Aston, R (on the application of) v Nursing & Midwifery Council

MR JUSTICE MOSES: This is an appeal brought under Section 12 of the Nurses, Midwives and Health Visitors Act 1997 against the Nursing and Midwifery Council's Professional Conduct Committee.

The appellant's appeal is against a decision of the Professional Conduct Committee made on 7th May 2003. It was made at the conclusion of a hearing conducted over four days, firstly on 24th and 25th February and secondly on 6th and 7th May 2003.

The decision was that the appellant, who is a registered general nurse, should have his name removed from the Register of Nurses. The appeal, by virtue of Section 12, falls under part 52, rule 11, of the Civil Procedure Rules 1998. By sub-rule 3 of rule 11:

The appeal was advanced on two distinct but related grounds. Firstly, that the conduct of the case presented on behalf of the appellant by a non-qualified advocate, named in these proceedings as Ms O, appointed by the Royal College of Nurses, was so incompetent and so inadequate as to amount to a serious irregularity and that that irregularity affected the safety of the conclusion of the Professional Conduct Committee.

Secondly, that the committee failed to give sufficient reasons with the result that the appellant is in no position to know whether inadmissible evidence might have affected its conclusion.

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 this appellant.

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.

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 Wednesbury unreasonableness and such as to affect the fairness of the trial.

In R v Day, the test was posed in the following way:

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.

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 President's reference to Wednesbury unreasonable to mean that the conduct of the advocate must be such that he or she took such decisions and acted a way in which no reasonable advocate might reasonably have been expected to act.

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

The case against the appellant consisted originally of five charges. Charge 3 was dismissed at the close of the Council's case. In the first charge, it was alleged that the appellant had acted inappropriately towards patient A in that he (i) on an unknown date around January to February 2000, placed a stick between her legs while she was on a commode, (ii) on Friday 3rd November 2000, placed a stick between her legs while she was on a commode and (iii), on Saturday 4th November 2000 placed a stick between her legs while she was on a commode.

The evidence against this appellant depended on two care assistants, a Mrs Newton and a Mrs Robinson. Further, it depended upon the evidence of the Operations Manager, a Laura Morton. She described the condition of patient A. Patient A could not lift her legs, but it was no part of the care plan for a stick to be used in any way and she said in terms that there was no need for this appellant to use a stick at all.

The appellant denied the use of the physical application of the stick. He said he had merely used it to indicate the width the patient had to hold her legs apart when urinating. He did accept that on one occasion, the third, the stick may have come accidentally into contact with the ankles of patient A and left some physical signs. But, he said, that was only an accident.

Charge 2 alleged that on 4th November 2000 the appellant had deliberately swung patient A in a hoist whilst placing her on a bed. This was alleged to have taken place shortly after the third stick incident. The evidence against him rested on the evidence of Mrs Newton.

The appellant denied that he had deliberately swung patient A in a hoist. He said that as he turned, the hoist frame around the arm of the commode chair brushed against the bottom of the resident in the area of her backside. He said that this caused a slight movement as the hoist was moved on the carpet. He said he stood behind the hoist, holding the handle, trying to move it, and that patient A had a startled look on her face and moved slightly about the single pivot on the hoist so that he stopped immediately to move it.

The fourth charge alleged that he had acted, on a day unknown, inappropriately towards patient C in that he had shouted at him using words similar to, "Right, see, you can make your own bed", and had thrown the patient's clothing out of the wardrobe onto the bed. The evidence in relation to that depended upon the care assistant, Mrs Newton. The appellant denied that that incident had happened.

The fifth charge alleged that on an unknown date in about October 2000 he had acted inappropriately towards another patient, patient D, in roughly cleansing her mouth and then nipping her nose, causing her to grasp for breath. Whilst his case was that there might have been occasions when it was necessary to move the mucus from her mouth, she having difficulty with that problem, he denied that any incident in which she was hurt or her nose was nipped had taken place.

It can be seen, therefore, that the case depended upon the credibility of the care assistants on the one hand and the credibility of the appellant on the other. The burden of proof was the criminal burden resting upon the Council throughout and the standard of proof was the criminal standard, namely the committee had to be satisfied so as to be sure of the appellant's guilt before they could find the facts proved.

Once the facts were found to be proved, the second stage was then reached when the committee had to decide whether those facts amounted to misconduct. Those facts having been found to be proved, there was really no issue but that that was misconduct.

The final stage was the appropriate disposal of the case, having regard to the conclusion that the appellant had been guilty of misconduct in those ways and, as I have said, the conclusion was that he should be removed from the register.

