Case No: C1/2009/0683

Neutral Citation Number: [2010] EWCA Civ 154
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE KING)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 11th February 2010

Before:

LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS
and
LORD JUSTICE RIMER

- - - - - - - - - - - - - - - - - - - - -

	KITUMA	Appellant	
	- and -		
	NURSING AND MIDWIFERY COUNCIL	Respondent	

- - - - - - - - - - - - - - - - - - - - -
(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Ms Sarah Stanzel (instructed by Alomao Sols) appeared on behalf of the Appellant.
Ms Melanie McDonald & Mr John Lucarotti (instructed by Nursing & Midwifery Council) appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Richards:

1.	Miss Kituma is, at present, a registered midwife.  She appeals against an order of King J, sitting in the Administrative Court, by which he dismissed her appeal against a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council, finding that a number of charges of misconduct against her were proved and that her fitness to practise was thereby impaired, and imposing the sanction of a striking-off order.  Her appeal to this court is brought with permission granted by Arden J.

2.	I can take the factual introduction from paragraphs 3 to 6 of the judge’s judgment: 

“3. At the time of the events under investigation by the committee, the Appellant was employed as an agency midwife at the Watford General Hospital. Since 1998 the Appellant had been registered and practising as a midwife following two years training although she was registered as a nurse in 1984. Her date of birth is the 3rd of September 1960. Thus at the material times of this matter, she was some 44 years of age.

4. On the 21st of January 2004 she undertook the care of Patient D who was in labour with her first child. Patient D was at the time employed as a clinical psychologist working with offenders in a secure unit. Four of the charges of misconduct which she faced and which were found proved all related to her clinical management of the labour and delivery. Patient D had been in the care of the Appellant between 19.50 on the 21st of January 2004 and the time she, Patient D, was returned to the ward around 6 am on the 22nd of January. Delivery of patient D’s daughter was at 1.10 hrs on the 22nd. Immediately before at 1.09 the Appellant had performed an episiotomy that is to say she made a cut in the perineum to enlarge the vaginal opening to facilitate the child birth. This was subsequently sutured by the Appellant, a process which according to the evidence of patient D and Mr D, took some one and a half hours. 

5. The charges found proved under this first head were expressed as follows: 

‘That you, while contracted as an agency midwife by Watford General Hospital: 

1. In the course of assisting in the labour of patient D on the 21 and 22 January 2004:

a. performed a lateral episiotomy on Patient D, rather than a medio-lateral episiotomy;

b. in the course of delivering Patient D’s placenta, pulled on the umbilical chord with excessive force;

c. failed to i. notice ii. record and iii. inform colleagues that Patient D had suffered a severe post-partum haemorrhage;

d. failed to remain with patient D between the birth of her baby and the complete delivery of her placenta, contrary to trust policy and safe practice.’
 
6. The second head of charge related to events after complaint was made by patient D, and to the Appellant’s custody of photocopies of patient D’s medical and midwife’s notes and of the letter of complaint which the appellant had had been given by one Nora Lucey a consultant midwife on an occasion at the hospital in June 2004 when the Appellant had attended without prior notice to address the issue of the complaint. On her own admission she subsequently left these copies on a train en route to the hospital for another meeting with Nora Lucey. Two charges were preferred under this head. The first charge (2(a)) that she had removed these documents from the hospital premises without authority or permission, was found not proved. However the charge under 2b relating to the loss of the notes was found proved by her own admission. That charge read: 

‘Having been notified by Watford General Hospital that Patient D had made a complaint against you following your attendance at the delivery of her child on 20 and 21 January 2004 … b. on a day between 3 June and 24 June left medical records and correspondence relating to Patient D in a public place.”

3.	A hearing in respect of the matters referred to by the judge took place before the Committee on 8 to 10 May 2007, and the Committee’s written decision, with reasons, was sent to the appellant on 16 May 2007.  Before the judge, the appellant took issue with all three stages of the Committee’s decision; that is, the findings of misconduct, the findings of impairment of fitness to practise, and the striking-off order.  The judge rejected her case in relation to all three matters.  The further appeal to this court is confined to the issues of fitness to practise and sanction.  

