Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE HOLMAN
Between:
THE QUEEN ON THE APPLICATION OF KIBE
Claimant
v
NURSING AND MIDWIFERY COUNCIL
Defendant
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Mr Matthew Pascall (instructed by Public Access) appeared on behalf of the Claimant
Mr Christopher Pataky (instructed by the NMC) appeared on behalf of the Defendant
J U D G M E N T
MR JUSTICE HOLMAN: This is a statutory appeal by a registrant, Ms Tabitha Kibe, from decisions by the Nursing and Midwifery Council that certain allegations of dishonesty were proved; that her fitness to practise is impaired; and that her name should be struck off the registrar. Pending the outcome of this appeal an interim suspension order is in force.
As so often on appeals of this kind, I approach it with a sense of considerable sadness. The appellant trained, qualified and worked for a number of years as a nurse, and I have no reason to doubt her vocation and her love of nursing. Very sadly, she has been brought down by what may have begun as a single foolish, albeit (as the panel found) dishonest, act which, however, became compounded. The key facts and dates are as follows.
Between April 2002 and October 2004 the appellant was employed as a full-time, permanent (ie not on a supply or bank or agency basis) staff nurse at Queen Elizabeth Hospital in Woolwich. In October 2004 she was dismissed from that employment. I do not have any detailed information as to the reasons for that dismissal, but I understand in general terms that it related to:
"Unacceptable performance, poor standards of care causing a danger to patients and being unable to carry out duties at the grade at which she was employed."
She then worked as an agency nurse until December 2007, when she applied for a permanent appointment at Queen Mary's Hospital in Sidcup. She submitted a formal application form, and at paragraph 8 of that form she signed a declaration which reads:
"I confirm that to the best of my knowledge the information given on this form is accurate. I understand false information will invalidate the application and may result in dismissal or disciplinary action if I am appointed..."
Paragraph 6 of the form required her to state her "Previous employment/most recent first" under a series of columns for the name and address of the employer, the post held, the grade and the dates from and to. She completed section 6 of the form in tabular form to the show that she was employed by Reed Nursing Agency as a staff nurse, D grade, from October 2001 to current, and that she was employed by Bridges Nursing Agency from March 2006 as a staff nurse, at D grade, from 03/2006 to current. No other information was given at all within section 6 of the form. It will be noted that those answers implied that she had worked as a staff nurse for the Reed Nursing Agency continuously from October 2001 to current. There was no reference at all to the employment between 2002 and 2004 at Queen Elizabeth Hospital.
The form required to be accompanied by a "supporting statement" which was in effect what is sometimes called a "personal statement". In her supporting statement she described herself and her history under a number of headings of her choosing, including Qualification and training; Experience, Job skills, Personal attributes. The supporting statement made no mention at all of the period of employment at Queen Elizabeth Hospital. It did state, without identifying where, that:
"I have worked in hospital in the urology ward for more than two years, from 8/04/02 to 30/9/2004".
In its context where it appears in the supporting statement, read with paragraph 6 of the form itself, the implication of that sentence was that the work in the urology ward was part of her agency work with Reed Nursing Agency.
The appellant was successful in her application, and began working for Queen Mary's Hospital in July 2008. In March 2009 that hospital was concerned about her performance, and a senior member of the staff, Mr Nagendra Kumar, began an investigation into her experience and competence and certain allegations which had been made as to her competence. He conducted a formal, and obviously serious, interview with her on 16 March 2009. According to notes made at the time, although clearly not verbatim, the following questions and answers were given:
“Q. NK asked TK to tell him about her employment history.
A. TK said that she had qualified in 2001 and then worked with agency.
Q. NK asked TK when did she take up a substantive post.
A. TK said then worked with the bank at Charing Cross Hospital.
Q. NK asked TK which agency she worked with.
A. TK said that it was Reed.
Q. NK asked TK whether she had any preceptorship.
A. TK said No.
Q. NK asked TK how regularly she worked on the bank?
A. TK said full-time...”
Nowhere in that interview, as recorded in that note, did the appellant reveal that she had in truth held a substantive post for about two and a half years at Queen Elizabeth Hospital. The result of the lack of candour was that there was an appreciable delay before senior staff at Queen Mary's Hospital learnt – fortuitously, as a result of an amalgamation between the Queen Elizabeth and Queen Mary's Hospitals -- that the appellant had been previously employed at Queen Elizabeth Hospital and dismissed for poor performance.
Arising out of these events the appellant was later dismissed by Queen Mary's Hospital and reported to the Nursing and Midwifery Council, and the hearings by the Conduct and Competency Committee of that Council resulted. After some amendments, the charges which the appellant faced were as follows:
When applying for the position of staff nurse within the Queen Mary's Sidcup NHS Trust:
That you failed to state on your application form, dated 21 December 2007, that you had previously been employed in a substantive post as a staff nurse by the Queen Elizabeth Hospital NHS Trust at the Queen Elizabeth Hospital;
Your actions described in 1(a) were dishonest;
That you failed to make clear in the supporting statement provided with your application that:
That you had previously been employed in a substantive post as a staff nurse by the Queen Elizabeth NHS Trust at the Queen Elizabeth Hospital;
(ii)That you had been dismissed from your position as a staff nurse at the Queen Elizabeth Hospital;
Your actions described in charge 1(c)(i)and(ii) were dishonest;
That you, whilst employed as a staff nurse at Queen Mary's Hospital by the Queen Mary's Sidcup NHS Trust:
During an investigation meeting on 16 March 2009, when asked about your employment history
Failed to inform Nagendra ... Kumar that you had previously been employed in a substantive post as a staff nurse by the Queen Elizabeth Hospital NHS Trust at the Queen Elizabeth Hospital; and
(ii)Stated you had not previously undergone a period of preceptorship;
Your actions described in charge 2(a)(i)and(ii) were dishonest; and
In the light of the above, your fitness to practise is impaired by reason of your misconduct."
The hearing itself spanned altogether six long days, spaced out over a substantial period between February 2011 and final imposition of the sanction on 13 March 2012. The panel consisted of a lay member in the chair, Ms Lesley~White; another lay member, Mr Paul Pharaoh; and a registrant member, Mr Michael Fanning. There was of course a legal assessor present throughout to give legal directions and advice to the panel. There was a case presenter who, however, varied on different occasions of the protracted hearing; but the registrant herself was represented throughout by a gentlemen, Mr Christopher Talabi.
As I understand it, Mr Talabi, who is present today, is somebody who is not fully, formally legally qualified, but who works for an organisation that provides help and representation to people, such as Miss Kibe, who cannot afford to pay for expensive legal representation and might otherwise have to represent themselves. I would like to say with the utmost sincerity that it appears to me, from reading many passages in the transcript, that Mr Talabi represented Ms Kibe with the utmost diligence, care and skill, albeit that (as can happen even to the greatest of advocates) he was not in the end able to achieve success for his client.
