Case No:CO/8706/2009 

Neutral Citation Number: [2010] EWHC 803 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
LEEDS ADMINISTRATIVE COURT

Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG

Date: Friday, 19th February 2010

Before:

HIS HONOUR JUDGE ROGER KAYE QC

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Between:

	CHRISTIAN	
Claimant	
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NURSING AND MIDWIFERY COUNCIL	

Defendant	

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(DAR Transcript of 
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Mr McDonaugh appeared on behalf of the Appellant
Ms McDonnell appeared on behalf of the Defendant.
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Judgment
Judge Kaye QC:

Introduction
1.	This is an anxious and worrying case involving the future livelihood of the appellant, a former registered nurse, Miss Christina Christian.  She appeals pursuant to section 12 of the Nurses, Midwives and Health Visitors Act 1997 and the Nursing and Midwifery Order 2001, Articles 29 and 38, and under Civil Procedure Rule Part 52.11, against an order of the Nursing and Midwifery Council Conduct and Competence Committee (“The Committee”), given on 9 July 2009, to strike her off as a registered nurse and to impose an interim suspension order.  The effect of the latter is to suspend the nurse from practice immediately following pronouncement of the order until the expiration of a period of time or the disposal of any appeal, whichever is the later.  As a necessary part of its decision the committee found that the appellant’s fitness to practice was impaired.  

The Background
2.	The appellant is, as I have said, a registered nurse.  On 19 March 2009 the appellant appeared before the committee on two charges: 1) while employed as a registered nurse at Widdicombe Nursing Home, Luton, on or around 21 January 2007, she failed to dispense medication to residents in accordance with the principles of proper professional practice in that she (i) dispensed controlled drugs without the presence of a witness;  (ii) signed the Controlled Drugs Book both as the person dispensing medication and as the witness to the administration of the controlled drug; (iii) dispensed morphine sulphate tablets (“MST”) to patient A that should have been dispensed to patient B; (iv) in the alternative to (iii) failed to record in the Controlled Drugs Book that MST had been dispensed to patient B; (v) failed to ensure that residents had taken their medication; and (vi) left medication which had not been administered in residents rooms.  

3.	2) While employed as a practice nurse by Brondesbury Medical Centre in and around February 2007 she (i) provided a false reference to the Strand Nurses Bureau in the name of Ethel Orr, the practice manager at the said medical centre; (ii) in so providing a false reference in the name of Ethel Orr she acted dishonestly and that, in light of the above, her fitness to practice had been impaired by reason of her misconduct.

4.	The appellant admitted charges: 1(i), 1(ii) and 1(iv), and both charges 2(i) and 2(ii).  After a four-day hearing, over 19 and 20 March 2009 and 25 and 26 June 2009, during which the appellant was represented by a solicitor for the Royal College of Nursing and counsel, and gave evidence, mainly in connection with charge 1, the committee found charges 1(v) and 1(vi) proved and charges 1(iii) not proved.  Accordingly, they found the appellant guilty of misconduct.  The committee then went on to consider fitness to practice and found the appellant’s fitness to practice impaired by reason of misconduct in relation to the admitted or proven parts of charge 1 and also in relation to charge 2.  Finally, the committee considered sanction and imposed a striking off order and the interim suspension order.

5.	In relation to fitness to practice, the committee stated in their written reasons, dated 9 July 2009, the following: 

“The panel find the registrant’s fitness to practise is impaired by reason of her misconduct in relation to Charges 1 and 2.  

In relation to charge 1, as stated above, the panel had before it information on the registrant’s previous and most recent professional practice.  These references did not include an evaluation of the registrant’s clinical practice undertaken by an independent registered nurse.  There was no information as to whether the registrant had taken any steps to address and improve her medication practice.  In particular, the correct procedure to be adopted by a registered nurse when administering controlled drugs.  There was insufficient evidence that the registrant is a safe and competent practitioner in administering medications and ensuring residents had taken their medication.  

The panel considers that in relation to charge 2 the registrant’s fitness to practise is impaired.  There were no actions that the registrant could take to address the fundamental dishonesty that led to the falsification of the reference.”