Fitness to Practise

4.	Fitness to practise is the subject of Part V of the Nursing and Midwifery Order 2001.  Article 22.relates to the investigation of an allegation made against a registrant to the effect that his or her fitness to practise is impaired by reason of, amongst other things, misconduct.  There is, however, no statutory definition of fitness to practise.  We are told that the Council’s guidance defines it as the suitability of the registrant to remain on the register without restriction.  We are also told that that is similar to the working definition adopted by the General Medical Council.  No issue has been taken in relation to those points on the appeal.

5.	The Committee’s written reasons for finding that the appellant’s fitness to practise was impaired by reason of misconduct were these: 

“Reasons

The facts which we have found proved demonstrate a number of serious departures from the standards established for registered midwives by the NMC’s Code of Professional Conduct and the Midwives Rules and Code of Practice as in force at the material time.  In particular, you failed to respect Mrs D as an individual, you failed to maintain your professional knowledge and competence and you failed to act to minimise the risk to your patient.  Furthermore, you failed to protect confidential information in your possession.

The panel is particularly concerned that, both in relation to the site of the episiotomy and the post partum haemorrhage, you failed to detect a deviation from the norm and to seek appropriate assistance.

The NMC regards fitness to practise as your suitability to remain on the register without any restrictions on your practise.  In arriving at our decision, we have considered very carefully the written evidence which you have submitted in relation to your clinical work since delivery of Mr and Mrs D’s baby in January 2004, and the training course which you attended in March 2006.  While giving appropriate weight to this evidence, the panel is seriously concerned by your obvious lack of insight into the failings demonstrated by the events in question, and your failure to accept what we have concluded are serious departures from the accepted norms and standards of practice.

For these reasons we have concluded that your fitness to practice is impaired by reason of your misconduct.”

6.	When dealing with the issue of misconduct the judge made a number of observations relevant to the Committee’s reasoning.  For example, at paragraph 35, in relation to charge 1(a), he referred to the appellant’s own evidence that she had done the episiotomy in the way intended and was happy with it, and he stated that that evidence was material to the Committee’s finding of lack of insight.  He then dealt with the topic of fitness to practise more fully at paragraph 52 of his judgment: 

“I have already referred to the reasoning of the panel in reaching its decision that the charges found proved amounted to misconduct which impaired the Appellant’s fitness to practise as midwife. Given the primacy I must give to the judgment of the specialist professional tribunal on this issue, and given I can find no basis for a finding that the panel misdirected itself on the test to be applied (namely the suitability of the Appellant to remain on the register without any restrictions on practice) or took into account extraneous matters or failed to have regard to relevant material or that the panel came to a perverse conclusion on the evidence, I can find no basis upon which this court could properly impugn this part of the decision. I have already rehearsed the evidence which in my judgment entitled the panel if it so chose to regard each of the charges as a serious departure from the applicable professional standard amounting to misconduct. Unlike in Silver, this panel did expressly take into account the Appellant’s general good record both before and since the events under investigation. Nothing in the cases cited is authority in my judgment for the proposition that professional misconduct arising out of one isolated set of events (even if this be a proper characterisation of the present case which may be doubtful given the separate charge under head two) can never give rise to an adverse finding on fitness to practice. Every case must be determined on its own facts. I find nothing inappropriate in the weight this panel gave on this issue to the Appellant’s lack of insight into the failings found proved against her and her failure to accept them even now, which was not a feature in the two cases relied upon by the Appellant. The committee exercising their specialist professional experience had already characterised these failings as serious departures from accepted norms and practice. The committee must in such circumstances have been entitled to regard the continuing inability of the midwife involved to accept that these failings had occurred at all or to recognize such failings for what they were, as restricting her capacity to modify her professional practice to avoid any future departure of like seriousness. As the Respondent submits ‘it was precisely the fact’ that ‘as far as she was aware she had done nothing wrong’ that was of proper concern to this panel.”

