Enemuwe v Nursing And Midwifery Council

Ms Doris Ngozi Enemuwe (“the Appellant”), who is a registered nurse, appeared before the Conduct and Competence Committee (“the First Panel”) of the Nursing and Midwifery Council (“the Respondent”) between 17 and 21 December 2014 and between 12 and 15 January 2015. By a decision dated 20 January 2015 (“the First Decision”), the First Panel found two charges proved. The Appellant appealed, and on 8 July 2016, Holman J allowed the appeal. He quashed the First Decision and he remitted the case to the Respondent “for review as soon as reasonably practicable and to be disposed of according to the outcome of that review”. He also ordered that if the matter was to be reheard, it should not come before the First Panel, but that instead a different panel should hear it.

The matter then came before another Panel (“the Second Panel”) between 25 January 2016 and 1 February 2016. By a decision dated 3 February 2016 (“the Second Decision”), the Second Panel found that the same two charges were found proved concerning the Appellant’s conduct while acting as an agency midwife on 14 September 2012. The charges which the Second Panel found proved were that the Appellant:

“you, a registered midwife, whilst employed as an Agency Midwife …on 14 September 2012 and providing care to Patient A

1.

were abrupt and rude in that you:

…

b)

said to Patient A and/or Patient A’s husband words to the effect of “you don’t know what you’re talking about” and/or “what do you want now”…

2.

used your mobile phone on one or more occasion(s)…”

TheSecond Panel also found first, that the Appellant’s conduct was misconduct which was serious; second, that the Appellant’s fitness to practise was held to be impaired by reason of her misconduct, and third, that the appropriate sanction was a period of suspension of 3 months. The Appellant appeals against each of those findings in the Second Decision pursuant to Article 38 of the Nursing and Midwifery Order 2001 (“the 2001 Order”).

On 14 September 2012, the Appellant was the midwife caring for the birth of patient A’s child in the delivery suite at St Thomas’s Hospital (“the Hospital”). She was employed by Capital Staffing Services on an agency basis. Patient A had been experiencing complications and she had been transferred to the suite. She was accompanied in the suite by her husband (“Mr A”), a trainee doctor (“Dr 4”), and various other health care professionals who were involved from time to time. Dr 4 remained with Patient A during that time when the Appellant provided care for Patient A

Shortly after the birth of Patient A’s son, she and Mr A complained that the Appellant had been abrupt and rude while looking after Patient A. They also complained that the Appellant had used her mobile telephone on one or more occasions while caring for Patient A. These complaints led first to a supervisory investigation by Mrs 1. a Consultant Midwife and Supervisor of Midwives (“SOM”) appointed to the London Local Supervising Authority. The SOM produced a 31-page supervisory investigation report dated 26 April 2013. At some stage during, or subsequent to, the SOM investigation, the matter was further referred to the NMC. Others who were involved in the care of Patient A were Ms 2, a Senior Midwife at the Trust, and Ms 3, a registered midwife. On 31 May 2013, the Appellant was suspended from practice.

The First Panel heard a number of complaints. By the end of the proceedings, the First Panel had ruled first, that there was no case to answer on five charges, and second, that two further charges were not proved. The Panel found proved charges 1(a) (ii), namely that the Appellant had been “abrupt and rude in that [she] said to Patient A and/or Patient A’s husband words to the effect of ‘you don’t know what you’re talking about’ and/or ‘what do you want now’”, and charge 1(c), namely that the Appellant used her mobile phone on one or more occasions. The Appellant challenged by way of appeal the findings that these charges had been proved. As I have explained, on 8 July 2015, Holman J allowed the Appellant’s appeal. The Second Panel was then appointed to consider the case against the Appellant

At the start of the second hearing, the Appellant faced a number of charges, but following a challenge by the Appellant’s representative Mr. Ogilvy, they were reduced to the two charges that the First Panel had found proved. As I have explained, the Second Panel heard evidence and submissions before it found charges 1 (b) and 2 proved.

A large number of issues have been raised and they are that: -

Appeals under the 2001 Order must be dealt with in accordance with Part 52 of the Civil Procedure Rules (“CPR”) and the accompanying Practice Direction.

Article 38 of the 2001 Order stipulates that an appeal from a decision of the Panel lies to this court. The Court’s powers are defined by Article 38(3) (a) to (d) which is in the following terms: -

“(3)

The court…. 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 that Practice Committee concerned or the Council, as the case may be, could have made…

(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

…

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

Under CPR 52.11(3), the appeal court will allow an appeal where the decision of the lower court is: -

“(i)

Wrong; or

(ii)

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

In an appeal based on CPR 52.11(3) (a), the Court should only intervene if satisfied that a professional conduct committee’s decision was “wrong”, which means in reality, “plainly wrong” see Shaw and Turnbull v. Logue[2014] EWHC 5 (Admin) at [62] per Jay J.

He proceeded to state that:

“214.The issue at this stage is whether the [Solicitors Disciplinary Tribunal’s] key conclusions that Mr. Shaw was dishonest in a number of respects and that Mr. Turnbull was dishonest in one specific, albeit important, respect are “plainly wrong”. My function is to review the evidence and to apply to it a strict yardstick; it is not to second-guess the SDT’s findings or to substitute my views for theirs even if, for example, I were of the opinion that the conclusions are probably wrong (for the avoidance of doubt I do not hold that opinion). “Plainly wrong” imports a higher onus of persuasion, and for good reason: the reviewing Court does not see and hear the witnesses.”

In Watt v Thomas[1947] A.C 484, Lord Macmillan explained that the decision of the trial judge requires respect, it should be reversed if “plainly wrong” and the powers of the Appellate Court are not abrogated (Footnote: ²). Lord Hamilton made similar observations when sitting in Court Of Session in Hamilton v Allied Domecq plc [2006] SC 321 at paragraph 85 explaining that an appellate court has “a power and a duty” to reverse a decision of the lower court when “it is plain that [the printed evidence] could not constitute a proper basis for some primary finding of fact made by the judge of first instance” (emphasis added). He added that “if findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance."

In Bhatt v. General Medical Council [2011] EWHC 783 (Admin), Langstaff J, after considering a number of authorities concluded (Footnote: ³) that:

“9.

I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:

(i)

it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

(ii)

that the tribunal has had the advantage of hearing the evidence from live witnesses;

(iii)

the court should accordingly be slow to interfere with the decision on matters of fact taken by the first instant body;

(iv)

findings of primary fact, particularly if found upon an assessment of the credibility of witnesses are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;

(v)

but that where what is concerned is a matter of judgment and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional expertise of the [fitness to practise panel], the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be “wrong” or procedurally unfair.”.

In Southall v. The General Medical Council [2010] EWCA Civ 407 Leveson LJ (with whom Dyson and Waller LJJ agreed) said at paragraph 47 that it was "very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable", so that the appellant must establish that the "fact-finder was plainly wrong" and "the court should only reverse a finding on the facts if it "can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread".

In addition, it has also been made clear in many cases concerning challenging decisions of a professional disciplinary body that there is no general duty on such an entity to give reasons for its decision as to matters of fact, particularly where the decision depended on the credibility of witnesses (see Gupta v. The General Medical Council[2002] 1WLR 1691 Lord Rodger giving the decision of the Privy Council at paragraphs 11-15). Lord Rodger indicated at paragraph 14 that there might exceptionally be cases where the principle of fairness required the panel to "give reasons for their decision even on matters of fact".

I am grateful for the oral and written submissions of counsel. At my suggestion at the hearing, they both served post-hearing written submissions, which were supposed to be limited to dealing solely with Issue D setting out their case on the alleged inconsistencies in the evidence. I have taken those matters into consideration.

No evidence that a review took place

The case for the Appellant is that the Second Panel failed to comply with the direction of Holman J “90…to review [the case] as soon as reasonably practicable and [for it] to be disposed of according to the outcome of the review”. He had explained that “86…there may be room for a difficult discretionary decision in this case as to whether or not this whole matter and these charges should be reheard and redetermined”.

Ms Trisan Hyatt, counsel for the Appellant, contends that the Respondent should have served evidence on the Appellant relating to the review, but it has not done so as it merely told the Second Panel that a review had been undertaken. I agree with Ms Grace Hansen, counsel for the Respondent, that Holman J did not state how the review should be conducted or that the Respondent would have an obligation to disclose to the Appellant the nature of the review. I add that that even if the Respondent had any such obligation and that it has not been complied with, I do not understand first, how the Appellant has been prejudiced by this omission, and second, more importantly why this means that the decision of the Second Panel can be impugned bearing in mind that when the Second Panel considered this matter afresh, it found the charges in question proved.

Putting forward cases at the Second Hearing charges rejected at the First Hearing

Another complaint of the Appellant is that at the remitted hearing, the Respondent did not merely pursue the two charges which had been found proved by the original appeal, but that the Respondent then also put forward before the Second Panel a number of additional charges even though at the first hearing, the First Panel had not found them to have been proved or to have been the subject of findings of no case to answer. The Appellant’s case is that these charges should not have been put forward at the remitted hearing. I agree, but at that hearing, the Second Panel did not permit the Respondent to pursue those charges. So the Appellant was not prejudiced by the erroneous decision of the Respondent to raise them before the Second Panel and/or not to decide not to pursue them at the review. They were not considered or adjudicated on by the Second Panel. In any event, the decision to put forward these charges, which were then dropped before the Second Panel, does not support the contention that the decisions under challenge were wrong.