6.	In relation to sanctions, the committee included this amongst their reasons for imposing a striking off order:

“The panel kept to the fore of its thinking the need to balance the interests of the registrant with the public interest, to provide patient protection, uphold the reputation and standards of the professions and the NMC.  The panel took into account information it received at earlier stages of the proceedings as well as at this stage including the details of professional and financial hardship suffered by the registrant since the imposition of an interim order in March.  It balanced all the mitigating and aggravating factors in making its decision.  

Charge 2 relates to an act of dishonesty and this being the case, the panel did not consider that this was an instance where it is appropriate to take no further action.  

The panel then considered the factors listed under the heading of Caution Order in the Indicative Sanctions Guidance to establish whether there was sufficient evidence to support adopting the sanction.  
The panel had before it evidence of some further courses of study undertaken by the registrant.  However, these were not directly related to the areas of practice that gave rise to charge 1.  

There had not been any previous or subsequent clinical errors.  The testimonials were positive but did not address the area of clinical practice that was of concern to the panel, namely, administration of medications.  There was potential for patient harm arising from the medication errors, eleven noted on eight patients’ MAR charts.  

In relation to charge 2 it was put to the panel that as the registrant was qualified and experienced for the position she applied for, there would be no potential patient harm.  The panel did not accept this as a cogent argument for the falsification of a reference.  

Although the registrant had made an early admission of facts and offered an early apology for writing the reference this was action was not until the registrant was challenge about the incident.  There had been no admission under detection.  The reason given by the registrant for writing the reference was to speed up the application process on the eve of her going on holiday.  This explanation ignored the fact that the Medical Centre may not have provided a positive reference to the registrant given that at the time she fabricated the reference there was a current written warning relating to her previous behaviour.  The panel therefore was not persuaded that the registrant had gained true insight into her actions and their repercussions.  

There was no evidence that there had been any previous or subsequent medication errors.  However, on the issue of dishonesty it was difficult for any registrant to demonstrate that such behaviour would not be repeated.”

The Grounds of Appeal
7.	The appeal was lodged on 7 August 2009, within the time limits required.  However, the appellant immediately sought an order for permission to amend the grounds of appeal and extension of time for the service of a skeleton argument because counsel originally instructed indicated that there was a potential conflict.  Nevertheless, substantial grounds of appeal were attached to the notice of appeal together with an indication that the arguments would be set out in the skeleton argument to follow.  

8.	The appellant does not appeal against the findings of misconduct.  The main plank of the appellant’s attack on the committee’s decision is founded on charge 1.  The complaint in the grounds of appeal is essentially that the committee’s decision in relation to impairment on charge 1, alternatively its decision in relation to sanction, was unjust because of a serious procedural or other irregularity in the proceedings.  Specifically, the appellant says that her representative at the committee was told by the appellant that she had attended a specialist course on drug prescription between October 2008 and March 2009 but never passed that on to the committee.  The result, it is said, meant hat the appellant, in substance, did not have a fair hearing.  Had the committee been aware of this training, the result would have been different.  This, the grounds submitted, was made clear by the fact that the committee expressly drew attention to the appellant’s failure to address her to their perceived lack of training in the prescription of controlled drugs by further appropriate courses and study.  As to charge 2, the appellant contends that the sentence was not in line with precedent; it was unjust and disproportionate.  These are the main grounds.  There were others, which in substance either make the same point in an alternative way or are ancillary or supplementary to these.  

9.	The procedural history of the appeal has been somewhat unfortunate.  On 2 September 2009 the papers came before HHJ Behrens.  He gave permission to lodge amended grounds of appeal and a skeleton argument by 18 September 2009.  His order was not complied with.  On 28 September 2009 the papers came before me.  I extended time for the amended grounds of appeal and skeleton argument to 4pm on 16 October 2009 and directed the respondent, the Nursing and Midwifery Council, to file a skeleton argument no later than seven days prior to the hearing date.  So far as I can tell, no amended grounds were ever lodged and the appellant’s skeleton was and is dated 24 September 2009.  The hearing was then listed for effective hearing on 23 December 2009 but there was apparently an application to re-list and on 10 December 2009 Langstaff J ordered the hearing to be re-listed to January 2010.  It is that re-listed hearing which is before me.

