Holder v Nursing And Midwifery Council

MR JUSTICE HOLMAN: This is a statutory appeal to the High Court from a decision and determination of a panel of the Conduct and Competence Committee (CCC) of the Nursing and Midwifery Council (NMC).

The appellant is a registered nurse. After hearing oral evidence and submissions over about 8 days during February and March 2015 the CCC found a number of allegations proved against the nurse. At a further hearing, from 28 to 30 July 2015, the CCC decided that she must be struck off the register and that no lesser sanction could suffice. Because of the possibility that she might seek to appeal from that order, the actual striking off was not implemented, but instead an interim suspension order was made for a period of 18 months, which in fact expires later this week.

On 1 September 2015, the nurse did indeed lodge an appeal against the striking-off order. I note that the date upon which she lodged her appeal is now about sixteen and a half months ago. It was originally listed for final hearing on 26 November 2015. About a fortnight beforehand, namely on 13 November 2015, the appellant requested an adjournment, partly on the ground of her health but also on the grounds that the Bar Pro Bono Unit had agreed to assist her but could not do so by 26 November. In those circumstances, the NMC readily agreed to her appeal being adjourned and it was relisted for hearing on 9 March 2016. So that was the first adjournment.

On 7 March 2016, only 2 days before the final hearing was fixed, the appellant again sought an adjournment, this time on the grounds that her pro bono representative could not attend due to personal circumstances, connected, as I understand it, with one of the children of that representative. That also was agreed. So that was the second adjournment, although it requires to be noted and stressed that the reason for it did not pertain to the appellant personally but rather to her legal representative.

The final hearing was relisted for 23 June 2016. On 17 June 2016, about a week beforehand, the appellant again sought an adjournment, in part based on her quest for examination of the underlying recording of the hearing before the CCC, to which I will refer below, and in part on an assertion that she was suffering from anxiety and could not attend the hearing on 23 June. That medical assertion was supported by a very brief letter from a GP, Dr Chahal, dated 21 June 2016, which states as follows:

Pausing there, it is to be noted that that brief letter does not in fact contain any medical opinion whatsoever. It merely records and reports the self-serving position of the appellant that "she feels unfit to attend ... ". It is, however, to be noted that that letter did incorporate some tie-in or crossover between her claimed stress and the further investigation that she was seeking, and indeed is still seeking, in this case, as I will later explain.

The NMC at that point opposed any further adjournment of the hearing, but nevertheless the day before, on 22 June 2016, Sir David Eady did decide to adjourn it. An email from the court records as follows:

On 2 August 2016, this court relisted the appeal for final hearing today, 24 January 2017. During the course of the last few days the appellant has again applied for an adjournment, which will be the fourth adjournment. She has done so in two stages and on two discrete bases. The first stage and basis is an application notice in form N244, which was issued on 17 January 2017. That makes no mention of her health but seeks an adjournment so that she can obtain the following documents or material. First, unredacted copies of the documents (incident reports) and other correspondence referred to in emails attached to the application notice. Second, original audio records of the disciplinary hearings held in February, March and July 2015. Third, a copy of the contract between the NMC and their transcribers.

The second application for an adjournment was made initially in an email sent to the court and counsel and others late on 19 January 2017. That again makes reference to the documents and materials which are the subject of the application notice issued on 17 January 2017. But subsequent emails and other material, which are now all collected together in a small clip of documents helpfully made by Mr Christopher Stone, who appears pro bono on behalf of the appellant today, expand and elaborate the basis for adjournment into another assertion of ill health.

Last Sunday, 22 January, the appellant sent an email to various people connected with this case saying:

However, the appellant sent a further email yesterday, 23 January 2017, at 15.24 pm, in which she says as follows:

Also yesterday a letter was written from somebody at Hollybrook Medical Centre, whom I assume to be a doctor, although the signature is totally illegible. It states as follows:

Pausing there, this particular letter, unlike that of 21 June 2016, does, for what it is worth, contain a medical opinion, for it does confirm the view of the writer, whom I assume to be a doctor, that the appellant "is unable to attend" and that that is "as a result of high levels of stress/anxiety".