Evidence of ineffective review

The case for the Appellant is that the Respondent’s decision to rely on the evidence of Dr 4 was “equally suggestive of an ineffective review”. Dr 4 gave evidence before the Second Panel. So the Appellant’s representative was able to cross-examine her and to make appropriate submissions. The Second Panel having then considered the evidence and the submissions concluded that:

“Dr 4 was a professional and credible witness. She spoke candidly when she was unable to recall matters, which, the panel accepted, was due to the passage of time. That being said, Dr 4 was clear on those matters, which she could recall. The panel also accepted her evidence when she sought to clarify her intention when she said that you were “on” your mobile phone; she said that being on one’s phone was not solely limited to physically holding the phone to one’s ear and talking”.

The Second Panel reached those conclusions, based on the credibility findings which as I explained in paragraph 16 are on at least one view on the approach to a credibility finding to be regarded as “virtually unassailable”. On any view of the Second Panel’s decision, I cannot accept that the decision of the Respondent to rely on the evidence of Dr 4 was “equally suggestive of an ineffective review”. In any event, it does not show that the decision of the Second Panel should be reversed.

In conclusion, there is no merit in any of these complaints as the Second Panel did not make any findings on these issues, as they did not form part of the charges, but it was entitled to hear this evidence as it was relevant background material setting out the context to the charges under consideration by the Second Panel.

The Appellant’s case is that Holman J allowed the appeal against the decision of the First Panel on the grounds that that it had erred by having regard to the outcome of the internal investigation carried out by the SOM, but that notwithstanding this finding, the same error was made by the Second Panel at the second hearing. The Respondent’s response is that the Order of Holman J only related to the findings of the SOM and that it did not preclude the Second Panel considering the statements obtained by the SOM in order to help it to determine what weight to attach to the evidence of those who made statements to the SOM and who later gave oral evidence to the SOM.

Indeed Holman J had observed at paragraph 79 of his judgment that “normally the findings of fact made at some earlier investigation by another panel or another person are not admissible in proceedings before this Committee”. He proceeded to find in paragraph 81 (with emphasis added) that “the Committee had clearly chosen to make twice repeated references to the outcome of the SOM investigation when giving their reasons for finding the charges in question proved”.

Holman J concluded in paragraph 83 of his judgment (again with emphasis added) that what the First Panel should:

“…have done was to decline to admit any evidence by any means of the outcome of the supervisory investigation, and they should have treated the findings and decision of [that investigation] as completely irrelevant and excluded from their consideration”.

At the second hearing, the SOM investigation came to the attention of the Second Panel when it considered whether to proceed with all the charges that had been brought and this necessitated them having to consider Holman J’ s judgment. The outcome of the SOM investigation was not referred to in the oral or documentary evidence before the Second Panel, which explained on page 6 of its Determination (with emphasis added) that it:

“has approached such knowledge it has of the outcome of the ... SOM investigation …as being completely irrelevant and has excluded it from its consideration”.

Ms Hyatt’s response is that the Second Panel allowed the SOM to be called to give evidence and it concluded that she was a “credible, consistent and professional witness”. Ms Hyatt says in her skeleton that the Panel “should have declined to admit any evidence by any means, which included the detailed oral testimony of the SOM on which she placed evidence heavily on her investigation and outcome”.

In my opinion, it is necessary to distinguish two different aspects of the evidence of the SOM. Apart from the evidence relating to the outcome and the conclusion of her investigation, which the Second Panel regarded “as being completely irrelevant and has excluded it from its consideration”, there was also the evidence of the SOM’s medical notes and what witnesses had told the SOM when she was carrying out her investigation and which formed part of her interview notes.

Before the SOM gave her evidence, the Second Panel raised the issue of whether the SOM’s evidence was admissible and Mr. Ogilvy, who was then acting as the advocate for the Appellant, did not object to the evidence of the SOM being adduced in so far as it related to what she had been told by witnesses. The SOM duly gave evidence in accordance with a redacted statement and she was cross-examined. This evidence was of value as it helped the Second Panel in determining issues on the reliability and accuracy of the evidence of some of the witnesses, who had previously given statements to the SOM. Indeed, inconsistencies between what witnesses told the SOM and their oral evidence were used by Mr. Ogilvy to show why their evidence should not be accepted. Indeed Ms Hyatt has relied in this appeal in answer to charge 1(b) on the fact that Patient A did not use the words “you don’t know what you’re talking about” in her interview with the SOM. In my view, this evidence was admissible and it was different from the evidence to which Holman J objected, which in his words in paragraph 83 of the judgment was “the outcome of the supervisory investigation”.

I am therefore unable to accept the Appellant’s complaint on this issue because this part of the SOM’s evidence, which was admitted, was relevant and was different from the evidence, which Holman J regarded as objectionable.

The Appellant’s first complaint in respect of this charge is that the Second Panel found the case against the Respondent proved in respect of charge1(b) (namely saying “you don’t know what you are talking about” and/ or” what do you want now”) and “facts used to find it proved were not germane to the specific allegation”. Her complaint is that in the word of her skeleton argument :

“The Panel at the fact-finding stage had delved into areas that the Panel ought not to have considered and which the Panel had agreed were res judicata at the start of the proceedings, namely referring to issues such as the Appellant pressing on Patient A’s stomach and hurting her, Patient A suffering from a haemorrhage and the Appellant allegedly taking Patient A’s notes home which were charges found not proved by the previous Panel”

I agree with Ms Hansen that the Second Panel was entitled to hear this evidence as it was necessary and essential background to the charge 1(b), because Patient A said in evidence that she was having contractions when the Appellant touched her stomach. Patient A said this was painful and that in consequence, the Appellant made the comments which formed this charge. In my opinion, it was essential that this evidence should have been adduced as otherwise the Second Panel would not have been unable to determine if those words had been used as the background was of great importance to understand how and why the words in question might or might not have been stated by the Appellant. All these matters were admitted as the background to charge 1 (ii). It must not be forgotten that the Appellant denied that she made any such comment.

In my view, there was no risk of any injustice to the Appellant caused by admitting this evidence because crucially the Second Panel was not required to, and indeed, did not even consider or determine any charge that the Appellant had been “unreasonably rough with patient A in that you pressed her stomach on one or more occasions whilst she was having contractions”. The First Panel found no case to answer as there was no evidence that the Appellant was “unnecessarily rough”, but the correctness of that finding was not challenged in any way in front of the Second Panel. Similarly, the Second Panel was not asked to consider how it came about that Patient A was suffering from a haemorrhage, which was not disputed. It is not surprising that the Appellant’s representative did not submit to the Second Panel that any of this evidence, which is the subject of the Appellant’s complaint, was inadmissible. Finally, no evidence was adduced before the Second Panel that the Appellant took Patient A’s notes home and they made no finding in relation to it.

Ms Hyatt points out that representations were made on behalf of the Appellant in support of an application that the Second Panel should have recused itself on account of bias because of the decision to consider those matters. She says correctly that the Second Panel decided before hearing this application to announce its decision finding that the Appellant was guilty of misconduct and impairment of fitness to practice. This complaint does not assist the Appellant’s case because her representative, Mr. Ogilvy, told the Second Panel that he had decided not to pursue the recusal application. So the Second Panel acted properly in not considering it. In any event, I do not understand why the decision of the Second Panel should be impugned or why the appeal should be allowed on this ground.

Ms Hyatt also contends in respect of the charge that the Appellant “used your mobile phone on one or more occasion(s)” that the Second Panel failed to limit this charge to an allegation that the Appellant used her mobile phone “when she was between Patient A’s legs” as the charge before the Second Panel lacked specificity. It is said that this meant that the Respondent had the scope to extend the charge beyond the complaint of Patient A and so the Appellant was prejudiced.

Ms Hansen contends correctly in my opinion that this charge was adequately particularised and properly brought as it meets the requirements specified by Beatson J (as he then was) when he explained in R (Johnson and Maggs) v The Professional Conduct Committee of the Nursing and Midwifery Council[2008] EWHC 885 (Admin) at [102] that:

“The test to be applied in these cases is a two-stage test. Firstly, whether the challenges in the circumstances of the case provided sufficient information to enable those charged to know, with reasonable clarity, the case they have to meet. Secondly, whether they know enough about the charges to enable them to prepare their defences.”

These requirements were satisfied as this charge was not expressly limited to the Appellant using the phone between Patient A’s legs. This was clear from reviewing the charge, the witness statements of Dr 4 and Ms 2, as well as the initial complaints of Patient A and Mr A. The Respondent’s case has been consistently put on this basis, including at the First Hearing. If the Appellant’s representative at the hearing did not appreciate what was covered by this charge, he could and should have sought clarification.