The advocate retained by this appellant was obtained through the offices of the Royal College of Nursing. She was not legally qualified. A very large number of allegations have been made against her. Some of those allegations are less grave than others, but it is contended that cumulatively they show a level of incompetence far below that of anyone designated to represent someone in so grave a matter as a hearing as to misconduct which might, and in this case did, result in a nurse being removed from the register.

I shall not detail all the allegations made, indeed not all of them were pursued, but I shall concentrate on some of the most glaring examples. There was before the court a statement from the appellant; its status was not wholly clear to me, but there was no objection to my reading it. It detailed the poor communication between that representative and the appellant before the hearing started.

That poor communication does not go to the irregularity of the proceedings, save perhaps to explain the conduct of the representative, Ms O, during the hearing. But undoubtedly, that poor communication fuelled the lack of faith the appellant had in his advocate.

There were examples of a clear lack of familiarity of Ms O with the procedural rules. She was not a lawyer, but she might reasonably have been expected to learn the basic rules of admissibility and procedure before taking on the responsible task of advocate.

For example, on one occasion she intervened during the course of cross-examination by the solicitor for the Council of the appellant to object to leading questions asked by that solicitor. It was clearly a hopeless objection which should never have been made.

Of far greater significance was the cross-examination of Mrs Robinson, the care assistant, during cross-examination of her by Ms O on the first day. During that cross-examination, Ms O referred to the fact that this appellant had been dismissed by his then employer. That was not a surprising fact, but nevertheless it was wholly irrelevant and it was unnecessary to refer the committee to that dismissal.

I should, however, point out that when that mistake was made, the legal adviser to the committee, who appears to have acted with not only skill but astuteness in seeking fairness for the appellant, immediately advised the committee that that dismissal was irrelevant. (See page 340).

The witness Mrs Robinson had made a written statement against this appellant. Obviously, that statement was not before the committee unless it was put in during the course of cross-examination. It was.

The statement made a number of general allegations against the appellant. Gratuitously and unnecessarily, Ms O, on behalf of the appellant during cross-examination, adduced evidence of the details of those general allegations.

The statement of Mrs Robinson, so Ms O revealed, said:

Ms O chose to ask, "What kind of things bothered you about it?" Not surprisingly, the witness answered with other allegations made against the appellant that did not form the substance of any charge against him, namely, for example, that he used to shout at residents who could not answer back. (See page 318).

The cross-examination continued on this line to the extent that very shortly after, the legal adviser, Mr Irvine, had to intervene to warn Ms O that had this been the solicitor to the Council he would have stopped that line of cross-examination and that he could not understand why it was being pursued. As a result of that, Ms O said that it had been done in order to elicit that not every matter had been reported to Matron and she conceded that perhaps she used a wrong example. However, it appears that the matter was not then pursued and to my mind was quite unnecessary.

Mrs Morton, the Operations Manager, was also cross-examined on the first day by Ms O. During the course of that cross-examination, Ms O referred to a statement that recorded an interview with patient A. There then followed a long interchange when it is quite apparent that Ms O did not know how to handle that evidence or that statement. It was quite unclear how she wished to use that statement or whether she wished to cross-examine upon it in order, for some reasons that do not appear, to demonstrate some inconsistency.

The debate about whether she should use that statement continued, culminating at one stage in her being given advice both by the legal adviser and by the solicitor on the other side and then by Ms O in a manner which must have startled the appellant, saying, when being asked whether she wished to pursue the matter, to the committee:

And then the statement tails off.

It was quite apparent that she did not know whether she was going to deal with the statement or how she was going to deal with it and was seeking advice as to the matter. There was then a short adjournment, and she made no further use of that statement.

It was during the course of that interchange -- see page 267 -- that she submitted to the Tribunal that:

At that point the legal adviser intervened.

It was quite apparent that Ms O did not appreciate what she was saying and had no understanding of the concept of hearsay at all. The concept of hearsay is a difficult one even for trained lawyers, who do not by all means always get it right. However, the submission that apparently Ms O was making about it was wholly incomprehensible.

At the close of the Council's case, she was invited to make submissions. Ms O did so, but in a way that makes it clear that she did not understand the way to make submissions at the close of the Council's case or the nature of the rules relating to those submissions.

I need not read out the whole of that passage, but she merely asserted she was making a submission and it took a long time before the tribunal could extract from her the basis upon which such a submission was being made.

During the course of cross-examination of the appellant by the solicitor for the Council, it emerged that the appellant had suspicions that one of the complainants, Mrs Newton, was giving adverse evidence against him because of past history relating to the breakdown of her friendship with the appellant, consequent upon his friendship with another nurse or worker at the same establishment.

