Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 90

XA115/13

 

Lady Paton

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the Appeal to the Court of Session under section 60 of the Health Act 1999 and articles 29(9) and 38 of the Nursing and Midwifery Order 2001

by

AD

Appellant;

against

A decision of the Conduct and Competence Committee of the Nursing and Midwifery Council dated 12 September 2013

 

Act:  Logan;  Balfour + Manson LLP

Alt:  I Anderson, Solicitor Advocate;  Nursing and Midwifery Council

4 November 2014

[1]        Prior to 12 September 2013 the appellant was a nurse registered with the Nursing and Midwifery Council, who are the respondents to the present appeal.  On that date the Conduct and Competence Committee of the Council found the appellant guilty of serious misconduct involving dishonesty and issued a striking off order which was to have effect from 11 October 2013.  The decision has not yet come into effect because of the present appeal, but the appellant has not worked as a nurse since that time.  The appellant has appealed against that order on two grounds:  first, that her representation in connection with the proceedings before the Conduct and Competence Committee was inadequate;  and secondly, that the Committee erred in law by accepting the methodology relied upon by the respondents to identify the person said to be responsible for taking drugs from the ward where the appellant worked.

[2]        The circumstances that gave rise to the proceedings are as follows.  The Nursing and Midwifery Council alleged that the appellant’s fitness to practise as a nurse was impaired by reason of misconduct.  The alleged misconduct was that, between 23 May 2011 and 6 October 2011, while the appellant was employed as a Senior Sister on the Intensive Care Unit at the Great Western Hospital, Swindon, operated by Great Western Hospitals NHS Foundation Trust, she removed medication that belonged to the Trust on 11 listed occasions and did so dishonestly in that she did not have permission to remove the medication.  The 11 listed occasions all related to 50 milligram tablets of a drug known as Cyclizine, a drug that is used to alleviate symptoms of sickness and nausea.  The occasions were as follows:

Time period when missing	Number of tablets removed
6-7 June 2011	32
13-14 June 2011	35
24-27 June 2011	29
5-8 August 2011	36
11-12 August 2011	29
14 August 2011	10
13 September 2011	8
18 September 2011	4
21 September 2011	4
3-4 October 2011	4
6 October 2011	44

 

[3]        It is important to note the nature of the case against the appellant and the nature of the defence that she intended to put forward.  There was no direct evidence against her;  no witness claimed to have seen her taking missing tablets at any time.  The case against her was accordingly wholly circumstantial in nature.  The records of those on duty on the shifts when tablets went missing were analyzed to discover who had an opportunity to remove the tablets from the ward on each occasion.  The tablets were kept in an unlocked drug storage cupboard on the ward.  If a member of staff was absent from a shift when tablets appeared to have been taken without authorization, it was assumed that that member of staff could not have been responsible for any of the incidents.  In this way, members of staff were eliminated one by one.  Eventually, following a lengthy process, only the appellant was left.  It was therefore presumed that she must have been the person who took the tablets.

[4]        The process of elimination was obviously based on the assumption that the same person was responsible for the removal of tablets on each of the recorded occasions.  It was also based on the assumption that all of the tablets had been wrongfully taken.  If, therefore, an innocent explanation existed for any single incident, that would affect the whole procedure, because the particular incident might well have resulted in the elimination of a person who should not have been eliminated.  In this connection it is perhaps significant that three of the incidents involved the removal of only four tablets and a fourth of only eight tablets.  Evidence was led during the hearing that on occasions when a patient was transferred to another hospital by ambulance he or she would be accompanied by medical and nursing staff, who travelled in the back of the ambulance.  This gave rise to a risk of travel sickness, and the evidence was to the effect that it was common practice for the staff involved to take four Cyclizine tablets on each such occasion to protect them against that possibility;  two members of staff were involved, and each would take two tablets, one for the outward journey and one for the return journey.  It was further stated that on such occasions the proper formal procedures would not be used for the removal of the tablets.  On these occasions, therefore, tablets that had been taken by medical and nursing staff in the ordinary course of their work would have been taken into account in the elimination exercise, and might well have produced an inaccurate result.