I should add that the Appellant’s representative had submitted to the Second Panel that the charge was limited to the Appellant’s use of the phone “when she was between Patient A’s legs” as the charge before the Panel lacked specificity. The Second Panel rejected this application and it noted correctly that Holman J said of the case against the Appellant (with emphasis added) by the Panel “that the charges include charges of some gravity , in particular, making or receiving a call or calls between the legs of a mother as she is in labour”. This show that Charge 2 was not, in his opinion, limited in the way in which Ms Hyatt says it should have been limited.

I am quite satisfied that the Appellant was not prejudiced by the fact that the allegation against her in respect of the use of the mobile phone while caring for Patient A was not limited to the time when she was between that patient’s legs, because she knew the case against her from the evidence. In any event, she was able to deny, and did deny, that she ever used her mobile phone. Therefore, she was not prejudiced by the lack of particularity. I am satisfied that the Appellant was able to prepare and conduct her defence to Charge 2 which was simply that she did not use her phone because it was switched off and in her pocket.

Finally, Ms Hyatt in her skeleton arguments states that “alternatively, the panel may not have found that that use of the phone outside of the delivery room itself amounted to misconduct.” I do not believe that the decision of the Second Panel shows that this matter influenced their decision in any way. I reject the contention that the Second Panel allowed evidence to be heard that ought not to have been heard and that this amounted to a serious irregularity and was wrong and or unjust.

Introduction.

A recurring theme of Ms Hyatt’s submissions is that the Second Panel failed to have any, or any due regard to the inconsistencies in the individual accounts of the witnesses and overall of all the witnesses. It is necessary to appreciate that:

At this stage, I will consider whether the alleged inconsistencies existed and I will return when dealing with Issue F to consider if in the words of the Appellant’s skeleton argument that “no reasonable panel properly directing itself on those inconsistencies and serious conflict of evidence could have reached the conclusion that both charges were found proved”. I do not accept Ms Hyatt’s submissions that the Second Panel “ought not to have accepted the evidence of the NMC witnesses uncritically and that it did not carry out the necessary scrutiny and balancing exercise required, especially in light of the fact that two witnesses had varying differing accounts”. As I will explain, in paragraph 75 below, the Second Panel explained its views on the Respondent’s witnesses critically and reached conclusions open to them.

Ms Hyatt relies principally on three alleged inconsistencies in the evidence of Patient A and Mr. A in relation to the contention that the Appellant said, “you don’t know what you are talking about”.

First, it is said by Ms Hyatt that the words “you don’t know what you’re talking about” was stated by Patient A’s husband for the first time in evidence before the current Panel”. That is incorrect, as Patient A’s husband gave this evidence initially in his witness statement in 2013, two years before he gave oral evidence: when he explained that “I heard Doris respond by saying things like “no you’re not” or “you don’t know what you’re talking about”. These words formed part of the background evidence to the charge, which was when the Appellant was disagreeing with Patient A’s statement that she was in pain and that she could not move. Contrary to Ms Hyatt’s contentions, the Second Panel only regarded the evidence that these words were used as background to their consideration of whether charge 1 (ii) was proved and the Appellant cannot have been prejudiced by the admission of the evidence for that purpose.

Second, Ms Hyatt submits, “The Panel seems to have formed the view that the Appellant had said so ‘multiple times’, which was inaccurate and unreflective of the evidence.” I cannot accept this submission because the words “multiple times” are a direct quote from the oral evidence of Mr. A to the Second Panel on 26 January 2016, while Patient A said on a number of occasions that the Appellant used this language more than once. Indeed, in her complaint, she said that the Appellant “used many accusative and rude language towards me” (emphasis added).

Then in her witness statement, she stated, (with emphasis added) that, “Doris kept denying that I was having a contraction and said things like ‘no you’re not’ or ‘you don’t know what you’re talking about’”. In her evidence in chief, Patient A said that these comments were made “certainly more than once”.

Third, the Appellant complains that Patient A did not use the words “you don’t know what you’re talking about” in her complaint or in her interview with the SOM. That complaint is correct, but, as I have explained, this omission ought not automatically to have prevented, and indeed did not prevent, the Second Panel from being satisfied that it was actually said, bearing in mind first, that Patient A explained that the SOM, Mrs. 1 only asked her for one example of what the Appellant said to her, second, that in her witness statement, Patient A mentioned these words having been used by the Appellant, and third, that Patient A told the Second Panel that the Appellant used this language multiple times and fourth, this evidence was supported by Mr. A. In these circumstances, I do not consider that this complaint assists the Appellant’s case.

The Second Panel expressly had regard to the fact that Patient A and Mr. A did not give evidence that the Appellant had said “ what do you want now”, but the Second Panel found that it was said in the light of “Ms 3’s clear evidence” and that “she was clear in her recollection and perception of the incident”. Insofar as the Second Panel relied on the patient notes, nothing was shown to demonstrate that this was incorrect. The Appellant cannot complain about this decision, which was open to the Second Panel. I will return to consider it when resolving Issue F below when considering if the Second Panel as the designated fact-finder was entitled to find the charge proved.

The first alleged discrepancy is that Patient A initially said that the Appellant used the phone continuously. Thatis incorrect as Patient A’s complaint in an email dated 21 November 2012 stated: “She used her mobile phone multiple times while I was in labour and while she was between my legs”. In her oral evidence, she said that “there were multiple occasions when [the Appellant] was holding the phone or she was using the phone”. She also said that the Appellant was holding the phone once and later she says that she heard the Appellant’s phone ring “more than once, but that time [when the Appellant was between her legs] I remember very clearly”.

Second, Ms Hyatt complains that “Dr 4…stated in the first line of paragraph 10 of her witness statement that ‘she did not see the Registrant use her mobile phone in the presence of Patient A or her husband.’” I cannot accept that complaint, because this evidence was not given by Dr 4 at any stage. Indeed, the first line of paragraph 10 of her witness statement in fact states: “I do not remember [the Appellant] speaking on her phone in the room”. She also said in her witness statement that she saw the Appellant looking at “her mobile phone numerous times …as though waiting for a text”.

The next head of complaint is that“In her [Dr 4’s] evidence before the panel she stated that she did not see the Appellant use her mobile phone in front of Patient A”. This is incorrect as this evidence was given by Amy Smith, Ms 3, not by Dr 4. It is now accepted that this head of complaint was incorrect.

Fourth, it is said that Dr 4 “goes on to give further evidence not featured anywhere in her previous statements that she can recall the Appellant looking at her phone frequently”. This is incorrect as the evidence was first given in Dr 4’s 2013 witness statement, which was that “In that time I saw Doris looking at her mobile phone numerous times. She would look at it every few minutes as though waiting for a text”. The Appellant’s complaint now seems to be that Dr 4 had not used the word “frequently”. I do not see why this matters as her evidence was that she looked at her phone “numerous times” is another way of saying that she did it frequently. There is no magic in the use of the word “frequently”, and I reject this complaint.

The fifth head of complaint is that Dr 4 said that she had seen the Appellant looking at her phone and Ms Hyatt contends, “this response came shortly after the Chairman said that the charge could involve a number of things”. It is correct that the Chair noted that the charge was not restricted to speaking on the phone, but there is no truth in the contention that Dr 4’s evidence was given as the result of a suggestion by the Chair because it was Dr 4 herself, not the Chair, who first mentioned this in evidence on 27 January 2016 when she said that “you don’t have to be speaking on the phone to be using the phone”. Shortly afterwards, she said:“Perhaps I should have used the words ‘using the phone’ which to me mean the same thing but I appreciate it could be clearer in my original statement, but as far as I’m concerned one can be on the phone, using the phone, looking at the phone, texting on the phone, without speaking on it”. I conclude that Dr 4 did not give her evidence as a result of a suggestion by the Chair.

The sixth complaint is that “Dr 4’s first statement referred to [Mr] A briefly lost consciousness which had not happened”. Dr 4 repeated in cross-examination that Mr A briefly fainted. There is therefore no inconsistency in Dr 4’s evidence. This point was never put to Mr A and so it cannot be said that there was a difference between the evidence given by Dr 4 and by Mr. A. In any event, I do not understand how this shows or is relevant to a submission that the appeal should be allowed.

The seventh head of complaint is thatDr 4 incorrectly referred in her witness statement to “Kings College Hospital”, but this was a typographical error which was corrected by the witness herself at the outset of her evidence. The Chair explained correctly that “Dr Lawrie conceded readily that it is a simple error. She intended to say Thomas’s and the statement has King’s. Really, does anything turn on that point?” In my view, this point has no relevance does not undermine Dr 4’s reliability.