Using the last resort of prosecuting counsel, the appellant was challenged on the basis that that had never been put by his own representative. I say "the last resort" because it is rarely a substantial plank upon which any prosecution can rest its case. It was not in this case, but I mention the matter because it is plain that the appellant's case was not being put adequately on that limb by Ms O.

A further allegation against Ms O relates to a failure to call a witness, Catherine Bennett. She became a personal friend of the appellant and describes him in the statement before me as a very caring and friendly nurse, extremely well thought of by all the residents.

The appellant complains that Ms O took absolutely no steps to call that witness during the facts stage of the proceedings, which might have thrown a favourable light upon the factual evidence relating to the appellant. The possible explanation for the failure to call that witness rests in a letter which is in the bundle before me, dated 13th November 2002, from Catherine Bennett, which does say that she is unable to comment further in relation to the appellant because she had not actually worked with him.

In those circumstances, while it remains something of a mystery why she was not at least available to be called, it is difficult for this court to reach any conclusion as to whether Ms O was wrong or not in failing to call that witness; faced with that letter, it is not surprising that she did not. In those circumstances, I cannot conclude that it was an unjustified decision.

In relation to charge 5, it was alleged that she had failed to put the appellant's case that the incident had never happened and, in relation to charge 4, again failed to put the denial.

Looking at the transcript, there was cross-examination about both those incidents, designed to suggest, at the very least, that there had been no hostile act and that the observations may have been mistaken. I accept that it does not appear that the case was fairly and squarely put, but I do not attach great significance to that. From time to time, advocates do not put their case as squarely as they might and indeed from time to time are upbraided by a judge for failing to do so.

The failure to put a case is usually of more advantage to the prosecution than to anyone else since it might lead to a suggestion that the case was being made up at the last minute, but that does not appear to have been the case in the instant hearing.

I do not therefore attach great significance to those failures. Cross-examination on the lines of, "It did not happen, did it?" to a witness, where the case depends upon credibility, is rarely a useful forensic weapon. It can hardly have been expected that these witnesses, faced with such a cross-examination, would radically alter the adverse evidence they were giving against this appellant.

Further, it is alleged that in relation to charge 1, the appellant was not invited during the course of the evidence to demonstrate how he used the stick. In my judgment, that was not of any significance. It was perfectly open to him, as he did, to explain either that the incidents had never happened or, at the very worst, that they were merely an accident.

In that context, a particular passage in the cross-examination of Mrs Robinson as to whether she was saying the stick had been placed or forced between a patient's legs is of no significance and does not demonstrate any failure on the part of the advocate, Ms O.

Since the patient had such a level of spasticity that she was unable to move her legs, the question of whether it was placed or forced seems to me neither here nor there. There was no warrant for using a stick, according to Ms O or Laura Morton, at all.

Of greater significance was the evidence relating to a complaint by patient A. During the course of cross-examination by Mr Glendinning, it was put to the appellant that the resident appears to have complained to the staff. (See page 130).

It was further put to him that patient A had made a complaint, both of which propositions the appellant accepted. In fact, the complaint was wholly inadmissible. Ms O did not object. It clearly left an impression on one member of the committee because she asked about the complaint and as to whether there had been any breakdown in the relationship with patient A. (See page 145).

As I have said, the evidence of the complaint should not have been adduced and a competent legal adviser would have made that forcibly clear to the committee, but Ms O appears to have remained silent. But I should then note that the defect was remedied by the legal adviser himself when reminding the tribunal of the directions in open court the legal advice he had given, ie that that was not evidence against the appellant. (See page 29, B).

Looking at the complaints as a whole and cumulatively, I have reached the conclusion that Ms O's conduct of the case was so incompetent that it fell far below that to which the appellant was entitled. I should say that the appellant waived privilege so that there was every opportunity for Ms O, either herself or through the Royal College of Nursing, to make a comment upon the allegations made against her. Indeed, a judge last year adjourned the hearing of this appeal so that such comments could be received.

In the absence of any such comment, I have no explanation why certain courses of conduct were adopted. In my view, the approach adopted in relation, in particular, to adducing evidence of the grounds for general complaint against the appellant from Mrs Robinson and at least starting to adduce evidence about the dismissal, was an approach which no reasonable advocate would have pursued. It was quite unnecessary, so far as I can see, for the general evidence of Mrs Robinson's observations about the appellant's behaviour to be adduced.

The question then remains as to whether that level of incompetence rendered the process unfair. This was an adversarial process conducted according to the rules of a criminal trial. It could have and did have dire consequences for the appellant.