7.	The judge’s reference to Silver was to the decision of the Privy Council in Silver v GMC [2003] Lloyds Med 333.  That decision was itself the subject of close examination by this court in R (Campbell) v GMC [2005] EWCA Civ 250, an examination that was also informed by Dame Janet Smith’s fifth report on her inquiry into the case of Harold Shipman.  The court in Campbell stressed the need (under the previous statutory regime) to keep matters going to proof of serious professional misconduct separate from matters going to personal mitigation, but acknowledged that the same material might sometimes be relevant to both questions (see, for example, the summary at paragraph 46(2) of the judgment).

8.	In Cohen v GMC [2008] EWHC 581 (Admin), Silber J made a number of pertinent observations, including these at paragraph 64: 

“There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discrete exercise whether the practitioner’s fitness to practice has been impaired.”

In the following paragraph he stated: 

“It must be highly relevant in determining if a doctor’s fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated.”

9.	Ms Stanzel, appearing on the appellant’s behalf before us, took us not only to those passages but also, and more importantly, to the case of Azzam v GMC [2008] EWHC 2711 (Admin), where it was found by McCombe J that testimonial evidence was highly relevant to the issue of fitness to practise in that case.  The case included a finding that the claimant’s fitness to practise was impaired.  The allegations against the claimant related to events in 2003 but there was a substantial body of evidence as to his conduct between then and the date in 2007 when the decision was taken, including highly supportive written and oral evidence from a consultant with whom he had been working in the recent past.  McCombe J held that that material was not only relevant to the issue of fitness to practise but should have led the panel to reach a different conclusion as to impairment.  He referred in paragraphs 40 and 41 to statements of principle in Meadow v GMC [2007] QB 462 and in Cohen, which I have already cited.  

10.	At paragraph 44 McCombe J said: 

“It seems to me that, in the light of the authorities cited, it must behoove a FTP Panel to consider facts material to the practitioner’s fitness to practise looking forward and for that purpose to take into account evidence as to his present skills or lack of them and any steps taken, since the conduct criticised, to remedy any defects in skill. I accept Miss Callaghan’s submission [that is, counsel for the GMC] that some elements of reputation and character may well be matters of pure mitigation, not to be taken into account at the “impairment” stage ... However, the line is a fine one and it is clear to me that evidence of a doctor’s overall ability is relevant to the question of fitness to practise.”

Having considered the evidence in that case, he concluded at paragraph 53:

“If proper weight had been given to the evidence of Dr Azzam's actions to remedy his deficiencies and his then current ability and skill, I consider that the Panel could not have found that his fitness to practise was still impaired as at October 2007.”

11.	Ms Stanzel’s submission is that the same approach should have been followed in this case.  She refers to the fact that the Committee here had received testimonial evidence in respect of the appellant in the form of a number of letters.  They are at dividers 14 to 23 inclusive of the appeal bundle.  They included, in particular, a letter dated 10 January 2007 from Ms Colette Manion, Supervisor of Midwives (Brent and Harrow), relating to the period August 2005 to June 2006 when the appellant worked under her supervision.  Miss Manion had reviewed a sample of case notes and found no matters of concern.  She concluded that the appellant: 

“… is well regarded by her colleagues, and displays a professional, conscientious and caring attitude.  From a review of the care she provided, she had demonstrated the ability to acknowledge her limitations and involve the appropriately-qualified health professional as necessary.”

12.	There is also a letter from the Director of Nursing at the North West London Hospitals NHS Trust, recording that the appellant had been employed by the Trust in a midwifery capacity from August 2005 to April 2006 through an agency and that no concerns had been raised about her conduct or fitness to practise.  

