McDaid v Nursing & Midwifery Council

This is an appeal pursuant to Articles 29(9) and 38 of the Nursing and Midwifery Order 2001 (the “2001 Order”) by Bernadette Patricia McDaid against the decision of a Panel of the Conduct Competence Committee (CCC) of the Nursing and Midwifery Council (NMC), a committee established by the 2001 Order as part of the Fitness to Practice Scheme governing the professional conduct of registered nurses and midwives. There is also a related application for judicial review.

The Appellant was employed as a registered midwife by the Newham University Hospital NHS Trust. The allegations against her spanned a period between December 2008 and July 2011. The appellant was initially referred to the NMC in August 2009 by Newham University NHS Trust. A second referral was then received from Whipps Cross Hospital in March 2010. Further referrals were then made during the course of proceedings by the Professional Standards Authority (previously the Council for Healthcare Regulatory Excellence) and Angela Helleur (a registered midwife and London Local Supervising Authority Midwifery Officer).

Essentially the allegations encompassed a number of different types of conduct which were alleged to amount to misconduct. These included breach of confidentiality, dishonesty, unprofessional and aggressive behaviour and the sending of aggressive and inappropriate correspondence to various individuals.

The Appellant denied all the allegations against her. In essence, the core of her complaint was and is that all these allegations were false and raised against her as a result of a conspiracy by managers in the NHS to target her as a “whistleblower” and to attempt to remove her from working in midwifery in Newham. The background to this appears from an article in the Daily Mail on 23 February 2003. In summary, the Appellant’s case was and is that:

The charges arising from all these referrals were joined and heard together at the final substantive hearing on 28-29 February and 1-14 March 2012.

It is common ground that the Appellant was given due notice of that hearing. Further, the week before the hearing was due to take place i.e. on 21 February 2012, there was a preliminary meeting attended by the parties including the Appellant. As stated by the Chair, the purpose of that meeting was to address management of the substantive hearing that was due to take place the following week and scheduled to last 10 days. At that meeting, the Appellant raised certain issues including one matter concerning one member of the Panel (Mr Heath) whom, she said, was inappropriate as a Panel member. She also confirmed that she was aware of the substantive hearing, that she was planning to attend and that she did not have any problems with attendance on 28 February.

However, the Appellant did not attend the hearing on 28 February - nor on the subsequent days. I will revert to this aspect further below. In the event, after a short adjournment when enquiries were made with regard to the Appellant’s whereabouts and after receiving advice from its Legal Advisor, the Panel decided to proceed with the substantive hearing on 28 February in the absence of the Appellant and over the following 10 days heard evidence from a large number of witnesses – all in the absence of the Appellant.

Following that hearing, the Panel concluded that apart from one allegation, the remainder i.e. some 12 allegations of misconduct had been proved against the Appellant; that the Appellant’s fitness to practise was impaired by reason of such misconduct, that the Appellant’s misconduct was fundamentally incompatible with her continued registration as a midwife and that the only appropriate and proportionate sanction was a striking-off order. The Panel’s decision and reasons are set out in detail in a letter from the NMC dated 21 March 2012. Accordingly, a striking-off order was made against the Appellant removing her name from the register of nurses and midwives. The Panel also made an interim order in the form of an 18-month suspension until the final order can come into effect in order to enable the Appellant to pursue an appeal.

The present appeal is brought pursuant to Article 29 and 38 of the 2001 Order which provide in material part as follows:

“29(5) …the Committee shall—

(a)

make an order directing the Registrar to strike the person concerned off the register (a “striking-off order”);

(b)

make an order directing the Registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a “suspension order”);

(c)

make an order imposing conditions with which the person concerned must comply for a specified period which shall not exceed three years (a “conditions of practice order”); or

(d)…

(6)

A striking-off order may not be made in respect of an allegation of the kind mentioned in article 22(1)(a)(ii) or (iv) unless the person concerned has been continuously suspended, or subject to a conditions of practice order, for a period of no less than two years immediately preceding the date of the decision of the Committee to make such an order.

…

(9)

The person concerned may appeal to the appropriate court against an order made under paragraph (5) and article 38 shall apply to the appeal….

38 (1) An appeal from—

(a)

any order or decision of the Health Committee or the Conduct and Competence Committee other than an interim order made under article 31, shall lie to the appropriate court; and

…

(2)

In any appeal under this article the Council shall be the respondent.

(3)

The Court or sheriff may—

(a)

dismiss the appeal;

(b)

allow the appeal and quash the decision appealed against;

(c)

substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or

(d)

remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff,

and may make such order as to costs … as it, or he, as the case may be, thinks fit.”

Such appeal is conducted under CPR 52 which provides at CPR 52.11 as follows.

“1)

Every appeal will be limited to a review of the decision of the lower court unless –

(a)

a practice direction makes different provision for a particular category of appeal; or

(b)

the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2)

Unless it orders otherwise, the appeal court will not receive –

(a)

oral evidence; or

(b)

evidence which was not before the lower court.

