CO/4124/2015  
Neutral Citation Number: [2016] EWHC 952 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS DISTRICT REGISTRY
Leeds Combined Court Centre
The Courthouse,
1, Oxford Row
Leeds LS1 3BG

Date: 28 April 2016

Before :

HIS HONOUR JUDGE ROGER KAYE QC
(Sitting as a High Court Judge)

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Between :

	MAIREAD SIOBHAN BERNADETTE MULHOLLAND
	
Appellant	
	-	and –		
	
CONDUCT AND COMPETENCE COMMITTEE OF THE NURSING AND MIDWIFERY COUNCIL	
Respondent	

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Counsel and Solicitors:
Penny Maudsley instructed by Lester Morrill, Solicitors, appeared for the Appellant
Matthew Kewley appeared for the Respondent

Hearing dates: 21 March 2016
Hand down Judgment:  28 April 2016

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JUDGMENT

Judge Roger Kaye QC: 

1.	By this appeal, the appellant, a registered nurse, challenges the decision of the respondent, the Conduct and Competence Committee of the Nursing and Midwifery Council, dated 5 August 2015, finding her fitness to practise impaired and to strike her name off the register.

2.	The appeal is a statutory appeal brought pursuant to Article 38 of the Nursing and Midwifery Order 2001(2002 SI No. 253). It is common ground that the appeal is by way of re-hearing to be dealt with in accordance with Part 52 of the Civil Procedure Rules: see PD 52D para. 19.1.

3.	The panel hearings took place over a number of days in October 2014, February and July 2015. The panel consisted of a lay member in the chair, a Ms Susan Hurds, another lay member, Ms Jaqueline Pratt and a registrant member, Ms Victoria Heilbron. The panel was assisted by a legal assessor and there was the usual case presenter. The appellant was represented by a union representative (not a lawyer) for only part of the period, namely over the first three days and part of the fourth (the representative withdrew on day four). Despite opportunities to seek further representation, the appellant represented herself thereafter.

4.	The charges arose out of incidents spread over three separate dates: 18 and 20 November 2011, 22 December 2011 and two other “unknown dates”.

5.	The background to the charges was as follows. The appellant was employed by the Priory Group at the Jubilee Gardens Nursing Home, Castle Bromwich, from 14 November 2011 until her dismissal on 22 December 2011, having been suspended from 23 November.

6.	As a basis for Charge 1, it was first alleged that on 18 November 2011 the appellant inappropriately assessed a resident, known as Resident A, as suffering from Clostridium Difficile (“C Diff”), and in doing so closed (or, as amended during the proceedings, attempted to close) the unit on which Resident A was being cared for. Mrs 1 (the witnesses were identified by letters or numbers in the charges and transcripts but a key was provided), a Registered Nurse Manager, who had visited the home that day to deal with other issues, was advised by the appellant to leave. When Mrs 1 asked to see Resident A it was alleged that the appellant had loudly stated in their presence that Resident A had C Diff, and continued to state that he had C Diff. 

7.	The appellant, it was further alleged, advised that the blood pressure of Resident A was low, and that Resident A was not going to make it, however Mrs 1 also checked the blood pressure of Resident A and found it strong and regular. Mrs 1 had spoken with the Doctor, when he returned an earlier call, and as a result he prescribed medication for Resident A.

8.	Charge 2 concerned an incident on the 20 November 2011. Here it was alleged that the appellant was witnessed by Ms 4 and Mrs 5, two care assistants at the Home, grabbing Resident B by his wrists and pulling him out of his chair. Both witnesses reported that Resident B was reluctant to move whilst being pulled from the chair and nearly fell on the floor. Ms 4 and Mrs 5 stated that there was a red mark on Resident B’s right wrist. 

9.	On the 23 November 2011 the appellant was suspended from duty at the Home pending an investigation. 

10.	On the 29 November 2011 an investigation meeting was held with the registrant. During this meeting it is alleged that the appellant admitted that she had pulled Resident B out of his chair by his wrists but denied that in doing so she had marked his right wrist or his wrists in general. 