13.	Ms Stanzel submits that the Committee in this case failed to consider, or to give sufficient consideration to, that evidence of the appellant’s present skills; or at least the Committee erred in failing to make a favourable finding of fact as to her present skills and to approach the issue of fitness to practise on that basis.  It is said that King J did not address his mind to this issue, and it is submitted that if the material in question had been properly considered it should have led to the same conclusion as did the testimonial evidence in the case of Dr Azzam.

14.	I cannot accept those submissions.  In its written reasons the Committee stated in terms that it had considered very carefully the written evidence the appellant had submitted in relation to her clinical work since delivery of Mrs D’s baby in January 2004.  The Committee went on to explain that it had given “appropriate weight” to that evidence but that it was seriously concerned by the appellant’s obvious lack of insight into the failings demonstrated by the events in question, and her failure to accept what were serious departures from accepted norms and standards of practice.  That shows very clearly that the evidence in question was taken fully into account and that the Committee was addressing itself in terms to the appellant’s present skills. I should add that although the Committee, as it said, gave weight to the evidence of recent performance, it is right to say that the evidence was not of the same quality or capable of commanding anything near the same degree of weight as the corresponding evidence in Dr Azzam’s case.  In any event, however, the question of weight was pre-eminently a matter for the specialised Committee.

15.	At paragraph 52 of his judgment, which I have quoted, the judge explained why in his view the Committee was entitled to reach the conclusion it did, notwithstanding the evidence concerning the appellant’s performance since the events that were the subject of the misconduct allegations.  I agree with the judge’s analysis and conclusion.  There is no conflict at all between what he said and the decision in Azzam.  Different results were reached in the two cases on the application of the same principles to different facts.

16.	It should be mentioned that in her written skeleton argument for the Nursing and Midwifery Council, Ms McDonald has raised a number of further points.  She submits that, notwithstanding the line of authority which includes Cohen and Azzam, evidence that goes to the broad assertion that misconduct was an isolated incident in an otherwise unblemished practice will rarely be relevant to the determination of impairment, for reasons considered in the case of Campbell.  Moreover, she says that the Committee rarely has the opportunity to make effective enquiries about, and so to test properly, evidence of clinical practice after the date of the misconduct found.  It is not unusual for written references to be produced only in the late stage of the proceedings, after the findings of fact as to misconduct have been made.  The point is also made that in the case of the Nursing and Midwifery Council, unlike the General Medical Council, there is no power to issue a warning, so that there will be no public record of a finding of misconduct unless a finding of impairment is also made.  

17.	All of those are points that may be relevant to another case, but in my judgment it is unnecessary to deal with them here.  In this case it is sufficient that, as found by the judge, the Committee did take full account of the evidence on which the appellant relies and that it reached a decision properly open to it in the light of that evidence.  The challenge to the finding of impairment must fail for that reason.

Sanction

18.	 The second matter raised on the appeal to this court concerns sanction.  The Committee’s reasons for imposing the sanction of striking-off were these: 

“We have already announced that the facts which we have found proved demonstrate a number of serious departures from the standards established for registered midwives by the NMC’s Code of Professional Conduct and the Midwives Rules and Code of Practice.  We have carefully considered your previous good history, the fact that there has been no repetition of the behaviour since the incident, and the contents of the references and testimonials to which we have been referred.

Against that background, we have considered the sanctions available to us as set out in the NMC’s indicative sanctions guidance.

In view of the seriousness of the case and the need to protect the public we did not consider that it would be appropriate to take no further action.

We therefore considered whether it would be appropriate to make a caution order.  In deciding that such a sanction would not be appropriate, we have had to balance your previous history, the fact that there has been no repetition of the behaviour  since the incident, and the contents of the references and testimonials which you have produced, against the compelling evidence of the direct harm to Mr and Mrs D as a result of the misconduct  which we have found proved, your failure to make admissions in the face of overwhelming evidence, and your lack of any insight into your failings.  Having considered all the evidence very carefully, we did not consider that a caution order was a sufficient sanction to deal with the severity of the misconduct and the risk to the public which it represents.