(3)

The appeal court will allow an appeal where the decision of the lower court was –

(a)

wrong; or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4)

The appeal court may draw any inference of fact which it considers justified on the evidence.

(5)

At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission.”

The Appellant’s notice of appeal (which was drafted by the Appellant herself) originally set out some 23 grounds for appeal. However, in the event most of these have been abandoned; and, in essence, Mr O’Brien on behalf of the Appellant has advanced four main points viz.:

The first and second of these points were included in the original grounds of appeal. The thirds and fourth points were either not identified or not identified properly. This caused very considerable difficulty during the present hearing. In accordance with CPR 52.11 and to the extent that these points were not properly included in the grounds of appeal, they cannot be relied upon without permission. I deal with this as appropriate below.

For the sake of completeness, I should mention that various other points were canvassed by Mr O’Brien in his skeleton argument; but he confirmed that the case advanced on behalf of the Appellant was as I have summarised above.

On behalf of the NMC, Mrs Thompson submitted that the proper approach to be taken by the Court on an appeal from a statutory healthcare regulator such as the GMC or NMC is as set out by the Court of Appeal in Meadow v GMC [2007] QB 462 per Auld LJ at [197]:

“On an appeal from a determination by the GMC, acting formerly and in this case through the FPP…, it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:

The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;

The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;

The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”

On this basis, Mrs Thompson submitted that the Court should not be embarking upon a fact finding exercise which requires the weighing of evidence and consideration of the witnesses’ credibility; and that it is not the Court’s task to effectively rerun the case as it was considered by the Panel. I did not understand Mr O’Brien to disagree with this general approach in particular having regard to the fact, as he fully recognised, that the issues determined by the Panel are highly fact-sensitive. Nevertheless, he submitted that the points which he relied on should, at the very least, persuade the court to quash the striking-off order made against the Appellant and to remit the case to the CCC for reconsideration.

Mr O’Brien sought to introduce on this appeal what he originally described as “new evidence” viz

In the ordinary course, any attempt to introduce new evidence on a hearing of this kind should be made by a proper application on notice to the opposing party supported by an affidavit or witness statement explaining (at the very least) the basis of such application and why such new evidence was not previously provided. The fact that this was not done in the present case is to say the least most regrettable – although it is explained in part by the fact that the Appellant has not, until recently, been legally represented.

As to the February Statement, there is no doubt that this is “new” evidence and that pursuant to CPR 52.11(2), it cannot be relied upon on this appeal without permission. As to the principles governing the exercise of this court’s discretion with regard to the grant of permission, Mrs Thompson on behalf of the NMC relied upon the observations of Sedley LJ in Al-Koronky v Time Life Entertainment Group [2006] EWCA Civ 1123 [14-15]:

“……it is a discretion to be exercised in accordance with principle, including the overriding objective of doing justice. There is also a body of authority to the effect that the principles which operated before the CPR came into effect remain relevant to the exercise of discretion under those Rules: see Banks v. Cox [2000] LTL 17 July 2000 ; Hertfordshire Investments Ltd v. Bubb [2000] 1 WLR 2318 at 2325H; and Hamilton v. Al Fayed (No 4) [2001] EMLR 15 , where Lord Phillips MR stated that the old cases “remain powerful persuasive authority”.

These old cases include the well-known decision in Ladd v. Marshall [1954] 1 WLR 1489 , which was dealing with the situation where there had been a trial at first instance. In such a situation, said this court, three conditions had to be met in order to justify the reception of fresh evidence on appeal. Those were:

“first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” (page 1491).

On this basis, Mrs Thompson submitted that the Appellant therefore has to show that the evidence she seeks to have admitted was not available at the time of the CCC hearing and could not have been obtained with reasonable diligence; that this statement gives the Appellant’s version of the events which were the subject of the charges and her commentary on the NMC’s evidence; that, as such, it is not evidence which could not reasonably have been obtained for the hearing before the Panel; and that therefore the Appellant fails at the first hurdle in seeking to admit this evidence. Mr O’Brien accepted that he could not say that this was evidence which could not reasonably have been obtained before the original hearing. Nevertheless, he submitted that the February statement simply contained what the Appellant’s evidence would have been at the original hearing; that the observations of Sedley LJ did not establish an inflexible rule; and that having regard to Article 6 and the overriding objective and the interests of justice, this court should now permit the Appellant to rely on this evidence at this present hearing.

