Holder v Nursing And Midwifery Council

Introduction

There is before the court an appeal against the decision of the Defendant, the Nursing and Midwifery Council (“NMC”). By decision of 3 August 2015, the Appellant was notified that she was to be struck off the register of nurses for misconduct. She now appeals against that decision.

Representation

Before addressing the substantive issues arising, I consider it right to record my commendation to the Pro Bono Unit and to counsel who have acted on the Appellant's behalf. In particular, Mr Christopher Stone appeared pro bono during earlier oral stages of the proceedings. Dr Mirza Ahmed from St Philips and Miss Martina Murphy from Tanfield Chambers have provided detailed written grounds and submissions on the Appellant's behalf.

It is an unfortunate feature of these sorts of regulatory proceedings that whilst the Respondent authority is represented, the appellants, who do not qualify for legal aid, frequently are not. Cases such as this raise issues of conflicting public interest. The regulators represent the interests of the public and have the duty to maintain the confidence of the public in the public health system. On the other hand, the appellants are individuals whose livelihoods have often been taken away from them or at least significantly curtailed by a regulatory decision. Indeed, the sanctions that may be imposed upon a professional, such as striking off, are more severe than many sanctions imposed in the criminal courts where legal aid is available.

Judges hearing these cases where litigants in person are present and present their own appeals are often left uneasy that the best points have not been advanced on the part of the appellant. These cases are frequently complex. Without legal assistance, litigants in person understandably feel themselves at a major disadvantage. As it appears to many judges, there is a consequential risk of them being denied justice.

Accordingly, the courts are immensely grateful when counsel acting pro bono, often through the Pro Bono Unit, assist and bring some degree of order to the case and help the Appellant and the court in identifying the issues in the case and articulating them. In the present case, the submissions of Dr Ahmed and Miss Murphy have been of immense help in identifying the issues and turning them into proper grounds of appeal.

During the appeal today, the Appellant has not been represented by counsel, but she has been supported by members of the PSU, to whom I am also grateful.

Miss Holder has today orally identified a significant number of challenges to the decision. I have carefully noted these and I have taken them into account over and above the arguments advanced by counsel in written submissions on the Appellant's behalf. I am confident that overall I have been able to determine this appeal fairly as between the parties.

The Facts

I turn now to the facts of the case. The Appellant was employed by Central Manchester University Hospital Trust (“the Trust”) from 24 November 2008. She was deployed at the Cataract Centre at Withington Community Hospital.

In June 2010 the Appellant went on sick leave, not returning until about 30 April 2011. During that period of sick leave, she made formal allegations of racial discrimination and sexual harassment against four senior female members of staff. She pursued the claim through an Employment Tribunal, advancing 20 grounds. In June 2012 the allegations were dismissed by the Tribunal. On her return from sick leave, she was transferred to the Macular Treatment Centre.

The proceedings against the Appellant concern misconduct occurring between November 2009 and February 2012 during those periods when the Appellant was in work. During this period, the Appellant is said, in a wide variety of different ways, to have acted in an unprofessional manner towards colleagues and patients.

In particular, the charges determined by the Conduct and Competence Committee of the Respondent (“the CCC”) include eight allegations of improper conduct encompassing 21 particularised incidents. The CCC categorised these as “inappropriate touching of colleagues and other inappropriate and unprofessional behaviour in a workplace setting”.

The particularised complaints concerned such matters as: speaking inappropriately to colleagues in earshot of patients; shouting at office staff; confronting a doctor in the presence of a patient; putting the Appellant's hands around a colleague's neck in a choking manner; tickling and stroking and touching of colleagues inappropriately; and, threatening colleagues. On one particular occasion, highlighted by Miss Hartley appearing for the Respondent, the conduct of the Appellant is said to have caused significant delay in a patient receiving treatment. The patient was informed by the Appellant that she might die if she had the treatment in question. The patient thereafter declined to have the treatment and it was only having consulted her GP that she then returned for the treatment some weeks later. It is said that the delay in treatment could have risked serious harm to the patient.

The Appellant was suspended in February 2012. In September 2012 the Appellant resigned from the Trust.

On 21 November 2012 the Trust made a referral to the Nursing and Midwifery Council, the Respondent in the present proceedings, who referred the matter to the CCC.

