Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 86

XA12/16

Lady Paton

Lady Clark of Calton

Lord Malcolm

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in the Appeal

by

LM

Appellant

against

THE NURSING & MIDWIFERY COUNCIL

Respondent

Appellant:  Lindsay QC;  Anderson Strathern LLP

Respondent:  Anderson, (sol adv);  Nursing and Midwifery Council

30 November 2016

Summary

[1]        The appellant is a registered nurse in respect of whom allegations regarding her fitness to practise were considered by a panel of the Conduct and Competence Committee of the Nursing and Midwifery Council of the respondent (“the Committee”).  Following a substantive hearing on 22 to 24 July 2015, the appellant was made the subject of a suspension order for a period of 6 months.  Under and in terms of Article 30(1) of the Nursing and Midwifery Order 2001, the Committee is required to review said order before its expiry.  By letter dated 17 December 2015, the appellant was notified and given information about a review hearing dated 21 January 2016.  On said date the Committee held a review hearing and, in the absence of the appellant, made a striking off order which is an order to delete the appellant’s name from the Nursing and Midwifery Council register. 

[2]        The appellant challenges only the decision taken at the review hearing to proceed in her absence and make a striking off order.  The challenge is very narrow in its focus and is to the effect that the respondent’s Committee erred in law by proceeding to consider and determine the issue of sanction in the appellant’s absence.

History of Proceedings
[3]        On 18 February 2014 allegations were made to the respondent about the appellant’s fitness to practise as a registered nurse.  After various stages of the statutory procedure were concluded, the Committee held a substantive hearing on 22 to 24 July 2015 in which the following charges were found proved:

“1.       On 28 August 2013 took one or more strips of ten 50mgs tablets of Tramadol from the Unit for your personal use;

2.         On 29 August 2013 took one or more strips of ten 50mgs tablets of Tramadol from the Unit for your personal use;

3.         On one or more unknown date(s) between April 2012 and 27 August 2013 took an unknown quantity of Tramadol from the Unit for your personal use.

4.         Were dishonest in your conduct at charges 1, 2 and 3, in that you knew that the medication belonged to the Hospital and that you did not have permission to take it for your personal use;

5.         On 29 August 2013 falsely told Ms 1 that the four strips of Tramadol that had been found in your locker belonged to you;

6.         Were dishonest in your conduct at charge 5 in that you knew that the medication belonged to the Hospital;

7.         On 29 August 2013 were on duty whilst you were unfit for work by reason of your consumption of Tramadol;”

[4]        It was not disputed at the substantive hearing that the appellant suffered from a history of anxiety and depression.  She had been prescribed Tramadol.  She had problems as a result of drugs misuse at the time referred to in the charges.  She was pregnant and had given birth shortly before the hearing on 22 to 24 July 2015.  The appellant did not attend the hearing and was not represented.  The Committee were aware of her health problems and difficulties.

[5]        The Committee concluded on the basis of the facts found proved that the appellant’s behaviour amounted to misconduct and that the misconduct amounted to current impairment of her fitness to practise.  In considering a sanction, the Committee determined that there were aggravating factors:  the appellant breached the trust of her employer;  there was repetition of the behaviour;  there was real potential for patient harm in attending whilst unfit for duty in an environment where a high level of alertness and vigilance was critical.  The Committee also identified mitigating factors:  the appellant’s previously unblemished 8 year career as a nurse;  the appellant was a well valued member of the team and described as a hard worker;  personal and health circumstances;  the dishonesty was not related to the direct care of patients;  the appellant made early admissions to her employer;  remorse and initial insight by the appellant as demonstrated in the documentary evidence.  The Committee decided not to impose the most severe sanction namely a striking off order.  There was a public interest in maintaining an experienced and otherwise competent nurse on the register.  It was concluded that a striking off order would be “disproportionate”.  The Committee considered that a period of 6 months’ suspension from the register was a sufficient period of temporary removal from the register to maintain public confidence in the profession and declare and uphold proper standards of conduct and behaviour.  The Committee also considered that it would be sufficient time for the appellant to reflect on the situation and demonstrate a willingness to engage with the review process, should she choose to do so.