At the close of the case against the appellant, Mr Talabi made a submission, which was upheld, that there was no case to answer under charge 1(c)(ii), namely the charge that she had failed to make clear that she had been dismissed from her position at the Queen Elizabeth Hospital. The essence of the submission, which the panel accepted, was that although, as I will later explain, she was under a duty to disclose that she had been employed by the Queen Elizabeth Hospital, she was not under any duty voluntarily to disclose that she had been dismissed by that hospital. It follows, therefore, that the allegation under charge 1(c)(ii) did not form any part of the case against the appellant when she came to give her evidence or when the panel later made their rulings and reached their decisions in the case. They did, however, find all the other charges proved to the required standard of proof, namely the balance of probability. At later hearings they found that her fitness to practise is indeed impaired, and finally that the only appropriate sanction was the most severe one of being struck off.
The appellant now seeks to appeal from every stage of that process. She has been represented in preparation for, and at, this hearing by counsel, Mr Matthew Pascall. Mr Pascall appeared throughout the argument yesterday but was unable to attend this morning when I am constrained to give this ex tempore judgment for there was insufficient time late yesterday afternoon. So it is that Mr Talabi, who attended yesterday essentially as an observer and to give continuing support to Ms Kibe, generously agreed (with her agreement and after discussion with Mr Pascall) that he would again step in this morning, as it were, as her advocate and representative to hear this judgment and deal with any consequential issues. I am immensely grateful to Mr Talabi for volunteering to do so.
I turn to consider, first, the appeal against the findings themselves, and begin with the charges under paragraph 1, which relate to the non-disclosure of the previous employment in the application form and the supporting document. The appellant could not gainsay that she had not in fact disclosed that employment in either the form itself or the supporting statement. Mr Pascall did canvass with me yesterday a submission or suggestion that, as well as finding that there was no case to answer under charge 1(c)(ii), the panel should also have found that there was no case to answer under charge 1(c)(i) on the basis that the "supporting statement" was a document of the applicant's own drafting and that, although of course it could not contain any proposition that was untrue, it was entirely a matter of her choosing what to state in it. In other words, just as the panel had upheld the submission of Mr Talabi that she was under no obligation or duty to disclose that she had been dismissed from her position at the Queen Elizabeth Hospital, she was also under no obligation or duty to disclose in the supporting statement that she had even been employed there. That is not a submission that Mr Talabi had made to the panel at the half-time stage of the proceedings, but Mr Pascall suggests that it was nevertheless a conclusion to which the panel should themselves have come, or perhaps been directed to come by the legal assessor.
It seems to me, however, that on the facts of this case the charges in paragraph 1(a), which related to the content of the application form, and in paragraph 1(c)(i), which related to the content of the supporting statement, really did need to be considered together and stood or fell together. If, for instance, she had set out clearly and openly in her supporting statement that she had had a period of substantive employment at the Queen Elizabeth Hospital, it could have been little more than a technicality, and certainly not dishonest, that she had not included it in the tabular list in paragraph 6 of the form itself. Equally however, given that she had not included it in paragraph 6 of the form itself, the supporting statement was the only other place in which she could, frankly, have disclosed that employment.
The panel were to say in their decision on this aspect of the case that:
"The applicant is required to provide a statement of experience, knowledge and skills or interest in support of the application. The supporting statement, though on a separate sheet because of its length, is a part of the application form ... in the panel's judgment, the information in the application must be read as a whole. If the employment with Queen Elizabeth Hospital had been correctly stated in section 6 of the form, it may not have been necessary to state the same details again in the supporting statement. However, Ms Kibe did not provide the information at all. The panel is satisfied that Ms Kibe, having failed to state that employment in section 6 of the form, ought to have done so in the supporting statement. The panel finds that she deliberately refrained from saying in the supporting statement that she had been employed in a substantive post by Queen Elizabeth Hospital for the same reason that she failed to state it in section 6 of the form -- that she wished to conceal it from her prospective employer. And the panel finds that paragraph 1(c)(i) is proved."
It seems to me that that reasoning was fully open to the panel and is indeed convincing on this point. So it seems to me that Mr Talabi was wise not to make a submission of no case in relation to charge 1(c)(i) and that, with respect to Mr Pascall, there is nothing in that particular point.
The real issue in relation to the whole of charge 1 was, and is, whether or not the failure of the appellant to make any reference to the employment, either in the form itself or in the supporting statement, was dishonest. The panel considered with care the issue of dishonesty. It is common ground on this appeal that their legal assessor, Mr Peter Jennings, had given them a correct legal direction following the extremely well-known authority of Ghosh. It is therefore not necessary for me to quote that direction, and it suffices to say that he clearly directed them that they had to be satisfied, first, that her actions were dishonest "according to the standards of reasonable and honest people", and second, and only if so, that she herself "realised that what she was doing was by those standards dishonest".
In key passages in their decision on 1 June 2011 the panel said as follows:
"In its approach to the evidence, the panel had in mind that much of the evidence was some two years' old, that the recollections of witnesses would necessarily be imperfect and that the records of meetings were not verbatim ... It bore in mind that application forms do not always make it clear what information is required and what may, in the judgment of the applicant, be included or omitted. The panel found Mr Kumar ... to be [a] credible witness whose evidence was fair and measured ... In considering Mrs Kibe's evidence the panel bore in mind that English is not her first language, but it noted that she has now been in this country since at least 1994. The panel found that she was hesitant and inconsistent in her evidence and tended to hedge. In the panel's view Ms Kibe was not unintelligent; she was articulate and spoke spontaneously when dealing with clinical questions. But when speaking of other matters her answers were unclear and there were often long pauses while she considered what she was going to say. At various places in the documents or in her evidence she gave a number of different reasons for not divulging her previous employment at the Queen Elizabeth Hospital. These included that she had had a problem at the Queen Elizabeth Hospital and wanted a fresh start, that she had simply forgotten to put it on the form, that she was intending to tell her manager later, and that she referred to that employment, though not in terms, in the supporting statement [viz, a reference to the sentence which I have quoted above about working in the urology ward for more than two years]. The panel did not find Ms Kibe an impressive witness and where her evidence differed from theirs, it generally preferred the evidence of the other witnesses ... Ms Kibe's two years at Queen Elizabeth Hospital were a significant period and were her only period of substantive, as opposed to bank or agency, employment. While it accepts that an applicant would not necessarily be expected to list jobs such as casual work undertaken while a student, in the panel's judgment that section of the form -- section 6 -- required, in principle, a list, beginning with the most recent, of all employments ... The panel finds that Ms Kibe did not wish to refer to her employment with Queen Elizabeth Hospital because if that were mentioned it might lead to the discovery of the fact that she was dismissed from that employment for allegedly poor performance. In the light of the whole of the evidence, the panel is satisfied that section 6 of the application form called for the disclosure of Ms Kibe's employment with Queen Elizabeth Hospital and that Ms Kibe deliberately chose not to disclose it. The panel does not accept that there was any misunderstanding of what section 6 of the form required. Therefore, paragraph 1(a) is found proved. Paragraph 1(b). Paragraph 1(b) alleges that the registrant's actions in paragraph 1(a) were dishonest. The panel finds that Ms Kibe's action in omitting her employment with Queen Elizabeth Hospital from the application form was done deliberately because she wished to conceal that employment from those considering her application. It was not an oversight or a misunderstanding of what was required by the form. Ms Kibe signed a declaration at the end of the form that the information given in it was accurate. The panel is satisfied that by the standards of ordinary honest people what she did was dishonest. The panel then considered whether Ms Kibe knew that what she was doing was dishonest by those standards. The panel is satisfied, on the evidence as a whole, that she did and, therefore, paragraph 1(b) is found proved."