The Appellant complains that the Second Panel described the Appellant as a “clear, composed and credible witness”. The thrust of the criticism is based on the alleged inconsistencies in her evidence, but as I have explained, many of the alleged inconsistencies do not exist. Where there were inconsistencies, the Second Panel took them into account (Footnote: ⁸) , but as I have explained the mere fact that a witness’s evidence is not accepted on one matter does not mean that his or her evidence must be rejected on all issues. In any event, much of her evidence has been corroborated as explained by the Panel. In any event, the complaint of Ms Hyatt falls along way short of showing that the views on the credibility of Patient A was “plainly wrong” especially as the Second Panel, unlike this Court, saw and heard Patient A give evidence and they would have entitled them to reach their conclusions that although she was “at times guarded in her manner and visibly frustrated when questions were put to her in cross-examination. This did not impact upon the overall credibility and reliability of her evidence”. Indeed as I have explained, it is very well established that findings of primary fact, particularly “if founded upon an assessment of the credibility of witnesses, are virtually unassailable” (Footnote: ⁹).

I have concluded that the alleged inconsistencies do not exist or can be explained. Furthermore, in any event, neither the matters to which I have referred nor any of the allegations made by Ms Hyatt show that the decision of the Second Panel was plainly wrong.

The case for the Appellant is that there are various pieces of evidence which the Second Panel failed to take into account. First, it is said that the Second Panel refused to admit transcripts of the first hearing and that this refusal amounted to a serious procedural irregularity. Ms Hyatt contends that the Appellant’s representative when cross-examining Dr 4 sought to put to her the inconsistencies between the evidence she gave to the First Panel and her subsequent evidence before the Second Panel. Her case is that the Appellant’s representative was prevented from doing so because the Chairman commented that:

“I think you need to be careful. I do not think we should be directing ourselves to matters which are not in front of the panel. We do not have a transcript of that previous…”

What in fact happened was that when Dr 4 was told at the second hearing that what she had said at the first hearing was different from her evidence at the second hearing, she said of her evidence at the first hearing “If I said it when I was a year closer to the event, then that seems likely”. In other words, she accepted a change of her evidence and she explained, “I’m saying I can’t recall so easily a further year after the events”. There was no prejudice caused by the absence of the transcript because Dr 4 accepted first, that her evidence might have changed, and second, that her earlier evidence was more likely to be more accurate. So in the light of that sensible concession by Dr 4, the Appellant’s case would not have been assisted by obtaining the transcript of the first hearing.

Second, Ms Hyatt’s case is that much later in the proceedings; the Appellant’s representative did seek to have the transcript of the previous panel in respect of Dr. 4 admitted into evidence. Upon submissions from Counsel for the Respondent, the Panel did not admit the transcripts into evidence and concluded that, “This Panel has seen those witnesses and the evidence they have placed before us. We have made, I think, clear findings on their credibility and upon what they said…” The reason why this application for the transcript was not then ordered was that this application was not made before or at the latest when the evidence was being adduced on the question of whether the allegations in the two charges was correct.

Instead, the application for that material was made much later in the proceedings after judgment had been given on those issues and when closing submissions were being made on sanctions. In other words, the application was made far too late as the transcript was not then relevant on the outstanding issues. I agree with Ms Hansen that if the Appellant’s representative had wanted to suggest some inconsistency in the evidence of Dr 4 or indeed of any other witness, then such matters should have been put to them in cross-examination and they should then have had the opportunity to answer it. So, any application for the transcript should have been made a number of days earlier when Dr 4 was giving, or was about to give, evidence. In other words, this application for the transcript quite rightly had to be refused and there is no question of it being procedurally unfair. In any event, I have no reason to believe that if the Appellant’s representative had been supplied with a copy of the transcript, this would have assisted the Appellant’s case let alone undermined the reasoning or the decision of the Second Panel.

The third criticism of the Appellant was that the Second Panel did not give due regard to the patient notes which demonstrated first, that the Appellant was making frequent entries whilst caring for Patient A, and second, that such notes would support her case that she would not have had sufficient time to be on her phone as is alleged. There was a conflict between the evidence of the Appellant, who claimed that she did not use the phone, and the other witnesses who said that they saw her using it. The resolution of that dispute was the task of the Second Panel who saw and heard the witnesses and who could then make decisions on their reliability but Lord Hailsham of St Marylebone LC stated in Libman v General Medical Council [1972] AC 217-221 F. that "the court should only reverse a finding on the facts if it can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread”. Thus nothing before me shows, let alone establishes, that the patient notes would have shown that the Appellant would not have had sufficient time to be on her phone as is alleged.

Fourth, it is said that, the Second Panel was at fault in failing to attach importance to the fact that there were two other doctors involved in the care of Patient A, but that they did not provide witness statements. The Appellant’s representative at the hearing before the Second Panel, Mr Ogilvy, explained that “neither of these doctors could remember the case at all, so there was no point in interviewing them because they both provided statements saying they couldn’t remember the details of the case”. It is now said that if the Appellant had been using her mobile phone, these two doctors would have noted it, but they could have been called (but they were not called) to establish that point. So that point cannot now be pursued and the Second Panel could not speculate on this. In any event, even if that is wrong and the Second Panel was at fault that does not show the findings of the Second Panel were plainly wrong or even wrong.

Fifth, it is said that the Second Panel was wrong to ignore evidence regarding the effect of Entonox on Patient A, when concluding that her evidence was reliable. The Appellant in her evidence referred to the fact that the Patient A was on Entonex and was in pain while Dr 4’s evidence was that Patient A was quite drowsy. So the Second Panel would have been able to decide on the impact of that on her evidence. I am not prepared to accept that this evidence was ignored because there was no need for the Panel to refer to or address every point raised by the Appellant in its reasons (Southall [54] and [55]). In any event, even if this evidence was ignored, this does not show that the decision of the Second Panel was plainly wrong or even wrong.

The sixth criticism made by Ms Hyatt is that the evidence of Mitta Kpakra, was not considered or alluded to in the Panel’s decision, even though in her evidence , she stated that she had not seen the Appellant use her phone. When it was clear that Ms Kparka had not been called by the NMC, the Appellant’s representative then explained to the Second Panel that “I do not think that I would be pressing you for her to be here”. The Appellant cannot therefore now complain that her evidence was not considered by the Second Panel or for not attaching any importance to her evidence that she had not seen the Appellant use her phone as she had not been called as a witness. If the Appellant wished to pursue this point, her representative should have called this lady to give evidence and without her evidence, this point cannot be pursued.

The seventh aspect of this complaint relates to the alleged inconsistencies between the evidence of Dr 4 given by her to the First Panel (where she was known as Dr 1) and that given to the Second Panel whose decision is the subject of the present appeal. Ms Hansen contends that the differences were minimal and that any discrepancies were caused by, and are attributable to, the passage of time. It must not be forgotten that the issue of Dr 4’s credibility was a matter for the Panel and that their findings of fact based upon Dr 4’s credibility are “virtually unassailable” (Southall v The General Medical Council [2010] EWCA Civ 407, per Waller LJ at [47] with whom Dyson LJ and Leveson LJ agreed).

It is correct that in cross-examination, Dr 4 repeatedly stated at the First Hearing that she could not recall whether she first saw Patient A’s complaint before or after she wrote her own statement. At the Second Hearing, Dr 4 was asked whether she had seen Patient A’s complaint prior to drafting her statement and she replied “Not within my memory”. I do not consider that this inconsistency, but in any event, contamination is not of itself a reason to exclude Dr 4’s evidence. As was explained in Bhatt (supra) at [74], “the risks of contamination and corruption could be safely assessed by [the appropriate disciplinary body]” I have no reason to believe that this was not done.

Another alleged inconsistency is that at the First Hearing, Dr 4 gave evidence that she pressed the bell to call the doctor at the Appellant’s request, while 16 months later at the second hearing, Dr 4’s evidence was that she had a “vague memory” of pressing the bell, but that she was not certain that she had pressed the bell. When it was put to Dr 4 that she could remember pressing the bell at the First Hearing, she responded “If I said it when I was a year closer to the event, then that seems likely”. Not surprisingly, the SecondPanel reasonably found that where Dr 4 was unable to recall matters, this “was due to the passage of time”. (Footnote: ¹⁰)

In those circumstances, I conclude that I do not accept that the Second Panel failed to take into consideration important evidence and that this amounted to procedural unfairness. These matters certainly do not lead me or even allow me to conclude that the decisions of the Second Panel were plainly wrong or even wrong.

The case for the Appellant is in the words of her skeleton argument that “no reasonable panel properly directing itself on those inconsistencies and serious conflict of evidence could have reached the conclusion that both charges were found proved”. Ms Hyatt’s reasoning seems to be based on the assumptions first, that a fact-finding body should not accept evidence if there is other evidence inconsistent with it and second, that in any event, evidence should not be accepted if the maker of it has not always given the precisely the same evidence irrespective of the lapse of long periods of time.

I have already set out some of the principles applicable to challenges to decisions of trial judges, which apply to the present challenge before me. The difficulties of a party seeking to overturn decisions made at trials are well-known and they were explained by Lewison LJ who observed in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 [2014] ETMR 26 at para [114] that:

“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applied not only to findings of primary fact, but also the evaluation of those facts and to inferences to be drawn from them. … The reasons for this approach are many. They include

(i)

The expertise of the trial judge in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

(ii)

The trial is not a dress rehearsal. It is the first and last night of the show.