The CCC heard the charges against the Appellant over the course of 11 days in February, March and July 2015. The Appellant was represented by counsel. The NMC called nine witnesses to establish the charges against the Appellant. The witnesses were cross-examined on behalf of the Appellant. The CCC addressed itself expressly to the fact that the burden of proof lay with the NMC, with the standard being the civil balance of probabilities.

On pages 6 and 7 of the decision, the CCC stated the following about the quality of the evidence that they had heard:

“The charges in your case all relate to alleged inappropriate touching of colleagues and other inappropriate and unprofessional behaviour in a workplace setting. The panel also took into account the wide range of seniority of the NMC witnesses from a healthcare assistant and a student nurse to a Lead Nurse; the fact that several of them had had little or no previous contact with you prior to the incident complained of; and that the charges relate to incidents occurring over a considerable period of time in three separate locations. The panel considered that this combination of factors lends weight to the NMC's case.

Ms Campbell-Clause on your behalf commented on the absence of various potential witnesses referred to in these charges and suggested the lack of their evidence was strange. However, the panel has heard live evidence from at least one witness directly involved in each alleged incident.

The panel also heard evidence from you under oath. The panel found many of your answers to questions to be evasive. Throughout you appeared to have difficulty answering some of the questions you were asked: your responses were frequently lengthy and repetitious and they were not always focussed on answering the questions. This was despite you being prompted, at regular intervals, to listen to the question being put and answer it. The panel found your descriptions of some of the events to be inconsistent and lacking detail. The panel found your evidence generally lacked credibility and was not reliable.

Broadly speaking your case was that these events did not happen at all or as described and that the evidence against you was fabricated. Throughout the hearing, you remained focussed upon your earlier complaints of bullying, discrimination and harassment which had already been considered and dismissed by both the Trust and the Employment Tribunal. You repeatedly stated that people were speaking out against you because of your complaints about them, even though at least two of the witnesses had only known you for very short periods of time. You were concerned that none of the witnesses liked you and that their dislike provided motivation for the allegations made.

You said that these were reasons why they were making allegations about you.

Taking all of the above into account, in considering the facts of each individual charge, the panel determined that where there was a direct conflict between evidence given by the NMC witnesses and evidence given by you, it preferred the evidence of the NMC witnesses.”

The CCC then set out its findings in relation to each charge, concluding in respect of each that the NMC had made out its case to the requisite standard. On page 29 of the decision, the CCC concluded as follows in relation to the conduct as a whole:

“The panel concluded that your actions would be regarded as deplorable by fellow practitioners. It found that your actions, both individually and collectively, fell seriously below the standard expected of a registered nurse and amounted to misconduct.”

Having made findings adverse to the Appellant, the CCC turned to consider fitness to practise and whether the Appellant's fitness was impaired. The CCC found that there was impairment, applying the test laid down by Cox J in CHRE v NMC & Grant [2011] EWHC 927 (Admin) at paragraph [74]. It is not necessary for me to set out in any detail that judgment.

The case law emphasises that when the issue of impairment is being considered, a panel should bear in mind whether the practitioner's conduct represented a risk to members of the public and whether the need to uphold professional standards and public confidence would be undermined if a finding of impairment was not made.

On page 29 of the decision, the CCC also stated the following, which, in my judgment, encapsulates the important context in which the relevant test is to be applied:

“Registered nurses occupy a position of privilege and trust in society and are expected at all times to be professional and maintain professional boundaries. Patients and healthcare professionals must be able to trust registered nurses. To justify that trust, registered nurses must comply with the Code. They must make sure that their conduct, at all times, justifies both their patients' and the public's trust in the profession.”

The conclusion of the CCC on impairment was as follows:

“In relation to insight, the panel took account of your evidence that whilst you respected the panel's decision on the facts you were unable to accept the panel's findings. You did accept that, hypothetically, the conduct alleged in the charges, if proved, would bring the profession into disrepute and would have an adverse impact on public confidence in the profession.

You were unable to accept that your own actions, as found proved by the panel could bring the profession into disrepute. Throughout this hearing you have sought to rebut the charges on the grounds that they either did not happen or did not happen as charged. You also suggested that there was a conspiracy against you and others have made up their evidence. The panel considered that your reflective piece did not show an understanding as to what impact your actions would have on patients, colleagues (particularly Colleague A and Student Nurse B) or the public's confidence in the profession. The panel concluded that you have demonstrated no insight into your misconduct which occurred over more than two years, across three different Trust sites and involved a number of staff of different grades, seniority and professions.