[5]        It is clear in our opinion that the case against the appellant was a fairly elaborate circumstantial case based on the analysis of extensive documentation.  That documentation and the exercise that was carried out were the subject of a considerable body of oral evidence.  Written statements had been taken from all of the witnesses to be led by the respondents.  If the appellant were to answer the case, it is clear that either she or her legal advisers would require to master the documentation and obtain a clear understanding of the elimination exercise, and would have to ensure that the potential weaknesses in the circumstantial case were properly tested.  We think it obvious that this would require substantial preparation.  Among the matters that had to be tested were the assumption that only one member of staff was involved;  the possible removal of tablets by staff involved in patient transfer;  and the basis on which members of staff had been allocated to the periods during which tablets went missing.  In this connection, it appears that members of staff were in the habit of arriving at the ward before their shifts began and staying for some time after the end of the shift.  If tablets were removed during any of those periods, it appears that the removal would be attributed to those on the current shift, rather than the previous shift or the following shift.  This could give rise to inaccuracy, resulting in a false elimination.

[6]        The charge against the appellant was in due course heard by the Conduct and Competence Committee of the respondents.  They issued a decision on 12 September 2013, in which they found the charge proved, determined that the appellant’s fitness to practise was currently impaired by reason of misconduct, and ordered that the appellant should be struck off from the Register of Qualified Nurses and Midwives, kept under article 5 of the Nursing and Midwifery Order 2001.  As already noted, the appellant has appealed against that decision on two grounds, which we propose to consider sequentially.

 

1.  The appellant’s representation before the Conduct and Competence Committee

[7]        The appellant contends that she was unable to defend herself properly by reason of a lack of legal representation, the complexity of the subject matter, an inequality of arms with the respondents, and her lack of preparedness, fatigue and inexperience.  Consequently she asserts that the Conduct and Competence Committee erred in law by permitting the disciplinary hearing to begin on 10 June 2013 and to continue thereafter over the ensuing four days and a further five days seven weeks later.  As a result, it is said, the hearing was unfair and prejudicial to the appellant.

[8]        During 2012 the appellant instructed a solicitor, Mr Quinton Muir, to represent her at the disciplinary hearing before the Committee.  Mr Muir accepted the instructions and informed the respondents of his involvement.  He applied for legal aid on behalf of the appellant, although legal aid is not available for proceedings of this nature.  Consequently, on 27 May 2013, the legal aid application was refused.  The appellant next met Mr Muir on 6 June 2013.  By that time the disciplinary hearing had been scheduled for the five days beginning on 10 June.  Mr Muir asked for payment of a fee in advance of appearance at the disciplinary hearing.  He further informed the appellant that he could only conduct the hearing on 10, 12 and 14 June, and that she would have to represent herself on the other two days.  The appellant was unable to make immediate payment of the fee asked for, £10,000.  She states that she formed the view that Mr Muir did not want to represent her in any event.  Consequently on 7 June Mr Muir wrote to the respondents to state that the appellant had been unable to obtain legal aid and that she would be unrepresented, but that she would attend the hearing and adhered to her defence.  It is thus clear that, prior to the hearing, the respondents were aware of the appellant’s lack of representation.

[9]        The appellant states that Mr Muir tendered no further advice to her regarding the conduct of the hearing;  nor did he speak to her about the possibility of seeking an adjournment.  She further states that Mr Muir did not consider the documentary evidence that had been lodged by the respondents in advance of the hearing or discuss the evidence with her.  In short, he failed to prepare the appellant’s defence to the charge:  he did not attempt to identify any defence witnesses or to recover evidence which might have assisted the appellant or even to consider evidence disclosed to him by the respondents.  When notice of the disciplinary hearing was given to the appellant and Mr Muir, a case management form was enclosed which sought information from the appellant regarding her defence and the availability of a representative.  A copy of that document as completed by Mr Muir was available to us.  It was returned to the respondents on 20 December 2012.  It indicated that the appellant required a hearing and intended to attend, and gave details of Mr Muir’s availability.  While it contained a denial of the charges, no details of the defence were given.  The form gave information about the respondents’ witnesses, but, as we have noted, Mr Muir did nothing about that information.  Sections of the form invited disclosure of specific features of the defence, including witnesses, expert evidence and documentary evidence, but these were merely completed with the words “To be confirmed”.  It is thus apparent that the form gave no significant information about the defence beyond a bare denial of the charges and an indication that the evidence to be given by the respondents’ witnesses was to be disputed.