The Notice of Review Letter dated 17 December 2015
[6]        It was not disputed that the appellant received a letter in the following terms:

“Conduct and Competence Committee - notice of review of suspension order

On 24 July 2015 a panel of the Conduct and Competence Committee made you the subject of a suspension order.  The committee is required to review this order under article 30(1) of the Nursing and Midwifery Order 2001 before its expiry.  As your order is due to expire, a panel of the Conduct and Competence Committee is now due to review the order.

Date and time of the review:          Thursday, 21 January 2016 at 9:00am

Place of the review:  NMC, 114-116 George Street, Edinburgh, EH2 4LH

The Conduct and Competence Committee invites you to attend the review.  You have the right to be represented at the review.  You have the right to present evidence, to call witnesses and to cross‑examine any witnesses called by the NMC.

The review of the order is a very important moment and the panel will very much like to see you at the hearing.

If you do not attend, the panel has the power to proceed in your absence.

You may write to the panel about the outcome you would like from the review and why.  If you write to the panel, you must make sure your letter arrives before the day of the review.

Details of your current suspension order.

Period of the order:   6 months.”

[7]        On the back of the letter was the first page of a document entitled “The reasons the panel gave for making the order” which ran to some four pages in double sided format.  At the end of the last page, information commenced about the powers of the Committee at the review hearing.  That information stated that the powers included the power to:

“Make a striking off order.  In lack of competence cases, the panel can make this order only if you have been subject to a conditions of practice order or suspension order continuously for the last two years”.

At the end of some three pages of additional information, further documents were enclosed. 

[8]        The letter and documents of 17 December 2015 were sent to the appellant who to the knowledge of the Committee had been ill, was unrepresented and had not participated in the earlier proceedings.  At the review hearing, the Committee had no current information about the appellant’s health or circumstances and no information to suggest that she had legal advice and or representation. 

Submissions by counsel for the appellant
[9]        Counsel adopted his note of argument.  He made no criticism of the proceedings or the decision making at the substantive hearing.  He accepted that the appellant’s fitness to practise remained impaired at the date of the review hearing.  He criticised the form and content of the correspondence sent to the appellant about the review hearing and the failure to highlight to a nurse who had been ill and was unrepresented that the review hearing might result in the very serious decision to remove the appellant from the register.  He stated that the appellant did not understand the implications of the correspondence.  He submitted that when the Committee came to a view at the review hearing that it wished to consider the imposition of a sanction of removal from the register, the Committee should have adjourned to provide the appellant with an opportunity to make submissions in mitigation relating to that.  Counsel prayed in aid Black v General Dental Council [2013] CSIH 39, paragraph [21];  HK v General Pharmaceutical Council [2014] CSIH 61, paragraphs [12] to [13];  Tait v Royal College of Veterinary Surgeons [2003] UKPC 34 paragraph [5];  Brabazon-Drenning v UKCC [2001] HRLR 6 paragraph [22];  and Sukul v Bar Standards Board [2014] EWHR 3532 paragraph [35].  Counsel accepted that the Committee had a power to proceed in absence at the review hearing but, in all the circumstances of this case, the Committee had erred in law by proceeding to consider the sanction of striking the appellant off the register in the appellant’s absence.  He relied on the seriousness of the sanction;  the Committee’s knowledge that the appellant had mental health and addiction difficulties;  the lack of clarity in the correspondence dated 17 December;  the risk of reaching the wrong conclusion on the merits about the sanction as the Committee had no up to date knowledge of the appellant’s position;  and the fact that at the substantive hearing, the Committee had accepted that there were strong mitigating factors and the sanction imposed fell far short of a striking off order.  In all these circumstances there was a procedural error by the Committee which led to unfairness.  This court should accordingly provide a remedy on appeal.

