Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SALES
Between:
EUNICE OGBONNA-JACOB
Claimant
v
NURSING AND MIDWIFERY COUNCIL
Defendant
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Mr Z Khan appeared Pro Bono on behalf of the Claimant
Miss H Fleck (instructed by NMC) appeared on behalf of the Defendant
J U D G M E N T
MR JUSTICE SALES:
1. This is an appeal against a decision of the Fitness to Practise Panel of the Nursing and Midwifery Council dated 6 February 2012 in the appellant's case whereby, for reasons set out in a transcript of proceedings of that date, the Panel found that the appellant's current fitness to practise as a midwife was impaired and considered that the appropriate sanction in the circumstances should be a striking-off order.
2. The background, put shortly, is as follows. The disciplinary proceedings against the appellant related to an incident on 26 April 2005 and complaints made by a woman under her care who was delivered of a baby on that date. The mother complained about various aspects of the way in which she was treated by the appellant, including matters such as, as was alleged, pressurising her husband to leave the birth room for a particular reason contrary to the wishes of the mother and being absent from the birth room at the time the baby was born.
3. Disciplinary proceedings were commenced against the appellant and there was an original determination adverse to her. She appealed against that to the High Court and by an order dated 18 February 2010 her appeal was successful. The sanction imposed upon her was quashed and the matter was remitted for consideration at a further hearing of the Panel.
4. The appellant was unrepresented at that further hearing. which took place over 8 days in June and August 2011. At a point about half way through the hearing the appellant declined to participate further in the proceedings, despite having actively participated up to that point in time and having had the opportunity to cross-examine the Council's witnesses against her. The appellant withdrew because she was unhappy at a ruling of the Panel not to exclude the press.
5. The Panel had to consider whether to proceed with the hearing in her absence. After due consideration, it decided that that was the appropriate thing to do. The Panel proceeded to consider the charges against her in an even-handed and balanced way, finding certain of the allegations not proved; but some of the allegations were found to be proved. These included what in the view of the Panel was the most serious allegation and the one which caused them the greatest concern, namely that the appellant had failed to attend upon the mother during the delivery of the baby. In determining these charges against the appellant the Panel had to decide whose version of events they believed in relation to each of the particular allegations.
6. The outcome of that determination was a lengthy decision letter sent to the appellant on 24 August 2011, setting out in full the reasons of the Panel for making the various findings of fact that it made in relation to the charges against the appellant, its assessment as to whether on the basis of those findings of fact the appellant's fitness to practise was impaired and its assessment of the sanction that was appropriate in the circumstances. The Panel found that the appellant's fitness to practise was impaired. The sanction it imposed, having regard to the previously unblemished record of the appellant as a midwife for many years and the length of time that the charges had been hanging over her head, was to make a suspension order for six months. In the letter the Panel explained:
"Our decision is to suspend the registrant's registration. There has been misconduct but not such that is fundamentally incompatible with continuing registration.
The period of suspension is six months. We think this period is appropriate, in particular in light of the length of time it has taken to bring these matters to a conclusion.
This means that there will be a review hearing before a panel of this committee. The Review Panel will be assisted by the following:
A reflective written piece highlighting her understanding of the importance of good communication with patients and other professions (both verbal and non-verbal),
the importance of accurate record keeping and
the importance of care during the second stage of labour."
The letter went on to explain that the Panel would review the suspension order before it expired and that at the review the Panel would choose between a range of options which would include extending the period of suspension, making a conditions of practice order or making a striking-off order.
The appellant gave notice to the Council that she would wish to appeal against its decision but - although the letter of 24 August 2011 gave her fair notice that if she wished to appeal, the route of appeal was to the High Court - she did not take forward an appeal to the High Court. She is now long out of time for appealing against the decision of August 2011, as Mr Khan who appeared for her today accepts.
The appellant was given notice of the review hearing which was to take place prior to the end of the period of suspension. It is clear that she was aware that that hearing was to take place on 6 February 2012. She did not attend the hearing on 6 February 2012, but instead wrote to the Panel to state that she could not attend the hearing on the basis that she asserted that she had no case to answer, had maintained her innocence and would continue to do so.
9. At the hearing on 6 February 2012, the Panel considered a series of points. The first point it considered was whether the appellant had been given fair notice of the review hearing. It concluded that she had been, and no complaint is made about that.
