Vitalis v The Nursing And Midwifery Council

This is an appeal brought under Article 38(1) of the Nursing and Midwifery Order 2001 against a decision of the Conduct and Competence Committee (‘the Committee’ or ‘the Panel’) which determined, in a decision set out in a letter dated 23 November 2016, that the Appellant had committed misconduct, that her fitness to practise was impaired, and that the only appropriate sanction was striking off.

The Appellant brought her appeal just within the 28-day time limit. She was then represented by solicitors who successfully obtained an extension of time for the purpose of adjusting the grounds of appeal as necessary after expiry of the time limit. Amended grounds of appeal were then prepared and filed and it is those amended grounds that are before me today.

The Appellant is not present in court today, either in person or remotely via a video link. Unfortunately, the information available to the court is that she is in prison in Maidstone in the south of England. Attempts to contact her there to notify her of the date of today’s hearing have been made by court staff here in Leeds. Post has not been returned, but neither has any acknowledgement of receipt been forthcoming. It is therefore not possible to state with certainty that the Appellant is aware of the hearing.

Her former solicitors, as they now are, applied to come off the record and, on the basis that they were without instructions, that application was granted on 27 September 2017. By that time there was already a helpful skeleton argument from Ms Penny Maudsley in support of the amended grounds of appeal. The skeleton was prepared and produced back in February 2017. I therefore have the benefit of those submissions on behalf of the Appellant today.

Ms Rebecca Richardson, who appears today for the Respondent (‘the NMC’), explained that attempts had been made to communicate with the Appellant by writing to her at the address which she had provided, and was obliged to provide to the NMC, as her contact address. The last of those communications, of 10 October 2017, was sent recorded delivery and elicited a signature which, however, I understand is probably not that of the Appellant. That does not surprise me in view of the information the court has that she is incarcerated.

In all the circumstances, this being the Appellant’s appeal, it seems to me probable, although not certain, that she is aware of today’s hearing. It is normally the responsibility of an Appellant to organise attendance and, if that is not possible in person by reason of incarceration, the normal practice is to arrange a video link. The Appellant, though now unrepresented, was previously represented until only late last month by competent and experienced solicitors and counsel.

It seems to me that the correct and fair course is to consider her appeal in her absence on the basis of the written submissions advanced in support of her three grounds, and to assess the merits of the appeal in that light, also taking account of the skeleton argument and oral submissions of Ms Richardson for the NMC.

The background is briefly this. The Appellant is a registered nurse and a national of St Vincent and Grenadines in the Caribbean. She was employed by Queen Mary’s Sidcup NHS Trust, which later became South London Health Care NHS Trust, from July 2005 until July 2013. Broadly, she had at various times and in various ways during that period asserted that she had a right to work in this country and did not require a work permit.

There were subsequent occasions on which, in an interview and an application for a staff nurse position, she made assertions to the same effect: that she did not require a work permit. That she made those assertions was not disputed. The main and most important fundamental issue that subsequently came before the Panel was whether she had knowingly asserted a right to work knowing that she did not have such a right, thereby dishonestly obtaining work and deceiving her employers and NHS bodies into permitting her to work when she had no right to do so.

That, very broadly, was the thrust of the allegations against her. The charges, once they were formulated, were 11 in number. They consisted of a series of allegations all to the effect that the Appellant had either failed to notify employers that she had no right to work in the UK or had asserted positively that she did not require a work permit. On one occasion it was alleged that she attempted to obtain work from a “bank” employer in a bank employment role, whilst suspended from employment by the Trust concerned, and it was alleged against her that on all those occasions she had been dishonest, seeking to create the impression that she was entitled to work in this country but knowing that she was not.

The essence of her defence, when the matter came before the tribunal, was that she had not acted dishonestly because she entertained a genuine belief that she did not require a work permit and did not understand that she, in fact, did require a work permit. Her evidence was to the effect that she felt very British. She accepted she did not have a British passport. She had siblings who were British citizens, had been born in Germany, and had failed to appreciate, without dishonesty, that she required a work permit.

There had been a time when, for a while, whilst working in northeast London, she had temporarily been able to work legally in this country, but that was not for the whole duration of her nursing career here; far from it.

Those charges came before the Panel, which held a hearing from 15-22 November 2016, and the decision in writing was issued the next day with, in the usual way, private reasons, followed by reasons that would be publicly available. The Panel, as shown by its written decision, found all the charges proved and rejected the evidence of the Appellant that she had not known she required a work permit and had genuinely believed she was entitled to work in this country. They described that evidence as not plausible or credible.

After considering the facts, they came to the conclusion that their findings amounted to misconduct and that the Appellant’s fitness to practise was impaired. They went on to consider sanction in the usual way in ascending order of gravity and, having ruled out all sanctions short of striking off, stated that the appropriate sanction was that of striking off and that that sanction would be proportionate.

