Clarke, R (on the application of) v United Kingdom Central Council for Nursing, Midwifery & Health Visiting

MR JUSTICE RICHARDS: This is an appeal against a decision of the Professional Conduct Committee of the respondent, the Nursing and Midwifery Council ("NMC"), made on 21 August 2003 at the conclusion of a two-day disciplinary hearing. At the hearing the appellant faced seven charges of misconduct in respect of incidents alleged to have occurred while he was employed as a Registered Mental Nurse at Havelock Nursing Centre, South London.

The factual allegations in four of the charges were found proved, and in each case the Committee went on to make a finding of misconduct. The penalty was to remove the appellant's name from the register without specifying a period of time. By this appeal, the appellant challenges the findings of the Committee and the penalty imposed.

The NMC is governed by the Nursery and Midwifery Order 2002. On 1 April 2002 it took over from the United Kingdom Central Council for Nursing, Midwifery and Health Visiting ("the UKCC") as the regulatory body for the nursing and midwifery professions, and the maintainer of the registry of nurses. The UKCC was governed by the Nurses, Midwives and Health Visitors Act 1997. As part of its function it had to determine by rules the circumstances and means by which a practitioner should be removed or suspended from the register and by which they might be restored or have their suspension terminated: see section 10 of the 1997 Act.

The relevant rules were contained in the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 (as amended). They include a procedural framework for the hearing of charges of misconduct. Pursuant to transitional provisions contained in the 2002 Order, disciplinary hearings before the NMC are currently dealt with under the terms of the 1997 Act and the 1993 Rules.

Each of the charges in this case allege misconduct, defined by Rule 1(k) of the 1993 Rules as "conduct unworthy of a registered nurse, midwife or health visitor as the case may be". The decision in question was, as I have indicated, that of the Professional Conduct Committee of the NMC. There is a right of appeal against such a decision by virtue of section 12 of the 1997 Act. The appeal is governed by CPR Part 52 and by Rule 52.11(3). An appeal can be allowed only if the Committee's decision was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings.

In broad terms, the approach of the court on an appeal is as follows. Although its function in respect of a statutory appeal is to conduct a re-hearing, it is one usually conducted, and conducted in this case, on the basis of a transcript of the hearing below. The appellate court must bear in mind that the decision-making Committee had the advantage of seeing and hearing the oral evidence given, and it must accord an appropriate measure of respect and weight to the judgment of the Committee on measures necessary to maintain professional standards and provide adequate protection to the public: see generally Ghosh v General Medical Council [2001] 1 WLR 1915, and Gupta v General Medical Council [2002] 1 WLR 1691, to both of which I will refer further in due course.

The charges against the appellant were as follows:

The hearing before the Committee commenced with the reading out of those charges. The appellant was represented throughout the hearing by a Mr Caderdina of the Transport and General Workers' Union. Let me say at once that I had some initial concerns on reading the transcript of the hearing as to whether the appellant's case was presented as well as it might have been. The appeal is not however based on any alleged incompetence on the part of his representative, and I am satisfied on consideration of the case as a whole that, despite my concerns, an appeal could not have been advanced successfully on such a ground.

The hearing proceeded as follows. First, the nature of the case against the appellant was explained by the NMC's solicitor, Mr Girling, in opening. It was explained that the factual elements of charges 1, 2, 3 and 7 were witnessed by two care assistants, Mrs Hall and Mrs Haynes, whilst the factual elements of charges 4, 5 and 6 were witnessed only by Mrs Haynes. After the opening, evidence was called: first, in the form of evidence from the manager of the Centre, Mr Cunningham, who gave background information and explained when he had received, and how he had dealt with, the complaints against the appellant that formed the basis of the charges. This was followed by evidence from Mrs Hall. Following her evidence, there was a short adjournment while the NMC solicitor took instructions. Upon the resumption of the hearing he announced that it had been his intention to call Mrs Haynes, but that she was not present and that efforts to make contact with her had been unsuccessful. He went on, addressing the Chairman:

Accordingly, no evidence was offered in respect of charges 4, 5 and 6. Those were the charges the factual elements of which had been witnessed only by Mrs Haynes.

The case against the appellant concluded. The appellant's representative made a submission of no case to answer in respect of paragraph (iii) of charge 3a, a submission which was accepted by the Committee. In relation to the balance of the charges, the hearing then proceeded. The appellant gave evidence which took up the remainder of the first day.