Submissions by the solicitor advocate for the respondent
[10]      The solicitor advocate for the respondent adopted his Note of Argument.  He referred to the serious nature of the charges which were proven and the history of non‑engagement by the appellant with the Committee.  He relied on the letter of 28 July intimating the decision of the substantive hearing.  This gave information about the review process and the powers of the Committee which included the making of a striking off order.  He relied also on the correspondence about the review hearing sent under cover of the letter of 17 December 2015 which gave the appellant an opportunity to make submissions in person or by correspondence or by a representative.  Specific reference was also made in said correspondence about the power of the Committee to strike off and there was reference to an email link to the respondent’s indicative sanctions guidance.  He submitted that there was nothing in the history to suggest to the Committee that there was a reason for non‑engagement by the appellant which might indicate that the decision making should not be dealt with in the appellant’s absence at the review hearing.  The Committee did not fall into error by failing to adjourn the review hearing in order to give yet another opportunity to the appellant to present evidence or submissions relevant to sanction.  The appellant was given the opportunity to make submissions about sanction at the review hearing.  She chose not to use that opportunity.  The appellant was a graduate nurse and well able to understand the information given to her.  She gave no satisfactory explanation to this court for her failure to engage with the proceedings.  She failed to respond in any way to the Committee.  The Committee was entitled to conclude that this was an appellant who would not engage and to determine the case on that basis.

[11]      The general principles expressed in Tait v Royal College of Veterinary Surgeons in relation to the question of when a court or tribunal should proceed in absence were accepted by the solicitor advocate on behalf of the respondent.  He did not dispute the case law relied on by counsel for the appellant but submitted that the appropriate course to be followed in any particular case depended on individual circumstances.  The cases cited were of little assistance as they all turned on their particular facts.  He submitted that the appellant had a fair hearing in the determination of her rights.  Moreover, taking into account the seriousness of the charges and the failure to engage by the appellant, the serious sanction imposed was correct.  This court was invited to refuse the appeal.

Decision
[12]      There was no dispute about the law in this case and we accept the submission on behalf of the respondent that this case must be decided on its own facts and circumstances.  There was no dispute about the seriousness of the charges which were proved.  It was accepted on behalf of both parties:  that it was necessary under the statutory framework to have a review hearing;  that the powers of the Committee at the review hearing included the power to make a striking off order even although that was a more serious order than had been imposed after the substantive hearing;  and that the Committee had a power to proceed in absence.  It was also accepted that despite the invitation and encouragement given in the letter of 17 December 2015, the appellant provided no information for the review hearing which might bear upon her continuing fitness to practise.

[13]      In our opinion the lack of information and engagement by the appellant explains the decision taken by the Committee at the review hearing.  We understand the difficulties with which the Committee were faced.  Nevertheless, we note that the Committee at the review hearing ought to have been aware that the appellant had been told that striking off would be disproportionate, that she was unrepresented, that the proceedings were potentially very serious for her and that she had a history of illness and personal circumstances which might bear upon her ability to understand and deal with the review hearing.  Having regard to the terms of its decision we are not satisfied that the Committee took these important factors into account when deciding to proceed to strike her off in her absence.  Further we consider that the Committee ought to have taken into consideration the content and nature of the letter and information sent to the appellant in the notice of review letter dated 17 December 2015.  We accept that the appellant was advised in said letter of her rights to attend the review, be represented and to make representations.  She was also advised that the review was important and the Committee had the power to proceed in absence.  It is significant, however, that there was no warning in the text of said letter that the limited nature of the sanction which followed the substantive hearing might be reviewed at the hearing with the effect that in her absence a much more serious sanction might be imposed namely a striking off order.  We consider that the form and content of the information which accompanied said letter was not effective to explain to a party litigant the nature of the review hearing and that she was potentially at risk of being struck off the register, not least when previously she had been told that the most severe sanction would be disproportionate.  The reference (buried in the text) about the powers of the Committee to make a striking off order referred to lack of competence cases where there are restrictions on the imposition of an order of striking off.  It was essential for the appellant to understand that in misconduct cases, there were no restrictions and that therefor she was at potential risk of an immediate order of striking off as a result of the review hearing.  When we assess the decision making of the Committee and take into account the circumstances to which we refer, we consider that there is merit in the appellant’s complaint of procedural unfairness. 

[14]      For the reasons given we consider that the appeal should be allowed.  Accordingly we quash the decision of the Committee dated 25 January 2016 in which the Committee made a striking off order;  we remit the case to a differently constituted committee to reconsider de novo what sanction, if any, should be imposed upon the appellant and direct the Committee to provide the appellant with an opportunity to make submissions in mitigation prior to any decision about sanction.