In the first ground of appeal, Ms Maudsley, in her skeleton argument, criticises as wrong the Panel’s finding of dishonesty. She submitted that the real issue for the Panel to determine was a second stage of the R v Ghosh (1982) test of dishonesty. Ms Maudsley submitted that it was the Appellant’s case that she had a genuinely held belief that she was a British citizen; that that belief was not unreasonable or fanciful, based as it was on strong family ties with this country and her having been born in Germany to British parents.

Ms Maudsley rehearsed some of the evidence before the Panel upon this issue and submitted, in her skeleton, that the legal assessor was remiss in not advising the Panel to consider options other than dishonesty as an explanation for why a person might not tell the truth, that the Panel failed properly to analyse the evidence and that the finding against the Appellant that her evidence was neither plausible nor credible, was inadequately reasoned and analysed.

I do not accept that submission. It seems it is clear from a reading of the Panel’s decision that it was correctly directed to apply the two-stage test in Ghosh, including the second subjective stage. The options for the Panel in this case were, as Ms Richardson correctly submitted, either that the Appellant was aware that she did not have a right to work and was not a British citizen, or she was unaware of that. It was not a case like that relied on by Ms Maudsley in her skeleton argument.

In the decision of Cobb J in Lavis v NMC [2014] EWHC 4083 (Admin), where an incorrect entry in certain records had been made, the issue for the Panel was whether that had been done dishonestly or not. In this case the Panel’s task was to assess evidence for and against the proposition that the Appellant was well aware that she did not have the right to work in this country. It is clear from reading the decision that the Panel evaluated and assessed the answers given by the Appellant in her evidence relevant to that issue.

In their decision at page 7 of 48, or page B7 of the bundle, the Panel evaluated the evidence of the Appellant on the second stage of the Ghosh test. The Panel at first set out what the Appellant’s evidence on that point was, which, as I have already paraphrased it, stated that it did not find that evidence plausible or credible and then gave reasons why it reached that conclusion. Those reasons were:

I am satisfied that that was and adequate evaluation and assessment of the Appellant’s evidence on that issue, and that the decision to reject her evidence as implausible was one that the Panel was entitled to reach and was properly reasoned. I therefore find no merit in the first ground of appeal.

The second ground of appeal is that no good character direction was given to the Panel by the legal assessor. Ms Maudsley, in her skeleton argument, cited in support of that criticism a decision of Collins J that in Wisson v HPC [2013] EWHC 1036 (Admin) at paragraphs 32-34 and 44. It is true that, in that case, Collins J said that good character can be taken into account when assessing credibility where that is in issue. That authority does not support the proposition that it is a misdirection in law not to give a good character direction.

As Ms Richardson pointed out, all or nearly all registrants in professions such as nursing, where higher standards of integrity are required, are likely to be persons of good character. It will therefore, in many cases, be superfluous to repeat that trite proposition in a particular case. The Panel will already be aware of the Appellant’s good character. That is not to say that a good character direction has no utility; it may be useful in some cases.

In the present case, the issue was raised by a member of the Panel on the second or third day of the hearing, of which I have the transcript. At that stage during the oral hearing, the Panel was considering its findings of fact and had heard submissions for the parties, including from Mr Lemer of counsel, then representing the Appellant. The member of the Panel pointed out that although dishonesty was an issue, there had not been mention of ‘anything in relation to character’ and she continued, ‘I just wonder sometimes in dishonesty that comes at stage one sometimes because – I just wondered, no mention of character has been mentioned, previous character or anything like that’.

That prompted a brief discussion in which the legal assessor pointed out that, in his view, a good character direction was not necessary, but that he stood to be corrected if either counsel wished to argue to the contrary. Mr Lemer was asked whether he had any comment on the legal assessor’s advice and said that he did not. In response to the member of the Panel’s intervention, Mr Lemer noted that he would raise ‘those issues’, that is to say character issues, ‘if necessary at the next – if we reach the next stage’.

The Appellant’s own representative was therefore content that nothing further need be said at the fact-finding stage. It was open to him to say anything he wished to say at subsequent stages about the impact, as he would submit, of the Appellant’s lack of any previous convictions or other blot on her character. There is therefore no merit in the argument that the findings of the Panel are unfair or tainted by the absence of a good character direction.

The third and final ground of the appeal is consequential on the first two grounds; it is that in the light of what is said in those first two grounds, the findings on impairment of fitness to practise and sanction were wrong and not open to the Panel. Ms Richardson for the NMC accepted that if the first and/or second grounds had been made out, that would follow. Since they are not made out, she submitted that there was no basis for interfering with the finding of impairment, nor with the sanction of striking off.

Ms Maudsley did not advance any independent challenge to the severity of the sanction. Her challenge to it is founded from what would have to have been success of at least one of the other grounds, neither of which has succeeded. Accordingly, there is no reason to or basis for interfering with the sanction of striking off, and I would add that it appears to be amply justified by the seriousness of the offending, which consisted of a course of conduct properly found to have been dishonest in a sustained way over a long period. I therefore do not find any merit in any of the grounds of appeal and the appeal will be dismissed.