11.	The appellant was dismissed on the 22 December 2011 from employment at the Home following a probationary review meeting. The events at this meeting formed the basis of Charge 3. It was alleged that during this meeting the appellant, having found out that Home Manger D had worked at a previous home, stated words to the effect of “I remember people used to call you a battleaxe then”. Home Manager D also recalled the appellant saying words to the effect that “I will sort out all the liars that work here”. It was alleged that the appellant became aggressive towards Home Manager D and confronted her whilst she had her back to the wall. It is further alleged that the note taker at this meeting stood up, fearing that the appellant would hit Home Manager D. 

12.	Two further matters also formed part of Charge 3. Senior Health Care Assistant E had recalled that on one of the shifts that the appellant had approached Resident C (an elderly dementia sufferer given to outbursts of screaming) while she was sitting in a hallway and said words to the effect “you know what you are doing, so stop what you are doing”, and was heard further to say “you are a grown woman, so stop what you are doing”. Senior Health Care Assistant E had also recalled the appellant had acted in an intimidating and aggressive manner towards her by shouting, and when Senior Health Care Assistant E walked away. The appellant, it was said, followed her into another room.

13.	The charges in detail were as follows:

“That you, whilst employed by the Priory Group as a Registered Nurse at Jubilee Gardens Nursing Home (“the Home”) between 14 November 2011 to 22 December 2011:

1.	On 18 November 2011, inappropriately dealt with an incident when Resident A was suffering from a loose bowel motion in that you;

1.1.	Inappropriately assessed that Resident A was suffering from Clostridium Difficile (“C Diff”). 
1.2.	Unnecessarily closed, or attempted to close, the unit on which Resident A was being cared for.
1.3.	Shouted in the presence of Resident A.
1.4.	Did not take advice from a GP and/or other nurses at the Home regarding Resident A’s condition. 
1.5.	Did not otherwise approach the incident in a calm and professional manner. 

2.	On 20 November 2011, inappropriately handled Resident B in that you:

2.1.	Pulled Resident B by his wrists;
2.2.	In so acting as set out at charge 2.1 above, caused a mark or marks and/or bruising to Resident B on one or more of his wrists. 

3.	Behaved inappropriately towards residents and/or colleagues by shouting and/or using inappropriate language, including but not limited to the following:

3.1.	On 22 December 2011, behaved in an aggressive manner towards, Home Manager D, in that you;

3.1.1.	Said “I remember people used to call you the battleaxe then”, or words 	to that effect;
3.1.2.	Said “I will sort out all the liars that work here”, or words to that effect;
3.1.3.	Displayed threatening and/or aggressive body language. 

3.2.	On an unknown date said to Resident C 

3.2.1.	“you know what you are doing, so stop what you are doing” or words to 	that effect;
3.2.2.	 “ you are a grown woman, so stop what you are doing” or words to that effect;

3.3.	On an unknown date shouted at Senior Healthcare Assistant E and/or acted in an intimidating manner towards her in the presence of other members of staff and/or residents at the Home;

AND, in light of the above, your fitness to practise is impaired by reason of your misconduct.”

14.	The appellant had denied all the charges. All, bar one, which it is not necessary to elaborate, were found proven. 

15.	Charge 1.2 was amended, after representations were made by both sides, during the course of the proceedings to add the words “or attempted to close” (in accordance with the provisions of Rule 28 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (as amended) (2004 SI No. 1761)). 

16.	The course of the panel proceedings took three distinct stages: first, establishing the factual basis of the charges, second, assessment of whether the appellant’s fitness to practise was impaired, and third, sanction. Some eight witnesses gave evidence: seven for the council and the appellant herself.

17.	The amended grounds of appeal forming the basis of the attack on the panel’s decisions at each of the above stages is extensive and wide-ranging. Counsel’s skeleton argument ran to over 20 pages and in addition I was provided with a copy of counsel’s typed submissions of over 30 pages. 

18.	In substance however, each of the 11 (amended) grounds of appeal amounted to a sustained attack on the findings of fact made by the panel amounting to a series of generic allegations to the effect that the findings were variously said to be flawed or unfair or, in substance, unjustified and not subjected to proper analysis or evaluation. If the facts were incorrectly found, then it must follow, it was submitted, that the finding on impairment was wrong and the sanction was also accordingly wrong. It was also alleged that the proceedings were conducted in an unfair manner in that the identity of witnesses was unclear or there was confusion largely arising from the fact that for much of the hearing the appellant was unrepresented and having to conduct her own case and examine some witnesses herself resulting it is said in witnesses not having parts of the evidence put to them or having to be recalled.