I am unable to accept that submission. For present purposes, I am prepared to assume that the observations of Sedley LJ do not necessarily lay down an inflexible rule particularly in the light of the overriding objective. I also bear well in mind that until relatively recently, the Appellant had no legal representation. However, as it seems to me, to allow the February statement to be relied on in this appeal would be to subvert the procedure laid down in the 2001 Order for the proper handling and determination of allegations of this nature. In my judgment, this would be wholly contrary to the overriding objective. Moreover, the allegations which were considered by the CCC were of a serious nature. The Appellant had ample opportunity to put in evidence in the form of a statement prior to that hearing explaining her version of events and setting out her case. Indeed, she did submit a number of emails setting out her version of events and earlier “statements” all of which were put before the Panel in a Bundle at the substantive hearing. In the letter from the NMC setting out the Panel’s decision, the Panel confirms that it read those earlier statements and took them into account in reaching their determination. As I have said and as Mr O’Brien accepted, this new February statement - to the extent that it says anything more than in the Appellant’s earlier statements – contains no new material which could not reasonably have been obtained in advance of the substantive hearing. For these reasons, I decline to exercise my discretion to allow the February statement to be adduced in evidence in this appeal.

As to the other two documents, I deal with these further below.

Prior to the substantive hearing, the Appellant sent an email to the NMC stating that she had concerns about Mr Heath being a member on the Panel. In particular, she said that Mr Heath was an acquaintance of a Mr Scott Johnston who was one of the individuals who, the Appellant said, had perverted the course of justice, falsified allegations against her and brought the profession into disrepute by his professional negligence. Mr Johnston was one of the witnesses in respect of whom a witness statement had been served and who was due to and in fact did give evidence at the substantive hearing. In her email, the Appellant set out further allegations with regard to Mr Johnston and stated: “…..it would be better for Mr Heath not to be on the Panel in the circumstances and a completely independent panellist made available.” Thereafter, the Appellant raised her concerns again with regard to Mr Heath at a preliminary hearing on 21 February 2012. This was the hearing which I have already referred to which was intended to deal with arrangements for the substantive hearing the following week. During that hearing, there was discussion concerning the Appellant’s objection to Mr Heath being a panellist. In the event, it was decided by the Chair of that hearing that any objection to the constitution of the Panel would have to be raised in front of the Panel itself at the beginning of the substantive hearing.

Following the decision of the Panel to continue with the hearing in the absence of the Appellant, Mrs Thompson drew the Panel’s attention to the fact that the Appellant had previously raised the issue as to the constitution of the Panel and, in particular, the position of Mr Heath of the Panel. It is perhaps unfortunate that this issue was not raised before the Panel considered whether or not the substantive hearing should be adjourned. Be that as it may, a copy of the Appellant’s earlier email was provided to the Panel. As appears from the transcript, there then followed a discussion involving Mr Heath, the Chair and the Panel’s legal advisor as to whether Mr Heath should step down. In particular, the legal advisor addressed the Panel on the relevant test which deals with the question of how a tribunal considering an issue of alleged bias should proceed by reference to the speech of Lord Hope in Porter v Magill [2002] 2 AC 357. In general terms, the legal advisor stated the test in the following way: “Would a fair minded and informed observer having considered the facts conclude there was a real possibility that the tribunal was biased?” Following further consideration by the Panel with regard, in particular, to Mr Heath’s knowledge of Mr Johnston and also another intended witness, Ms Suzanne Cro, the Chair set out the Panel’s decision as follows:

“The Panel has given careful consideration to Mrs McDaid’s application that Jeffrey Heath, a registrant panel member and supervisor of midwives, should step down from the Panel. The Panel has also considered the submissions of Mrs Thompson on behalf of the Council and has heard and accepted the advice of the legal assessor.

In summary, Mrs McDaid objects to Mr Heath sitting on the case as he knows Mr Scott Johnston, supervisor of midwives, London Local Supervisory Authority (LSA) and Mrs Suzanne Cro, Local Supervisory Authority Midwifery Officer (LSAMO), witnesses whom the Council intend to call.

The Panel has applied the test laid down by Lord Hope of Craighead in the case of Porter v Magill which is as follows: the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

Mr Heath, in open session, described the nature of his knowledge of the witnesses in question. Mr Heath confirmed that he is not an acquaintance of either Mr Johnston or Mrs Cro.

Mr Heath has never met Mr Johnston and is only aware of him in his capacity as a senior midwifery practitioner.

Mr Heath has heard of Mrs Cro because she has appeared before him in his capacity as a panel member in one or two other Nursing and Midwifery Council hearings, totally unrelated to these proceedings. Mrs Cro is a Local Supervisor Authority Midwifery Officer (LSAMO) employed by NHS South Central. Of significance is the fact that her credibility was not called into question in those hearings and therefore Mr Heath is not tainted by any view that he may otherwise have been forced to take of the witness’s reliability or honesty.

The Panel is aware that it must at all time be impartial and must also be perceived to be so by the fair minded and well informed observer. The Panel took account of all the circumstances and is satisfied that the fair-minded and informed observer, having considered the facts, would not conclude that there was a real possibility that the Panel, in particular Mr Heath, was biased.

Accordingly the Panel will continue the case in its current composition.”