The panel considered that your behaviour which amounted to misconduct is difficult but not impossible to remediate.

The panel acknowledges that you have provided it with some testimonials attesting to your character and practice. The panel noted that the courses in which you have participated since these events, for which you have provided certificates, did not directly relate to your clinical nursing practice; nor did these courses appear to address the specific shortcomings found by the panel.

The panel could not be satisfied, based on the answers you gave to the panel's questions and the evidence you have provided, that you had accepted and learnt from your past misconduct. The panel could not be sure that you would not repeat your misconduct in the future.

The panel considers that, for you to undermine junior and senior colleagues in front of patients and inappropriately touch junior members of staff, breached fundamental tenets of the profession and has brought the profession into disrepute. The panel is satisfied, based on all the evidence, that should you be in a similar situation again there is a real risk that you may repeat your actions.

Having regard to all of the above, the panel is satisfied, in its judgement, that your fitness to practise is currently impaired by reason of your misconduct.”

The CCC then turned to sanctions. It listed both aggravating and mitigating circumstances and considerations.

As to the aggravating circumstances, the panel considered the following. First, that there were the multiple incidents of misconduct over a lengthy period of time exceeding two years in three areas of the Trust involving senior and junior members of staff as well as students. Second, in one incident the Appellant had used inappropriate language, namely words to the effect of “are you aware of how dangerous this dye is” without clinical justification which delayed an urgent and necessary procedure for patient. Third, that a number of the Appellant's actions were intrusive and intimidating and led to junior members of staff feeling extremely embarrassed. Fourth, that the Appellant's misconduct persisted despite her being told to stop. Fifth, that some of the conduct occurred whilst the Trust was supporting the Appellant in that she had been offered mentors and actions designed to improve her practice. Sixth, that she sought to shift the blame for her actions to others even though she was personally accountable as a registered nurse. Seventh, that there was no relevant remediation and no expression of apology or remorse. Eighth, that a risk of repetition existed. Ninth, and finally, that the Appellant demonstrated no insight in relation to the impact of her actions.

With regard to mitigating circumstances, the CCC identified the following as relevant. First, the Appellant's state of health at the time of the incidents and as of the date of the decision. Second, that the Appellant had attended the hearing and engaged with the process and with the NMC. Third, that she had enrolled upon a university course to maintain and improve her nursing practice.

The CCC addressed alternative sanctions. It dismissed the sanction of no action as inappropriate on the evidence.

The CCC rejected a caution upon the basis that cautions were reserved for conduct at the lower end of impaired fitness to practise, which, in the panel's judgment, the Appellant's conduct was not. A caution would not, in the CCC’s opinion, mark the seriousness of the behaviour nor would it protect patients or uphold public confidence in the nursing profession.

The CCC also rejected the imposition of conditions as sufficient or appropriate. Their reasoning in this regard was as follows:

“"The panel concluded that a condition of practice order would not be workable given that it found that your misconduct is linked to attitudinal failings. You were supported by mentors and had actions plans in place during some of the relevant period. The panel heard that your engagement and compliance with, particularly the action plans, was poor and that some misconduct occurred whilst these were in place. Accordingly, the panel was concerned that you may not fully comply with a condition of practice order.

The panel was also not satisfied that the public interest would be sufficiently addressed by allowing you to return to practice, albeit under restriction, owing to the serious nature of the misconduct found.

The panel determined therefore that placing conditions on your registration would not adequately address the seriousness of your case and would not protect patients or the public interest.”

The CCC then proceeded to consider the possibility of suspension. It cited paragraph [71] of the Indicative Sanctions Guidelines (“ISG”), which suggest that suspension is appropriate in the following circumstances, namely where the misconduct is not fundamentally incompatible with the individual's continuing to be a registered nurse in that the public interest could be satisfied by less severe outcome than striking off from the register.

A further matter referred to in paragraph [71] ISG was the absence of evidence of harmful deep-seated personality or attitudinal problems. Paragraph [71] also considers as relevant whether the nurse in question has insight and whether that person poses a significant risk of repeating the misconduct in question.

With regard to these matters, the CCC did not accept that, upon the evidence, suspension was appropriate. In relation to the facts which the panel took into consideration, these may be summarised as follows. First, the serious and significant departure by the Appellant from expected standards on repeated occasions over an extended period of time. Second, the intimidating nature of some of the incidents. Third, the placing at risk of patients. Fourth, the causing of distress to colleagues. Fifth, the failure on the part of Appellant to understand the extent and nature of the findings. Sixth, the failure on the Appellant's part to appreciate that any remedy was required at all. Seventh, the failure by the Appellant to express remorse or insight into her perceived deficiencies.