However, that note is in the circumstances extremely brief. It does not give any fuller detail of the stress or anxiety. It does not in fact identify the maker of the note. It does not give any details of his overall experience of this patient or familiarity with her condition. It tells nothing of recent consultations with regard to stress or anxiety or any other matters. It does not explain why the stress or anxiety is such that she is unable to attend this hearing or, as a minimum, to give suitable instructions to the pro bono barrister whom she had instructed. It gives absolutely no prognosis.

As I understand it, the appellant had instructed Mr Christopher Stone, who appears before me today, to act on her behalf at the substantive hearing of the appeal on a pro bono basis. Mr Stone deserves to be thanked by the court for his generosity and public-spirtedness in being willing to act in this way without any remuneration at all. As I understand it, he fully expected until a very late stage indeed to be instructed to argue the substantive merits of the appellant's appeal. However, at the outset this morning he told me, and has since again confirmed, that very recently his instructions have been expressly limited to making and developing the application for an adjournment. He expressly told me that his own express instructions are that, if an adjournment is not granted, he himself is not further to participate in the hearing, although as it is a public hearing he might, I suppose, have remained present in order to make a note of what took place. So on behalf of his client Mr Stone developed his application for an adjournment. This is very resolutely and robustly opposed by Miss Louise Hartley, who appears on behalf of the NMC.

It certainly initially appeared to me to be a very unpromising application for an adjournment. The chronology is relevant. It is now almost 18 months since the making of the order appealed against and, as I have said, sixteen and a half months since the lodging of the appeal. There have already been three adjournments, albeit that the second (that of 9 March 2016) does not appear in any way to have been the responsibility of the appellant. When Sir David Eady adjourned the hearing that had been fixed for 22 June 2016, he made clear by his email that any further adjournment was unlikely to be granted "without an expert report indicating the nature of any treatment and giving [a prognosis] to the likely progress". The brief letter of yesterday, 23 January 2017, from which I have quoted, does not begin to indicate the nature of any treatment or give the least prognosis as to likely progress. Further, quite frankly, the highest the ill health or medical reasons are put are general statements with regard to "stress" and "anxiety".

As Hickinbottom J observed at paragraph 54 of his judgment in Tariq Rehman v Bar Standards Board [2016] EWHC 1229 (Admin):

This lady had already instructed an excellent pro bono barrister, Mr Christopher Stone, who I understand has been in the wings of this case for many months. Accordingly, although of course a hearing today would have been stressful for her, she herself would not have been in the role of advocate and could not have been prejudiced by her stress and anxiety. So, quite frankly, the medical basis for any adjournment today is flimsy in the extreme.

The other limb of the application for the adjournment relates to the underlying recording of the hearing before the CCC and certain documents which the appellant seeks.

I have to say that this, too, seems to me to be something of a side issue. When one reads the appellant's notice in this case and her grounds of appeal, the focus does not appear to be upon the findings of fact, but rather upon the decision of the CCC that all the matters which they found proved were "serious", and upon the overall proportionality of striking off. At section 8 of her appellant's notice, she states that what she is asking the Appeal Court to do is "request the court to substitute a more proportionate sanction of attaching conditions to practice by requiring me to take appropriate training ... and/or supervision for a period of 12 months." When one reads the grounds of appeal, they end up with a passage headed "In Conclusion" and then assert that the conclusions and sanction decision of the NMC are wrong, manifestly perverse, unreasonable, and disproportionate, and seek” a less onerous sanction of conditions to practice ... and/or supervision for a short period ... ". So it does not obviously appear from those documents that there is some root and branch attack here on the findings of fact made by the CCC. In any event, they dealt with their findings in considerable detail in their reasons. They made absolutely clear that they found all of the witnesses relied upon by the case presenter to be credible and reliable and, in contrast, that the evidence of the appellant generally lacked credibility and was not reliable. However, it is right and fair to say that the appellant has been questioning the accuracy and reliability of the verbatim transcripts for many months since at least June of last year.