(iii)

Duplication of the trial judge's role on appeal is a disproportionate use the limited resources of an appellant court, and will seldom lead to a different outcome in an individual case.

(iv)

In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

(v)

The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

(vi)

Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done”

Ms Hyatt contends first, that this case and the comments of Lewison LJ do not establish a general principle of law, second, that the Fage case was not a case arising out of regulatory or disciplinary proceedings, and third, that the Appellant’s challenge in the present case is largely concerned with matters including inconsistencies in evidence and tainted evidence.. I do not agree as the comments of Lewison LJ show a general approach, which has been applied by the Court of Appeal to other areas such as in a professional negligence appeal (Footnote: ¹¹) and is of universal application when findings of a trial judge or panel are under challenge on appeal. Indeed, there is nothing in the comments of Lewison LJ which shows that his comments should not be of general application and no good reason has been put forward or established why those comments should not be of general application in the present case. So I will apply them.

It is clear that the role of an appellate body is very limited as it has to show reasonable deference to the original fact-finder, in this case the Second Panel not merely because, unlike me, that panel saw and heard the witnesses but also because of its professional expertise. In addition, the task of an appellate body is not to ascertain if it would have made the original decision, but if that decision was in the words of Lord Macmillan (Footnote: ¹²) and Jay J (Footnote: ¹³) “plainly wrong” bearing in mind the approach explained by Lewison LJ.

It is important to stress that when deciding if the original decision was “plainly wrong”, I must bear in mind that the Second Panel will have had regard to the entire evidence while the present challenges are to parts of it. This will, for example make it difficult to reverse or ignore the vitally important findings based on the credibility of witnesses (Footnote: ¹⁴) and in particular the finding that :

“(a)

“Patient A gave evidence in respect of what was, for her, a difficult experience. The panel observed that Patient A was, at times, guarded in her manner and was visibly frustrated when certain questions were put to her in cross-examination. This did not, in the panel’s view, impact upon the overall credibility and reliability of her evidence Patient A was a clear, composed, and credible witness.”

(b)

“Mr A was also a clear and credible witness. The panel observed that Mr A was, at times, guarded in his responses and not keen to elaborate. This did not, in the panel’s view, impact upon the overall credibility and reliability of his evidence. Mr A’s evidence corroborated that of Patient A;”

(c)

“Ms 2 was a clear, credible and consistent witness. She spoke to a narrow issue and her evidence in respect of it was sufficiently clear and detailed.”

(d)

“Ms 3 was a clear, credible and consistent witness. She, too, spoke to a narrow issue and her evidence in respect of it was sufficiently clear and detailed.

(e)

“Dr 4 was a professional and credible witness. She spoke candidly when she was unable to recall matters, which, the panel accepted, was due to the passage of time. That being said, Dr 4 was clear on those matters which she could recall”

(f)

Mrs 1, the SOM, was “a credible, consistent and professional witness [who] provided detailed and thoughtful responses to questions, was candid when she was unable to recall matters” and

(g)

The Appellant’s evidence was described as “wrong” and “self-serving” as well as “fundamentally incorrect and wrong”.

I now turn to consider the way in which the Second Panel reached its conclusions. As to charge 1(b), the Second Panel addressed its comments to the Appellant when it first stated that:

“The panel concluded that the evidence you said the words alleged was credible and overwhelming. The panel rejected your evidence as wrong. The panel was satisfied that you said the following comments, “you don’t know what you’re talking about” and “no you’re not” to Patient A. It was further satisfied that these comments, in the circumstances as described by Patient A and Dr 4, had a similar effect; when Patient A told you that she was having contractions, you denied that she was and, in the same breath, made the comments alleged. The panel decided that your comments were said to Patient A and, whilst Mr A may have heard them, they were not said to him.

The panel went on to consider whether you said to Patient A and/or Patient A’s husband “what do you want now”. Ms 3 provided very clear evidence that she heard Patient A’s buzzer sound, and that whilst sitting at the desk in room 18, you responded to the patient by saying “what do you want now” in an abrupt manner. She heard Patient A asking for breastfeeding advice.

The tenor of Ms 3’s evidence, in relation to Patient A’s request for breastfeeding advice, was corroborated by Patient A’s clinical notes in which it was documented, at 01:20, that you provided breastfeeding support to the patient.

The panel took into account that neither Patient A, nor Mr A, referred to this incident in their evidence. However, on the basis of Ms 3’s clear evidence, as supported by Patient A’s clinical notes, the panel was satisfied that you said to Patient A “what do you want now”. The panel accepted Ms 3’s evidence, and rejected your evidence as wrong. The panel decided that your comments were said to Patient A and, whilst Mr A may have heard them, they were not said to him.”

Having determined that the Appellant made the comments alleged to Patient A, the Second Panel went on to consider whether in so doing, the Appellant was abrupt and rude. It addressed its conclusion to the Appellant in this way:

“From the outset, Patient A has maintained that your manner was rude. In her email to PALS she described you using rude language towards her. In her interview with Mrs 1, Patient A described your manner as “really harsh”. She told the panel, in her oral evidence, that you “made me feel horrible… vulnerable, scared and hurt…”

Dr 4 described you as “uncompassionate” and she told the panel that her overall impression of your attitude towards Patient A was of “disinterest and a feeling of wanting to be somewhere else.”

Ms 3 maintained, in her documentary and oral evidence, that she heard you say “what do you want now” and that this was said abruptly. She was clear in her recollection and perception of the incident.

The panel preferred and accepted the evidence of Patient A, Mr A, Dr 4 and Ms 3, over your evidence. Charge 1(b) was therefore found proved as regards Patient A, but not proved as regards Patient A’s husband”

Turning to Charge 2, the Second Panel explained that the Appellant had maintained in her evidence that whilst she had her mobile phone in her pocket during the course of her shift, that it was turned off and that she never took it out of her pocket. The Second Panel proceeded to state its conclusions again addressed to the Appellant in this way:

“In contrast, the panel heard extensive evidence to the contrary, which painted a picture of you having used your mobile phone, in a variety of manners and on different occasions.

Ms 2 provided clear evidence that she saw you talking on your mobile phone and that this had prevented her from handing over Patient A’s care to you in a timely manner. She said that she was busy and needed to resume her duties.

Mr A told the panel that shortly after arriving in room 5, your mobile phone rang and you had answered it. After your phone conversation, there was an exchange between you, Mr A and Patient A about it. He also recalled another occasion around the time of the suturing procedure.

Patient A told the panel that she recalled one occasion when, whilst between her legs, your phone rang and you “rushed” to answer it. She said that she saw you looking at your mobile phone on multiple occasions and that, at one point, you handed your mobile phone to Dr 4 and asked to her answer it if it rang.

Dr 4 told the panel that you looked at your mobile phone numerous times and that, on one occasion, whilst you were between Patient A’s legs, you handed her your mobile phone and asked her to answer it if it rang. She recalled one occasion when you spoke on your mobile phone whilst outside the delivery room.

Ms 3 also gave evidence that she saw you using your mobile phone, after you handed over Patient A’s care to her. She described what she had witnessed as “inconsequential” and that this was something she had simply noted. This particular incident fell outside the timeframe of this allegation in that you were not providing care to Patient A at that point, having handed her care over to Ms 3. In the panel’s view Ms 3’s evidence supported the overall evidence that you had in fact used your mobile phone during the shift.”

The Second Panel had previously noted that the Appellant had accepted that using her phone for personal use would be unprofessional and inappropriate before concluding that

“The evidence in support of this allegation came from a broad range of individuals including a patient and a member of her family, colleagues and an independent medical student (now a doctor). Their evidence collectively supported the general proposition that you had used your mobile phone during the time in question. The panel preferred and accepted the overwhelming evidence over your assertion that you did not use your mobile phone at all. The panel rejected your evidence as wrong”.

I have considered with care the complaints of the Appellant, and I also bear in mind that Auld LJ explained inMeadows v. GMC[2007] QB 462 [197] (with emphasis added) that:

“The court must have in mind and must give such weight as appropriate in the circumstances to the following factors -(a) 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 deserves respect;(b) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; and(c) The questions of primary and secondary facts and the over-all value judgment made by the Tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”

In my view, the decisions of the Second Panel that the two charges were proved can properly be regarded as “are akin to jury questions to which there may reasonably be different answers”. After considering Ms Hyatt’s case, I am quite satisfied that one answer to the evidence before the Second Panel is that its decisions was correct especially bearing in mind that there was ample evidence to justify the conclusions of the Panel. It must not be forgotten that it was the designated fact-finding body, who unlike me saw the witnesses and could decide which evidence to accept and which to reject. That is a great advantage, which I do not have and must respect.

I have no hesitation in concluding that the decision that the charges were proved has not been shown to be “wrong” and certainly not “plainly wrong”. In reaching that conclusion, I have borne in mind the warnings that those sitting in an appellate capacity as I am should not interfere with the trial judge’s findings of fact “unless compelled to do so (Footnote: ¹⁵)” or unless satisfied that the trial body] was “plainly wrong” (Footnote: ¹⁶). I also bear in my mind the observations of Lewison LJ set out in paragraph 82 above that unlike the Second Panel, I have only seen part of the material before it and that would have excluded, for example, the demeanour of the witnesses. In addition, the Second Panel made findings on the credibility of the witnesses, which I have set out in paragraph 74 above. These matters fortify my conclusion not to accept the Appellant’s case to reverse the decisions of the Second Panel on either Count.