The CCC concluded, therefore, that the Appellant had “deep-seated attitudinal problems” which had not been remedied and which would be unlikely to be remedied in the future.

Finally, the CCC addressed itself to the remedy of striking off. They had regard to paragraph [74] ISG under which the panel needed to consider whether striking off was the only sanction sufficient to protect the public given the seriousness of the case and the impact of the conduct upon public confidence.

As to the matters the CCC considered, the following was stated:

“The panel determined that your actions amounted to significant departures from the standards expected of a registered nurse, and are fundamentally incompatible with you remaining on the register. The panel was concerned that due to your lack of insight there is a real risk that you will repeat your misconduct. The panel has taken into account the potential financial impact of such an order upon you and has balanced your interest with the public interest. However, the panel concluded that to allow you to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body.

Your misconduct involved undermining junior and senior colleagues in front of patients, inappropriately touching junior members of staff and a patient, and making clinically unjustifiable comments. Patients were put at risk of harm and distress was caused to your professional colleagues. You have subsequently shown no insight into, or remorse for, your actions.

The panel also took account of your submission that your fitness to practise was not impaired at the time, and is not impaired now, by virtue of your health. In reaching its decision on sanction, the panel determined that your health, at the time of these events, was not relevant to the issue of sanction.

Balancing all of these factors and after having taken into account all the evidence before it during this case, the panel determined that a striking-off order is the only sanction which is sufficient to protect the public and the public interest.

The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standards of behaviour expected of a registered nurse.”

The Grounds of Appeal

I turn now from the facts to the grounds of appeal. In grounds drafted pro bono on behalf of the Applicant, 21 complaints are advanced. Many overlap. They variously allege serious procedural irregularities, failures to pay sufficient attention to evidence, substantial and material failures in deliberation, errors of law and wrongful elevations of failures to become “serious misconduct”.

Many of grounds focus in substance upon alleged failures in reasoning. By way of illustration, ground eight is in the following terms:

“At page 8 and in furtherance of ground seven, the NMC committed a serious procedural irregularity by not cross-referring its conclusions on undermined public confidence in the profession to the relevant clause of the code on such matters so that the Appellant and the court on appeal would understand the basis for the reasoning of the NMC for coming to such a conclusion on the evidence available, there being none, to the NMC.”

A significant number of grounds also attack the panel's conclusion on sanctions as being lacking in evidence. Examples of this can be found in paragraphs 17 and 18, which are in the following terms:

“17.

At page 32 the NMC was wrong to conclude without any relevant evidence and/or written submissions from the parties that a conditions of practice order would not be workable for the Appellant.

18.

At page 33 the NMC was wrong to conclude the Appellant put patients at risk of harm as there was no evidence and/or written submissions from the parties on such risk.”

The notice of appeal brings together all the grounds in the following way:

“The conclusions and sanctions decision of the NMC to ultimately make a striking off order against the Appellant are wrong, manifestly perverse, unreasonable, disproportionate and/or unfair to the Appellant. Under the circumstances, the court is respectively requested to set aside the decision of the NMC and to substitute it, in accordance with Article 38(3) of the Nursing and Midwifery Order 2001, with a less onerous sanction of conditions to practice that require the Appellant to attend designated or approved training courses or events and/or supervision for a short period of say 12 months, especially as the NMC misdirected itself over the same not being workable, as per ground 17, page 32, without having the relevant evidence on such matters before it.”

I have taken into the account all of the helpful submissions of Dr Ahmed. I have also taken into account the concise and equally helpful submissions of Miss Murphy.

In essence, Miss Murphy advanced the Appellant's case in the following way. She submitted that the panel erred in finding that the conduct was serious and it should not have categorised it as such. She submitted that this mischaracterisation adversely impacted upon the panel's determination of sanction. She pointed out that this was not a case of dishonesty and that, objectively speaking, the conduct found to have existed could not have been considered to be “deplorable” by colleagues.