In essence, Mr O’Brien submitted that although the test which the legal advisor advised the Panel to adopt was correct, the decision that Mr Heath should not step down was wrong and ought to be reversed. In particular, Mr O’Brien submitted that the heart of this present case involved the Appellant’s allegations concerning the conduct of various managers conspiring against her and seeking to remove her as a midwife; that Mr Heath is himself a midwifery manager in London and, at the very least, knew both Mr Johnston and Ms Cro. I do not accept this submission. None of the conspiracy allegations involved Mr Heath and although he, Mr Heath, accepted that he was aware of Mr Johnston and also Mr Cro in his capacity as senior midwifery practitioner, he had never met Mr Johnston and he was not an acquaintance of either of them. On that basis, I am unpersuaded that any fair minded and informed observer having considered the facts would conclude or even might conclude that there was a real possibility that the Panel was biased.

I should mention that in the course of the hearing it subsequently became apparent that Mr Heath was also aware of another of the witnesses called by NMC, Miss Angela Helleur, who at the time of the allegations was the LSAMO for the London region. The Panel very properly then considered at that stage whether or not Mr Heath should recuse himself. In the event, the Chair explained his position as follows

“Mr Heath confirmed that he previously worked at the Homerton Hospital as the delivery suite manager/supervisor of midwives. As LSAMO for the area, Miss Helleur conducted audits of all the midwifery units. Mr Heath confirmed that he had a group meeting with Miss Helleur in his capacity as supervisor of midwives. Mr Heath met Miss Helleur on this one occasion in his professional capacity and has not met her since. The Panel reminded itself that it must at all times be impartial and must be perceived to be so by the fair-minded and well informed observer. The Panel took account of all circumstances and is satisfied that the fair-minded and informed observer having considered the facts, would not conclude that there was a real possibility that Mr Heath was biased. Accordingly the Panel will continue the case in its current composition.”

I agree with that conclusion. Again, I am unpersuaded that any fair minded and informed observer having considered the facts would conclude or even might conclude that there was a real possibility that the Panel was biased.

Rule 21 of the Nursing and Midwifery Council (Fitness To Practice) Rules 2004 deals with proceedings in the absence of the ‘Registrant’.

“Absence of the practitioner

21 (1) This rule shall not apply to hearings at which the Committee is considering whether to make, revoke, confirm, vary or replace an interim order.

(2)

Where the registrant fails to attend and is not represented at the hearing, the Committee

(a)

shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant;

(b)

may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or

(c)

may adjourn the hearing and issue directions.”

The principles to be generally applied when exercising the discretion to proceed in a criminal case in the absence of the defendant are set out in the case of R v Hayward [2001] EWCA Crim 168, approved on appeal by the House of Lords, sub nom R v Jones (Anthony) [2002] UKHL 5 and applied to professional regulatory proceedings by the Privy Council in Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34. These are, in material part, as follows:

“(1)

A defendant has, in general, a right to be present at his trial and a right to be legally represented.

(2)

Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself…..

(3)

The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representative.

(4)

That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

(5)

In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular: (i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear; (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

(6)

If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. …”

It was common ground that these principles applied in the present context save only with regard to sub-paragraph (6) above which I deal with below in the context of Mr O’Brien’s argument that the Panel acted unfairly in the actual conduct of the hearing.

In considering whether or not to proceed in the absence of the Appellant, the relevant events and reasons for the Panel’s decision to continue appear from pp4-6 of the Panel’s decision.

However, on behalf of the Appellant, Mr O’Brien submitted that the procedure adopted by the Panel and its reasoning leading to its conclusion are both flawed. In particular, Mr O’Brien submitted that greater attempts should have been made to try to locate the Appellant. For example, someone should have been sent to the Appellant’s home address to try to find her. In addition, Mr O’Brien submitted that the Panel’s reasons for proceeding were at least questionable. In particular, dealing in turn with each of the reasons given by the Panel, Mr O’Brien submitted as follows:

I accept that at least some of the points of criticism advanced by Mr O’Brien may at first sight have some force. For example, there was some debate before me as to what inference might properly be drawn by reason of the fact that the Appellant was apparently “tweeting” on the day of the hearing. In particular Mr O’Brien submitted that the evidence merely showed what Mr O’Brien described as “retweeting” which, he submitted, did not necessarily require active participation by the Appellant. This was disputed by the NMC or, at least, Mrs Thompson submitted that there was insufficient evidence to substantiate the submission made by Mr O’Brien in this context. That is not a matter which I can properly resolve. I also accept that given the nature of the allegations raised by the Appellant, it might be said that the allegations in the present case were not “average” although it is not clear whether the Panel was aware of the nature of these allegations at the stage when the decision was made to continue with the hearing.

However, as submitted by the NMC, when the transcript of the first day is considered from start to finish, it is abundantly clear that the Panel proceeded with the “utmost care and caution” as it was required to do before deciding whether or not to proceed in the absence of the Appellant. In particular, the Panel delayed the start of the hearing for some considerable time to enable enquiries to be made regarding the Appellant’s whereabouts - and to allow time for the Appellant to attend. In addition, it received comprehensive legal advice on its powers and the various factors which had to be balanced in the exercise of its discretion. Mr O’Brien accepted that the legal advice received by the Panel as recorded in the transcript was unobjectionable. Thereafter, it would seem that the Panel deliberated for over two and a half hours before coming to its decision.