The panel then turned to consider charge 1(c)(i) and the content of the supporting statement, including passages which I have already read. They continued:
"Paragraph 1(d), this paragraph alleges that the registrant's actions in paragraph 1(c)(i) were dishonest. As the panel has said, it finds that Ms Kibe, having failed to state her employment with Queen Elizabeth Hospital in section 6 of the form, deliberately refrained from stating it in the supporting statement ... for the same reason that she failed to state it in section 6 -- that she wished to conceal it. Again, it was not an oversight. It was part of the same plan of intentional concealment. The panel is satisfied that by the standards of ordinary honest people Ms Kibe's actions were dishonest and that Ms Kibe knew that what she was doing by those standards [was dishonest]."
The thrust of the challenge on this appeal to those findings and conclusions with regard to dishonesty, turns upon evidence that the appellant gave to the panel, first, by way of paragraph 18 of a written statement made to the panel, and then by parts of her oral evidence to the panel. She said that when she was interviewed by Queen Mary’s Hospital for the position back in 2008 she had shown or given to the interviewers certain "certificates" which revealed on their face that she had been employed by Queen Elizabeth Hospital. She had said in paragraph 18 of her written statement:
"At the interview I showed them my certificate and my immunisation from Queen Elizabeth Hospital. This certificate is only given to regular staff, not to agency workers."
The documents in question form pages of a small bundle of documents which were attached to that written statement. These documents effectively comprise two types, and they all relate to immunisation and health testing and screening to which I assume nurses are subject. Within the small bundle there is a document clearly headed:"Queen Elizabeth Hospital NHS Trust", clearly emanating from the occupational health department of Queen Elizabeth Hospital. It is clearly dated 7 March 2006. It bears upon it a rubber-date-stamp recording (faintly) that it was received on 8 March 2006 by Charing Cross Hospital and, indeed, there is much evidence that at that time she was embarking upon agency work at Charing Cross Hospital. So the context seems to be, therefore, that before she could begin work at Charing Cross Hospital, she had to supply evidence of required tests and immunisation. The document contains the words:
"The above named is/was employed with Queen Elizabeth Hospital NHS Trust. Please find below the following information for your records ..."
The document then provides information about various tests and immunisation. The remaining documents are typical pathology department reports of various tests upon her for hepatitis and other antibodies. On some, although not all, of those documents, there is a rubber-stamp which refers to: "Occupational health department, Queen Elizabeth Hospital", and all or most of them also bear a rubber-stamp by Charing Cross Hospital dated 8 March 2006.
It seems, therefore, that these other documents were also generated in or about March 2006 as part of the same process of demonstrating for Charing Cross Hospital the required immunisation and screening for the presence of hepatitis or other antibodies.
The point made strenuously by and on behalf of the appellant is that if, as she claims, she showed these documents to the person or persons interviewing her at Queen Mary's Hospital, they would obviously have disclosed that she had been previously employed by Queen Elizabeth Hospital. So the point is made that if she was anticipating all along that she would have to disclose, or, at any rate, would disclose, those documents at interview (if she was short-listed for interview) she could not sensibly have expected to conceal from Queen Mary's Hospital during the overall application process the fact of her employment by Queen Elizabeth Hospital. It is argued, therefore, that her failure to refer to the employment at Queen Elizabeth Hospital in the application form and supporting statement can only have been attributable to carelessness or oversight and not dishonesty, for, it is submitted, any dishonesty would so obviously and rapidly have been revealed.
One answer to that submission is, of course, that the omission from the application form and the supporting statement certainly was not rapidly revealed, for there is simply nothing at all to suggest that any staff or officials of Queen Mary's Hospital had the slightest awareness of her previous employment at Queen Elizabeth Hospital until it was later to emerge, as I have described, some time after the interview with Mr Kumar on 16 March 2009.
As well as paragraph 18 of her written statement, the appellant did make a number of references to the production of these documents (generally described in the evidence as "certificates") during the course of her oral evidence. In the transcript of that evidence on 31 May 2011, there are the following passages. First, during her examination-in-chief by Mr Talabi there is the following:
“Q. What I am trying to get [at] is, how much scrutiny would you say you had at the time of the interview in relation to your application?
A. I went with my documents and I did my interview and I said I worked in this hospital and I produced my certificates ... so I presented this certificate to my interviewers and they did not ask me any question about it. In fact, they said they did not know I worked in Queen Elizabeth when all these problems came ..."
Q. Can I bring you to page 9 of the documents. That was the certificate - page 9 and page 10 - that was the certificate you presented at the time of the interview?
A. Yes. I had certificates for training and I had certificate for immunisation and all that, and I presented them.
Q. Actually, starting from page 8, and did they ask you any question about Queen Elizabeth?
A. They didn't ask me ...
Q. In your experience, this certificate, is it presented to anybody or people who are permanent or those on agency work?
A. If I look to those documents is the immunisation do(sic) follows when we are starting a new job, and that's what I presented to them.
Q. So this was what you get when you are in a regular job?
A. Yeah ..."
Later during cross-examination by the case presenter, who on that date was Ms Katie Williams-Howes, the following appears:
“Q. ... I am also going to suggest to you that the reason why you did not fill in the information in the application form that you had worked at the Queen Elizabeth Hospital was because, although it was applicable, it was because you had been dismissed?
A. I would say what you say, it does not apply to me at all because this information I filled in in this application form as I have been working as a nurse, or you can be working elsewhere, or you can get, you can have communication skills. It is the information you had in your life. But the thing is I did not go like pick this information, I have gotten this information, this knowledge or these skills, you know, as a mother. I did not go like putting everyone like that, no. And I did that supporting statement myself, and that is there, you know, that is the knowledge I have.
Q. Now, you also say that you went for the interview ... for the job at Queen Mary's Hospital ... that you provided them with a number of certificates?
A. Yes ...
Q. From the Queen Elizabeth Hospital?
A. I did. Even some I provided them with, they are not there [viz, in the small bundle attached to the witness statement]
Q. But you were --
A. I showed them.
Q. You showed them?
A. Yes.
Q. And is it correct that you also said that you told them that you worked at the Queen Elizabeth Hospital?
A. Yes, I did.
Q. But you were surprised that they did not make any comment on that?
A. Yes.
Q. Did they ask you any questions about ...
A. They didn't ...."
A little further on the case presenter asked some further questions about the interview and said:
“Q. Well, I am going to suggest to you that perhaps you did not tell them that you had worked for the Queen Elizabeth Hospital?