10.	CPR 52 Rule 11(2) provides as follows: 

“Unless is ordered otherwise, the appeal court will not receive –
(a) oral evidence; or 
(b) evidence which is not before the lower court.”  

11.	Further material, not before the committee, was included in the bundle before me.  It was mainly material which appears to have been in the possession of the appellant’s legal team which was not presented to the panel, plus some other documents supplementing the same material.  At the end of the day, Ms McDonnell, counsel for the respondent, did not object to this material, despite the absence of any proper supporting witness statement either from the appellant or her solicitor explaining the material, how it came into her possession, how it came into her legal teams possession and how it passed from that legal team to her present solicitor, and, more importantly, when.  In the result, the appellant’s submissions have slightly modified from the grounds of appeal, but in substance and effect not materially so.  

The Appellant’s Submissions
12.	CPR 52 Rule 11(3) which is applied by Section 12 of the 1997 Act provides as follows:

“The appeal court will allow an appeal where the decision of the lower court was -- 
a) wrong; or
b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

13.	Mr McDonaugh, counsel for the appellant, submits that in relation to charge 1 the procedural irregularity was and is founded upon the alleged incompetence of the appellant’s representatives at the hearing.  Those representatives, or at least the solicitor member of the legal team, it is said, well knew in September 2008, before the committee hearings began, that the appellant intended to undertake a nurse prescribing course and emphasised the importance of so doing to her client, in a letter dated 2 September 2008.  

14.	The appellant asserts that she informed her representative that she attended the course from its start in October 2008 until she was suspended in March 2009 under the interim order I referred to earlier.  She also, in addition, asserts through Mr McDonaugh that curriculum vitae and other material were provided to her legal team, all of which would have revealed the existence and importance of this course and her attendance on it.

15.	Mr McDonaugh submits that this must have affected the fairness of the hearing and must have had had an impact in relation to charge 1.  He submits, in effect, that, had the panel or committee been aware of that material, they might well have reached a different conclusion.  The relevant principles, as to which three is no disagreement, are set out in R (Aston) v Nursing & Midwifery Council [2004] EWHC 2368 Admin, where the court adopted the test applicable to allegations of professional incompetence in criminal cases set out by the Court of Criminal Appeal in R v Bolivar [2003] EWCA Crim 1167 and R v Day [2003] EWCA Crim 1060.  In Aston Moses J set out the approach to be adopted at paragraph 6 to 12 thus, under the heading “Approach”:
 “6. Before me it was not contended that the mere fact of the incompetence of the advocate would be sufficient to entitle this court to allow the appeal and order the rehearing which was requested by the appellant.  

7. Both the appellant and the respondent agree that in the instant case the approach of this court should be that which is applied by the Court of Appeal Criminal Division when complaints are made as to the incompetence of the representation.  

8.  The approach of that court is exemplified in two decisions: R v Bolivar [2003] EWCA Crim 1167 and R v Day [2003] EWCA Crim 1060.  In R v Bolivar the Vice President at paragraph 52 stated the test as Wendesbury unreasonableness and such as to affect the fairness of the trial.  

9.  In R v Day the case was posed in the following way: ‘[incompetent representation] cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe.  We accept that, following the decision of this court in Thacker [2001] EWCA Crim 1906, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy had been flagrantly incompetent.  But, in order to establish lack of safety in an incompetence case, the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial which themselves rendered the process unfair or unsafe’.

10.  In the context of Part 52 Rule 11 the test is not safety.  The appellant need not show that the decision was wrong, but he must show that the decision was unjust.  The decision will only be unjust if the incompetence led to irregularities which rendered the process of the trial unfair or the conclusion unsafe.

11.  However, in the case before me both sides agree that the court should not allow the appeal unless the incompetence was of such a degree as to be described as Wednesbury unreasonable.  That concept is not easily applied to the question of the incompetence of an advocate, but I take the vice presidents reference to Wednesbury unreasonable to mean that the conduct of the advocate must be such that he or she took decisions and acted in a way in which no reasonable advocate might reasonably have been expected to act.  

12.  That, by itself, as I have said, is not enough.  It must further be shown that the wholly inadequate conduct did affect the fairness of the process.  Only then could the conclusion of the committee be shown to be unjust.”