[10]      When, on 6 June 2013, Mr Muir told the appellant that he would not be able to represent her at the hearing on 10 June, he presented her with the documentary materials that had been lodged with the Committee by the respondents.  The documents lodged on behalf of the respondents, including witness statements, came to 471 pages.  The appellant was not provided by Mr Muir or anyone else with any analysis of those documents.  It was not clear exactly what had been lodged for the hearing.  The appellant studied the documents over the weekend prior to 10 June, but by that date she had not been able to identify the documents that were productions.  An adjournment was granted on the first day to allow this matter to be considered.  The respondents place reliance on the fact that the appellant was permitted to lodge documents at the start of the hearing, and proceedings were delayed, in effect by one day, to allow her documents to be lodged.  Nevertheless, we observe that the ability to lodge documents depends on a proper understanding of the material that exists;  if the appellant did not have a good understanding of that material it is difficult to see that the adjournment could have been of great assistance.  On the second day a further witness statement and additional witness were proposed by the respondents.  The appellant avers that she was unable to prepare her case properly in the time available to her following Mr Muir’s withdrawal.  The tribunal hearing eventually took 10 days, from 10 to 14 June and from 2 to 6 September 2013.  It normally ran from 9 am to 5 pm.  The appellant travelled by train from Maybole to Edinburgh each day.  She states that by the fourth day she was exhausted through lack of sleep and the stress of representing herself.

[11]      At the hearing the respondents were represented by a barrister and the Committee was assisted by a legal assessor who was an advocate.  We have no reason to suppose that either acted outwith proper professional standards.  Nevertheless the appellant had no experience of legal procedures, which inevitably placed her at some disadvantage.  She did not request an adjournment to allow time to consider the evidence;  she states that this was because of her unfamiliarity with tribunal procedure.  The possibility was not canvassed with her by the Committee.

[12]      We consider it clear on the documentation that is available that Mr Muir failed totally to prepare for the hearing, and did not make this known in any meaningful sense to the appellant until 6 June 2013, four days before the hearing was due to begin.  As we have already noted, the appellant intended to present a defence that the methodology used by the employees of the NHS Trust who investigated the unauthorized removal of Cyclizine from the ward was flawed in a number of respects.  To establish such a defence, however, it is clear that a detailed analysis of complex documentation was required, and Mr Muir had failed totally to carry this out.  It also seems clear to us that further evidence, possibly from an expert, might have been desirable with a view to rebutting the case against the appellant.  Once again, no steps had been taken to obtain any such evidence.  We consider that these features placed the appellant at a serious disadvantage when the hearing began.  The adjournment of the start of proceedings by, in effect, one day did not significantly remove that disadvantage;  the fundamental problem was that the appellant had not been able to master the documentation.  That was essential, however, if her defence were to be put forward.

[13]      Furthermore, we do not consider that the appellant could be considered responsible to any material extent for Mr Muir’s failures.  She had instructed a solicitor to represent her, and he had received details of the case against her, including the extensive documentation.  In the circumstances we are of opinion that she was fully entitled to rely on Mr Muir to prepare the case properly, and to give notice of the defence to the Committee.  It appears that he did nothing beyond making an application for legal aid that was bound to fail.  He did not tell the appellant what had happened until four days before the hearing.  At that point she was placed in an impossible position;  we note that even for a lawyer instruction in a case of this nature four days before a hearing would almost certainly be inadequate.