10. Secondly, the Panel considered whether it would be appropriate to continue with consideration of the case in the absence of the appellant. The Panel specifically kept at the forefront of its thinking the fact that this was a matter of discretion for them which should be exercised with the utmost care and caution. It gave reasons why it considered that it was appropriate to continue with the hearing in the appellant's absence, as follows:
"The Panel considered the letter from the Registrant which, although undated, refers to the date of this hearing and is clearly written in response to the notice of this hearing. In that letter, the Registrant expressly states that she cannot attend this hearing, as she asserts that she has no case to answer, has maintained her innocence and shall continue to do so. The Panel notes that there is no suggestion from the Registrant that she seeks an adjournment, or that she would be more likely to attend if the hearing were adjourned to give her a further opportunity to do so. On the contrary, it is clear to the Panel from the nature and contents of that letter that the Registrant would be most unlikely to attend on a future occasion. The Panel is entirely satisfied that the Registrant has voluntarily decided not to attend and that no useful purpose would be served by an adjournment.
The Panel has also taken into account its responsibilities for public protection and the public interest in carrying out a timely review of this suspension order before it expires.
The Panel accordingly concluded that it would be in the interests of the justice to proceed with this hearing in the absence of the Registrant."
11. Mr Khan is critical of this part of the decision of the Panel, but in my view there is no good ground on which it can be criticised.
12. The appeal to this court is under CPR Part 52.11. Under CPR Part 52.11(3) the appeal court will allow an appeal where the decision of the lower court was “…(a) wrong …”. In considering a decision of a body such as the Panel, the court is careful not to treat itself as the primary decision maker in relation to matters of case management, such as the question of whether the hearing should have been adjourned, but confines itself to considering whether the decision made was “wrong”, allowing considerable respect for the judgment of the disciplinary Panel in deciding on the appropriate course that it should adopt.
13. In my view there is no proper basis for criticism of the Panel in the circumstances in relation to its decision to proceed with the hearing against the appellant, for the reasons given by it. The appellant had been fairly put on notice of the review hearing and of its significance in previous correspondence. She had made clear that she did not intend to attend to engage with the review process. Both on the ground that an adjournment would be unlikely to serve any useful purpose and on the ground that the Panel had responsibilities to proceed to consider the case in order to ensure that the public interest was properly protected, the Panel was in my view clearly entitled to consider that the appropriate course was to proceed with the hearing.
14. The Panel considered whether the appellant's fitness to practise continued to be impaired currently by reason of her misconduct. As far as that is concerned, the Panel reasoned as follows:
"The Panel noted there is no evidence to suggest that the Registrant has demonstrated any insight into her failings, or that any remedial steps have been taken by her since the original order was made. The Panel noted that the original panel, very sensibly and reasonably in this panel's assessment, expressly indicated for the Registrant's benefit in its decision that this review panel would be assisted by: (a) a reflective written piece highlighting her understanding of the importance of good communication with patients and other professionals; (b) the importance of good recordkeeping; and (c) the importance of care during the second stage of labour. The Registrant has not provided any such reflective written piece, nor has she referred to it or offered any explanation in her two letters as to why she has not responded positively to this suggestion. Instead, the Registrant in those letters reiterates her angry denials of all the facts which have been found proved. In her letters, she presents herself as a victim in this case. She shows no concern whatsoever for the consequence of her failure to provide care and safe and proper treatment for patient A, which included leaving the second stage of labour for no good reason and as a result of her annoyance following the oversight on the part of the patient's A's husband to bring nappies to the hospital. In her undated letter, the Registrant states, 'But I have done my best for this woman (Patient A) and her baby under the difficult environment I worked and have helped both the patient herself and her baby are alive and healthy'. The Panel is profoundly disturbed by the absence of any concern by the Registrant for the distress and trauma which her conduct would have caused Patient A. It is clear to the Panel that the Registrant has no insight into the effects of such behaviour on Patient A or the reasons why such behaviour is fundamentally at odds with the commitment to caring for mothers giving birth, which lies at the heart of the midwife's role.
In view of the Registrant's complete lack of insight or concern for Patient A and the lack of any attempt to recognise the need for, or take, remedial action, the Panel has no doubt that there would be a serious risk of repetition of similar behaviour in the future, with the significant risk of patient harm.
In view of these considerations, the Panel has no doubt that the Registrant's fitness to practise continues currently to be impaired by her conduct."
15. In my view, there are again no good grounds for criticising the Panel's assessment that the appellant's fitness to practise continues to be impaired currently by reason of her misconduct, for the reasons given. The appellant had failed to engage with the review process following the determination of August 2011 and in particular had failed to take up the clear and specific suggestion of the previous Panel in the decision letter of 24 August 2011, that she should provide the Review Panel with a written document reflecting on the particular matters that were referred to. Even allowing for the fact that the appellant wished to continue to protest her innocence, it would have been possible for her to have engaged with the suggestion made by the Panel in the letter of 24 August 2011, but she made no attempt to do so. I consider that the Panel was fully entitled to reach the conclusion it did in relation to the continuing impairment of her fitness to practise.