16.	It is convenient, however, to commence with the appellant’s submissions on charge 2.  This was a charge that the appellant had acted dishonestly in providing a false reference.  The charge of misconduct was admitted.  I have already recounted the salient points of the committee’s decision on fitness to practice and sanctions in connection with this charge.  Miss McDonnell, in her skeleton argument on behalf of the respondent, submits that the committee would have been entitled to make a striking off order on the basis of the dishonesty in connection with charge two alone.  Mr McDonaugh, for the appellant, rightly and properly reminds me that this court will indeed be very slow to interfere with the sanction imposed by the committee.  As Lord Upjohn said in McCoan v General Medical Council [1964] 1WLR 1107, at page 1113: 

“Their Lordships agree with Lord Goddard CJ, in In re A Solicitor [ 1956] 1WLR 1312 & [1956] 3WLR 138, when he said that it would require a very strong case to interfere with sentence in such a case because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct.  No general test can be laid down, but each case must depend entirely on its own particular circumstances.  All that can be is that, if it is to be set aside, the sentence of erasure must appear to their Lordships to be wrong and unjustified.”

17.	The last remarks, in particular, chime with the case of Aston.  Mr McDonaugh accepts that each case depends on its own facts, but his submission is that the striking off order was more severe than the sanction imposed upon other medical professionals appearing before their regulatory body when their conduct was of a very significantly higher level of dishonesty and culpability, and he provided a number of examples.  He submits that in the circumstances the sanction imposed was unjust and the court can, and should, intervene. 

18.	I have already set out what the committee said in relation to charges and what they said in relation to charge 2 in particular.  It is at this point, however, appropriate to return to the decision letter of the respondent, that they added this in relation to sanction.  They concluded that a caution order was not a sufficient sanction at the end of the quotes that I have previously set out.  They then went on to consider whether a suspension order should be made, and said this:
 “The two charges of medication errors and dishonesty were serious departures from the conduct required from a registered nurse.  Correct administration of medications is an essential element of a registrant’s practice.  The medication errors occurred whilst the registrant was responsible for the care of elderly and vulnerable patients.  She made inappropriate decisions that these patients could be left to take their own medications despite not having any previous knowledge of their physical and cognitive abilities.  Trustworthiness and integrity are fundamental qualities expected of a registrant.  In cross-examination the registrant had not been able to provide clear answers to straightforward questions relating to her practice history.  The registrant had given further confusing and inconsistent recollections of other events and conversations.  The panel noted that the information supplied by the NMC at sanction stage identified that behind the concerns expressed by the Brondesbury Medical Centre about time keeping and working practice there was a suggestion that the registrant’s behaviour was not open and honest.  The registrant’s dishonesty, fabricating a reference for personal gain together with the prior concerns expressed about her integrity in the Brondesbury Medical Centre, demonstrated a lack of this quality.  A suspension order would not provide the requisite level of public protection, given the facts of this case.  A striking off order is, in the panel’s view, the only sanction appropriate.   The misconduct surrounding medication error and dishonesty represent a serious departure from several standards as set out in the code of professional conduct. In the panel’s view, there is a risk of repetition of the behaviour that led to these charges and which would expose patients to continuing risk.  In view of the seriousness of the registrant’s misconduct, the panel is of the view that competence of the council would be undermined if the registrant were not struck off.  The panel therefore concluded, having balanced the public interest and the registrant’s own interest and having taken into account all mitigation and aggravating factors, that the striking off order is proportionate and necessary to protect members of the public to maintain public confidence in the professions and the NMC and declare and uphold proper standards of conduct and performance.”

That last part of that quote, of course, is notable as being the policy behind any regulatory body and enforcement of its standards.  

19.	Without in any shape or form wishing to be seen to approach or construe the committee’s reasons as set forth in their decision letter as a settlement or a will, I make no apology for quoting at length from the decision letter, since, standing back and looking at matters in the round, it seems to me that, in connection with the second charge alone and without regard to the matters connected with charge 1, the committee would have had ample justification for the finding of impairment of fitness to practice and the sanction of striking off.  The committee were plainly concerned about the risk of repetition of dishonesty and the need to uphold proper standards of trust and honesty which, after all, lie at the heart of nursing care.  Mr McDonaugh submitted the sanction could be viewed as harsh on charge 2 but could not be described as unreasonable or irrational.  