The second day began with the recalling of Mr Cunningham and then the appellant. Thereafter, the appellant's representative summed up on the factual elements of the outstanding charges, and the Committee retired to consider its decision on the facts. It returned after one and a half hours and announced that the outstanding charges were proved, and gave its reasons as follows:

The Committee went on to consider the question of misconduct in respect of the facts that had been found proved. The appellant did not admit misconduct, but did not adduce any separate evidence or make any separate submission on this question. Following deliberation, the Committee announced that it found misconduct proved in respect of each of the outstanding charges, and gave its reasons; namely:

After that, the NMC solicitor recalled Mr Cunningham to give previous history evidence. The appellant then called a character witness, Mr Cyrus, who said that he had known the appellant for 34 years and had worked with him as a psychiatric nurse in a number of hospitals, and who gave evidence favourable to the appellant. The appellant then gave evidence himself. Various questions were asked by the Committee, to which I will return. There was a short plea and mitigation by the appellant's representative.

The Committee retired to consider its decision on penalty, and after just over one hour returned to announce its decision in these terms:

The grounds of appeal raise four main issues which can be summarised as follows:

In addressing those issues, both counsel put forward their oral submissions with commendable clarity and brevity. The two sides' respective positions were already set out very well in skeleton arguments from both counsel, which I have also taken fully into account in reaching my conclusions.

The submission advanced by Mr Cofie, for the appellant, is that the Committee's decision to find proved to the criminal standard the charges that were upheld against the appellant was unreasonable. The starting point for the submission is that, as was plainly the case, the evidence against the appellant in respect of the charges found proved consisted solely of the uncorroborated evidence of one person, Mrs Hall. It is not necessary to refer in detail to her evidence, or to that of the appellant himself, relevant to each of the individual charges. It suffices to say that there was a clear, direct conflict of evidence between them, and the question for the Committee was whether they were sure that Mrs Hall was a credible and reliable witness.

Mr Cofie points to a number of reasons why Mrs Hall should have been considered an unreliable witness. First, she was unable to provide dates, even approximate dates, when the alleged incidents occurred. This is reflected in the fact that the charges specified in each case "an unknown date between 1 April 2001 and 1 August 2001". It is right to say that no complaint was made at the time on behalf of the appellant about the formulation of the charges in that way, and in my view no criticism can sensibly be made of such a formulation. Plainly, however, Mrs Hall's vagueness on the question of dates was a matter to be taken into account in determining the reliability of her evidence.

The second point made is that Mrs Hall did not report the incidents to her superiors at the time when they were alleged to have occurred. Nor did she make any contemporaneous notes of them. She made her allegations only on 29 July, some four months after the start of the period during which the incidents were alleged to have occurred.

Thirdly, it is said that she had a motive for telling lies, in particular because there had been friction between her and the appellant as a result of the appellant taking issue with her about her sleeping on duty and matters of that sort.

The first two of those points were raised clearly in cross-examination. The third was raised to some extent, although was not pursued forcefully, even though the Committee's legal assessor and NMC's solicitor had raised during the course of the hearing the necessity of putting to Mrs Hall any motive that she might be alleged to have for lying. The issue was also touched on in the questioning of the appellant, both in cross-examination and questions from the Committee, though the appellant's own evidence was that he had felt there had been a good working relationship between himself and Mrs Hall. So all these matters were clearly before the Committee, and in my judgment, the Committee must have had them all well in mind when reaching a view on whether Mrs Hall was a credible and reliable witness. The decision that she was nonetheless credible and reliable is one that, to my mind, is unassailable on appeal. It was an assessment that was plainly reasonably open to the Committee.

Mr Lawson has referred me to a passage in Gupta at paragraph 10 where Lord Rodger, delivering the judgment of the Privy Council, stated:

That passage is entirely in point as regards the appellate jurisdiction of this court in respect of decisions of the Committee. There is, in my judgment, no basis for interfering with the assessment made by the Committee as to the credibility and reliability of Mrs Hall.