16. Next, the Panel turned to consider what sanction, if any, should take effect at the expiry of the then current suspension order. The Panel gave careful consideration to the question of sanction, working from the least serious up to the most serious, namely striking off. Mr Khan was critical, first, of the Panel's assessment of whether a conditions of practise order should be imposed. The Panel said this about that possibility:
"The Panel next considered a conditions of practice order. There is no evidence to suggest that the Registrant would be willing to cooperate with any conditions of practice. Furthermore, no practicable or workable conditions could be formulated which would address the Registrant's failings, in particular her lack of insight, or which would adequately protect the public from the risk of repetition. In addition, a conditions of practice order would not be sufficient to meet the public interest in upholding proper professional standards and maintaining confidence in the profession and the NMC."
17. Mr Khan suggested that that part of the Panel’s consideration was defective because the appellant was unable to work due to her suspension and was therefore caught in a “Catch 22” situation. He suggested that if she had been working, then the Panel might have been able to identify suitable conditions of practice and might have concluded that that was the appropriate sanction to impose.
18. I do not accept these submissions. In my view, they involve a misreading of this part of the Panel's decision. I consider that, on a fair reading of this part of the Panel's reasoning, all that it was saying was that it was not satisfied that if a set of conditions of practice were to be devised and the appellant was permitted to return to work on the basis of those conditions of practice, that would provide an appropriate response to the impairment of her fitness to practise in all the circumstances. The Panel had proper grounds on which it could rationally form the assessment that it did in that respect. It did not involve any “Catch 22” reasoning or anything of that kind. Accordingly, I do not consider that the criticism made of this part of the Panel’s reasoning points to any legal flaw in the reasoning of the Panel.
19. Finally, the Panel considered at the end of this process of reasoning whether it would be appropriate to impose a further period of suspension or, ultimately, whether it would have to impose the sanction of striking off. As far as its consideration of imposition of a further period of suspension was concerned, the Panel said:
"The Panel has noted that, whilst the incident occurred almost seven years ago, the Registrant continues to show no insight into her actions and there is nothing in her two letters to suggest that there is any likelihood that she will be prepared to gain such insight in the future. She has demonstrated her persisting inability, or wilful refusal, even to begin to reflect on the nature and implications of her misconduct, or even the demands of good practice in principle. The Panel has concluded that her misconduct and lack of insight are fundamentally incompatible with continuing to be registered as a midwife and her consequent impairment of fitness to practise in this profession is irremediable."
20. In my view, the Panel again had proper grounds on which it could rationally and lawfully conclude that the appellant had failed to demonstrate proper insight into what had occurred or even (as the Panel put it) into "the demands of good practice in principle". I do not consider that the criticism advanced by Mr Khan, that the sanction of striking off was simply too draconian and disproportionate in the circumstances, particularly against the background of the appellant’s long and previously unblemished career as a midwife, can be sustained.
21. So far as concerns the question of whether this court should intervene to allow an appeal in relation to the imposition of sanction via a professional disciplinary body, the law is well established. I refer, by way of example, to Cheatle v General Medical Council [2009] EWHC 645 (Admin) at paragraphs [32] to [35], where Cranston J summarised the general principles in this way:
Where a Fitness to Practise Panel finds that fitness to practise is impaired its powers are set out in section 35D of the 1983 Act:
'(2) where the Panel find that the person's fitness to practise is impaired they may, if they think fit
except in a health case, direct that the person's name shall be erased from the register;
direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests.'
If a Panel finds that a doctor's fitness to practise is not impaired it may nonetheless issue a warning as to future conduct or performance. The Indicative Sanctions Guidance set out factors which may make each of these sanctions appropriate. With suspension, the Guidance lists as non-exhaustive factors for non-health cases the following: serious instance of misconduct, but where a lesser sanction is not sufficient; conduct not fundamentally incompatible with continuing to be a registered doctor; no evidence of harmful deep-seated personality or attitudinal problems; no evidence of repetition of the behaviour since the incident; and the Panel is satisfied the doctor has insight and does not pose a significant risk of repeating the behaviour.