As I understand it, it has now been clearly established that the scan disk upon which the completely independent shorthand writers and transcribers (namely Ubiqus) based their transcript has now been wiped or destroyed in accordance with their normal practice.

It has been further established that the remaining raw or fundamental recording is one which exists on the extranet. It is capable of being downloaded or listened to by a person with a proper interest in it who has been supplied with specified codes or passwords. It is, to my mind, regrettable that it was only last Friday that those codes or passwords were finally supplied to the appellant, and accordingly it is only on and since last Friday at the earliest (today being Tuesday) that she has been in a position to do that which she has wished to do for a long time, namely listen to the raw or original recording upon which the transcript is based.

There is a letter from the appellant to the NMC dated 30 May 2016 in which she long ago identified those parts of the passages in the transcripts which she believes to be inaccurate. They are actually very short passages. One relates to the period when one of the witnesses, Student Nurse B, was describing an unjustified and improper touching by the appellant of a patient. As so often happens when a witness is describing some movement of that kind, the transcript does become a little confused, for the words that are uttered and recorded on the page do not necessarily make complete sense without the visual observation of what the witness is demonstrating.

The other passage is a passage in which some issue appears to have arisen as to precisely when in the material period the appellant was rota'd to work. As the relevant allegation only dated the allegations as being between 9 January and 3 February 2012 without further specificity, and as the appellant clearly agreed that she had worked shifts during that period, it is very difficult to see to what issue this really goes. But at all events, it is fair to say that the appellant has long manifested a conviction or belief, whether rational and justified or not, that there is some discrepancy between what was actually said at the oral hearing and what appears in the purportedly verbatim transcripts.

If the application for an adjournment was based on that alone, I would, quite frankly, have refused it. However, what has emerged during the course of today is the tie-in between the quest of the appellant to hear the underlying recording, and the alleged anxiety and stress. If one returns to the note of Dr Chahal of 21 June 2016, that did evidence her assertion that she was being caused extra stress because of this documentation that she wished to see. If one returns to her own email of yesterday, one sees that she says in it that because all the information has not yet been fully disclosed "it has peaked my symptoms of anxiety and caused to be unwell for the hearing ... with this struggle of gaining details it peaked my anxiety and made me unwell".

My attention was drawn to the authority of Hickinbottom J in Tariq Rehman. I have very well in mind the very careful analysis that he made towards the end of that judgment and the various factors that he considered and took into account. I also have very much in mind the authorities which he cited in paragraphs 42 to 46 of that judgment. All these cases, however, are very fact specific. As I have said, the medical evidence in the present case is flimsy. As I have said, it does not underlyingly seem to me that there is really much mileage or relevance in further pursuing the passages in the recording that the appellant is so keen further to hear and investigate. But there does appear in this case, unexpectedly, to be a tie-in or crossover between these quite separate bases for an adjournment. As I have said, it does seem to me very unfortunate indeed that the appellant was not enabled to listen to the recording on the extranet an appreciable period of time ago; and if she had been, the stress that she is now able to say has "peaked" because of her inability to listen to it could not have been claimed or asserted.

So with the utmost reluctance I have decided that I must further adjourn the substantive hearing of this appeal one more time. I do mention that this is the first occasion that the case has actually reached the courtroom and that there has been considered judgment upon adjournment. So I will make a very clear order and directions today to enable the appellant, as has been agreed during the course of today, to attend at the premises of the NMC in London and there listen in a suitable room to such parts as she wishes to hear of the extranet record. Ubiqus have kindly said that they will make a member of their staff available to assist with the technical aspects of accessing the relevant parts of the recording. My order will permit that a member of the legal staff of the NMC is present, so that if any discrepancy is identified between the existing verbatim transcripts and the recording clear notes can be made of those discrepancies.