One further matter I should deal with under this head is a concern expressed by Mr Cofie about what was said to the Committee about the non-attendance of Mrs Haynes, that is that "for reasons which it would be prejudicial for me to go into", it was unlikely that Mrs Haynes was going to attend the hearing. Mr Cofie submits that that may have left in the minds of the members of the Committee an impression adverse to the appellant. I cannot see how that could be so. No indication was given about the nature of the prejudice that would arise if the reasons for Mrs Haynes non-attendance were gone into. They might have been prejudicial to the appellant or to the witness personally or to the case against the appellant. The reference to prejudicial reasons was taken no further and was in itself neutral. It was not capable of having the adverse effect suggested by Mr Cofie.

I therefore reject the first ground on which the appeal is advanced.

Mr Cofie submits next that the Committee should have provided full reasons why it found the facts alleged in the relevant charges to be proved, why it found Mrs Hall to be a credible and reliable witness, and why the members of the Committee were sure beyond reasonable doubt that Mrs Hall was telling the truth. Full reasons were said to be required since the appellant's case was that Mrs Hall had a motive to tell lies -- something which with which the Committee should have dealt in its decision-making process.

It is also said that the issue of the reluctance of Mrs Haynes to give evidence should have been addressed once it had been raised, as it was, at the hearing. The case as to deficiency of reasons faces a formidable obstacle in the form of the decision in Gupta. In that case, the Privy Council held in essence that there was no general duty on the Professional Conduct Committee of the General Medical Council to give reasons for its decisions on matters of fact, particularly where its decision depended essentially on resolving questions of the credibility of witnesses. What was said in relation to the General Medical Council is equally applicable to other professional bodies such as the NMC.

Mr Lawson took me in particular to paragraph 13 of the judgment, where the principal reasoning in support of that conclusion is set out. I do not think it necessary, however, to quote the passage here. It is plain that in Gupta the Privy Council considered that it was not generally necessary even to indicate formally which witness's evidence was accepted and which was rejected, let alone to set out why a particular witness's evidence had been accepted or rejected. There were considered to be sound policy reasons for not adopting such a course. It is true that in paragraph 14 this was said:

Mr Cofie seized upon that last point and submitted that the present case is one where fairness required the giving of reasons, having regard to the factors identified under the first issue as casting doubt on the credibility and reliability of Mrs Hall and the reasonableness of the conclusion reached by the Committee. He submits that the Committee should have set out in detail the matters taken into account in order, at the very least, to show that those matters had indeed been properly considered. I reject those submissions.

There is nothing in the circumstances of this case which required the giving of more detailed reasons than were in fact given. The Committee spelled out that they had found Mrs Hall credible and reliable, which would, in any event, have been obvious from their finding that the relevant charges were proved. It was not incumbent on them to engage in a detailed analysis of the considerations taken into account in reaching that conclusion. Such a course is not required as a matter of fairness, and there are good reasons of policy, as indicated in Gupta, why such a course would be undesirable.

The main point advanced under the third issue is that the Committee acted in a procedurally unfair manner in failing to adjourn the case before deciding on what penalty to impose. By Rule 18(4) of the 1993 Rules, the Committee, where it finds charges of misconduct proved, is required next to consider and determine whether it should postpone judgment. It is apparent from the Committee's reasons when imposing a penalty that it had considered the point and had decided not to make a postponement. Mr Cofie's submission is that the Committee acted unreasonably or unfairly in not postponing, that is to say not adjourning the case, given in particular that no report on the appellant had been prepared by the Nurses' Welfare Service, and the appellant had no up-to-date references to produce; the more so since the Committee referred to the failure to produce any up-to-date references in its reasons for imposing the penalty it did. It is submitted that if the Committee was going to take that into account it should have adjourned so as to allow further references to be obtained. This court has had placed before it four references which, as I understand it, the appellant says he could have obtained for the Committee had there been an adjournment. Those references are undoubtedly favourable to him.

In considering the submissions advanced, it is important to bear in mind what actually happened before the Committee. It is apparent from the transcript of the proceedings that, after hearing the character witness called on behalf of the appellant and hearing the appellant himself, the Committee asked whether a report had been prepared by the Nurses' Welfare Service, and was told that no report had been prepared because the appellant had maintained his innocence throughout and there were no official issues that needed to be presented. The Committee also asked the appellant's representative if he had any up-to-date references for the appellant, to which he replied that he did not, and whether he had anything else to put before the Committee to mitigation, to which he responded by making brief remarks in mitigation. It is to be noted that there was no application by the appellant or his representative for an adjournment for sentence or a postponement of judgment. Nor can there be any suggestion that the appellant failed to foresee the need to adduce any evidence that he wished to rely on in mitigation. On the contrary, Mr Cyrus was in attendance for that very purpose and was duly called to give evidence.