Whatever particular points of criticism might be raised with regard to the reasons which the Panel gave for its decision and although the Panel did not know the reason for the Appellant’s non-attendance at the time, it seems to me abundantly clear that this is a case where the Appellant decided simply not to attend the hearing. Although Mr O’Brien says that the Appellant was very upset and could not face the hearing on that day, there is no suggestion that she was physically or mentally incapable of attending – either on that day or any of the following days. Mr O’Brien submitted that there was no evidence to indicate that she was sufficiently well to attend. That is, in my view, topsy-turvy: even now, no proper explanation has been given as to why the Appellant absented herself not only from the hearing on 28 February but also on the following days. This was a case with a long history. The Appellant may well have been upset but this was her opportunity to put her case before an impartial tribunal so as to bring matters to a close. Very considerable arrangements had been made in advance of the hearing to ensure, so far as possible, that it could and would be conducted in an efficient manner in the interests of not only the Appellant but all concerned. Some 10 days had been set aside for the hearing to take place. Arrangements had been made for the various witnesses to be called by the NMC to attend the hearing. In such circumstances and recognizing fully (as the Panel was advised and themselves recognized) that any decision to proceed in the absence of the Appellant should only be taken with the utmost care and caution, it seems to me that, in principle, the Panel was perfectly entitled to conclude that that was the proper and appropriate course to take.

In reaching that conclusion, I should mention two further matters which, at least originally, caused me very considerable concern.

First, Mr O’Brien submitted that the Panel was wrong to assume (as it certainly did because it was told so) that the Appellant had made no application to adjourn. On the contrary, he submitted that the Appellant had made an application for an adjournment – as set out in the Adjournment Request which I have already referred to above and which, I was told by Mr O’Brien on instructions from the Appellant, she had both emailed and hand delivered to the NMC on 24 February 2012. As to this document, I should make plain that Mrs Thompson told me that, so far as she and the NMC was concerned, it had never been received by the NMC and it was not in their email system; that it had never been seen by her or anyone else at the NMC nor even mentioned until Mr O’Brien produced it without any prior notice a few minutes before the beginning of the present hearing; and that the NMC did not accept its authenticity or provenance. Moreover, it is not referred to in the Appellant’s grounds of appeal – although ground 1 deals generally with the point regarding the Panel’s decision to proceed in the absence of the Appellant and the refusal to grant an adjournment by reference to what, in my view, must obviously be an earlier letter. I am bound to say that all of this is, to say the least, most surprising if indeed the Appellant had submitted the Adjournment Request on 24 February.

The question then is whether I should allow Mr O’Brien to raise this point at this stage and also whether I should allow him to rely upon this new document notwithstanding that the point is not referred to in the grounds for appeal and all the difficulties summarized above. Without deciding any of the foregoing, I am prepared to assume in the Appellant’s favour that this Adjournment Request was submitted and ought to have been placed before the Panel. Even so, I am wholly unpersuaded that it would have made any difference to the Panel’s decision to proceed in the absence of the Appellant for two main reasons. First, the document is littered with what seems to me a series of statements which, as Mr O’Brien accepted, were demonstrably untrue on their face. Mr O’Brien’s response was that such statements simply reflected what the Appellant genuinely believed. However, it does not seem to me that such response is of any avail. Second, it seems to me that there is nothing in the document to provide any proper justification for an adjournment.

The second (related) point that initially caused me very considerable concern were the assertions in Mr O’Brien’s skeleton argument that the Appellant “expected” her adjournment request to be granted and indeed “…believed that the hearing had been adjourned”. However, both assertions were unsupported by any evidence. Further, in my judgment, there is no basis whatsoever for the former assertion; and Mr O’Brien expressly withdrew the latter assertion.

In the event, although these two matters did initially cause me very considerable concern, they do not, in my judgment, ultimately assist the Appellant.

The main thrust of this part of the case is Mr O’Brien’s submission that having decided to proceed in the absence of the Appellant the Panel failed in its duty in effect to put the Appellant’s case to the various witnesses who gave evidence in the course of the 10 day hearing.

In dealing with this submission, the starting point is to consider, what if any duty exists on a Panel where the defendant does not appear. In that context, Mr O’Brien relied upon what was stated by Rose LJ in sub-paragraph (6) of the passage from Hayward which I have already quoted above. Although that was stated in the context of criminal proceedings, Mr O’Brien further submitted that that test applies equally in cases of the present kind as appears, for example, from the judgment of Pitchford J in R(on the application of Compton) v General Medical Council [2008] EWHC 2868 (Admin) at paragraphs [30] – [31]. On that basis, Mr O’Brien submitted that having decided to proceed in the absence of the Appellant, the Panel was under a duty during the giving of evidence by the NMC’s witnesses “…to expose weaknesses in the prosecution case and to make such points on behalf of the Defendant as the evidence permits…”

On behalf of the NMC, Mrs Thompson submitted that, as formulated, this test was not inflexible and, at the very least, did not apply in the circumstances of the present case although it should be noted that, as appears from the transcript, the legal advice given to the Panel was that that was indeed its duty. Rather, Mrs Thompson submitted that what was required was that the Panel must consider the evidence in the light of what they know about the defence case; and that in such circumstances this may or may not require certain questions to be put to some at least of the witnesses.