19.	The respondent’s answer to the appeal is straightforward: the panel were arbiters of fact. They saw and heard the witnesses. Credibility was the major issue in the case and that was primarily a matter for the panel who, it must be also remembered were fundamentally comprised of lay persons. Detailed and over-sophisticated analysis or evaluation was not required. The decision had to be read as a whole. The panel reached clear conclusions and set out their succinct reasons. There was no unfairness. At each stage the panel handed down its decision enabling the appellant to prepare for the next stage. They made a thorough and fair assessment of the appellant’s fitness to practise and went through all the options available on sanction before reaching their conclusions.

20.	I approach this case with a considerable degree of sadness and sympathy for the appellant in her difficulties. She is a nurse with over 20 years of experience. 

21.	There is no dispute, as I understand it, as to the relevant legal framework.

22.	Under CPR 52.11(3), the appeal court will allow the appeal where the decision of the panel was wrong or unjust because of some serious procedural or other irregularity in the proceedings.

23.	A number of applicable authorities were helpfully drawn to my attention by Mr Kewley on behalf of the respondent. 

24.	As regards findings of fact it must be remembered that generally speaking the appellate court must bear in mind that the first instance body or panel has seen and heard the witnesses and was comprised of lay persons.

25.	In Gupta v GMC [2002] 1 WLR 1691 PC, Lord Rodger of Earlsferry, delivering the opinion of the Board, said this at paragraph 10 endorsing this principle:

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

26.	 This was echoed by Leveson LJ in Southall v GMC [2010] EWCA Civ 407 where he said at para. [47]:

“First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370)”

27.	So far as secondary evidence is concerned, the appeal court may be in as good a position as the primary body: see Secretary of State v Gray [1995] 1 BCLC 276, at 2885g-287a per Hoffman LJ (as he then was) and at 285d-f, per Henry LJ; also reported sub. nom. Re Grayan Construction Ltd Ch 241 CA and see also Magmatic Ltd v PMS International Group plc [2016] UKSC 12.

28.	So far as the giving of reasons is concerned, Leveson LJ also said this at paras 54-56 of Southall v GMC:

“54. Sir Mark Potter P [in Phipps v GMC [2006] EWCA Civ 397] endorsed the observations of Wall LJ concerning the inter-relation of [14] of Gupta and the principles in English v Emery Reimbold and went on (at [106]): 

"The latter case made clear that the so-called "duty to give reasons", is essentially a duty which rests upon judicial and quasi-judicial tribunals to state their decisions in a form which is sufficient to make clear to the losing party why it is that he has lost. This requirement will be satisfied if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision. I do not think that there is any real difference or substantial inconsistency, other than one of emphasis, between that principle and what was stated in Gupta, namely that there is no general duty on the PCC of the GMC to give reasons for its decisions on matters of fact, in particular where the essential issue is one of credibility or reliability of the evidence in the case, whilst at the same time recognising that there are cases where the principle of fairness requires reasons to be given "even on matters of fact": see paragraph 14 of Gupta. It seems to me that such cases are those where, without such reasons, it will not be clear to the losing party why he has lost. It is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious."

“55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter. 

“56. When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex. First, underlying the case for Dr Southall was the acceptance that Mrs M might perfectly justifiably have perceived herself as accused of murder with the result that the analysis of contemporaneous material some eight years later is of real importance: that the evidence which touched upon this conversation took over five days is testament to that complexity. Furthermore it cannot be said that the contemporaneous material was all one way: Dr Corfield's note (and, indeed, her evidence) supported the case that it was (or at least could have been) Mrs M's perception alone. Ms Salem's note (accepted by Mrs M as 100% accurate so far as it went) did not support the accusation and her evidence was that if those words had been said, she would have recorded them. I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the panel.” 

29.	Eleven grounds of appeal were advanced in the amended notice. They have been summarised above. Grounds 1-5 related to charge 1, 6-7 to charge 2, 8-9 to charge 3. Ground 4 (relating to the amendment of charge 1) was not pursued, nor was ground 10 (relating to the admission of certain evidence via video link). Part of ground 10 (alleging procedural unfairness) was maintained. Ground 11 related to the finding of impairment and sanction and flowed from the success or failure of the previous grounds.