She also observed that no disciplinary sanctions were imposed at the time, from which she inferred that the conduct could be not taken to be “serious”. She also contended that the sanction was too severe and disproportionate. She said that there was no or no adequate evidence of repetition of the conduct. The evidence of deep-seated attitudinal problems was, as she put it, “weak”. She said the Appellant had undertaken other remedial courses and the reasons for rejecting suspension or the imposition of conditions were inadequate.

Before me in the course of the appeal today, Miss Holder has advanced a number of supplementary points. I can summarise these relatively briefly in the following way.

First, she submitted that based upon her medical disability, she did not obtain relevant support at the time of the alleged events and this fact was not properly taken into account when her evidence was assessed by the panel. There was psychiatric evidence which could have been put before the panel which had been available to the Employment Tribunal which was not taken account of.

Second, witnesses against her did not give an accurate account of the allegations against her. She in particular concentrated upon charges 1 to 3. She pointed out that one principal witness who gave evidence in relation to those charges was meant to have been her mentor. She did not obtain support from that person and the panel failed properly to review the evidence in relation to those matters.

Third, throughout the period, the Appellant had been victimised. This had led her to bring her complaints before the Employment Tribunal. The panel had made erroneous findings of fact about her status.

Fourthly, there was evidence which could be established through production of the rota that she was not, in fact, present at the time that some of the events alleged against her were said to have occurred. She also said in this regard that much of the transcript evidence had been deliberately falsified and that this was, as she put it, “severe misconduct by the NMC”. She said that were the transcript properly to be produced and verified, it would support her case.

Fifth, she said that character references given on her behalf had been given insufficient weight by the panel.

Sixth, she said, returning to the issue of the transcript, that she was “a walking, living witness as to what was said on the day”. She was quite clear that the transcript was different to that which had actually been said during the hearing.

Seventh, she said that the complaints to the panel were in response to complaints that she had made against staff to the Employment Tribunal. In effect, this was the Trust and its employees getting its retaliation.

Eighth, she said that the panel portrayed managers as having been supportive, but this was wrong on the facts.

Ninth, she objected to the conclusion that she had “attitudinal problems”. She argued that this was a judgment which could only be formed in the light of expert psychiatric evidence. She said the panel did not have sufficient expertise to make that judgment and they were thereby in error. She also argued that she should have been given time to address her difficulties and striking off was disproportionate since a less severe sanction would have sufficed.

Before turning to my own conclusions, I will briefly summarise the submissions made by Miss Hartley on behalf of the Respondent. Miss Hartley has provided a detailed skeleton argument which I have taken full account of and I do not repeat what she has set out there. Miss Hartley started her submissions with some general observations and then responded to the main points made by the Appellant.

First, Miss Hartley emphasised that the panel was an expert body comprising two lay members and one registered nurse. They had sat over the course of many days listening to detailed evidence. They brought their lay and professional experience and judgment to that evidence.

The second point followed from the first, which was that in such circumstances and as case law demonstrates, an appellate court should only interfere with a panel's exercise of judgment where there was a very strong case to be advanced that the panel was in error. This was a high threshold to meet.

Third, so far as the issue of “attitudinal problems” and the finding of the panel to that effect was concerned, she rejected the suggestion that psychiatric evidence was relevant to the matter. This was par excellence a judgment call for an expert panel to make based upon evidence heard over the course of a lengthy hearing, taking into account the professional context (which I have set out above at paragraph [20]. The ISG refers to attitudinal problems as being a relevant factor, but does not indicate that psychiatric evidence was required to establish the fact.

Fourth, in relation to whether the CCC erred in declining to adopt a sanction which gave the Appellant time to address her problems, Miss Hartley drew my attention to the judgment of Cox J in The Professional Standards Authority for Health and Social Care v The General Pharmaceutical Council & Lynne Sidoh Onwughalu [2014] EWHC 2521, where at paragraph 35 the Judge, in allowing an appeal against a decision of the General Pharmaceutical Council which the Regulator considered to be too lax, stated as follows:

“In these circumstances I accept Ms Morris's submission that the Panel's decision to order her suspension for 12 months, to allow the Registrant time to "develop her grasp of the concept of insight" was plainly wrong, in particular given the time that had already elapsed since the commission of these offences. The passage of time has provided no assurance that this Registrant has benefited from the opportunity it has afforded for reflection.”

With specific regard to arguments advanced by Miss Holder, Miss Hartley made the following points. First, she said that a good part of Miss Holder's challenge related to collateral matters which had not been raised in the course of the panel's hearing and had, therefore, not been adjudicated upon. It was not appropriate for these matters to be raised in effect for the first time on appeal.