My order will make very clear indeed that there will be no further adjournments, save in the event of unforeseen and grave ill health or some similar unforeseen and grave event. I give purely as examples of an unforeseen and grave event, some unforeseen and grave travel disruption making it impossible on the day for the appellant to attend despite all her best reasonable efforts, or some event such as the sudden very recent death of a very close relative. But if ever again she seeks an adjournment in reliance upon her own ill health, that must be supported by expert and detailed medical evidence which fully complies with the requirements of paragraph 36 of the judgment of Norris J in Levy v Ellis-Carr as quoted by Hickinbottom J in paragraph 43 of Tariq Rehman. So there is no doubt about what is required, I will now read out what Norris J said in that paragraph:

Brief notes of the kind supplied on 21 June 2016 and yesterday are, frankly, totally inadequate. If the appellant did not know that before, she certainly knows it now when she reads the transcript of my judgment, for which I make provision in the order.

There is one further limb of her application for adjournment. As well as seeking access to the underlying recording of the course of the hearings, she sought "unredacted copies of the documents (incident reports) and other correspondence referred to in the attached emails". Those emails appear to be documents and material at pages 19 to 25 of the small clip which has been prepared for today. At pages 24 and 25 are an exchange of emails in May 2013 between someone on behalf of the Manchester Metropolitan University and someone on behalf of the NMC. As I understand it, the source from which the appellant obtained those emails was not the NMC but the Manchester Metropolitan University, and it was they who redacted parts of them. Today, the NMC have been able to produce the original email received by them from the Manchester Metropolitan University on 10 May 2013 and their reply to the Manchester Metropolitan University of that date. So far as I can see, there is not the least justification for any part of those emails being redacted. They certainly refer to considerable anxiety on the part of Student Nurse B, but there is nothing in those emails that could not properly be seen by the appellant, and I propose therefore to order the NMC to supply copies forthwith to the appellant. Indeed, Mr Stone will be taking a copy with him today.

The other material is redacted documents at pages 19 to 23 of the small clip. Miss Hartley says that these are not documents which the NMC, so far as they are aware, have ever seen or received, and they certainly have no record of them whether in a redacted or an unredacted form. It is therefore speculated that the source from which the appellant received these particular documents is Manchester Metropolitan University, or possibly the Central Manchester University Hospital's NHS Foundation Trust. At all events, these documents are not the documents of the NMC and they never featured in the hearing before the CCC. I will order the NMC to use their best endeavours to obtain unredacted versions of those documents and then to supply them onwards to the appellant; but my order will make plain that if the NMC are unable, after using their best endeavours, to obtain unredacted versions, their statement to that effect (by letter or email) shall be determinative and I make no further order directed to the NMC in relation to those documents. Quite frankly, in an appeal which appears to be primarily focused upon the proportionality of the sanction, those documents appear to me to be of negligible relevance. But if the appellant feels she would like to see them, then to that extent the NMC can try and obtain them for her.

The application notice issued on 17 January 2017 also sought a copy of the contract between the NMC and their transcribers. That, quite frankly, is a completely far-fetched and unjustified application. Arrangements will now be made to enable the appellant herself to hear, to whatever extent she wishes, the remaining raw source material of the records upon the extranet, and the terms of contract between the transcribers and the NMC are totally irrelevant.

The further point I wish to make is this. At paragraph 42 of his judgment in Tariq Rehman, Hickinbottom J also cited what Norris J observed in Levy v Ellis-Carr at paragraph 33. It included the following:

Obviously, it is always a situation of difficulty and concern for a court if a party simply is not present, especially if representing herself and especially if the proceedings are that party's application or appeal. But litigation has to be brought to an end, and in any event there is a very strong and important public interest in cases of this kind, which concern regulation of the nursing profession, reaching a proper and final conclusion.