30.	In considering this judgment I have read the entirety of the transcripts of evidence.

31.	I need only refer to some specific matters: First, a substantial part of the attack on charge 1 concerned the question whether or not the resident concerned, Resident A, in fact had C Diff or not. Since the appellant had no access to patient records she was unable to establish her suspicions that Resident A had C Diff.

32.	As Mr Kewley pointed out this was a misunderstanding of the charge. The gravamen was that the appellant had made an inappropriate diagnosis and asserted on a number of occasions the resident did have C Diff. 

33.	It was, in fact, the appellant herself who introduced the issue of whether Resident A had C Diff. The appellant’s representative informed the panel that the appellant was seeking to contact a witness to prove that Resident A in fact had C Diff but no such evidence was ever produced. 

34.	Moreover, the panel addressed that issue and had two pieces of evidence relating thereto: first, a pathology report which made no reference to Resident A suffering from C Diff and second, the panel heard oral evidence from one witness (which they were entitled to accept) that there was no diagnosis of C Diff..

35.	Second, other challenges to charge 1 essentially criticised the panel for failing to address or properly analyse the evidence or reaching flawed conclusions, i.e. what I have referred to above as the generic allegations. I deal with these further below.

36.	Third, charge 2 (the wrist incident involving Resident B) in common with all the charges, fundamentally turned on credibility. Ms Maudsley criticised the inconsistencies in the evidence and repeated similar generic allegations. Undoubtedly there were inconsistencies in the evidence which the panel identified as minor. Witnesses can make genuine statements with honest belief and still give different versions. The task of the panel (remembering they are lay persons) was to find and establish the facts. The appellant asserted that others had caused injuries to Resident B. The panel plainly preferred the evidence of other witnesses who asserted the contrary, and that it was the appellant who had pulled Resident B by his wrists. They further rejected allegations of collusion between the respondent’s witnesses and carefully gave their impressions of the witnesses they saw and heard.

37.	The remaining charges (enshrined in Charge 3) all turned on the panel’s assessment of witnesses.

38.	At the end of the day the panel, in my judgment, discharged their duty with care and consideration. They were at pains to move the proceedings along, but at the same time conscious of the fact that the charges were serious and for much of the hearing the appellant was unrepresented. They saw and heard a large number of witnesses including the appellant. They plainly preferred the evidence of other witnesses where their evidence contrasted with that of the appellant’s in important areas. Indeed, they were not, it is not unfair to say, overly impressed with the appellant, rejecting her suggestions of collusion and conspiracy as well as much of her evidence. The panel was not, as Ms Maudsley seeks to persuade this court, bound to address in their decisions every single facet or factor of evidence, only those important and relevant aspects which proved or failed to prove (as the case might be) the charges laid against her in the manner made clear in the previously cited authorities. In so deciding it was, for example, a matter for the panel whether they accepted (as they did in relation to charge 3.1.3) uncorroborated evidence that the appellant had behaved aggressively as alleged. 

39.	As to the allegations of confusion over identification of witnesses, I have said a key was provided. The panel were conspicuously patient it seemed to me with the appellant despite the understandable problems she had when representing herself in common with many others consequent upon the withdrawal of legal aid in many instances and the growth of litigants acting in person. The transcripts demonstrate the fair and transparent manner in which the panel conducted the proceedings.

40.	I have not dealt with each and every ground on which the panel’s findings were challenged. I do not believe it necessary to do so. In relation to the generic allegations that the evidence was flawed, or unanalysed sufficiently, it is sad but necessary to state that the findings of primary facts were matters for the panel. They reached clear and succinct findings and gave clear and succinct reasons sufficient for the appellant to know the clear basis on which their findings and decisions were made. There was plenty of evidence before them to justify the conclusions which they reached.

41.	Having reached the findings they did their conclusions as to impairment and sanction at their respective stages were fully and carefully considered. They were entitled to reach the conclusion they did.

42.	Accordingly, reflecting it is indeed an unfortunate termination of a long career in nursing, I must dismiss the appeal.