Introduction

The Appellant challenges this finding on three grounds, but the Respondent contends that the Second Panel was entitled to reach its conclusion and I must now explain how it reached its decision. It is appropriate to explain that it stated that:

“The panel was aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the code, would be sufficiently serious that it could properly be described as misconduct. Accordingly, the panel had careful regard to the context and circumstances of the matters found proved”.

The panel considered that by virtue of the facts found proved, you breached the following provisions of the Code:

From the preamble:

The people in your care must be able to trust you with their health and wellbeing

To justify that trust, you must:

•

make the care of people your first concern, treating them as individuals and respecting their dignity

•

provide a high standard of practice and care at all times

•

… uphold the reputation of the profession

From the numbered standards:

1.

You must treat people as individuals and respect their dignity.

3.

You must treat people kindly and considerately.

8.

You must listen to the people in your care and respond to their concerns and preferences.

10.

You must recognise and respect the contribution that people make to their own care and wellbeing.

61.

You must uphold the reputation of your profession at all times.

You were, at the time, a midwife of a considerable number of years’ experience. In this case, you failed to deliver basic aspects of midwifery care”.

The Panel continued by stating that:

“In her email to PALS dated 21 November 2012, Patient A described your rude and accusatory language as causing her “serious emotional trauma at a physically and emotionally vulnerable time.” She gave evidence in relation to how your comments made her feel; she said she felt horrible, scared, vulnerable and hurt. She also distinctly recalled your mobile phone ringing; she said “It was very clear to me. When your life is depending on someone and that person is on the phone, you would know it.” Patient A indicated to you, on numerous occasions, that she was having contractions and that you caused her pain when you pressed on her stomach; in respect of both matters, you dismissed her comments.

The panel also heard evidence that your use of your mobile phone impacted on Ms 2’s handover to you; Ms 2’s evidence was that you were distracted and that your phone call had delayed the handover.

Ms 3 was clear in her perception and overall impression that you were getting annoyed with Patient A’s and Mr A’s requests for support. She was also clear that you were abrupt with Patient A when you said “what do you want now”.

Dr 4 described you as “uncompassionate” towards Patient A. She said your attitude towards the patient was one of “disinterest and a feeling of wanting to be somewhere else.” She explained that since the date in question, she had witnessed a number of deliveries; she said “as a comparison, I felt that [you] didn’t care about this couple.”

You were, at the material time, providing care to a vulnerable patient who was in labour with her first child. The comments that you had made and the manner in which you spoke to her were entirely unacceptable. Moreover, using your mobile phone on multiple occasions, including when you were between the patient’s legs, was inexcusable and unbecoming of a registered midwife.

In the panel’s judgment, the charges found proved amounted to conduct which fell far short of what would be expected and required of a registered midwife in the circumstances. Taking the charges found proved, the panel was satisfied that your conduct was serious and that it amounted to misconduct.”

As this is a challenge to a finding of serious misconduct by a specialist panel, it is necessary to repeat the approach of Auld LJ inMeadows v. GMC(supra) who stated (with emphasis added) that:

“…(a) 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 deserves respect…”

Inconsistencies

In support of the contention that the Appellant’s conduct did not constitute serious misconduct, Ms Hyatt contends first, that the Panel was wrong to conclude that “moreover, using your phone on multiple occasions, including when you were between the patient’s legs, was inexcusable and unbecoming of a registered midwife” Ms Hyatt relies particularly on the “glaring inconsistencies from the witnesses relating to the Appellant’s use of the mobile phone”.

I am unable to accept this submission for three main reasons. First, the Appellant’s case is based on the premise that the Panel was unable to make a finding unless there was consistent evidence on that issue. I cannot agree with that approach, as there is no reason or basis why the Second Panel could not accept evidence on an issue from one witness even if all his or her other evidence is not consistent. Indeed, I have been involved in numerous cases where a judge or panel has made a decision in favour of one party where the evidence of its witnesses is not totally consistent. The task of the panel, as the designated fact-finder was to ascertain what use, if any, the Appellant made of her mobile phone and it had to choose between different accounts. As Auld LJ explained in Meadows (supra) ‘the questions of primary and secondary facts and the over-all value judgment made by the Tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers”. The case for the Appellant fails to appreciate this and that one reasonable answer to this dispute is the conclusion arrived at by the Second Panel and which I have already quoted.

Second, the Second Panel had specialist midwifery knowledge, which enabled it to answer the question of whether the Appellant’s conduct “fell far short of what would be expected and required of registered midwife in the circumstances”. This specialist knowledge is very important because in the words of the Appellant’s skeleton, the Second Panel “shall be afforded particular respect concerning standards of professional practice and treatment”. A decision as to whether a midwife “fell far short of what would be expected and required of registered midwife in the circumstances” is a classic instance of decision which is entitled to “respect” as explained by Auld LJ in Meadows(supra). That leads me to the conclusion that I must not overturn the finding that the Appellant was guilty of misconduct which was “serious” because that finding certainly was not “plainly wrong” or even a wrong decision

Third, for the reasons set out in dealing with Issue G above, I am satisfied that the vast majority of the alleged discrepancies did not exist, but there were few discrepancies and the Second Panel took them into account in arriving at its conclusion.

The Schodlock v The General Medical Council point

The Appellant’s case is that the charges proved against her cannot amount to serious misconduct in the light of the decision in Schodlock v The General Medical Council [2015] EWCA Civ 769. In that case, the Court of Appeal was considering an appeal against a finding that a doctor had been guilty of serious misconduct (and not merely non-serious misconduct) on the specific facts of the case. It had to reach a fact-sensitive decision as to whether certain conduct was serious misconduct in the light of the rules of the General Medical Council, which may be different from those of the NMC.

The facts of each of these cases are unique and the facts in the Scholdlock case were very different for those in the present case, because they related mainly or substantially to allegations of rudeness by the doctor, who was an orthopaedic registrar, towards an orthopaedic technician which were held to amount to serious misconduct. The Court of Appeal found on the facts that the conduct complained of did not amount to serious misconduct. Ms Hyatt has not shown that these or any other findings of the Court of Appeal in the Scholdlock case establish that the decision of the Second Panel was wrong or plainly wrong, especially as the case against the Appellant relates to the treatment by a midwife of a vulnerable patient about to deliver a child and the use by her of a mobile phone when she should have been looking after this patient at this critical time.

The alleged error of the Second Panel in concluding in the absence of evidence that that the Appellant caused Patient actual psychological harm

Ms Hansen contends that this contention is wrong because this was not the basis of the Panel’s conclusions on the issue of whether the Appellant was guilty of serious misconduct, which was that:

“You were, at the material time, providing care to a vulnerable patient who was in labour with her first child. The comments that you had made and the manner in which you spoke to her were entirely unacceptable. Moreover, using your mobile phone on multiple occasions, including when you were between the patient’s legs was inexcusable and unbecoming of a registered midwife.

In the panel’s judgement, the charges found proved amounted to conduct which fell far short of what would be expected and required of a registered midwife in the circumstances. Taking the charges found proved, the panel was satisfied that your conduct was serious and that it amounted to misconduct.”

I agree that the Second Panel did not base its decision on a finding that the Appellant caused Patient A actual psychological harm. That answers the complaint of the Appellant, but even if the Panel had based its decision on a finding that the Appellant caused Patient A actual psychological harm, that would have been open to it as it had specialist knowledge. After all, it said that the accusatory and rude language used by the Appellant towards Patient A “caused [her] serious emotional trauma …” and made her feel “horrible, vulnerable, scared and hurt”. This material might have enabled the Second Panel with its specialist knowledge to conclude that the Appellant caused Patient A actual psychological harm.

Conclusion

I am quite satisfied that the Second Panel was entitled to find that the Appellant was guilty of misconduct, that it was serious and that that decision was not wrong or plainly wrong. If (which is not the case) I had been in any doubt, I would have reached the same conclusion on account of the deference owed to the Second Panel because of its specialist knowledge.

Introduction

Having made a finding that the Appellant was guilty of misconduct, the Second Panel correctly then proceeded to consider whether the Appellant’s fitness to practice was impaired in the light of its duty to protect patients and its wider duty to protect the public interest which included declaring and upholding proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and the regulatory process. The case for the Appellant is that as the case against her “did not include any harm, hurt or risk of harm caused by [the Appellant] and any findings and conclusion to seek to justify impairment on any of these grounds was simply perverse as [it] did not form part of the case against [the Appellant]”.I will return to consider this point when I have explained how the Second Panel reached its conclusion that the Appellant’s fitness to practice was impaired.

