criteria for a caution. First there is the previous good history of the appellant. At the date of the hearing she had been a qualified nurse for 30 years and after leaving Forebank Care Home she became Deputy Matron at Rose House Nursing Home. Second, the appellant has insight into her failings. Despite having been appointed as Deputy Matron of Rose House Nursing Home in 2003 she voluntarily took a demoted post as a staff nurse in 2007 when she was advised that there was to be a hearing before the Conduct Committee. Third, she had taken rehabilitative and corrective steps in the three year period from 2004. She attended a 12-week infection control course in 2004, a palliative care study day in 2005, appraisal training in 2007, a self study of Thick N Easy in July 2007 and at the date of the hearing she was doing a 12-week risk assessment course. In October 2006 she obtained a certificate in Safe Handling of Medicines from Aberdeen College. Fourth, it was apparent before us that she genuinely regretted what had occurred. Finally, relevant and appropriate references and testimonials were placed before the Conduct Committee. As we have already observed, when she applied for a post as Deputy Matron at Rose House Nursing Home in 2003 one of the references was from Alan McDonald the manager of Forebank Care Home. More significant were the references of later date from members of her profession commenting favourably on her professional skills. Despite these favourable factors we note that the Conduct Committee concluded that the lack of Frusemide caused patient C unnecessary suffering. Accordingly we have reached the view that a caution would not be appropriate in this case having regard to the need to maintain public trust and confidence in the professions of nursing, midwifery and health visiting and in the Council to fulfil its remit for public protection. In all the circumstances we have concluded that the only appropriate sanction in this case is removal from the register.

[69] The sole remaining issue for our determination is whether the removal of the appellant's name from the register should be with or without specification of time. Counsel for the Council invited us not to impose a restriction on the period during which the appellant's name should be removed from the register on the basis that the appellant could re-apply for reinstatement to the register. On such application the Council would consider all relevant material and on that basis would decide whether it was appropriate for reinstatement. We were not persuaded that this was an appropriate course of action in this case because we were advised that the appellant had written to the Council seeking information about reinstatement but had received no acknowledgement of her letter. Furthermore three reminders relating to her request for information about readmission to the register were not acknowledged by the Council. Although we were advised that the Council had no record of having received these letters, it appears to us that this was a continuation of the Council's administrative delays in dealing with the original complaint. We have therefore little confidence that the Council would deal expeditiously with any application for reinstatement. In any event it seems to us that the delay in dealing with this complaint has resulted in unnecessary anxiety for the appellant and it is appropriate that we should take that into consideration in determining the appropriate penalty.

[70] Some of the charges arose because of management failures on the part of the appellant, but we consider that in assessing those failures it is relevant to have regard to the culture in Forebank Care Home. We consider that the appellant's omissions were partly the result of her poor management skills in the context of an unsatisfactory management system within the home generally. It is also clear that other nurses working within the home could have ordered medication as a matter of urgency where supplies of a particular prescribed drug had run out but did not do so. As we have observed the appellant subsequently recognised her limitations as a manager and voluntarily took steps to avoid any recurrence of these or similar failures on her part. Moreover the difficulties experienced by the appellant at Forebank Care Home appear to have been occasioned, at least in part, by the antipathy towards her by other members of staff. In June 2003 she consulted her general practitioner in relation to depression and work-related stress and she was prescribed anti-depressants for one month. At least some of the charges relate to that period of time. It also seems to us to be significant that there was no recurrence of her depression and work related stress after she moved from Forebank Care Home and thereafter her health improved. She continued to work as a nurse for more than four years after the date of the incidents resulting in the complaints against her. During that period there was no issue about her professional abilities or her conduct and references were submitted to the Conduct Committee in support of her qualities as a nurse. As we have observed, the officers of the Care Commission did not find any evidence to support Heather Alison's complaints and they reported that the owner of Rose House Nursing Home did not express any concerns about the appellant's practice in 2004 (see paragraph [19] above). When she was advised of the intention to have a hearing before the Conduct Committee she voluntarily downgraded her status from a managerial position to that of staff nurse. Following her removal from the register she has continued to work in a care home as a care assistant. As already noted she attended various courses and obtained a certificate in Safe Handling of Medicines. She has shown remorse and an insight into her previous conduct. In all the circumstances we consider that it is appropriate to impose a limitation upon the period of her removal from the register and we have concluded that the appropriate period is 21 months from 9 November 2007.

Result

[71] For the foregoing reasons we shall allow the appeal to the extent of amending the decision as follows: (1) by inserting "(i)" between "3a" and "(ii)" in the charges specified in the decision where the facts were not proved to the Conduct Committee's satisfaction (the first bullet point); (2) by deleting "3a (i)" from the list of charges in which the facts were proved (the second bullet point); (3) by deleting "3(i)" (sic) from the Conduct Committee's finding of misconduct (the fourth bullet point); (4) by inserting the words "for 21 months from 9 November 2007" after the words "To instruct the Registrar to remove your name from the Register" (the fifth bullet point); and (5) by deleting the phrase "Removal should not be for a specified period of time" (the sixth bullet point).