[14]      The deficiencies in the appellant’s representation did not diminish as the hearing proceeded.  The appellant was compelled to conduct what was in effect a 10 day proof, sitting from 9 am to 5 pm on most days.  On the fourth day of the hearing, 13 June 2013, the appellant attempted to recover documentation currently held by the NHS Trust.  The documents related to the occasions when patients were transferred from the ward where the appellant worked to other hospitals, accompanied by medical and nursing staff.  As we have noted, an important part of the appellant’s case was that on these occasions Cyclizine was taken to protect against travel sickness, and such use was not recorded.  The relevance of those documents is thus obvious.  The appellant attempted to explain why she wanted the records, but her explanation does not seem to have been properly understood by the Committee.  The chairman of the Committee asked why it had taken until the fourth day of what was then understood to be a five-day hearing to make the application, and the appellant replied that she had had problems of legal representation.

[15]      The barrister representing the respondents opposed the motion to recover the documents.  What she said (notably at page 159 of the transcript) was inaccurate.  In relation to the seventh, eighth, ninth and tenth charges, she stated that for the documents sought to be relevant there would require to be four discharges on three of the dates and eight discharges on the fourth.  In the light of that, she suggested that the Committee should be “extremely cautious” in assessing the value of the documents.  That is clearly a misunderstanding of the appellant’s position, which was that normally four tablets were taken on each occasion.  The Committee’s legal assessor did not correct this error.  He suggested that the documentation requested did not appear to be relevant to the fundamental question, namely consideration of the appellant’s fitness to practise.  This appears to proceed on the premise that, because small quantities were involved, they were not relevant to the overall position.  Nevertheless, as we have already stated, the significance of the entries in question was that they could undermine the elimination exercise carried out by the NHS Trust.  To that extent it appears to us that the documents in question were plainly relevant.

[16]      The legal assessor also referred to the stage in the case when the application had been made, and suggested that the Committee should look into the background circumstances as to why the application came at that particular point, and whether there had been any failure on the part of the appellant to progress such an application at an earlier date.  He reminded the Committee that there was no obligation on them to prepare the appellant’s case for her.  The chairman of the Committee asked the applicant to tell them about the history of how the case had been managed.  The applicant then stated her involvement with her lawyer, fairly succinctly.  After an adjournment the application was refused.  The chairman pointed out that the appellant could raise matters with witnesses for the respondents or when she gave her own evidence.  Nevertheless, the documents relating to patient transfers, which might clearly have provided important evidence to substantiate the appellant’s case, were not available.

[17]      On the fifth day of the hearing the appellant cross-examined Mrs Susan Jaffray, a matron at the Great Western Hospital in Swindon, who had given evidence over the two preceding days.  That evidence related to the investigations and elimination exercise carried out by the NHS Trust.  She was asked about the presence of staff on the ward before their shifts began and after their shifts ended;  as noted above, this was a significant part of the appellant’s defence.  Mrs Jaffray agreed (page 181) that that happened, and she continued by saying “But I think within the process I used it – I felt I had covered those options as well”.  That answer did not explain how the options were covered, and it is obvious that any competent cross-examiner would immediately have asked for details.  The appellant did not do so, however.  It is difficult to avoid the conclusion that her inexperience of legal proceedings meant that she was placed at a significant disadvantage.

[18]      Shortly after that, Mrs Jaffray was asked about the assumption that only one person had been involved in removing the tablets;  as we have noted, this was a crucial assumption in the elimination exercise.  On this, Mrs Jaffray stated that the process had been evolving as it went along, that a lot of thought was put into it, and that “the information that we pulled together suggested that it was one person”.  Once again, this answer called out for cross-examination about the details, but that did not follow.  The appellant further asked Mrs Jaffray about the transfer of patients to other hospitals, but was unable to get any definite answer about the numbers and dates involved (page 209).  That indicates that the use of Cyclizine on patient transfers had not been properly considered by the NHS Trust.  Nevertheless, according to the transcript, this point does not appear to have been properly pursued by the appellant.  Once again the reason appears to be a combination of defective preparation of the case, as discussed above, and the appellant’s lack of experience of legal proceedings.