The Second Panel took note of the statement of Cox J inCouncil for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant[2011] EWHC 927 (Admin) [74] that :

“In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

The Second Panelconcluded that the Appellant’s actions had put Patient A at unwarranted risk of harm, had brought the profession into disrepute, and had breached fundamental tenets of the profession. It explained to the Appellant that:

“In not giving due regard to Ms 2’s handover of care, by simultaneously taking a call whilst being handed over to, you created an unwarranted risk to Patient A in that you created a risk that important handover information would be missed. Furthermore, in using your mobile phone from time to time during your care of Patient A, including abandoning procedures to take calls, you placed Patient A at risk of harm, by not holding her as your first and only concern. In ignoring and denying Patient A’s assessment of her own condition, you further placed Patient A at unwarranted risk of harm. The panel also concluded that you had caused actual psychological harm to Patient A; she said that the accusatory and rude language you had used towards her “caused serious emotional trauma…” and that your comments “made me feel horrible… vulnerable, scared and hurt…”

In considering whether the Appellant’s fitness to practise continued to be impaired, the Second Panel had regard to the issues of future risk and public confidence. With regard to future risk, the Second Panel then considered the questions posed in Cohen v General Medical Council [2008] EWHC 581, namely whether the Appellant’s conduct was easily remediable, whether it had been remedied and whether it was highly unlikely to be repeated. In considering these questions, the Second Panel also had particular regard to the issue of the Appellant’s insight.

The conclusions of the Second Panel were that the Appellant’s misconduct was potentially capable of remediation, which could include full reflection on the matters found proved and undertaking relevant training. It took account of the fact that the incidents in question occurred over the course of a single shift and that shortly before the Appellant had commenced her shift, her daughter had given birth. There was no evidence before the Second Panel that the Appellant had behaved either before or after this incident in the way in which she did when looking after Patient A, or that there were any other regulatory or disciplinary findings against the Appellant.

The Second Panel noted that the Appellant had failed to produce any evidence of remediation in the form of courses undertaken or character references. Indeed, the Appellant had not given any evidence on this issue. It then proceeded to consider the level of insight shown by the Appellant, as that was “central to a proper determination of that practitioner’s fitness to practice”.It noted that the Appellant had said in her written statement to Mrs 1 of Patient A “I was amazed with some of her comments” and “I gave [her] the best possible care I could give at that prevailing time”.

When the Appellant gave oral evidence to the Second Panel at the fact-finding stage, she said that “nothing in [Patient A’s] account was true”, and that she had a genuine rapport with Patient A and her husband. The Second Panel considered that the evidence of the Appellant at the fact-finding stage was “fundamentally incorrect and wrong” as she had “categorically denied the matters found proved by this panel”.

The Second Panel also made a number of important findings addressed to the Appellant including that:

The Second Panel concluded that it:

“…was aware that any approach to the issue of whether fitness to practise should be regarded as impaired must take account, not only of the need to protect the public, but also the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.

For this additional reason, the panel went on to consider whether the need to uphold proper professional standards and public confidence in the profession, and the NMC as a regulator, would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case. The panel concluded that it would.

The panel determined that this was a case where the firm declaration of professional standards so as to promote public confidence in the profession was required. The panel was of the view that reasonable members of the public in full possession of all the facts would be deeply concerned by your conduct and the lack of any evidence of remorse and insight. It concluded that public confidence not only in respect of the profession itself but also in respect of the NMC as regulator would be undermined if a finding of impairment were not made.”

The Panel then determined that the Appellant’ fitness to practice was impaired

I am unable to accept Ms Hyatt’s submission that it is necessary or desirable to show that the Registrant caused any harm, hurt or risk of harm before it was entitled to make a finding that the fitness to practice of the Registrant is or was impaired. There is no authority that such requirement is a pre-requisite to a finding of impairment of fitness to practice. Indeed if it was correct, it would mean that a midwife could be verbally offensive to patients repeatedly and consistently without any risk of a finding that his or her fitness to practice was impaired. Similarly, a registrant who was guilty of theft unconnected with his work would or could not be subject to a finding that his or her fitness to practice was impaired. Nothing has been said to show that the reasoning of the Second Panel is defective or incorrect in any way or that it failed to take account of the correct principles. In any event, if I had been in any doubt about this conclusion, which I am not, I would have shown deference to the Panel as a specialist professional body and held that their judgment was not plainly wrong or even wrong.

The Second Panel heard submissions on the appropriate sanction that should be imposed. The Case presenter explained to the Second Panel that that the function of sanctions was not to be punitive, but to protect the public interest, which included the protection of patients, the maintenance of public confidence in the professions and the regulatory body as well declaring and upholding proper standards of conduct and behaviour. He pointed out that the Appellant was a knowledgeable and experienced midwife dealing with a physically and emotionally vulnerable patient.

Mr. Ogilvy for the Appellant said the case against the Appellant related to an isolated incident committed by a midwife of 21 years’ standing and of previous good character. He pointed out that the First Panel had imposed a 12-month caution order and that the Appellant had been subjected to an interim order, which was a sanction on its own as well as suffering serious financial hardship as she was the sole breadwinner in her family. Mr. Ogilvy submitted that this was not a case in which the Appellant had no insight as she had indicated that she would be willing to respond to retraining.

The Second Panel explained that it had regard to the principle of proportionality, weighing up the Appellant’s interests against the public interest and it bore in mind that the purpose of sanctions was not to be punitive, although it may have that effect, but instead it was intended to protect patients and to serve the wider public interest. The wider public interest included maintaining public confidence in the profession and the NMC as its regulator, as well as declaring and upholding proper standards of conduct and behaviour. The Second Panel noted that it had not seen and was not in any way bound by the First Panel’s decision on the appropriate sanction, which should be imposed on the Appellant.

The Second Panel identified a number of mitigating factors in favour of the Appellant, such as first, that this was an isolated incident which occurred during the course of one single, busy shift; second, that the Appellant had engaged with the NMC throughout; third, that at the time of the incident, the Appellant was a midwife of 17 years’ experience with no adverse disciplinary or regulatory findings against her, and fourth, that she said that she had attempted to keep her knowledge and skills up to date by subscribing to the Nursing Times and by reading organisational policies and procedures. Finally, it took into account the fact that the Appellant had been the sole breadwinner in her household and that she had endured financial hardship since 2013, as a result of these proceedings.

The aggravating features identified by the Second Panel were first, that the Appellant haddemonstrated a significant lack of insight; second, that her evidence, at the fact-finding stage, was found to be self-serving; third, that she had demonstrated no remorse and that she had not made any apologies; fourth, that she was, at the material time, an experienced midwife; and fifth, that Patient A was a physically and emotionally vulnerable patient who as a result of the Appellant’s conduct, suffered actual, psychological harm. It was also noted that the Appellant’s attitude towards Patient A was described by various witnesses as “uncompassionate” and “distracted”.

Under Article 29 of the 2001 Order, a panel, when considering sanctions, had to consider the following courses of action in ascending order, beginning with the least restrictive sanction: first, taking no action; second, making a caution order for one to five years; third, making a conditions of practice order for no more than three years; fourth, making a suspension order for a maximum of one year; and fifth, making a striking-off order.

The Second Panel considered that the option of taking no action would be inappropriate given the nature of the misconduct found and the Appellant’s lack of insight. In addition, such an order would be insufficient for the purpose of upholding public confidence in the nursing profession and in the NMC as its regulator. The Second Panel then considered whether to make a caution order. Such an order would not restrict the Appellant’s ability to practise, but in the opinion of the Second Panel, it would not properly reflect the gravity of the Appellant’s misconduct. The Panel determined that imposing a caution order would be wholly inadequate for the purposes of protecting the public, and it would be insufficient for the purpose of upholding public confidence in the nursing profession and in the NMC as its regulator as, without evidence of insight, reflection and remediation, a risk of repetition remained.

The Second Panel then considered whether to impose a condition of practice order, which is a sanction which primarily focuses on remedying identifiable areas of concern within a registrant’s clinical practice or skills that might require retraining, assessment and supervision. It acknowledged that there was no evidence before it of any general incompetence on the Appellant’s part, but instead the evidence demonstrated a significant lack of insight combined with no evidence of reflection or of what steps the Appellant had taken, or would take, in order to ensure that her misconduct would not be repeated. The Appellant, in the Second Panel’s view, had not explained what she would do differently in the future and there was “evidence of an attitudinal problem” on the Appellant’s part.

In the light of the Second Panel’s finding that there remained a risk of repetition of the Appellant’s misconduct and, therefore, a risk of harm to patients, it concluded that a conditions of practice order could not be devised which would satisfactorily address the Appellant’s very limited insight, lack of reflection and remediation. Therefore, conditions of practice would not be a sufficient or proportionate sanction in all the particular circumstances of this case.

The Second Panel next considered imposing a suspension order. Such an order is intended to convey a message to the registrant, the profession and the wider public as to the gravity of unacceptable and inappropriate behaviour, which, in the particular circumstances of the case in question, falls short of being fundamentally incompatible with continued registration. A period of suspension could also serve to provide a practitioner with an opportunity to reflect on his or her misconduct and to take action to commence the process of remediation.

