Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 85

P1195/14

OPINION OF LADY STACEY

In the petition of

KIRSTEEN STEWART

Petitioner;

for interdict

Petitioner:  Forsyth;  Campbell Smith

Respondent:  Stuart;  Nursing and Midwifery Council

25 June 2015

[1]        The petitioner is Mrs Kirsteen Stewart who is a midwife.  She seeks to reduce a decision of the Investigating Committee of the Nursing and Midwifery Council (the respondents) made 24 July 2014 and intimated to her by letter dated 25 July 2014.  The decision is to refer the petitioner to the respondents’ Conduct and Competence Committee in respect of certain allegations made about her fitness to practise.  She also seeks to interdict the respondent from taking any steps to convene a conduct hearing pursuant to that decision.  A motion for interdict ad interim was made on 3 December 2014 and dropped in light of an undertaking given by counsel for the respondents that they would not seek to fix a hearing during the subsistence of this judicial review. 

[2]        The respondents are responsible for regulating and supervising the fitness to practise of nurses and midwives registered with them under the Nursing and Midwifery Order 2001 (the order).  The Nursing and Midwifery Council (Fitness to Practice) Rules 2004 was made under the order hereinafter referred to as ‘the Rules’. The respondent is a body corporate.  Provision is made for the registration of nurses and midwives.  Its principal function is to establish from time to time the standards of education, training, conduct and performance for nurses and midwifes and to ensure the maintenance of those standards.  The main objective of the respondents in exercising its functions is to safeguard the health or wellbeing of persons using or needing the services of its registrants.

[3]        Part V of the order concerns fitness to practise.  Article 21(1) (b) is in the following terms:  “[the Council shall] establish and keep under review effective arrangements to protect the public from persons whose fitness to practise is impaired.”  Article 22 provides that if an allegation of impaired fitness to practise is made, the Council of the respondents will refer the allegation to an Investigating Committee.  Article 26 provides that the Investigating Committee shall investigate any allegation referred to it. Further it shall notify the person complained of and invite a response;  may notify the person making the allegations of the representations made by the registrant and invite him to deal with points raised;  shall take such steps as are reasonably practicable to obtain as much information as possible; shall consider whether there is a case to answer; if it concludes that in its opinion there is a case to answer, it shall refer the case to the Conduct and Competence Committee. 

[4]        The Conduct and Competence Committee has power under the order to hear allegations.  It may decide that an allegation is or is not well founded.  Its powers if it finds an allegation to be well founded include making an order directing the registrar to strike off the registrant.

[5]        Thus the Investigating Committee has a duty to investigate allegations;  in order to do so it is required to notify the registrant and invite representations;  it may seek the originator’s comments on those representations.  It is required to take such steps as are reasonably practicable to obtain as much information as possible about the case.  The issue raised by the petitioner concerns the duty last mentioned, and it concerns delay.

[6]        Allegations were made against the pursuer and following an investigation by an investigation committee the committee decided that there was a case to answer and referred the matter to the Conduct and Competence Committee.  That is the decision of 24 July 2014 which the petitioner seeks to reduce.

[7]        The respondents have power to suspend a registrant while investigations are carried out.  In terms of article 31 the Practice Committee may order suspension of a registrant against whom allegations have been made.  Once that suspension has lasted for 18 months it is necessary to seek a continuation, if required, from the court.  

[8]        The matter has a considerable history.  In March 2010 the petitioner was working as a midwife when concerns were raised about a case in which she was involved.  The employers suspended the petitioner from their employment on 17 March 2010.  On 15 April 2010 the petitioner’s employers, NHS Grampian, referred the matter to the respondents. The respondents, acting under the order and rules, suspended the petitioner from registration ad interim.  The respondents sought several extensions.  The petitioner opposed an extension sought on 15 November 2011.  She tendered a report to the court by Professor Kevin Dalton, in which he stated that he found no credible evidence against her.  An extension was granted until 9 February 2012 when a further extension was sought.  In explanation of the delay, the respondents explained that they had delayed investigation during the currency of a police enquiry.  On a further application for an extension of the suspension in October 2012, Lord Doherty was advised that the Crown had decided not to prosecute on the information available to it. His Lordship indicated that the respondent should give priority to this case and that any further application by them for an extension would require demonstration that they had made every effort to expedite the conclusion of the investigation. 

[9]        In October 2012 the Crown made available to the respondents all witness statements taken during the Crown investigation.  These included one from Dr Mathers, an independent consultant obstetrician.  The respondents decided that they required a report from him, and as recommend by Dr Mathers a report from a medical statistician.  Accordingly the respondents instructed Professor Campbell.

[10]      The respondents continued to seek extensions of the suspension from the court.  Due to the length of time which the investigation appeared to take, the court sought information from the respondents.  It transpired that both Dr Mathers and Professor Campbell gave opinions which were to the effect that they needed more information.  Dr Mathers was of the view that the circumstances were suspicious, but he needed more information.