20.	In my judgment, therefore, I see no basis to intervene with the committee’s sanction, even regarding charge two on a stand alone basis.  On that basis, it would not strictly be necessary for me to enter the disputed area of charge 1, save to say that, despite Mr McDonaugh’s valiant and impassioned efforts on the appellant’s behalf, especially his submission that the panel’s views on charge 1 must have infected their views on charge 2, I am not persuaded for the following brief reasons: (i) Mr McDonaugh sought to persuade me, as I have said, that the committee’s decision on charge 1 had tainted their view on charge 2.  If anything, it seems to me that it is the other way round.  The committee, as it seems to me, were deeply concerned at the appellant’s lack of honesty, constantly refereeing to medications errors and errors of prescription and the dishonesty charge and dishonesty.  (ii) I am prepared to accept, for present purposes, that the appellant did tell her legal team that she was attending the Nursing Prescription Course.  However, there is also evidence that she failed a numeracy exam on that course and did not attend the re-sit, albeit she was permitted to do so; she did not attend the case study or the final exams, and missed such parts of the course that she was advised, but for the fact that she was prevented from so doing by her having been struck off, to start the course again.   Whilst I recognise that this advice was imparted to her in July 2009, after the committee’s decision, the basic facts would have subsisted at the date the panel came to consider the impairment issue and sanction.  I am, accordingly, not convinced that, had the committee been aware of these facts, they would not have reached any different verdict.  (iii) In any event, I am not persuaded that the appellant’s counsel, assuming that he was aware of the appellant’s attendance at the course (as is urged upon me), did not act in a Wednesbury unreasonable manner in not mentioning that fact.   

21.	To make this clear, in view of the many negatives in that sentence it would seem to me to be unreasonable for the appellant’s counsel in his professional judgment not to have introduced the appellant’s attendance at the course.  It had ended in failure and non-attendance in part.  It had ended with a recommendation that it should be recommenced.  He may well have felt – assuming he was aware of that fact – that that would paint an even worse picture of the appellant and recognise, of course, that he may well not have been aware of the detail about the recommendations to restart the course.  But, in any event, even if he had been aware of the fact that the appellant had given an indication of her intention to attend the course, if he did not know the entire details he may well have thought to himself that there was no point in adducing this evidence since it may have exposed the appellant to an even worse situation.  One could go on and speculate at length, but I am more than satisfied on what I have seen and heard that the failure to mention the fact that the appellant was attending this course, assuming that he was aware of it, is not necessarily one of Wednesbury unreasonableness.

22.	I should also mention one more matter in relation to this.  The respondent counsel in her skeleton argument noted that the appellant had opportunities over four days, particularly during her evidence or before the committee imposed an interim order or to the consideration of the fitness to practice stage or sanction.  To remind her representatives and the committee of the courses she had or was attending, they must have known that this was an important factor.  She had been reminded in the letter SMT solicitor in September 2008.  I understand and have some sympathy for this point of view, but I make clear that it does not carry the day with me.  The appellant had a solicitor and barrister and, as Mr McDonaugh submitted and in my judgment rightly, was entitled in the circumstances of this case to leave the decisions as to the introduction of material and the time thereof to them.

23.	In my judgment, overall the appellant had a fair hearing.  She knew the charges she had to meet; she was presumably, as a nurse, not unintelligent; she had every opportunity to put her case to the committee during the course of her examination; and had what might be said to be a fair crack of the whip, as is sometimes said to be the test, certainly in cases of procedural unfairness.  

24.	Most importantly, however, having regard to my conclusions in relation to charge 2, I am not persuaded that the appellant has or can show that the omission of the information about the court, assuming it to be true, led to the identifiable errors or irregularities in the hearing which themselves rendered the process unfair or unjust.  Nor can I detect in her representatives approach and conduct of the case anything which might be said that either of them acted in a way no reasonable advocate might be expected to act.  

25.	I have therefore reached the firm conclusion that, even if the matter were to be remitted to the committee for all the reasons that Mr McDonaugh advances, the result would still be the same.  Accordingly, I dismiss the appeal.