We therefore considered whether a conditions of practice order would be appropriate.  We concluded that it would not, in view of the impossibility of prescribing enforceable conditions, which would protect patients during the period they are in force, and formulating appropriate and practical conditions of practice, bearing in mind that in general you have worked as an agency midwife.

We therefore considered whether a suspension order would be appropriate.  We concluded that it would not, since in our view the misconduct, which we have found, proved is fundamentally incompatible with being a registered midwife.

As we have indicated, your conduct represented a serious departure from the standards, which the NMC and the public have a right to expect from a registered midwife.  Your lack of insight into your failings and the serious physical and psychological consequences which those failings have clearly caused to Mrs D, and the distress caused to Mr D, in our view demonstrate that there is a continuing risk to patients should a similar situation arise again.  Although we recognise the mitigation, which you have produced, in our view confidence in the Council would be undermined if you were not struck off.”

19.	The judge was asked to consider the imposition of a condition of practise order in substitution for a striking-off order.  He declined, finding no basis for interfering with the Committee’s decision.  At paragraphs 53 to 56 of his judgment, he said this: 

“53. I turn then to the question of the sanction imposed, namely that of striking-off. Again I am obliged to give primacy to the judgment of the specialist panel on what measures are required to maintain the standards and reputation of the profession which is the central consideration at this stage. In my judgment I can only interfere with sanction if I am satisfied the panel has gone outside the ambit of its own indicative guidelines on sanction having regard to its findings on misconduct and fitness to practise, either by misdirecting itself as to that guidance or by misapplying it in the sense of reaching a wholly perverse conclusion - by for example again taking into account irrelevant matters or failing to have proper regard to that which was [sic]. 

54. Again, much as I may have personal sympathy with the position of the Appellant given her otherwise unblemished record, I have found it impossible to find any such basis for interfering with the decision to strike off in this case. 

55. It is patently obvious from the stated reasons that the panel did closely follow the indicative guidelines and consider each potential sanction in increasing severity by reference to the guideline indicators and gave sensible reasons for rejecting each as inappropriate, before finally deciding upon the sanction of striking-off as the appropriate one, on the grounds that in its view ‘the misconduct which we have found proved is fundamentally incompatible with being a registered midwife’ and ‘although we recognise the mitigation you have produced confidence in the Council would be undermined if you were not struck off’. Again, I can find no basis for saying that this conclusion was perverse in the sense indicated.

56. It is clear that the panel did take the Appellant’s otherwise unblemished record both before and since the events in question into account at this stage but that what ultimately swayed with the panel was again the Appellant’s lack of insight into her failings and her refusal to accept even now that they had occurred, and when these failings had had been found by the panel to represent a serious departure from the standards which the NMC and the public had a right to expect from a registered midwife. Again I can find nothing perverse in the weight given to this factor by the panel since I accept that it is this factor which means that the panel could not be confident that the Appellant would not repeat this type of behaviour in the future, and as the panel said, demonstrates a continuing risk to patients should a similar situation arise again. The fact that there had to date been no such re-occurrence cannot not be determinative in undermining the weight to be given to this critical factor of lack of insight.”

20.	The judge went on to deal in terms with the conditions of practise option at paragraphs 58 to 61: 

“58. I should make clear that I have anxiously deliberated over whether I should interfere with the refusal of the panel in this case to contemplate as appropriate, a conditions of practice order, given the strength of the Applicant’s clear record both before and since the events of 2004. The list of factors indicative of the appropriateness of such an order are given in the material guidance under paragraph 11 as including:
 
- identifiable areas of the registrant’s practice are in need of retraining and there is no evidence of general incompetence (lack of competence cases) 

- potential and willingness to respond positively to conditions requiring retraining (misconduct and lack of competence cases);
 
- conditions which will protect patients and clients during the period they are in force; and

- possible to formulate appropriate and practical conditions of practice.