The seminal decision on sanction is Bolton v Law Society [1994] 1 WLR 512, where Sir Thomas Bingham MR endorsed the principle that it would require a very strong case to interfere with a sentence imposed by a disciplinary committee, which is best placed for weighing the seriousness of professional misconduct. That a sanction might seem harsh, but nonetheless be appropriate, could be explained by the primary objects of sanctions imposed by disciplinary committees. One object was to ensure that the offender did not repeat the offence; the other, indeed the fundamental, objective was to maintain the standing of the profession (at pp 518-9).
Bolton has been endorsed on numerous occasions since it was decided, although in Ghosh v General Medical Council [2001] UKPC 29; [2001] 1 WLR 1915 Lord Bingham said that while the court would accord an appropriate measure of respect to the judgment of the committee as to the sanction necessary to maintain professional standards and provide adequate protection to the public, it would not defer to its judgment more than was warranted by the circumstances. The court could decide whether a sanction was appropriate and necessary in the public interest, or excessive and disproportionate (at [34]).
The most recent of these sanction cases is Law Society v Salsbury [2008] EWCA Civ 1285. There a solicitor had been struck off for dishonestly altering a cheque to receive additional moneys. On appeal the Divisional Court had held that the sanction was disproportionate. The Court of Appeal allowed the Law Society's appeal. In doing this it affirmed Bolton, with the proviso that the rights of the solicitor under articles 6 and 8 of the European Convention on Human Rights had to be taken into account. It was an overstatement to say that a very strong case was required before the court would interfere with a tribunal sentence. The court would interfere if satisfied that the sentencing decision was 'clearly inappropriate': at [30].”
It is clear from the authorities that in relation to the question of sanction a considerable degree of respect for the judgment of the professional body in question is to be accorded. This court will be slow to intervene and slow to conclude that the judgment of the professional body in relation to the sanction that it considers necessary to maintain proper standards in relation to the profession with which it is concerned can be regarded as "wrong" for the purposes of CPR Part 52.11.3(a).
Applying the relevant principles as appear from the authorities in the circumstances of this case, I have come to the conclusion that this is not a case in which it would be right or appropriate for me to conclude that the sanction imposed by the Panel could be regarded as “wrong” for the purposes of CPR Part 52.11.3(a).
Accordingly, for these reasons I dismiss the appeal.
MISS FLECK: My Lord, there is an application for costs. I have served a statement of costs on my learned friend this morning. In light of the letters that we have now both seen outlining that Miss Ogbonna-Jacob herself did not intend to pursue the appeal against the decision at the substantive hearing I have made some handwritten amendments to the general costs. Can I hand a copy up?
MR JUSTICE SALES: Can you make sure that Mr Khan has a copy of the amended version as well so we are all talking about the same thing. Yes?
MISS FLECK: My Lord the amendments have been made to the scheduled working documents at the back and your Lordship will see that I have amended the drafting of the skeleton argument of half the time spent on that and also half the time re-reading documents following the original vacated appeal because although of course the original documents were read through, at that point had the NMC known that those points were not being pursued that would not have needed to be done so that is no fault of Miss Ogbonna-Jacob. My Lord I say that is a fair reflection of the work done.
MR JUSTICE SALES: Yes. Mr Khan?
MR KHAN: My Lord, Miss Ogbonna-Jacob is presently seeking State benefits and there is no means of paying the costs as outlined in the schedule. In my submission she has in effect, up until very recently represented herself with some help at times from a McKenzie Friend or a particular law centre. She was advised before I came into the proceedings that she had some grounds - in my submission that should be borne in mind, but ultimately as I say she is a woman of almost no means. Her career being ended as it has and in the circumstances that the court is aware of.
MR JUSTICE SALES: I am very sympathetic to Miss Ogbonna-Jacob's personal situation, but it seems to me that I have to decide the question of costs according to ordinary principles. Whether in the end a costs order can in fact be enforced in view of her means may be very doubtful, but that in itself does not seem to me to be a basis on which I should not proceed to consider costs in the usual way. Is there anything further you wanted to say?
MR KHAN: No my Lord.
MR JUSTICE SALES: An application is made by the Council for an order that the appellant pay the costs in relation to the appeal. The costs claimed are in the sum of £6,015. In my view this is a case in which the ordinary rule that costs follow the event should be applied. I have reviewed the statement of costs and the sums claimed appear to me to be reasonable and proportionate in relation to the matters which were raised in respect of this appeal. Accordingly, I order the appellant to pay the respondent's costs summarily assessed in the sum of £6,015.
Yes, thank you. Is there anything else arising in relation to this hearing?
MISS FLECK: No thank you, my Lord.
MR JUSTICE SALES: I am grateful to both counsel.