[19]      Overall, it appears to us from the transcript of proceedings that the appellant was not able to represent herself adequately at the hearing.  In part this resulted from her own lack of legal experience;  in part it resulted from the inadequacy of the preparations that required to be carried out prior to the hearing;  and in part it resulted from the fact that the appellant was only told that she would have to represent herself four days prior to the hearing, at a point where the time available for preparation was manifestly insufficient.  The fact of seriously inadequate representation nevertheless appears to us to be very clear. 

[20]      The applicable legal principles are discussed in a number of relatively recent cases in England and Wales, and we consider that a similar approach should be taken in Scotland;  the Conduct and Competence Committee of the respondents operates throughout the United Kingdom, and the approach taken to matters of professional discipline in the two jurisdictions should therefore be, and has historically been, approached in an identical manner.  First, in R (Aston) v Nursing & Midwifery Council, [2004] EWHC 2368 (Admin), it was agreed by parties that the approach should be that applied in criminal appeals when complaints are made as to the incompetence of the representation.  That meant, in short, that the conduct of legal representation must be such that no competent lawyer could behave in such a manner, and that the conduct must have led to identifiable errors or irregularities in the trial which rendered the process unfair or the conclusion unsafe (the test used in criminal appeals in England and Wales).  Subsequently, in Christian v Nursing and Midwifery Council, [2010] EWHC 803 (Admin), Judge Roger Kaye QC expressly adopted the same approach as in Aston.  Most recently, in Moseka v Nursing and Midwifery Council, [2014] EWHC 846 (Admin), it was stated by Green J (at paragraph 22) that an appellate tribunal should pay some deference to the fact-finding function of a lower tribunal, especially if it is a tribunal of a specialist nature.  That obviously applies to a body such as the Conduct and Competence Committee of the respondents.  He continued (at paragraph 23) by referring to the fact that the appellant in that case appeared in person, without legal advice or representation, and indicated that in such a case an unduly technical or procedural approach should not be adopted.  In the present case the appellant has had the benefit of being represented by counsel in the appellate proceedings, but had no representation before the tribunal.  In these circumstances we consider it appropriate not to take an unduly technical approach to the procedural matters that arose before the Conduct and Competence Committee.

[21]      Reference is made in Aston to the test applied in criminal appeals.  In Scotland the test that is used in that context is different from that in England and Wales;  the concept of “safety” is not employed, and instead the critical question is ultimately whether a miscarriage of justice has occurred.  In relation to defective representation, the classic formulation is found in Anderson v HM Advocate, 1996 JC 29, at 43-44.  It is there stated that the accused’s right to a fair trial “includes the right to have his defence presented to the court”.  In some circumstances the conduct of the accused’s legal representatives may amount to a ground of appeal.  For that,

“The conduct must be such as to have resulted in a miscarriage of justice….  It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial.  That can only be said to have occurred where the conduct was such that the accused’s defence was not presented to the court” (at page 44).

 

In our opinion that formulation gives some guidance in cases such as the present.  The expression “not presented” perhaps calls for some further comment.  At least in a case where a party to proceedings represents him or herself, we are of opinion that to avoid a miscarriage of justice it must be possible to say that the defence was adequately presented, so that the arguments in the party’s favour appeared with sufficient clarity. 

[22]      Further guidance can be obtained from cases where it was argued that an appellant’s case was not properly presented in professional disciplinary proceedings.  One such case is Sutherland-Fisher v Law Society of Scotland, 2003 SC 562, a case involving disciplinary proceedings against a solicitor for matters that had formed the subject of criminal proceedings.  It was asserted that the solicitor would be unable to obtain a fair hearing in the absence of legal representation before the disciplinary tribunal, in breach of article 6(1) of the European Convention on Human Rights.  It was held (paragraph [20]) that whether legal advice and representation is required must depend upon the facts of each individual case;  the test to be applied was that of indispensability, and it was for the solicitor to demonstrate that at the tribunal hearing the provision of legal representation on his behalf would be indispensable in the sense that without such representation he would not be able to present his case properly and effectively and thus could not receive a fair hearing.  On the facts of the case under consideration, the court was not satisfied that the subject matter of the disciplinary hearing was particularly complex, and it was not necessary, at least ab ante, that legal representation should be available. 