The Second Panel noted that the misconduct in this case was limited to a single incident. There was no evidence of any repetition of the Appellant’s misconduct since the incident, and no evidence of a history of her having previously conducted herself in a manner similar to that found proved in this case. It would appear, on the basis of the Appellant’s long, professional career that this conduct was out of character for her. The Second Panel also acknowledged that the Appellant had engaged in these proceedings.

The Second Panel was nevertheless of the view that, notwithstanding those points, the Appellant’s misconduct was such that a lesser sanction would not be sufficient or appropriate. Making comments of the nature found proved against the Appellant, in a rude and an abrupt manner, and then using her mobile phone on multiple occasions whilst providing care to a vulnerable patient, was unacceptable and should never happen. The Second Panel continued by stating that the Appellant had not demonstrated an understanding and appreciation of the serious implications of her conduct on Patient A and her family, her colleagues, her profession and the wider public. It then explained to the Appellant (with emphasis added) that:

“Since the time of the incident, leading up to this hearing, you would have had the opportunity fully to reflect upon and seek to remedy your behaviour underlying your misconduct, and develop insight. There was no evidence before the panel to demonstrate that you have done so.

In all the circumstances of this case, the panel determined that your misconduct is such as to require your temporary removal from the Register. The panel considered that such an order is appropriate in this case, so as to mark the seriousness of your misconduct.

The panel further considered that a suspension order would also give you the time to undertake sufficient reflection on your misconduct and the opportunity to demonstrate your reflection to a subsequent Conduct and Competence Committee panel who will review this order shortly before its expiry.

The panel did give due consideration to whether the public interest would be better served by the imposition of a striking-off order.

The panel found that you breached a fundamental tenet of the profession. Your overarching duty was to safeguard the patients in your care, in this particular case, Patient A. In the panel’s judgment, you had acted in a way that could foreseeable have resulted in harm to Patient A.

That being said, the panel determined that, for all the reasons already outlined, a striking-off order is not the only sanction that will be sufficient to satisfy the public interest. It further determined that the seriousness of your case is not incompatible with ongoing registration, after a period of suspension. This was an isolated incident, which, on the basis of your long, professional career, was out of character for you.

In all of the circumstances the panel considered that a striking-off order would be disproportionate and unduly punitive. Furthermore, the panel is mindful of the benefit of enabling an otherwise competent midwife to return to clinical practice.

The panel was therefore satisfied that a period of suspension would be sufficient to protect patients and satisfy the public interest. It determined that your misconduct is not fundamentally incompatible with resuming your practice as a midwife at the end of the period of your suspension, and subject to any future decision made by a panel of the Conduct and Competence Committee at a review hearing. It also determined that public confidence in the profession and the NMC, as its regulator, can be satisfied by a less severe outcome than permanent removal from the Register.

In reaching its decision the panel had regard to the significant professional, financial and personal impact such an order is likely to have on you. Nevertheless the panel considered that the public interest outweighs your own personal circumstances and requires the imposition of a period of suspension.

The suspension order will be for a period of 3 months. That period of time reflects the seriousness of your misconduct and will allow you to reflect fully on the findings of this panel. In addition, the panel considered this length to be proportionate, having balanced the public interest against your interests, and having taking into account that you were, from June 2013 to January 2015, subject to an interim suspension order.”

The Appellant’s case is first that public confidence in the profession was not served by the sanction imposed as it was excessive and disproportionate; and second, that it is arguable that the public would not expect a lengthy suspension and an additional period of suspension, which put the Appellant’s registration at risk of lapsing. It is said that in the context of the Appellant’s 17-year unblemished career, the Second Panel should have given more weight to the effect of the sanction on the Appellant and the fact that she had already suffered a lengthy period of suspension.

These submissions have to be considered in the light of the deference owed to the decisions of professional disciplinary bodies which was explained by Jackson LJ (with whom Sir Mark Potter P and Arden LJ agreed) when he observed in Salsbury v Law Society [2008] EWCA Civ 1285 [30] (with emphasis added) that:

“From this review of authority I conclude that the statements of principle set out by the Master of the Rolls in Bolton remain good law, subject to this qualification. In applying the Bolton principles the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitor under articles 6 and 8 of the Convention. It is now an overstatement to say that "a very strong case" is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere”.

In my view, the submissions of Ms Hyatt cannot succeed as the Second Panel gave adequate reasons for explaining why a suspension order was required to show the seriousness of the Appellant’s unacceptable comments made in a rude and an abrupt manner as well as her use of her mobile phone on multiple occasions when dealing with a vulnerable patient who was about to give birth and who was entitled to courtesy and the undivided attention of the Appellant. The Panel considered that the Appellant breached a fundamental tenet of her profession and she had failed to demonstrate an understanding and appreciation of the serious implications of her conduct on Patient A and her family, the Appellant’s colleagues, her profession and the wider public interest. In my view, there are no grounds for challenging the imposition of a suspension order on the Appellant especially as all the mitigating factors were properly taken into account and the aggravating factors set out in paragraphs 107 and 108 above together with the Second Panel’s conclusion that there was a risk of the Appellant repeating her misconduct. In addition, the Appellant, in the Second Panel’s view, had not explained what she would do differently in the future and there was “evidence of an attitudinal problem” on the Appellant’s part

Turning to its length, the period of suspension of 3 months was justified and certainly cannot be challenged as theSecond Panel explained that :

“That period of time reflects the seriousness of your misconduct and will allow you to reflect fully on the findings of this panel. In addition, the panel considered this length to be proportionate, having balanced the public interest against your interests, and having taking into account that you were, from June 2013 to January 2015, subject to an interim suspension order.”

In reaching the conclusion that the sanction cannot be properly challenged, I have not overlooked two further submissions of Ms Hyatt. First, she contended that the sanction was punitive, but as the Second Panel explained in the passage which I have just quoted, this sanction was imposed for a number of reasons including to allow the Appellant time to reflect and also that it would be sufficient to protect patients and satisfy the public interest as well as to maintain public confidence in the profession and the NMC, as its regulator. These were the main and perfectly acceptable aims of the sanction.

Second, it was submitted that in imposing the suspension, the Second Panel did not take into account the lengthy period of suspension imposed on the Appellant since 31 May 2013, but in determining the length of the suspension order the Second Panel had regard to the fact that the Appellant was subject to an interim suspension order between June 2013 and January 2015. To have placed any greater weight on the interim order would have been inconsistent with the NMC’s Indicative Sanctions Guidance, which states at [26] that:

“Panels need to be cautious that they do not give disproportionate weight to whether or not the nurse or midwife has previously been the subject of an interim suspension order. Interim order panels make no findings of fact and apply a different test. An interim order and the length of any such order will be of limited or no significance to panels determining sanction in light of a finding of impaired fitness to practise”

A further reason why the time during which the Appellant was subject to an interim order need not be deducted from the period of suspension is that otherwise theSecond Panel would not have been fulfilling the important and basic functions of the disciplinary body of protecting the reputation of the profession and ensuring that it would be safe for the registrant to resume practice. Indeed if the contrary view had been adopted, the Panel might well have been allowing a registrant to practise much earlier than when it would have been safe or in the public interest to do so. This would appear to be an important factor as a risk remained that the Appellant would repeat the behaviour which led to the present charges.

Ms Hyatt has put forward a very detailed and very wide-ranging attack on the decision of the Second Panel based in the main on criticisms of a number of its findings. In considering these criticisms, I have borne in mind the repeated warnings referred to by Lewison LJ in the Fage case (Footnote: ¹⁷) (supra) “by recent cases at the highest level not to interfere with findings of fact by trial judges unless compelled to do so”. This warning is supported and fortified by the reasoning of Lewison LJ in that judgment that:

In this case, the Second Panel has explained clearly its credibility findings (Footnote: ¹⁸), which show not merely that the Appellant’s evidence was “wrong” and “self-serving” as well as “fundamentally incorrect and wrong”, but also why it found the other witnesses, including that of four members of the medical staff to be credible. Conclusions based on such credibility findings have been held by the Court of Appeal (Footnote: ¹⁹) to be “virtually unassailable”.

In addition, the Second Panel has explained clearly and cogently why the conduct of the Appellant while looking after Patient A constituted serious misconduct. In my view, the challenges to those conclusions must be rejected bearing in mind first, that the Second Panel was quite entitled to reach those conclusions on the evidence adduced, second, that this Court, which did not have the benefit that the Second Panel had of hearing the evidence and seeing the Respondent’s witnesses which led to the critical credibility findings, third, the adverse credibility findings against the Appellant, and fourth, the deference due to the Second Panel as a disciplinary body.

In the light of the evidence such as that set out in paragraph 101 above, the Second Panel applied the correct principles in deciding that the fitness to practice of the Appellant was impaired and that the appropriate sanction was an order suspending her for a period of three months. There are no valid grounds for challenging those decisions especially in the light of the respect due to the decisions of the Second Panel as a professional disciplinary body. Thus, notwithstanding the detailed and wide-ranging submissions of the Ms Hyatt, this appeal must be dismissed. It might be some consolation for the Appellant to know that everything that could be said on her behalf has been put forward.