This debate gives rise to an issue of some importance not only to the present case but also with regard to the scope of the duty of tribunals generally when proceeding in the absence of the defendant. In my judgment, the test as formulated by Rose LJ does indeed apply in the circumstances of the present case. To my mind, there is no reason why it should not and every reason that it should. Any Panel appointed to consider and to determine charges as in the present case carries out an important independent role. The performance of such tasks is much more difficult if the defendant does not appear. That is perhaps one of the reasons why a Panel should only proceed in the absence of a defendant with great care and caution. However, if the Panel does decide to proceed in the absence of the defendant, it seems to me vital that it performs its tasks properly and not merely as part of a rubber-stamping exercise. Thus, I agree with Mr O’Brien’s submission that the Panel was required during the giving of evidence by the NMC witnesses to take reasonable steps to expose weaknesses in the NMC case and to make such points on behalf of the Defendant as the evidence permitted.

However, it is important to note that the test as formulated by Rose LJ does not suggest that there is any duty on the Panel to cross-examine witnesses in the way that such exercise might be performed whether by a litigant in person or by any legal representative. In my judgment, there is no basis for suggesting the existence of any such duty and, in fairness to Mr O’Brien, he expressly disavowed any such suggestion. Second, it is important to note that the test as formulated only requires the Panel to take “reasonable steps” to expose weaknesses in the case of the opposing party. What such “reasonable steps” might be will of necessity depend upon the particular circumstances of the particular case in question.

In light of the above, it is then necessary to consider specifically what it is said that the Panel failed in its duty to do in the course of the hearing. Unfortunately, it seems to me that this was not properly identified either in the grounds of appeal nor even in Mr O’Brien’s skeleton – as, in my view, should have been done. After all, this is a most serious allegation which is a direct attack on the role performed by the Panel in relation to the fair conduct of the proceedings. In my view, justice demands that any attack of such kind is properly formulated and articulated. At my invitation, Mr O’Brien identified in the course of the present hearing, a number of matters which he submitted, ought to have been put to a number of the witnesses in the course of cross-examination. In particular, he identified a number of detailed questions that ought to have been put to, in particular, the following witnesses namely Ellie Lamb, Emma Kelly-Dempster, Lisa Anastasiou, Lisa Lezama, Joanna Naylor, Patricia Hodge and Suzanne Cro. The exercise that Mr O’Brien carried out in this way was most helpful to focus the nature of the complaint. However it seems to me that it was an exercise which, in a sense, proved too much. It may well be that if the Appellant had attended the hearing, she would have cross-examined the witnesses called by the NMC at some length on the points identified by Mr O’Brien – and perhaps many more. However, in truth, what Mr O’Brien was submitting was that this Panel should have engaged in detailed cross-examination of these witnesses. In my view, such an exercise goes far beyond any duty which might be said to exist in these circumstances. Having read myself all the transcripts of the hearing, it seems to me that this is not a Panel which failed in its duty. In particular, as submitted by Mrs Thompson, the Panel certainly put a number of important questions to a number of witnesses including, for example, Mrs Daley, Mr Johnston, Miss Cro and Patient A. Further, it is important to note that in the course of their own evidence, many of the witnesses called by the NMC specifically commented on the Appellant’s stated version of events as, for example, contained in her own emails which were read into the transcript – see, for example, the evidence of Ms Cro and Mr O’Leary. So as it seems to me, the Panel was able to consider and to judge the weaknesses in the allegations against the Appellant.

For these reasons, I reject this part of the appeal.

Although this aspect of the appeal was addressed at some length by Mr O’Brien both in his skeleton argument and orally, I can deal with it quite briefly. In essence, this was an attack on the Panel’s substantive conclusions which would necessarily involve this court (i) accepting the Appellant’s version of events despite the fact that she did not attend and give evidence at the substantive hearing before the Panel and (ii) rejecting much at least of the evidence of the witnesses who did give evidence before the Panel and whose evidence was described by the Panel as having been given “…in a clear and consistent manner and their evidence was both credible and reliable.”. In my judgment, that is not an exercise which can or should be embarked upon by this court exercising an appellate function whether generally or in the particular circumstances of the present case. Nor do I consider that any of the points raised in this context would, of themselves, provide any good reason for remission. Indeed, in my judgment, it would be wholly inappropriate to do so.