A. Oh, I did, and I gave my certificates."
At the end of the oral evidence of the appellant -- and in fact as the hearing straddled the end of one day and the beginning of the next day on 1 June 2011 -- there were questions to her from members of the panel. In the transcript of the hearing on 1 June 2011 there was a series of questions from one of the panel members, Mr Pharoah [I mention that the reference to Mr Fanning as the questioner at transcript page 2, line 13 is patently a mistake for Mr Pharoah, who is referred to in bold letters immediately above].
I do not think it necessary further to lengthen this already lengthy judgment by quoting the questions and answers over the ensuing pages, which are part of the record and available for anyone with a particular interest in this matter to read. The essential point is that Mr Pharoah asked Ms Kibe a number of questions about the certificates and that Ms Kibe repeatedly said that at the interview she had produced the certificates. After the questions by Mr Pharoah, there were some questions by the chair and her first question related also to certificates. The relevance and significance of the fact that Mr Pharoah asked questions at considerable length in the transcript around the topic of the certificates, is that it is quite clear from that questioning that he -- and obviously also the other panel members -- had firmly grasped the evidence that Ms Kibe had given them and was continuing to give them about the certificates and also its significance.
After the conclusion of all the oral evidence, there was of course an opportunity for both the presenting officer and Mr Talabi to make submissions. Mr Talabi made very clear and measured submissions of some length. In those submissions he referred at least twice to the evidence about the certificates. He said the following:
"So if you presented something at that interview it goes towards your application for that job because all of that will be looked into before they appoint you. So there was no doubt that before she was recruited she gave them information about Queen Elizabeth Hospital and showed them the certificates and all the immunisations - so there was no issue in that first part for her to answer the question - not only fill [in] the form and talk about it in the supporting statement, but also confirm her experience with a certificate and all the things from Queen Elizabeth Hospital."
Later he said:
"But mostly what I think is that your statement must be accurate and must not be ... must not show any dishonesty and we found out, the statement submitted by Ms Kibe was accurate because it gave the experience she had at urology, she supported it with the certificates, so there was no issue about the supporting statement, but it was not required that Queen Elizabeth should have been mentioned in that supporting statement."
It follows from all the passages which I have now read or to which I have now referred, first, that the appellant repeatedly referred to having produced these "certificates" at the interview; and second, that members of the panel very clearly had that evidence and its suggested significance in mind, and that Mr Talabi had clearly emphasised the point about the certificates and their relevance during his final submissions. It is right to say that in the reasons which the panel gave after their very long retirement of some six hours on that same day, 1 June 2011, they did not make any reference to the certificates or to the evidence of Ms Kibe that she had shown them to the Queen Mary's Hospital at interview. It is important to stress and bear in mind that a panel of this kind, although required to give reasons for their decisions, are not required necessarily to give reasons of great detail. In the case of Watson v The General Medical Council [2006] EWHC 18 (Admin) Collins J said (and the propositions are of course equally applicable to the Nursing and Midwifery Council) that reasons:
"... need not be lengthy and where credibility is in issue it will usually not be necessary to do more than indicate that the evidence of particular witnesses is accepted. When evidence has been given on particular matters and especially where the appellant has been cross-examined about them, it may be unnecessary for the panel to do more than indicate its conclusions if it is apparent from the transcript why the particular decision has been reached ..."
It is not, in my judgment or understanding, necessary for the panel to refer to every aspect of the evidence or the argument. Indeed, Mr Pascall expressly accepted yesterday that I should proceed on the basis that during their lengthy deliberations the panel did consider the certificates and their significance. Considerable evidence had been given about them; the panel had asked questions about them; Mr Talabi had referred to them and, presumably, the panel had the certificates with them when they retired. Mr Pascall indeed accepted that it is not fatal to the reasoning and decision of the panel that they did not make any reference to the certificates in those reasons, since the reasons can be succinct.
Mr Pascall submits, however, that if the panel had correctly considered the impact and significance of the certificates, the only view to which they could have come was that it had not been proved, on the balance of probabilities, that she had been dishonest - at any rate subjectively. His submission is that the only conclusion that the panel could reasonably have come to, in the light of those certificates and her evidence about them, was that she was not dishonest when she filled in the application form and made the supporting statement. He submits that her knowledge and awareness at that time, that she would have to produce the immunisation and similar documents or certificates at interview or, at any rate, before being offered the appointment, is wholly inconsistent with filling in the form dishonestly.
I understand the force and weight of those submissions. They do, of course, entirely require that the panel were satisfied that she had indeed produced the certificates at interview for Queen Mary's Hospital as she claimed. There was certainly no evidence to contradict her own evidence and assertion that she had done so, since no evidence was obtained or adduced from the person or persons who interviewed her. That said, the panel had to form and did form an overall view as to the quality and reliability of her evidence. It may be -- although we do not know -- that the actual conclusion of the panel in relation to the certificates and her evidence about them, was that they did not find that evidence itself at all credible or reliable. If they were not satisfied, even to some minimal threshold standard, that she had in truth produced the certificates at the interview, then of course the whole foundation of this submission and ground of appeal completely falls away.
There was clearly good reason to be sceptical, to put it no higher, about that evidence. The thrust of the argument is that by producing the certificates as she claimed to have done at interview, the registrant would obviously have alerted the appointing body at Queen Mary's Hospital to her former employment at Queen Elizabeth Hospital. But if she had done so, one would surely have expected them to ask questions about that employment and, indeed, to ask why it had come to an end and rapidly to have learnt of her dismissal from it.
Her own evidence in answer to questions from the case presenter (already quoted above) was that the interviewing panel simply did not ask her anything about her having worked at Queen Elizabeth Hospital. That seems so surprising that it may be, although I do not know, that the panel simply could not accept her evidence on this point at all. Even if, however, they did accept that evidence, the question still arises whether, as Mr Pascall submits, it necessarily demonstrates that she was not dishonest at the time she completed the application form and made the supporting statement. In my view, it does not have that effect. Production of the certificates (if they were produced) at the interview came at a later stage. It is certainly possible that she deliberately and dishonestly failed to make any reference to the employment when she completed the application form and made the supporting statement and only later, after she was offered an interview, appreciated or became aware that she would have to produce some evidence with regard to immunisation and antibody testing.
So I cannot accept the submission of Mr Pascall that "her knowledge that she would have to produce the immunisation documents is wholly inconsistent with filling in the form dishonestly" at the time she did fill in the form. It seems to me that, notwithstanding the evidence that she gave with regard to the interview and the production of the certificates, it was still open to the panel to reach the conclusions that they did with regard to dishonesty. Those conclusions were patently based on an overall assessment of the content and quality of her evidence and of the impression she made upon them as a person. I am quite unable on this appeal now to interfere with that conclusion which they reached.