[23]      We note that in the present case the appellant is a nurse, not a solicitor.  Furthermore, it seems to us that the facts of the present case are complex;  the case against the appellant is a circumstantial case based on an elimination exercise involving voluminous documentation.  The appellant’s defence requires a rigorous analysis of that elimination exercise, and of the documentation and written statements produced in support of it;  that applies in particular to the documentation that might disclose whether the incidents involving the use of four or eight tablets were associated with patient transfers.  When the overall presentation of the case is considered, we are of opinion that it cannot be said that the appellant’s case was adequately presented.  Documentation was absent;  cross-examination was not properly conducted;  and the fundamental criticisms made by the appellant of the Trust’s case do not seem to have emerged clearly.

[24]      In these circumstances we consider that this is a case where, owing to its complexity and the volume of documentation, legal representation was essential if the appellant’s defence was to be presented properly.  While the appellant had apparently obtained representation during the period prior to the hearing, it is clear that her solicitor, Mr Muir, wholly failed to conduct any effective preparations.  He did not even advise the appellant about the lack of preparation until four days before the hearing.  The result was that the appellant’s defence was not properly presented to the Committee.  We accordingly consider that the test in Anderson is satisfied.  If the test applied in the English cases is used, without reference to the criteria used in criminal appeals, we consider that the appellant’s legal representation prior to the hearing was of a standard that fell well below that of any competent lawyer.  Furthermore, the appellant’s own conduct of the hearing itself was clearly inadequate in a number of respects;  this was perhaps to be expected in view of her lack of legal knowledge and experience.  The preparation and presentation of the case are linked through the failure to obtain adequate documentation to present the defence.  We are therefore of opinion that the test laid down in cases such as Aston, to the extent that it may differ from Anderson, is satisfied.  Sutherland-Fisher can in our view be readily distinguished, as the present circumstances are much more complex;  furthermore, the appellant in that case was himself a lawyer, and the charges had been the subject of previous criminal prosecutions.  In all these circumstances we are of opinion that the appeal must be allowed on the basis of inadequate representation.

 

2.  The alleged error of law in the methodology relied upon by the respondents and accepted by the Conduct and Competence Committee
[25]      The appellant’s second ground of appeal is that the Conduct and Competence Committee erred in law by accepting the methodology relied upon by the respondents to identify the person said to be responsible for taking Cyclizine without authorization.  As we have noted, there was no direct evidence against the appellant;  the case against her was circumstantial.  It was not, however, a circumstantial case based on inferences drawn from a range of adminicles of evidence, where the individual items of evidence strengthen one another, and the elimination of one item is not necessarily fatal to the whole case.  Instead, the case against the appellant was based entirely on an elimination exercise.  In such a case, if the methodology used in the exercise is shown to be flawed in a material respect, the whole case must inevitably fail.  We have already summarized the main criticisms that were made of the methodology used in this exercise.  Three main issues arose:  the assumption that only one member of staff was involved;  the practice of removing tablets, four at a time, by staff involved in patient transfers;  and the allocation of staff to shifts, and in particular the presence of staff during the periods immediately before and immediately after their shifts.

[26]      The elimination exercise was based on the nursing staff rota.  It proceeded on the fundamental assumption that, if a nurse was not on duty during a period when Cyclizine tablets appeared to have gone missing, she was eliminated from the investigation.  On this basis, staff of the NHS Trust went through the rota incident by incident and eliminated any nurse who was not on duty at the time when tablets went missing.  In this way nurses were eliminated one by one until only two nurses remained;  these included the appellant.  Apart from the nursing rota, the rotas for doctors and cleaners were also analyzed;  the conclusion was that no single doctor or cleaner was thought to have been on duty on every occasion when tablets had gone missing.  In that way they were all eliminated.