As set out above, Mr O’Brien sought to introduce as evidence a copy of a letter from Newham University Hospital dated 18 March 2009 i.e. the 18 March letter. This purports to be signed by Lisa Anastasiou as Head of Employment of Newham University Hospital Trust and is addressed to the Appellant. Crucially this letter included the following wording:

“I do not believe that it is the Trust’s responsibility to forward personal correspondence from yourself to people, different agencies and organisations regarding potential litigation you may choose to bring and, in any event, I am not clear to whom you would wish this correspondence to be forwarded. I make clear therefore, that you yourself should take whatever steps you believe are appropriate in this respect, including mail to [Patient A].”

It is common ground that a copy of the 18 March letter was not before the Panel at the final substantive hearing in February/March 2012 although, following a search, Mrs Thompson accepted that a copy had been sent to the NMC by the Appellant some time in 2011 and had previously been included in a Bundle which had been submitted to an earlier Panel at an interlocutory hearing. In such circumstances, Mrs Thompson accepted that it should have been put before the Panel in February/March 2012 but said that due to some oversight it was not.

Mr O’Brien submitted that this letter was and is important – indeed crucial - in relation Charge 2 which was in the following terms: “2. That you a registered midwife... During the course of an investigation by Newham NHS Trust into a complaint made by Patient A against you, contacted Patient A (i) by letter dated 30 March 2009 (ii) by letter dated 1 August 2009”. In particular, Mr O’Brien submitted that the letter is important because, although the Panel accepted Charge 2 as proven, it is contemporaneous evidence which is, on its face, flatly inconsistent with the account of Lisa Anastasiou when (as appears in the Transcript) she gave evidence to the Panel that the Appellant had been told not to communicate with patients; that it strongly supports the Appellant’s case that she was “ordered” to write to Patient A (as the Appellant had said in a statement dated 8 June 2011 referring to a document dated 17 March 2009 which is apparently now missing) or at least encouraged to do so; that the fact that the 18 March letter was not before the Panel thus undermines its decision in relation to Charge 2; and that the Panel’s conclusion in relation to Charge 2 potentially “infected” its conclusions in relation to the other charges thereby vitiating the overall conclusion of the Panel striking off the Appellant.

There is no doubt in my mind that the 18 March letter is a crucial document and potentially throws a completely new light on the charges against the Appellant. Although the point now raised by Mr O’Brien in relation to it is not identified in the grounds of appeal nor indeed in his skeleton, I decided that Mr O’Brien should exceptionally be given leave to rely upon it.

Mrs Thompson fairly accepted that the 18 March letter did undermine the Panel’s decision in respect of Charge 2 at least if the letter was “genuine”. Further, Mrs Thompson also accepted that the decision by the Panel in respect of Charge 2 with regard to the Appellant’s credibility necessarily “infected” the Panel’s conclusion on all the other charges with the result that if the 18 March letter was “genuine”, the Panel’s decision would have to be quashed and the matter be remitted.

However, Mrs Thompson submitted that the 18 March letter was not “genuine”. That came as a somewhat surprising submission given that, as I have said, a copy of the same letter had previously been sent to the NMC in 2011 and that it had never been suggested then or at any other stage that the letter was not genuine. In any event, Mrs Thompson made further enquiries in the course of the present hearing and, in support of the submission that the 18 March letter was not genuine, served further witness statements from three individuals including Lisa Anastasiou who stated that the signature on the 18 March letter is not hers and that it uses language that she would not have used in such a document. In addition, Mrs Thompson also produced and relied on an email from Lisa Anastasiou to the Appellant also dated 18 March 2009 (the “18 March email”) which was also not before the Panel. The 18 March email is worded similarly to the 18 March letter but is not identical; most notably, the email omitted the wording which, in effect, suggested that the Appellant contact Patient A.

In light of the above, Mrs Thompson sought permission to call in particular Ms Anastasiou to give oral evidence; and submitted that the issue as to whether the 18 March letter is genuine should be determined by the court as part of the present appeal. In particular, Mrs Thompson submitted that if the court were to accept that the 18 March letter was not genuine then the Appellant’s argument that the Panel’s decision was undermined or that proceedings below were unfair because the Panel did not see it must fall away.

As submitted by Mr O’Brien, I have reluctantly concluded that such course would be highly inappropriate on a hearing of this kind. The suggestion that the 18 March letter is not “genuine” is very serious indeed. In order to deal with such issue, it would probably be necessary to hear evidence not only from Ms Anastasiou and the other individuals identified by Mrs Thompson but also from the Appellant and, possibly, expert evidence. In addition, it would be necessary to consider whether there should be any and, if so what, further disclosure. Ideally, further steps should, if possible, be taken to trace the missing document referred to in the Appellant’s statement dated 8 June 2011 – although I suppose it is possible that the missing document is in fact a reference to the 18 March letter albeit referred to wrongly as being dated 17 March 2011. Moreover, as it seems to me, this issue goes – or at least may go - beyond the question of whether the 18 March letter was actually signed by Lisa Anastasiou.