I now turn to the grounds of appeal in relation to the findings in relation to charge 2; in summary, that at the interview with Mr Kumar on 16 March 2009, the appellant had dishonestly failed to inform him that she had previously been employed in a substantive post at the Queen~Elizabeth Hospital and positively stated that she had not previously undergone a period of preceptorship. In relation to this ground Mr Pascall makes two principal points. The first is that the finding that she had "stated [she] had not previously undergone a period of preceptorship" is unreliable, having regard to vagueness and ambiguity in the evidence on this point. Second, that there was no basis for the finding that she had been dishonest.
It will be recalled that the contemporary, but non-verbatim, note of the meeting with Mr Kumar on 16 March 2009 includes the following:
Q. NK asked TK whether she had any preceptorship.
A. TK said no.
In a witness statement dated 12 March 2010, at paragraph 6, Mr Kumar said of this meeting:
"During the investigation meeting I wanted to establish her previous levels of training and the training needs that she might now have, therefore I asked her if she had previously held a substantive staff nurse position, or if she had ever completed a previous period of preceptorship. Ms Kibe informed me that she had never had a substantive role and that she had not had a period of preceptorship."
Putting that passage side by side with the note of the interview, it will be observed that in his statement Mr Kumar described his question as being whether "she had ever completed" a previous period of preceptorship, whereas in the note the question is put as being "whether she had any preceptorship". However the question was put, it is both the note of the meeting and also the evidence of Mr Kumar in that statement that the answer was that she had not had a period of preceptorship.
Mr Kumar was asked about this during the course of his oral evidence, and at the transcript of 15 February 2011, the following appears:
“MR TALABI: Now the questions you put to Ms Kibe were had you ever completed a previous preceptorship, was that not the question you asked?
MR KUMAR: I think we need to refer to the notes to see what the exact question is ... My exact question was I asked TK whether she had any preceptorship.
MR TALABI: So you are saying your witness statement is not correct?
MR KUMAR: What I have to say from the memory is that there would be a discrepancy between what exact words had been used between the notes and this one, because the notes are taken by my HR adviser. But I can, from my memory, you could say that my question was what is in my statement. So which is have you completed a previous period of preceptorship.
MR TALABI: That was your question. Have you completed preceptorship? That was your question?
MR KUMAR: yes.
MR TALABI: So the questions you were looking for was whether she had completed preceptorship, not whether she had ever done preceptorship. That was the question. That is the impression you get from this statement?
MR KUMAR: yes.”
The registrant herself was asked a number of questions in relation to preceptorship, but it seems to me that the thrust of her answers is sufficiently summarised for this purpose in paragraph 12 of the skeleton argument of Mr Pascall, dated 3 May 2012, in which he put:
"It was the appellant's case, in broad terms, that she had unsuccessfully participated in a period of preceptorship but this had not been completed."
The thrust of the point that Mr Pascall therefore makes, is that the balance of Mr Kumar's evidence was to the effect that the precise question he asked was whether she had "completed" a preceptorship. The thrust of the appellant’s evidence was to the effect that she had participated in a period of preceptorship but that it was unsuccessful and, accordingly, had not been completed. It might be thought that the distinction between those positions is a somewhat fine one and ignores the obvious reality that, by his questions, Mr Kumar was obviously trying to find out the extent, if any, to which the nurse had had monitoring and preceptorship.
During the course of her own oral evidence, whilst being asked questions by the case presenter, there was the following passage within the transcript of 31 May 2011:
“Q. So you are telling the panel that over a two year period working on the urology ward that you never undertook a period of preceptorship. Is that correct?
A. Yes, it is correct.
Q. Well, I am going to suggest to you that you did undertake a period of preceptorship and that there was some problem and the preceptorship failed?
A. If you failed, that means you did not have one and I have explained that if you failed that means you did not have one.
Q. Could you perhaps explain that more clearly? So you are saying if you failed the training that means that you had not had the preceptorship?
A. What did you say? Did you say I did one and failed?
Q. Yes ... you did one and there was a problem and the preceptorship came to an end?
A. Ah, okay.
Q. Is that what happened?
A. That is what I am saying, that means I did not do it.
Q. Is that your understanding?
Yes.”
Against that background, it is now necessary to turn to the reasons for the decision of the panel on this topic. This appears in the transcript of the hearing of 1 June 2011:
"Paragraph 2(a)(ii). This alleges that during that meeting Ms Kibe stated that she had not previously undergone a period of preceptorship. The wording of the charge is, of course, a paraphrase. It is not suggested that those were Ms Kibe's precise words. Ms Kibe has given a variety of answers, many of them inconsistent, as to whether the training which she received at Queen Elizabeth Hospital constituted a preceptorship or not. Her answers to the question of whether she had a preceptorship have included `yes', `no' and `yes and no'. However, Ms Kibe has told the panel, among other answers, that she had a mentor, that she had a booklet to record the skills which she had passed and that some skills were signed off in it. When asked by the final disciplinary hearing in June 2009 whether she had had a preceptorship, she answered `yes'.
The panel is satisfied on the evidence that Ms Kibe had a period of preceptorship at the Queen Elizabeth Hospital but that it was not a successful one. During the investigating meeting on 16 March 2009 Ms Kibe was asked if she had had any preceptorship and she said no. The panel has considered the possibility that the question may have been slightly differently worded but is satisfied on the evidence as a whole, including Ms Kibe's various ways of stating the matter in the evidence to this hearing, that the substance of Mr Kumar's question and her answer to him was that she was telling Mr Kumar that she had not had any preceptorship, and paragraph 2(a)(ii) is found proved."
It seems to me, having regard to the various equivocating ways in which Ms Kibe dealt with this aspect of the case, that that conclusion was well open to the panel. Frankly, it is not affected by whether the precise question from Mr Kumar was whether she had "had" a period of preceptorship or had "completed" a period of preceptorship. Either way, the essence of the question was whether she had engaged, whether fully or not, in a preceptorship; and the answer, which she had clearly given to Mr Kumar, was that she had not.
In relation to charge 2(b) and the allegation of dishonesty the panel said:
"This alleges that Ms Kibe's actions in paragraph 2(a) in failing to inform Mr Kumar of her substantive post at Queen Elizabeth Hospital and in stating that she had not previously undergone a period of preceptorship were dishonest. The panel is satisfied that Ms Kibe continued to seek to conceal her employment at Queen Elizabeth Hospital from her employer. For her to have disclosed that employment or her preceptorship to Mr Kumar would have raised the same questions as to why it had been omitted from the application form that arose later. Additionally her employers might have been less willing to allow her further opportunity to improve her performance if they had known that she already had a period of preceptorship which had not worked out. The panel finds that those answers to Mr Kumar were part of the same continued deception as her answers in her application form. It finds that Ms Kibe's actions were dishonest by the standards of ordinary people and that she knew that they were and paragraph 2(b) is therefore found proved."
Having regard to the very full way in which the panel had dealt with the issue of dishonesty in relation to charge 1, it seems to me that it was entirely open to them to reach that conclusion about dishonesty also in relation to charge 2, for the reasons which they gave rather more concisely in that passage. For these reasons, therefore, I have to say that insofar as there is an appeal from any of the findings on the charges, it must be dismissed.