[11]      Put shortly the petitioner’s position is that the respondents did not supply the further information sought and that by failing to do so, they have failed in their duty to take all reasonably practicable steps to get as much information as possible.  She argues that the case needs statistical evidence, and that by changing its position on that, the respondents have acted unreasonably.

[12]      The case called before Lady Wise on 9 December 2013.  The court noted that the petitioner had not worked since April 2010 and had been suspended since 22 June 2010. (The dates do not accord with those in the petition but nothing turns on that.)  The court had granted six extensions of the suspension.  Lady Wise found that the respondents had taken a very relaxed approach to the investigation.  They had been represented before her on 6 December 2013 but had brought no material detailing the specific allegations made and nature of the evidence available; the court granted a short continuation.  At the hearing on 9 December 2013 specific allegations were available and the court was told that there was no eyewitness evidence, no toxicological evidence and no statistical evidence.  The respondents’ case, if taken before the Conduct and Competence Committee , would rest on expert opinion applied to the known facts of the labour of up to 20 separate patients. The respondents advised the court that they had had a statement from Dr Mathers since at least October 2012.  He had given a statement to police some time before that.  Despite the earlier delays in progressing with the case, the respondents had not instructed a formal expert opinion from Dr Mathers until August 2013.  That report was not available but could be drafted within days.  Lady Wise, reluctantly, decided that given the gravity of the allegations she was prepared to allow the respondents a short time to decide whether or not they had a sufficient basis to pursue a case against the petitioner.

[13]      The case called again in front of Lady Wise on 18 December 2013.  The respondents stated that a report and email correspondence from Dr Mathers had been made available but would not be put before an investigating committee which had been fixed to meet on 15 January 2014.  The reason for that was explained to the court as being that the respondents had failed to provide the doctor with statistical analysis that he considered important in reaching a concluded view in the case.

[14]      The position was that the investigations which the respondents sought to make, included obtaining statements from a specialist obstetrician and from a medical statistician.  Put broadly, it was suspected there were several cases where mothers in labour were given a particular drug, syntocinon, by the petitioner, when it was not needed.  That caused significant bradycardia in the foetus.

[15]      The Investigating Committee sent a report to the Conduct and Competence Committee but the procedure went awry.  The committee had purported to decide the case in ignorance of the fact that the petitioner had lodged a response.  Once they realised there was a response they decided to look at it again; the committee was incomplete, one of their members having left.  It was recognised that the decision could not stand in those circumstances.

[16]      The respondents made a fresh decision to send the matter to the Conduct and Competence Committee.  The respondents’ position was that it has decided to do without a report from an obstetrician or a medical statistician.  It has decided to present its case against the petitioner on the material it had.

[17]      On 7 July 2014 the court refused the petition for continuation of the suspension.  The petitioner I am advised, does not work as a midwife at present and has not done so since her suspension but I also note that she is no longer suspended by the respondents.

[18]      Counsel for the petitioner argued that the decision should be reduced because of three failings

1.  Failure to adhere to statutory requirements;

2.  Unreasonableness;

3.  Delay in breach of the petitioner’s article 6 rights.

[19]      The petitioner has always accepted that the allegations made against her are very serious.  Counsel argued on her behalf that in terms of rule 26 the respondents are obliged to take such steps as reasonably practicable to get as much information about the case as possible.  He argued that the dictionary definition of “reasonably practicable” meant “in a reasonable manner, sufficiently fully”.  If it was necessary in this case to have statistical information then the respondents had to produce that or to explain why it was not practicable to have it.  The allegations in this case amounted to a suggestion that much the same thing had happened to about a total of 20 patients and counsel argued that such a case was one which cried out for evidence from a medical statistician.  The respondents did not proceed with the report instructed from Professor Campbell.  Counsel referred to the case of R on behalf of Martin Richard v GTC for England [2008] EWHC 133 (Admin) and in particular to paragraph 24.  Munby J was there dealing with submission (in a case in which a school teacher had been suspended by a regulatory body) to the effect that the rules do not impose obligations on the regulatory body.  His Lordship in paragraph 25 noted that the rules are published by a public body as a definitive statement of how it operates the disciplinary powers vested in it by statute.  He found that in those circumstances a breach of the rules could in an otherwise appropriate case form the basis of an application for judicial review.  Counsel argued that in the current case the respondents were a creature of statute and that the order and the rules made thereunder set out what the public and any registrant could expect the respondents to do.  That being so, he argued that a failure to follow up statistical evidence was a breach of the respondents' duty to investigate allegations fully. 

[20]      Counsel criticised what the respondents had done.  They had considered the draft report of Dr Mathers but it suffered from a similar difficulty to that affecting Professor Campbell in that statistics had not been available to Dr Mathers.  Counsel emphasised that the petitioner wished to have the matter fully investigated and that she had a right to expect the respondents to do so.  In further reference to the Martin Richard case counsel argued that delay was prejudicial to the petitioner.  He explained that the petitioner’s mental health is suffering.  He noted that in the Martin Richard case that the judge had found that he could not at that time assess whether a fair trial was possible.  As I understood him, counsel accepted the same position in the current case.  Counsel also referred to the case of Siroky v Slovakia 18/01/2006 in the European Court of Human Rights.  He relied on paragraphs 18 to 20 for the proposition that the reasonableness of the length of proceedings must be assessed in light of all of the circumstances of the case including the following criteria;  the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute.  He argued that the delay in this case was prejudicial but he did not seek to have the case dismissed. 