Second, that the challenge was prima facie a challenge to the fact-finding of the panel. The Appellant's arguments reflected simple disagreement with the panel's conclusions, but were not such as to amount to a proper ground of appeal.

Third, so far as the question of the rota was concerned and the Appellant's argument that had it been produced it would have demonstrated that she was not present on the days of certain of the allegations against her, the rota in fact showed that on the dates the charges related to, the Appellant was on shift. In any event, the panel addressed this in its decision and found against the Appellant, so that this was on its face a challenge to a straightforward finding of fact.

Fourth and finally, in relation to the question of transcripts, Miss Hartley submitted that the complaint that the transcript had been falsified was implausible. The Appellant had not provided particulars of deficiencies in the transcript. The transcript had been produced by an independent third party. It had been taken away for transcription. The NMC did not have direct access to it. The Appellant had been given access to the recorded and had listened to it. The idea that it was inaccurate was not something that the court should take account of.

Analysis

I now turn to set out my conclusions on the grounds. I start by recording that I do not accept the appeal and the grounds advanced to support it.

First, the grounds do not at base grapple with the findings of fact that were made and the evidence that was given during the hearing which justified those findings. It is quite apparent from the CCC's decision and from the other evidence before the court that the findings were open to the panel to make in the light of the evidence before it. The panel's findings on each charge were arrived at after hearing specific evidence from witnesses and from the Appellant on each charge. The CCC set out its conclusions on the credibility of the witnesses and why they preferred the testimony of the NMC witnesses to that of the Appellant. The grounds do not engage with the process adopted by the CCC to obtain and test the evidence or with the probative value of the evidence.

Second, none of the grounds which allege procedural irregularities of a serious nature come close to being actual irregularities. I cite, by way of illustration only, ground one. This says as follows:

“At pages 27 and 31 and 34, the decision of the NMC was unjust because of a serious procedural irregularity in failing to provide sufficient reasons that the Appellant and court may understand in that the NMC has not formally recorded in the decision what the advice of the legal assessor was and what part, if any, such advice played or impacted on the actions or otherwise of the NMC and/or whether the NMC changed its considerations and/or deliberations in light of such advice.”

This in substance alleges a failure to record legal advice, but the relevance of such an omission is not explained. What matters now is whether the CCC addressed itself correctly to the law, which it did, and whether it applied the law correctly to the facts, which, in my judgment, it also did. A legal adviser's view is simply that, a “view”. The duty to get the law right and to apply it lies with the panel and the correctness of its position is evident from the decision. I am of the clear judgment that the procedure adopted generally by the CCC was fair and lawful.

The CCC did not in its decision have a duty to address every procedural twist and turn which arose nor every single piece of evidence cited. The duty of the panel was to produce a decision which contained intelligent and cogent reasons which demonstrate to the Appellant, to the public and to this court how the panel decision was arrived at procedurally and substantively. The decision, in my judgment, did just that.

Third, the grounds allege that the panel came to conclusions without evidence. For example:

“At page 29 the NMC was wrong to conclude that the Appellant's actions would be regarded as being deplorable by fellow practitioners without having any relevant evidence adduced before the NMC and/or in written submissions from the parties with regard to how fellow practitioners would find the Appellant's actions as being deplorable.”

Grounds such as this confuse the exercise of judgment on the part of the panel with the proper role of evidence. A conclusion that the conduct would be found “deplorable” is one which a panel is properly qualified to draw as an inference from primary evidence. That evaluation is not going to be materially advanced by a parade of witnesses who express shock and horror or alternatively insouciance. On the contrary, it is the function of a panel to measure conduct proven to have occurred against the broader standard of seriousness as set out in legislation and in the ISG.

I observe that the question of whether conduct would be “deplorable” to fellow practitioners is a concept which arose from the judgment of Collins J in the case of Nandi v General Medical Council [2004] EWHC 2317 (Admin). There the Judge said in relation to misconduct that the adjective “serious” must be given its proper weight and in other contexts, it has been referred to as “conduct which would be regarded as deplorable by fellow practitioners”.