It was, in my view, especially manipulative of the appellant to have instructed Mr Stone to argue her case on the substantive appeal, and then at a very late stage to modify and withdraw those instructions so that he could only apply for the adjournment. That had the effect that Mr Stone, with all his skill, was here on that part of the agenda which the appellant wished to advance; but that if I had refused to grant an adjournment I was in the very difficult situation of the appellant being neither present nor represented.

On this final occasion in this case I have been willing to grant an adjournment for the reasons I have described; but the appellant must firmly understand that next time, whether she attends or not, and whether she fully instructs Mr Stone or some other pro bono barrister or not, this case will proceed, absent, as I have said, unforeseen and grave ill health or some similar unforeseen and grave event. The court cannot, and will not, allow itself to be manipulated again.

Would the usher very kindly give all that to Mr Stone. I am incredibly grateful to you. I will for the time being keep these documents in order to correct the transcript of the judgment.

MISS HARTLEY: My Lord, can I just clarify one matter in terms of your order. It is the part in relation to making arrangements for the appellant to hear the audio and it states that this process must be completed by 3 March 2017. I am just slightly concerned in light of the history of the case that if the appellant decides after a prearranged appointment has been made not to attend.

MR JUSTICE HOLMAN: That is down to her.

MISS HARTLEY: If the appellant does not attend for a prearranged appointment, would the NMC be required to make further arrangements?

MR JUSTICE HOLMAN: That would depend on the reason she gave, would it not? If she was trying to travel by Southern Rail and they were doing what they so frequently do to everybody, she might produce quite a convincing reason why she did not make it on the day.

MISS HARTLEY: But when does it come to an end?

MR JUSTICE HOLMAN: I am not going to deal with all speculative things. She has pressed and pressed and pressed to hear this, she says she wants to hear it, she has already said she will come to London to hear it, arrangements will now be made in liaison with her as to the time and date when she hears it and that will be the opportunity that is afforded to her. If she does not attend that day, we will of course have to see why she does not attend and take it into account at the time. I cannot speculate about everything. But this says she has now got to be afforded that opportunity and afford it you will, and you will very rapidly engage with her as to a time and a date and I think the expectation will be that though initially she may say she cannot manage that date or that date, you will be able to settle on a date. She has not said she is about to go abroad for months on end.

MISS HARTLEY: That is not my concern, my Lord.

MR JUSTICE HOLMAN: What is your concern?

MISS HARTLEY: If, for example, there were a letter from a doctor of the nature that has been produced in this case already, would it be appropriate to keep on arranging or rearranging it?

MR JUSTICE HOLMAN: I am not going to answer that: (a) I am not here to give you legal advice, you do not need it from me; and (b) we cannot just speculate. She has got to be given the opportunity and you will now go away and responsibly and properly give her the opportunity. If for some reason she does not avail herself of it, we will have to see the reason. If there is evidenced reason that her house was struck by an earthquake earlier that morning, I think you would very readily rearrange it.

MISS HARTLEY: Of course.

MR JUSTICE HOLMAN: If she just says it was raining and she does not like going out in the rain, you might say, "I'm sorry madam but you have had your opportunity". If it is somewhere between those two extremes, you will have to assess it when you get it. I am sorry.

MISS HARTLEY: I am very grateful.

MR JUSTICE HOLMAN: I am very sorry it has ended in this way but it has.

Mr Stone, it is heroic of you to attend pro bono and I am very grateful to you and if you will now kindly rapidly type that all up, lodge it with whoever is our associate for today with his email address, that will be the order, and will the NMC, please, very rapidly go and seek a transcript because I want to sign this off very rapidly so she has got it, because I would really like to have it by the end of this week, certainly very early next week. I will not sit on it when I get it. Is that all right?

MISS HARTLEY: Of course.

MR JUSTICE HOLMAN: Thank you all very much indeed.