I accept that the mere fact that an unsuccessful defendant in disciplinary or, for that matter, criminal proceedings is deeply dissatisfied with his representation and believes that with better representation a different result might have been achieved, is not enough.

Many unsuccessful litigants feel the same, searching for a scapegoat for their lack of success. Many believe that if they had had the benefit of Sir Marshall Hall or Sir Patrick Hastings they would have succeeded, but that is no ground for allowing an appeal. But I should stress that the fairness of the process does depend on advocates on both sides and that those advocates achieve at least a reasonable level of competence.

In this case, the determination depended on which of the witnesses the tribunal believed. The tribunal had to be sure that the care assistants were telling the truth and were not mistaken. It had to be sure that the appellant was incorrect.

The tribunal found the facts proved. They were aware of the complete denial of the appellant in relation to the charges against him, save in relation to the third incident in charge 1, which he contended was not a deliberate act of hostility, and the possible accidental swaying or shifting of the hoist, the subject matter of charge 3.

These were simple and clear issues of fact. In that context, the second ground of appeal, namely the failure to give reasons, discloses no irregularity. The reasons given by the tribunal are set out at page 31. The committee said in relation to charges 1(a)(i), 4(a)(i) and (ii):

Those are the reasons for the committee reaching their decision on the facts. In my judgment, those reasons, in the context of a case of credibility, were adequate. See Gupta v GMC [2001] UKPC 61 and [2002] 1 WLR 1691, particularly at page 1699 in the opinion of the board given by Lord Rodger.

In relation to the examples to which I have referred of unnecessary admission of prejudicial, irrelevant or inadmissible evidence, I have previously noted that the legal adviser did intervene to prevent any further damage being done to the appellant. (See particularly page 319).

In relation to the evidence as to the dismissal, the legal adviser returned to it again at page 31, B, when giving his legal advice in public to the committee. In relation to the evidence as to the complaint of patient A, he gave specific advice at page 29 in public to the committee, before it reached its conclusion.

The committee must be assumed to have taken that advice and determined the case on the evidence. In my judgment, the incompetence of Ms O was not such as to thwart a fair resolution of the conflict of evidence between the care assistants and Laura Morton, on the one hand, and this appellant.

Reading the appellant's evidence in full, it is quite apparent he was able to give a full the account of his defence. He was disbelieved, and I do not think that the process of resolving those issues of fact and credibility was rendered unfair by the failures of Ms O.

I readily acknowledge that the appellant feels hard done by and I quite understand why that is so. I wish to emphasise the responsibility of the Royal College of Nursing to ensure that nurses are properly represented. But having regard to the issues in this particular case, I do not think that the trial of those issues was rendered unfair.

The legal adviser and, save for one exception, the solicitor appearing for the Council were astute to prevent Ms O from damaging the presentation of this appellant's case. He did have a full opportunity to put his side, his version of the facts, and there was a full opportunity for the committee to judge the Council's witnesses when tested in cross-examination.

In those circumstances, this appeal is dismissed.

MR LAWSON: My Lord, I would ask that you dismiss it with costs. I should explain in those circumstances that the NMC is not publicly funded. It is funded by subscriptions from the members of the profession so I am not asking it on behalf the taxpayer.

MR JUSTICE MOSES: Yes. What do you say about costs, Mr Gledhill?

MR GLEDHILL: As usual, that the loser pays the winner. The only thing in this case is that this was properly brought by Mr Aston, he felt, because of Ms O's conduct of the case.

MR JUSTICE MOSES: Who is paying for this?

MR GLEDHILL: Mr Aston himself.

MR JUSTICE MOSES: Is he in work now?

MR GLEDHILL: He is in work now. He is working for a nursing agency at a management level, taking enquiries from hospitals, giving new jobs --

MR JUSTICE MOSES: Is the Royal College of Nursing not prepared to chip in anything?

MR GLEDHILL: That is something that might be pursued through the complaints policy.

MR JUSTICE MOSES: There is nothing I can do about that.

MR GLEDHILL: My analysis of the costs law is that there is no way of joining them at this stage.

MR JUSTICE MOSES: That is very helpful, thank you. I am afraid I shall not allow the appeal, but order that Mr Aston should pay the costs. But having regard to the fact that this case was adjourned to give an opportunity for Ms O either herself, or through the Royal College of Nursing, to make a response, which might have at least shortened the hearing and certainly, if they had done it earlier, would have avoided an adjournment I do hope that the College of Nursing, having regard particularly to my remarks that I have made in this judgment, might be able to assist Mr Aston in the expenses of this matter.

It clearly does not reflect well on their procedures for choosing an advocate and ensuring they are competent. Apart from saying that, I do not think I can do anything else. Thank you both very much.