The other areas of appeal relate to the separate and distinct finding by the panel that the appellant's fitness to practise was impaired, and to the actual sanction that they imposed. These are two distinct stages of the overall process of adjudication, and the panel did indeed deal with them as two distinct stages on quite separate occasions. They reached their decision that her fitness to practise was impaired at a hearing on 26 September 2011. They considered and imposed the sanction at a hearing on 13 March 2012.
To some extent, however, the complaint that Mr Pascall makes about each of these two stages is a similar one. In relation to impairment, the panel were to say as follows:
"The panel then considered whether Ms Kibe's fitness to practise is impaired today by reason of that misconduct. In reaching its decision the panel bore in mind that a finding of misconduct, though serious, does not necessarily mean that a registrant's fitness to practise is currently impaired. The panel took account of the need to protect patients, the need to maintain public confidence in the profession and its regulation and the need to declare and uphold proper standards of conduct.
The panel's approach was to take account of the registrant's misconduct and then to consider it in the light of all the other relevant factors known to it, such as her insight into her behaviour and any steps which she has taken to remedy it, in answering the question of whether, by reason of her misconduct, her fitness to practise is currently impaired.
Mr Talabi urged on the registrant's behalf that her actions were in relation to her employment rather than to her practice; the charge does not involve bad practice or incompetence ...."
Pausing there, it is really that submission of Mr Talabi that seeks to distinguish dishonesty or misconduct in relation to patients or within the four corners of employment at a hospital, from dishonesty or misconduct in relation to the prior application for the job. The panel continued:
"... it did not find her an impressive witness and did not regard her as open and frank in her evidence ... This was serious misconduct and was not an isolated error. In the panel's judgment Ms Kibe has shown only limited, if any, insight into her dishonesty or remorse concerning what she did ... the panel regards Ms Kibe as presenting a risk to patients. She appears to regard it as acceptable to make a dishonest job application and then further to conceal her history from her employer when difficulties arose [viz, a reference to the events of 16 March 2009] The panel cannot be confident that she would be open about her employment history in the future or that if some clinical problem arose in her practice she would not seek to conceal it or ignore it instead of taking the proper course. It finds that there is a risk that she would, as she did on these occasions, put her own interests above the potential risk to patients. The panel also finds that her dishonesty damages the reputation of the profession and is a breach of one of its fundamental principles of conduct. Her integrity cannot be relied upon.
In all of the circumstances of the case the panel is satisfied that Ms Kibe's fitness to practise is impaired."
The main attack by Mr Pascall on that passage and conclusion is founded on the words: "The panel regards Ms Kibe as presenting a risk to patients." He submits that her dishonesty was confined to the process of applying for the job and then only within the context of the interview with Mr Kumar on 16 March 2009. He submits that there is simply is no evidence at all of her "presenting a risk to patients". He says that when the panel then said that "If some clinical problem arose in her practice she would not seek to conceal it or ignore it", that had no foundation in the evidence.
This is an area of the case in which a court on appeal should be circumspect about going behind the reasons, findings and conclusions of the specialist panel. They had heard from her by then at considerable length; they had formed the view that she was a person who had been dishonest, not once, but at least twice in relation to important significant matters, namely, the application for the job, and the clearly important interview with Mr Kumar some time later on 16 March 2009. Those findings, and the impression that they formed of her generally, clearly justified their making an appraisal that if some difficulty arose again she might, rather than being honest about it, seek to conceal or suppress it. If that were to happen, then the potential for risk to patients is indeed obvious. It seems to me that the findings and conclusions of the panel in relation to fitness to practise are, frankly, impregnable.
I turn, therefore, to the approach to sanction. It is necessary now to mention another development which had occurred before the panel finally came to consider sanction at a hearing on 13 March 2012. It had been discovered that on 5 January 2011 she had applied for a job with St Joseph’s Hospice in Hackney. The relevant application form included a question:
"Are you subject to any pending investigation with a professional body?"
She had answered: "No".
The truth of the matter was that, as of 5 January 2011, the beginning of this long process before the Nursing and Midwifery Council was, as she well knew, imminent. The first hearing had been fixed for 15 February 2011, only about five weeks after she answered that question on that form in that way. Patently, she was only too painfully aware, even in January 2011, that she was the subject of a pending investigation with a professional body and indeed about to face a disciplinary hearing. These facts were brought to the attention of the panel at the time of considering sanction and Mr Talabi accepted, as Mr Pascall now accepts, that the panel were entitled to take those facts into account in considering sanction, for, amongst other matters, they very clearly impact on the important issue of insight. The panel did not hear any more evidence from the appellant prior to considering sanction.
There is a document entitled "Indicative Sanctions Guidance" which sets out the hierarchy of sanctions and the general principles that the panel needed to apply. As is well-known, and as the panel patently demonstrated on that occasion, they are required to consider one by one the range of possible sanctions starting with the lowest sanction, namely that of taking no further action. They must not move, and this panel did not move, to any higher level of sanction without first determining that a lower sanction was not sufficient and appropriate in the circumstances of the case.
The range of sanctions are, in ascending order: to take no further action; to make a caution order; to make a conditions of practice order; to make a suspension order; or to make a striking-off order. Mr Pascall realistically accepts that the most lenient order that could conceivably have been imposed in this case was a suspension order. The issue is, therefore, whether the panel were justified in rejecting a suspension order as being a sufficient sanction and in moving to the highest level of sanction, namely a striking-off order.
The panel gave their reasons on 13 March 2011 as follows:
"The panel found that Ms Kibe's dishonest behaviour constituted serious professional misconduct and it found that her fitness to practise today is impaired in a number of respects ... The panel was not impressed by Ms Kibe’s evidence at the factual stage of the hearing. That evidence did not amount to any clear recognition that she had acted dishonestly or of the gravity of that misconduct ..."
The panel then referred to the untruthful answer to the question in the form to St Joseph’s Hospice in Hackney. They continued:
"In the investigation held by St Joseph’s Hospice in September 2011 Ms Kibe explained that answer by saying that she thought she would be cleared and admitted that what she did was not the right thing ... The panel has borne it [viz, that episode] in mind as relevant to such factors as Ms Kibe's insight into her faults, whether she has learnt from her experience and whether there is a risk of repetition."
They continued a little further:
"The panel regards the registrant's dishonest behaviour as entailing a risk of harm to patients. She was concerned to conceal her employment history ... This was not an isolated incident ..."
They said in relation to the possibility of imposing conditions of practise that:
"In the panel's judgment the misconduct which has been proved in this case reflects an attitudinal problem. Ms Kibe subordinated the interests of her patients to her own interests, was willing to use dishonest means to achieve that, and did so on two separate occasions over a year apart ...
In the panel's judgment it would be difficult to identify conditions which would address those failings or would be adequate to protect the public."
They then turned to consider a suspension order. They concluded:
"Ms Kibe's conduct was not compatible with a number of requirements ... of the NMC code. In completing the application form and supporting statement in December 2007 Ms Kibe showed that she was not trustworthy and she acted in a way that did not justify the trust and confidence that the public was entitled to have in her ... In seeking to conceal from her new employer the employment in which her performance had been called into question, she put her own career interests before the interests of her patients.