In Roylance v General Medical Council (No 2) [2000] 1 AC 311 the House of Lords stated that misconduct is a:

“word of general effect, involving some act or omission which falls short of what would be proper in the circumstances... It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

Further guidance has been given in other authorities, for example Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council & Grant [2001] EWHC 927 where Cox J identified such factors as: whether the practitioner had in the past acted or was liable to act in the future so as to put patients at unwarranted risk; and/or, whether the practitioner had in the past or was liable in the future to bring the medical profession into disrepute; and/or, whether the practitioner had in the past or was liable in the future to breach one of the fundamental tenets of the medical profession.

This is not the judgment in which to delve into the distinction between “seriousness” and “deplorability”, but it does seem to me that the real issue is the exercise of judgment on the part of a relevant panel as to seriousness, taking into account the sorts of considerations identified by Cox J. I am not certain that a test of deplorability is necessarily the same in every case as a test of seriousness. At all events, the panel in the present case addressed seriousness and deplorability and its conclusions were conclusions it was entitled to arrive at on the facts.

A similar conclusion arises in relation to grounds which challenge the panel's evaluation of future risks. Ground 12 is formulated in the following way:

“At pages 29 and 30 the NMC was wrong to apply the Grant case tests at A, B and C when there was no evidence and/or written submissions before the NMC that the Appellant was likely in the future to act or liable in the future to bring or liable in the future to breach respectively any of those three aspects.”

Again, in my view, it is the express task of the panel to draw inferences about the likely future conduct of a practitioner on the basis of evidence before it. This is precisely the sort of expert value judgment that a body such as the panel is expected to make and which an appellate court may well be loathe to interfere with. In my judgment, all of the myriad grounds challenging the fact-finding of the CCC in relation to findings of breach and impairment fail.

Fourth, the Respondent cites well-known case law which underscores the approach that I have adopted. I can summarise the main points as follows. First, the statutory appeal is not a de novo hearing, but it is also not limited to a review. The court can exercise its own judgment. Second, the court will not interfere with a finding unless persuaded that it is wrong. This will in practice arise where the court concludes that the evidence for a finding was lacking, or, that even where evidence does exist, the inference drawn from it is simply unsustainable. Third, the court will have regard to the fact that a panel is a specialist body exercising a knowledgeable professional judgment about matters within its expertise relating to practice and conduct. The way in which the courts exercise their own judgment may be described as secondary. Fourth, findings of fact about the credibility of witnesses made by a panel will be rejected only very exceptionally. A ruling based on the decision maker's conclusion about conflicting evidence and the credibility of witnesses will accordingly be attributed considerable weight. See, for example, in this regard per Lord Rodger in Gupta v General Medical Council [2002] 1 WLR 16 at 91 at paragraph [10].

These well-established propositions in my mind support the conclusions I have arrived at. This was a case based in large measure upon oral testimony of witnesses. That testimony covered personal conduct occurring in a particular medical context. It was not technical in nature. This was the sort of case where the CCC was optimally placed to evaluate the evidence and draw inferences about impairment from it.

I turn finally to the question of sanction. I have set out the process by which the panel arrived at its conclusions on sanctions. It applied a staged approach, considering the possibility of sanctions starting with the least serious and moving progressively towards the most serious. At each stage, the panel addressed the relevant guidelines and set out reasons for rejecting each option until it arrived at the ultimate sanction of striking off. The approach adopted was logical and fair. No criticism can be made of the approach.

So far as the substantive evaluations of the options are concerned, the panel took account of the evidence, referred to the guidelines, identified relevant aggravating and mitigating circumstances and considered all the alternatives. None of the factual conclusions relied upon to justify striking off can be challenged.

The misconduct was repeated throughout the period during which the Appellant was employed. It was not one off. The conduct cumulatively, at the very least, was serious and justified the panel's conclusion that the Appellant had a serious attitudinal problem. I do not accept the submission that this conclusion could only be arrived at in the light of expert psychiatric evidence.

The conclusion that a condition of practice was not workable was, again, justified upon the evidence. The panel was entitled to conclude that the Appellant showed a lack of insight into her behaviour both during the period of misconduct itself but subsequently also when giving evidence at the hearing. Having made this finding, the panel was entitled to infer that the risk of repetition was high and that conditions would not, therefore, suffice to remedy what the panel concluded was a deep-rooted problem.

As to the rejection of a suspension order, again, on the evidence before the panel, it was entitled to infer that a time limited suspension would not address the issue of the Appellant's behaviour and attitude. The reasons given for the decision were, in my judgment, cogent and justified.

Conclusion

For these reasons, the appeal is dismissed.