It follows, in my view, that for this reason alone, the Panel’s decision must be quashed and the matter remitted to the CCC. I have to say that I have not reached this conclusion with any enthusiasm. Over a year ago, the Panel spent some 10 days hearing evidence in relation to the charges against the Appellant and reached its conclusion. This no doubt involved the expenditure of considerable time, effort and money. As appears earlier in this Judgment, all other points challenging the Panel’s decision have either been rejected by me for the reasons stated above or abandoned. However, it seems to me that the points now raised with regard to the 18 March letter are such that there is no real alternative to the course identified above.

The question then arises as to whether the matter should be remitted to the same Panel or a different Panel. There is no doubt that remission to the same Panel would almost certainly involve less further time and expense – and for that reason might be thought to be the strongly preferred option. However, I have concluded that the matter should be remitted to a new Panel. I should make plain that this is no reflection whatsoever on the role of the previous Panel whose conduct of the previous substantive hearing cannot, in my view, be faulted. However, the difficulty is that the previous Panel has reached certain conclusions without considering the entirety of the evidence because, through no fault of its own, it was never shown the 18 March letter. A new Panel will be able to address the issues in the light of all the evidence with a fresh mind. In the interests of justice, that seems the much better course. Ultimately, the new Panel will have to consider the appropriate procedure for the new substantive hearing. However, I should note that Mr O’Brien and Mrs Thompson agreed that to save time, the written statements of any witnesses might be read in private by the Panel and, in effect, be treated as their evidence in chief without such statements being read into the transcript - although ultimately that is a matter for the new Panel to decide.

The interim suspension order should also be extended until 14 days after the publication of the decision of the new Panel or further order.

As to the costs of the present hearing, Mr O’Brien submitted that the Appellant had succeeded in the appeal and that the NMC should therefore pay the Appellant’s costs in the sum of approximately £11,000. I do not accept that submission. Although it is true that the Appellant has succeeded in that I have quashed the Panel’s decision and ordered remission, the Appellant lost on all points other than on the basis of the 18 March letter. If it is ultimately determined that that letter is not genuine and that it was in effect forged by the Appellant, then it seems to me that the Appellant cannot possibly be entitled to any costs. For that reason, I have decided that the appropriate course is to reserve costs with liberty to apply after the new Panel has published its decision.

I turn finally to the application for judicial review. The background to this is as follows. Following the decision of the Panel striking off the Appellant, the NMC referred the matter to the Independent Safeguarding Authority ("ISA”). This referral was made pursuant to s.41 Safeguarding Vulnerable Groups Act 2006. (I should mention that the statutory framework has changed since September 2012 but s.41 was at the relevant time the relevant statutory framework.) In essence, the thrust of the application for judicial review is for an order requiring the NMC to provide reasons why it decided to refer the Appellant to the ISA in the first place.

In response, the NMC says that it is under no obligation to give reasons why it may refer a particular case to the ISA; although, without prejudice to that position, here the NMC says that it was because the Panel expressly found that “….whilst the panel acknowledges that there was no direct harm caused to patient A or patient B, the panel considers that by not raising her concerns about the handling of the care of Baby J in an appropriate manner, Mrs McDaid’s conduct had the potential to put baby J at risk of harm;.”Further, the NMC submits that this observation was of itself sufficient to bring the Appellant's case within s.41 (3) (c) of the 2006 Act; and that it was on that basis that the NMC referred the Appellant to the ISA.

On behalf of the Appellant, Mr O’Brien submitted that this case raises an important question i.e. whether a body in the position of the NMC has an obligation to explain its decision to refer a person to the ISA in particular what danger it says the individual poses to children or vulnerable adults. In particular, Mr O'Brien submitted that determinations of this kind are vitally important decisions for the individuals involved; that in the case of the referral here, the Appellant was a midwife who it appears might have been designated as a threat to children and vulnerable people; that this would have affected her livelihood, wasted her training and to some extent defined her future income; that fairness requires that a decision maker who makes a determination must give reasons; and that the person who is affected by the decision is entitled to know (a) whether the decision maker has applied the right test under the regulations and (b) whether the decision maker has made a rational decision: see e.g. R(Laws) v Met Police Authority [2011] ICR 242 and Hodgson v South Wales Police Authority [2008] EWHC 1183 (Admin) at [51] and [55]-[57].

Mr O’Brien may well be right about the importance of giving reasons when making a referral but in my view it is unnecessary to determine that issue in the circumstances of the present case; and, in any event, I do not consider that this is an appropriate case to grant leave to apply for judicial review. That is so for at least two reasons. First, the NMC has stated plainly what the reasons were for its decision to refer. Second, since the matter was referred, the ISA has concluded that the Appellant is not a danger to children or vulnerable adults. To that extent, the reasons why the matter was originally referred are now academic. For both these reasons, I therefore reject the application for leave to apply for judicial review.

Counsel are requested to prepare a draft order to reflect the terms of this judgment which I hope can be agreed. Failing agreement, I will deal with any outstanding issues.