In the panel's judgment Ms Kibe has shown only limited, if any, insight into her dishonesty or remorse concerning what she did and there is either no or no significant evidence of anything done with a view to remedying her misconduct.
As the panel found in its determination on impairment, it regards Ms Kibe as presenting a risk to patients ... She put her own interests above the risk of harm to patients and the panel cannot be confident that her attitude would be different in the future. Rather, the declaration she made to St Joseph's Hospice suggests the contrary. The panel also found that her integrity cannot be relied on and that her dishonesty damages the reputation of the profession and is a breach of one of its fundamental principles of conduct."
They then concluded that her behaviour was:
"fundamentally incompatible with continued membership of the profession"
They then made the striking-off order.
The thrust of Mr Pascall's attack on the choice of the highest level of sanction, is again founded upon the parts of those passages which indicated that, in some way, she posed a risk to patients or had put her own career interests before the interests of patients. He submits that there is no evidence that she ever acted dishonestly or in any other way that amounted to misconduct (as opposed to lack of competence) in her actual handling of any patient. I simply cannot accept that submission.
The very fact that she concealed repeatedly from Queen Mary's Hospital even when it was, as she knew, investigating her levels of competence in March 2009, that she had been dismissed for reasons of competence from the previous employment, shows that she was willing to put at risk the safety of patients. She was seeking to conceal evidence of concerns about her levels of competence so as, if she was successful, to enable her to continue being entrusted with the care of patients whom she was not competent, or may not have been competent, to care for. Patently, the whole area of concern in this case related to her competence, which required to be openly and frankly appraised, with full knowledge of the previous history. She did all she could to suppress that. I respectfully completely agree with the panel's conclusion that, as a result, she put the safety of patients potentially at risk.
The question of which level of sanction to impose is particularly one for the discretion of the specialist panel. I cannot see anything to suggest that they, in some way, misdirected themselves in their approach to the indicative sanctions and the ascending order in which to deal with them. It does not seem to me that the actual sanction -- although of course very hard for the appellant -- was one that can be characterised as "excessive" and, accordingly, the appeal must be dismissed also, insofar as it relates to fitness to practise and sanction.
Standing back, it seems to me that this was an inquiry that was conducted with the utmost thoroughness and care by a conscientious panel over no less than six days in aggregate. They heard from the registrant at length. She was very effectively represented before them by Mr Talabi. They were correctly advised at every stage by their legal assessors. Their actual reasons are a model of clarity, and clearly indicate that they approached every stage of this process in the correct, stepped way and applied correct legal principles. They were the primary fact-finding body, and the body entrusted with making assessments of such issues as fitness to practise, and what sanction was required to protect patients and the public.
I have considered this appeal with the utmost care, as I have indeed tried to demonstrate with this now extremely long judgment. I repeat, as I began, that I approach it in many ways with much sadness at the position of the appellant, and it gives me no pleasure or satisfaction whatsoever to reach the conclusions that I have. However, for the reasons I have given, this appeal must be dismissed.
MR PATAKY: In the light of that decision the respondent asks for costs.
MR JUSTICE HOLMAN: Apart from costs, is there anything else that I need do or say. I think you said yesterday that the suspension automatically now converts into the striking-off order.
MR PATAKY: My Lord, yes, I believe that to be the case.
MR JUSTICE HOLMAN: When does the five years run from before she can apply again. Does it run from when they originally said that was the order they proposed to make, although it has been put in suspense, or does it run from today?
MR PATAKY: The substantive order does not take effect until my Lord gives judgment.
MR JUSTICE HOLMAN: Because they said she has to be struck off for 5 years before she could reapply. So the effect of the appeal is to delay by the period between when they made their order and now the first opportunity she has to apply to be restored to the registrar. If it has that effect, I am afraid that is something she has to bear. Anyway, so all I have to do is to say the appeal is dismissed; is that right?
MR PATAKY: My Lord, yes.
MR JUSTICE HOLMAN: Would you kindly draw up an order to that effect; agree it with Mr Pascall; and lodge it with the court. We do not seem to have an associate present, but an e-mail address to which you can send it. On costs then, you are asking that she pay your costs.
MR PATAKY: My Lord, yes.
MR JUSTICE HOLMAN: Are you asking me summarily to assess them or to say that they are to be assessed, if not agreed?
MR PATAKY: For you to assess them, my Lord.
MR JUSTICE HOLMAN: Have we got a costs schedule?
MR PATAKY: My Lord, yes.
MR JUSTICE HOLMAN: Was that supplied to the other side?
MR PATAKY: It was supplied yesterday, my Lord, yes.
MR JUSTICE HOLMAN: Did Mr Pascall have an opportunity to see it?
MR PATAKY: Yes, it was handed to Mr Pascall.
MR JUSTICE HOLMAN: Have you got it, Mr Talabi?
MR TALABI: Yes.
MR JUSTICE HOLMAN: How much, what is the bottom line?
MR PATAKY: £3,897.
MR JUSTICE HOLMAN: With or without VAT?
MR PATAKY: Without.
MR JUSTICE HOLMAN: Maybe you do not have to pay VAT, I do not know.
MR PATAKY: My Lord, that is right.
MR JUSTICE HOLMAN: You do not or you do?
MR PATAKY: That is the final figure.
MR JUSTICE HOLMAN: Can I see it?
MR PATAKY: My Lord, yes. (Handed)
MR JUSTICE HOLMAN: Thank you very much indeed. Oh, you prepared it.
MR PATAKY: My Lord, yes.
MR JUSTICE HOLMAN: But are these VAT inclusive figures? I mean, you are a barrister in private practice, are you?
MR PATAKY: No, my Lord.
MR JUSTICE HOLMAN: Oh, you are not. Oh, I see. What are you, employed by the NMC?
MR PATAKY: I am an employed barrister by the NMC.
MR JUSTICE HOLMAN: Oh, I misunderstood that. I see. So this is just charging you out at a certain rate.
MR PATAKY: Yes.
MR JUSTICE HOLMAN: You are not VAT registered. You do not charge VAT to the NMC.
MR PATAKY: Salaried, my Lord.
MR JUSTICE HOLMAN: You are salaried. I see. So maybe VAT does not feature in this then. You are counsel but this is rather just like a solicitor saying so many hours at so much an hour.
MR PATAKY: My Lord, yes, the figure that is drawn, as your Lordship will see, is grade B: Central London figure.
MR JUSTICE HOLMAN: Mr Talabi, is there anything you feel you can say, first of all, on the principle of whether or not Ms Kibe must pay, at any rate, something towards the costs of the NMC? Having brought the appeal and, I am afraid, been unsuccessful - I hate now to be appearing to jab the knife in further, but she has been unsuccessful; she has put the NMC to costs and someone has got to pay them.
MR TALABI: The only issue at the moment, as I explained to Mr Pascall, is in terms of her ability to pay immediately.