[21]      Mr Stuart, counsel for the respondents, submitted that I should sustain the second and third pleas‑in‑law and dismiss the petition.  Counsel accepted that the chronology of the case showed that there had been delay.  He explained that time had been taken up getting medical records and waiting for the police investigation; although he accepted that the respondents should not have waited for the police investigation. The police papers included 486 police statements.  There was therefore a great deal of material to be considered.

[22]      Counsel argued that investigating committee had ample material to make the decision of 24 July 2014.  They had reports from Geraldine Butcher, from Tara Fairley, and from Tracey Humphrey, all witnesses professionally qualified to give opinions, all of whom were concerned that the circumstance seemed to be very suspicious.  Dr Mathers’ police statement indicated that he was of the same view; he thought the circumstances were suspicious.   These views were not based on statistical evidence but were based on a professional view that sudden bradycardia in a foetus is unusual and may be brought about by intervention.  The fact that the petitioner was the midwife concerned with the labour in so many cases was a matter that gave rise to suspicion. 

[23]      Counsel understood that the petitioner submitted that the respondents failed to discharge their statutory duty to get as much information as is reasonably practicable.  He argued that this submission was based on a misconception.  It was for the Committee to decide what information it required and to make a judgement as to which witnesses were necessary.  If in the course of investigation the respondents obtained information from persons who may have been witnesses, but then decided to take the line of enquiry no further, then that did not mean that they had failed in their duty to obtain as much information as was reasonably practicable.  In any event, counsel argued, the petitioner was not prejudiced because she had the information from Dr Mathers and Professor Campbell and she could pursue the lines of enquiry herself if so advised.  She could also argue that the information presented at the conduct hearing is incomplete.  At that hearing the burden is on the respondents. 

[24]      With regard to delay, counsel accepted that the start date was 10 April 2010.  The case was not dependant on eyewitness evidence.  Rather it was dependent on a pattern which could be seen without complicated statistical analysis, and without eye witnesses whose recollection may be diminished by the passage of time.  While counsel accepted that there had been delay, he argued that that should not lead to reduction.  He referred to the case of Okeke v Nursing and Midwifery Counsel [2013] EWHC 714 (Admin) in which it was stated at paragraph 38 that any remedy depends on the nature of the breach.  In the present case if there has been any disadvantage to the petitioner caused by delay then that can be taken into account but it does not justify reduction. 

[25]      Counsel for the respondents argued that the petition should be dismissed as having no merit.  His fall-back position were I not with him was that I should acknowledge that there has been a breach caused by delay but that the outcome of that should be that I recommend or order that be heard as soon as possible.

[26]      My decision in this case is that the petition must be dismissed.  The delay from 2010 until 2015 is not satisfactory but I am not persuaded at this stage that it is such as to require reduction of the decision to send the case to the Conduct and Compliance Committee.  I cannot say at this stage that the petitioner is prejudiced and cannot have a fair trial.  In any event the petitioner does not seek that; rather she seeks to have the matter returned to the committee in order that it may obtain more information.  Counsel for the respondents are correct to say that it is for the respondents to decide what information it shall consider.  I appreciate that the order and rules provides that the respondents shall obtain as much information as is reasonably practicable but it will always be an exercise of professional judgment to decide if a particular line should be pursued or not.  So long as the committee has made a decision which is not irrational, there are no grounds of reduction. Thus in the present case the Investigating Committee has information from witnesses which enables it to make a decision that there is a case to answer which cannot be described as irrational. It is a decision the Investigating Committee was entitled to make.   I make no judgment about the good sense or otherwise of obtaining statistical reports and I make no judgment about any submission that may be made on behalf of the petitioner to the effect that without such statistical reports no inference against her should be drawn.  There are however no grounds put before me to show the decision to be irrational.

[27]      Counsel for the respondents argued that the petitioner had delayed in seeking judicial review of the decision complained of.  She received intimation of the decision by letter of 25 July 2014.  She was advised by letter of 18 September 2014 that a 10 day hearing was set down to commence on 8 December 2014.  She sought first orders in this petition on 25 November 2014.  Thus the hearing could not go ahead.  Counsel argued that the petitioner had thus been responsible for some of the delay in resolution of this case.  While it is correct to say that the petitioner’s actions have caused some delay, the majority of the time has been taken by the respondents.  Counsel for the respondents did not submit, quite properly, that any delay caused by the petitioner should lead to this petition being dismissed.

[28]      I share the view expressed by other judges that the delays in this case are unfortunate and I urge the respondents to give it priority.