[27]      The first criticism of the methodology was the assumption that only one person was involved.  We were not referred to any evidence that suggested affirmatively that only one person could have been involved.  Consequently this was no more than an assumption.  If it were incorrect, it is obvious that the elimination exercise would have been defective.  For example, if a particular nurse was not on duty during the time when the first incident occurred on 6-7 June 2011, she would be eliminated from further stages in the inquiry.  If, however, one nurse had been responsible for the first incident only and another nurse had been responsible for all of the remaining incidents, the result would inevitably be flawed.

[28]      The foregoing point is of particular importance in relation to the seventh, eighth, ninth and tenth incidents, where quantities of four and eight tablets went missing.  There was evidence that tablets, in quantities of four, were taken without recording the fact when patient transfers took place.  If any of those four incidents was attributable to a patient transfer, the result would be once again that the exercise was flawed;  the presence or absence of the appellant or any other nurse during the shift in question would be irrelevant to the exercise that was being carried out.  This is why those four incidents were important, and it is clear that they were founded on heavily by the appellant in her presentation of the case.  As already noted, in the course of the hearing she tried to obtain records that would establish that patient transfers took place on the dates in question, but the Committee refused to allow her to recover those documents.  In our opinion this placed the appellant at a serious disadvantage in trying to establish her defence.

[29]      Furthermore, the appellant gave evidence that nurses were present in the ward both before and after the shifts that appeared on the rota.  This is hardly surprising;  in a hospital ward staff are likely to come on duty shortly before they are due to start work, to ensure a smooth handover from shift to shift.  At the end of a shift, tasks may require to be completed, whether specific nursing tasks or paperwork.  It is therefore not surprising if staff stay on for a short time after their shifts have been completed.  The Trust’s methodology, however, assumed that if tablets disappeared during a shift (at any time during that shift) only the staff recorded as being on duty for that shift were considered possible culprits, and all other nursing staff were eliminated.  It is obvious that if the tablets were taken by a nurse who was present in the ward but not recorded as being on duty during the shift in question, that nurse would inevitably be eliminated, incorrectly.  For this reason it appears to us that the failure to take account of nursing and other staff who were on duty before and after shifts is a serious flaw in the methodology.  The appellant attempted to raise this during her presentation of her defence, as noted at paragraph [17] above;  she received an answer that was manifestly incomplete but, no doubt owing to her inexperience, she did not follow it up with adequate cross-examination.  Despite this, the defect in the methodology seems to us to be obvious.

[30]      Moreover, specific criticisms were made of the treatment of particular incidents.  The fifth incident involved the disappearance of 29 tablets which, according to the written elimination exercise (supplementary appendix, page 262), were “missing between 11^th – 12^th August”.  The elimination exercise is performed in respect of the day and night shifts on 11 August and the day shift on 12 August.  When the written record of the daily check of Cyclizine usage is examined, the time when the tablets went missing is not recorded (supplementary appendix, page 20).  It is therefore possible that a member of staff on duty on the night shift of 10 August, which would have continued until the morning of 11 August, could have taken the tablets.  All of those who were not on duty on the three named shifts, however, were eliminated.  This illustrates the basic flaw in the methodology, of confining the exercise to those recorded as on duty during particular shifts, without regard to the possibility that a person on duty in another shift might have had access to the drugs during the relevant period.

[31]      Likewise in the seventh incident, when eight tablets were recorded as missing on 13 September, it is recorded (page 264) that the Cyclizine was checked during the early shift on that date and again at 22.00 on the same day.  The early shift, however, ran from 7 am to 2 pm, and would overlap with those working the night shift (8 pm to 7.30 yam) on 12 September.  A similar point can be made in connection with the tenth and eleventh incidents.  The fundamental criticism is that the identification of the relevant shifts depends on the identification of the time when the tablets went missing, and as those times were only recorded in very general terms there was an overlap of shifts that might be relevant.  Despite this, only those on duty during a limited number of shifts were taken into account in the elimination exercise.  This seems to us to be a fundamental flaw.