MR JUSTICE HOLMAN: That is a separate point. If I order her to pay something and then she says: "Well, I cannot pay all that at one go", I will consider sympathetically, when I hear a bit about her means, some sort of instalments' provision. But at the moment the question is should I just simply say the costs lie where they fall or should I say that she must, in principle, possibly by instalments, pay something, and then we can consider how much.
MR TALABI: Yes, I think she should pay something.
MR JUSTICE HOLMAN: What is the position? She cannot be working as a nurse, I hope.
MR TALABI: Yes, she is not working at the moment. She applied for benefits and she is presently being reviewed and she is not able to get anything at the moment from the benefits because they have to examine her and whatever they have to do.
MR JUSTICE HOLMAN: Does she have any savings?
MR TALABI: Does she have...
MR JUSTICE HOLMAN: Any savings.
MR TALABI: No.
MR JUSTICE HOLMAN: What sort of home does she live in? Is it rented, owned or what?
MR TALABI: Council, rented.
MR JUSTICE HOLMAN: Does she have a partner or a husband?
MR TALABI: Yes, she has a partner.
MR JUSTICE HOLMAN: Does she have children?
MR TALABI: She has children but they are back home. She sends money.
MR JUSTICE HOLMAN: Oh, they live in Africa. She is not paying for them in a day to day sense.
MR TALABI: She has to keep on looking after them back home.
MR JUSTICE HOLMAN: So she is living with a partner in a council property and is she the tenant or is he the tenant?
MR TALABI: She is the tenant.
MR JUSTICE HOLMAN: Does she pay the rent or is it being paid for her as part of her benefit?
MR TALABI: She is still not clarified on her benefits.
MR JUSTICE HOLMAN: Oh, I see. How has Mr Pascall being funded?
MR TALABI: She paid directly to Mr Pascall.
MR JUSTICE HOLMAN: Where did she get the money from?
MR TALABI: Savings she had before she was struck off.
MR JUSTICE HOLMAN: Well, Mr Pataky, I have to take a realistic view about this. It is not easy to see that she is likely to be able to just pay you nearly £4,000. She is in a rented flat. She is on forms of benefits. She cannot work as a nurse ex hypothesi. What can I do? What would be the very most I could order her to pay by way of instalments?
MR PATAKY: It is a matter of discretion.
MR JUSTICE HOLMAN: I know it is. But I need to know what -- I completely understand that the NMC starts out with the position, she brought this appeal; it has been unsuccessful. I am afraid it does not strike me that it was one that was ever very promising and it has put you to expenditure and your funds ultimately come from all your -- who do they come from?
MR PATAKY: Registrants.
MR JUSTICE HOLMAN: All the registrants. So all the registered nurses. From the perspective of the NMC, this is clearly £4,000, which is good money, that has been wasted, because they have to pay you when you could have been doing other equally important work but you have been deflected doing this. So you have a very powerful application. That said, the starting point is she has been struck off and is going to remain struck off. She certainly cannot earn as a nurse. It is pretty difficult to see what employment she may readily obtain in the near future. So it is likely that her means of support are going to be State benefits of one kind or another. There is nothing to suggest that she has got any capital. So what do you offer by way of instalments? What does she say she can pay?
MR TALABI: It is very chief difficult for us to say at the moment because she has not clarified her benefits and so when she knows what she is able to get --
MR JUSTICE HOLMAN: If it is difficult for her to say, it is even more difficult for me to say. I would like to hear what she has to say she could somehow pay as a contribution for a period.
MR TALABI: £10-15 a month.
MR JUSTICE HOLMAN: That is £120 a year. If that is right, it would be almost a lifetime before you got this back.
MR PATAKY: Well, perhaps if your Lordship were to assess a figure, direct that to be paid, perhaps moving forward from there and see, my Lord.
MR JUSTICE HOLMAN: I do not think Mr Talabi is necessarily suggesting, and I would not suggest, that the sort of figure that has been identified on the schedule is not a fair appraisal of what your costs are. That is not really the point. I could order costs, assessed as something in and around that figure, not to be enforced without leave. If she wins the pools one day you can have a go. There does not seem much point in ordering instalments which are going to be very burdensome to her and not help you very much. £10 or £15 a month is not worth the paperwork to the NMC.
MR PATAKY: My Lord, in principle, we would seek to uphold it.
MR JUSTICE HOLMAN: Mr Talabi, I think rather than make an order for payment by instalments I would be inclined to say she is to pay the costs, assessed in this figure, unless you want to argue with the figures, but not to be enforced without leave, and just leave it like that. Just if one day she is very, very lucky on the lottery, and we hear about it, or one day she gets a really good job and could realistically pay some of this back, they can seek leave to enforce. In the meantime nothing will be enforced. I think that is the problem about it. It is not doing any good to the NMC or society to say that from benefits -- benefits are basically designed to meet her needs -- she has to start paying £10 or £15 a month. It is not worth the paperwork to them but a burden for her. Do you want to say anything about the figure here?
MR TALABI: Well, the figure as well. We thought in terms of hours worked -- Mr Pataky said he is on a salary. If your Lordship says that she is also a member of the NMC, and the money generally comes from the money that she would have paid, she will have contributed during the time of registration.
MR JUSTICE HOLMAN: No, no, I cannot accept that argument. Mr Pataky says that a proper rated charge for his client is £242 an hour which seems an awful lot of money, but it would I think be in line with solicitors' levels of charges and it is not any different for a barrister.
MR TALABI: I do not know the rate for London at the moment.
MR JUSTICE HOLMAN: He says he spent 11 hours of preparation on all of this and we certainly know he was here for 5 hours. In fact he has been here for close to 5 hours again today but I am not going to allow that one. I do not think that I can.
MR TALABI: If it is for an hour --
MR JUSTICE HOLMAN: Say that again.
MR TALABI: The presumption of £242 per hour, we would say an hour's assessment --
MR JUSTICE HOLMAN: All right. Mr Pataky, I am willing to say that the appellant must pay the costs of the Nursing and Midwifery Council of and incidental to this appeal, summarily assessed in the sum of £3,897, not to be enforced without the leave of this court, and it will just have to remain like that.
MR PATAKY: Is it required that that be drafted, the order that your Lordship has just made?
MR JUSTICE HOLMAN: Yes, it does. It has to be put in writing by you in a proper order and submitted to the Associate on the e-mail address that you were given. Yes, I am not going to sit here and type out an order. There is no court official here to type out an order, so you are going to have to type it out, I am afraid, and e-mail it to that address.
MR PATAKY: Yes.
MR JUSTICE HOLMAN: I am very, very sorry, Madam. I have at great length explained to you why I have felt unable to allow your appeal. I am afraid you have to live with the decision that the panel reached. I can only hope that the day will come when you are able to rebuild your life. But thank you very much for coming. Mr Talabi, I could not be more profoundly grateful to you. Thank you. I am grateful to Mr Pataky as well, but it is all in a day's work for him, as you have just heard. But you have with the utmost generosity and, once again, with judgment and skill, stood in to help this lady. I am so grateful and I hope she is as well. Thank you all very much.