59. When I was hearing the appeal, my initial reaction was to question why such appropriate conditions could not be formulated in this case along the lines of those strongly urged upon me by Mrs Stanzel on behalf of the Appellant designed to improve the Appellant’s skills in and awareness of the correct procedures on episiotomy, third stage of labour; bleeding during delivery, through compulsory attendance on retraining courses, appropriate supervision and examination.

60. Ultimately however I have not felt able to say that this court is in any position to substitute its own judgment on the question of what is or is not possible, for that of the specialist tribunal and I have no material before me sufficient to hold that the finding of impossibility to prescribe enforceable conditions was a perverse one. It was very clear from the oral submissions made before me on each side that the key to any workable and enforceable conditions would be the element of appropriate supervision. The difficulty however as identified by the panel in its reasons lies in the Appellant’s practising as an agency midwife with the consequential absence of an available supervising employer able to provide the necessary supervision and support. The possibility of the NMC allocating a supervisor was canvassed before me by the Appellant but without laying before me any evidence that this would be either possible or practicable. The response of Mrs McDonald on behalf of the respondent was to inform me that such allocation was outside the ambit and role of the NMC and that there remained the need -- absent in this case -- of a supervising employer if a conditions of practice order were to be a possible option. 

61. Thus I have ultimately concluded that there is no material before me which would justify this court holding - as submitted by the Appellant - that the ‘CCC erred in concluding on the impossibility of prescribing enforceable conditions’.”

21.	Ms Stanzel submits that in a case such as this, where a judge expresses that he is giving serious consideration to a conditions of practise order but is unable to decide on appropriate conditions, he is under a duty to exercise the power of an appellate court under CPR 52.10(2)(b) to refer the issue for determination by the lower court; in this case, to refer it back to the Committee.  She submits that in the light of the judge’s concerns, the Committee might well decide on re-examination of the case to impose a conditions of practise order.  It has expertise in fixing suitable conditions and could find solutions to any technical difficulties if it was so minded.  She says that the situation could arise in which a Trust would be willing to take the applicant into its employment under supervision, and that this might be found to be the case if the matter were remitted and further enquiries were made.

22.	In my judgment, that line of argument is simply misconceived.  The Committee reached the conclusion it did after due consideration, and found for the reasons it gave that a conditions of practise order was not appropriate.  It is true that at one point, for the purposes of putting in place interim protection, a conditions of practise order had been made; but it was rapidly decided instead that an interim suspension order should be substituted or reverted to, because it was found that appropriate conditions could not in fact be imposed or enforced.  What happened at the interim stage does not, as it seems to me, assist the appellant.  The Committee looked at the position as it was at the time of its final decision and reached the conclusion to which I have referred.  

23.	The judge, for his part, decided that there was an insufficient basis for interfering with the Committee’s conclusion on that issue, or therefore with its decision to impose a striking-off order as the appropriate sanction.  On the judge’s analysis, there had been no error in the Committee’s approach; the question of referral back simply did not arise.  I am in complete agreement with the judge on this.  He gave very careful thought to the issue of a conditions of practise order, and did so in reaching his ultimate conclusion that the Committee’s decision as to a striking-off order should be upheld.  He was plainly under no duty to refer the matter back to the Committee and there was no occasion for him to exercise the power relied on by Ms Stanzel.

24.	I should mention that in her written skeleton argument Ms McDonald also seeks to rely on the finding on charge 2(b) as an additional factor, not mentioned by the Committee, justifying the conclusion that the appellant’s conduct was fundamentally incompatible with her remaining on the register.  Again, I think it unnecessary to express any conclusion on that matter.  The Committee’s stated reasons were, in my view, amply sufficient to sustain the conclusion it reached and, as I have said, the judge was right to uphold the decision on that basis.

25.	For those reasons, I would dismiss this appeal.

Lord Justice Mummery:

26.	 I agree.

Lord Justice Rimer:

27.	I agree.  

Order:  Appeal dismissed.