[32]      In the Committee’s consideration of the issues, and in particular in its decision, no serious attempt is made to address the robustness of the NHS Trust’s methodology.  In particular, in relation to the possibility that tablets were removed in connection with patient transfers, the Committee stated that it could not be satisfied that any patient transfers took place on the relevant dates and therefore that any transfer documents existed.  Nor could it be satisfied that any documents that might exist would actually contain any information about the use of Cyclizine during these patient transfers nor could this explain the higher quantities that went missing.  In our opinion this shows a failure to understand a number of critical points.  First, if the appellant was denied the opportunity to recover records of patient transfers, it is hardly surprising that she could not establish that patient transfers took place on particular dates.  Secondly, unless an order for recovery of documents was granted it was obviously impossible to know whether documents actually existed;  that is one of the reasons for granting such an order.  Thirdly, the appellant accepted that patient transfers would not explain the high quantities that went missing on some occasions.  The patient transfers were relevant as explaining the four smaller incidents, and that was important because those four incidents were fundamental to the elimination exercise;  if no tablets were wrongfully taken on those occasions it is likely that false eliminations would have taken place.  The Committee’s failure to understand this last point appears to us to be of critical importance.

[33]      The appellant’s dismissal was the subject of proceedings before an Employment Tribunal, which decided her case in July 2012.  The decision of the Employment Tribunal was available to us, and it stands in marked contrast to the decision of the Committee.  It discloses (paragraph 4.9) that Mrs Jaffray gave evidence that the result of the elimination exercise was that the person responsible for the unauthorized removal of tablets was either the appellant or another named employee.  The elimination exercise itself could not decide between those two.  Consequently the Trust had looked for other evidence in the period before May 2011 to discover who was responsible.  They discovered that large amounts of Cyclizine had been used in October and December 2010, when the other named employee was on annual leave but the appellant was present.  On that basis it was decided that the culprit must be the appellant.  The methodology used in this connection was severely criticized by the Employment Tribunal.  In particular, it had not been considered whether other members of staff who had already been eliminated could have been responsible for the thefts in 2010.  There was thus a clear change in the methodology.  Furthermore, the assumption continued that only one person was responsible.

[34]      The Employment Tribunal’s criticism of the Board’s methodology continued at paragraphs 11-18.  They expressed concern at the robustness of the elimination procedure in that it was based on the assumption that there could only be one thief.  They also expressed concern about the stark nature of the elimination exercise:  it was assumed that if someone could be shown not to have been guilty on one occasion they should be entirely eliminated.  They describe themselves as being “troubled” by the elimination of the other named employee through consideration of thefts in 2010.  In conclusion, the Employment Tribunal described the appellant’s evidence as “convincing and cogent”, and reiterated the concerns that they had about the circumstantial case against her and the methodology underpinning it, but concluded that it had not been established that her dismissal was unfair, for reasons that were not connected with the validity of her defence to the charges.  In our opinion these criticisms are well founded.

[35]      We are accordingly of opinion, for the reasons set out at paragraphs [25]-[32] above as well as those given by the Employment Tribunal, that the methodology used by the NHS Trust to incriminate the appellant could not properly have been accepted by any disciplinary committee that directed itself properly on the law and assessed the evidence in a rational manner.  We consider that the appellant’s principal criticisms of that methodology are soundly based.  For that reason we are of opinion that the decision of the Conduct and Competence Committee of the respondents cannot stand.

[36]      Article 38 of the Nursing and Midwifery Order 2001 regulates appeals from the Conduct and Competence Committee of the respondents.  In particular, article 38(3)(b) confers power on the court to allow an appeal and quash the decision appealed against.  In the present case, because we consider that the methodology used in the case against the appellant was fundamentally flawed, we consider that that is the appropriate remedy.  We will accordingly allow the appeal and quash the decision of the Conduct and Competence Committee of the respondents.