It seems to me that, in those circumstances, no criticism can properly be levelled at the Committee for proceeding as it did. It was for the appellant to adduce any evidence he wished to rely on in mitigation. As I have said, he had a witness available for that purpose. He did not, and his representative did not, suggest to the Committee that time was needed in order to obtain any further evidence. There was nothing before the Committee to suggest that, if an adjournment were allowed, it might enable a Nurses' Welfare Service report to be produced or up-to-date references to be placed before the Committee. Both matters had been very fairly raised by the Committee itself, as indeed was the question of further submissions in mitigation. In my judgment, the Committee cannot be said to have acted unfairly or unreasonably in deciding in the situation that arose not to postpone judgment but to proceed at once to the question of penalty, as it did. Having lawfully proceeded to the final stage, the Committee cannot be properly criticised for taking into account the absence of up-to-date references. That was plainly a relevant factor in determining the penalty.

A further criticism made under this head is that the Committee acted unfairly by commenting in its reasons for the penalty that the appellant had not demonstrated that he was aware of the seriousness of his actions. In my judgment, however, it was highly relevant for the Committee to consider whether the appellant had shown insight into the misconduct found proved against him, and the assessment made was plainly one reasonably open to the Committee on the evidence before it. Accordingly, I reject the various points advanced in relation to the third issue.

The submission made finally is that the decision to remove the appellant's name from the register without specifying any period of time was too severe bearing in mind, in particular, the appellant's prior unblemished record and the mitigating evidence of Mr Cyrus, called on his behalf. As to the correct general approach of the court to a question of penalty, it is right to refer to paragraph 34 of the judgment in Ghosh. In that paragraph, Lord Millett, giving the judgment of their Lordships, referred first to Evans v General Medical Council (unreported) Appeal No 40 of 1984, where the Board had said:

Lord Millett went on in giving the judgment in Ghosh:

The reference in that passage to the maintenance of professional standards and the protection of the public is important, because that is the primary focus of sanctions in cases of professional discipline. One sees that, for example, in paragraphs 21 and 22 of the judgment in Gupta.

In the present case the sentence may seem severe, but it must not be forgotten that the charges found proved against the appellant involved verbal and physical abuse of very vulnerable patients, and was conduct in relation to which, as appears from the Committee's reasons, the Committee took a serious view.

For the reasons given, I find against the appellant on each of the issues raised, well though his case was put on his behalf by Mr Cofie. Accordingly, the appeal must be dismissed.

MR LAWSON: My Lord, I would ask you to dismiss it with costs. My friend is on forewarning of this. The NMC is funded solely by subscription from members of the profession; it is not publicly funded, and I say that to distance myself from, for example, a legal aid situation, and so the costs of this are borne by the profession unless recoverable against Mr Clarke. There is a statement of costs which has been provided to my friend and I have one here. It is extremely similar in final amount to that of the appellant himself.

MR JUSTICE RICHARDS: May I see it?

MR LAWSON: Certainly you may. I have a signed one here. There is a difference of just under £200 -- this being a hearing of less than one day, and, bearing in mind I will ask for, first of all, costs and in the sum set out in the schedule.

MR JUSTICE RICHARDS: Thank you very much. Mr Cofie, what do you say?

MR COFIE: My Lord, there is not much I can say bearing in mind that the appellant has been unsuccessful in his appeal.

MR JUSTICE RICHARDS: There are two points: one, the principle of costs, and what you say is, I think, wholly realistic about that. As to the amount, again on the face of it, it looks a perfectly reasonable sum that is put forward. I am told it is not dissimilar to the sum that the appellant had in his own schedule.

MR COFIE: Save for counsel's costs, my Lord.

MR JUSTICE RICHARDS: You may tease Mr Lawson in relation to that but I do not think that I can say that the amount claimed in respect of his costs is actually unreasonable, especially having regard to the very considerable assistance that was given to the court by his exposition of the legislative and factual framework.

MR COFIE: That is accepted, my Lord.

MR JUSTICE RICHARDS: In those circumstances, I am afraid that I am going to have to make an order that the appellant pays the respondent's costs of the appeal. I will summarily assess those costs in the amount set out in the schedule, which is £6,293.30.