An appeal was made against a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council which found that the Appellant’s fitness to practise was impaired and imposed a caution order for 12 months. The Appellant challenged the reliability of the findings of fact, the finding of impairment and the sanction. In allowing the appeal, Holman J did not comment on the issue of impairment or sanction but noted that the initial proceeding had been subject to a serious procedural irregularity, in that the Committee had been unduly influenced by findings of a previous local investigation. He noted that such findings should have been excluded as irrelevant.
The Appellant was a registered midwife. On 15 January 2015, a Conduct and Competence Committee [“CCC”] found that the Appellant’s fitness to practise was impaired and imposed a caution order for 12 months. The allegations related to her attendance at a birth in September 2012. Following the birth, the patient [“Patient A”] and her husband made a number of complaints about the Appellant’s behaviour and performance. These included the allegations that the Appellant was rude, used her mobile telephone to take personal calls during the birth and cut the baby’s umbilical cord herself, despite the fact that Patient A had requested that her husband do this.
Following these complaints, an investigation was carried out by a supervisor of midwives [“SOM”] and the matter was subsequently referred to the CCC. A further allegation related to the Appellant’s conduct during the SOM investigation, namely that the Appellant stored Patient A’s medical records in her own home, breaching patient confidentiality.
A number of the charges were not found proved by the CCC; however, the CCC did consider, amongst others, that the Appellant had been abrupt and rude and used her mobile telephone whilst attending patient A. The CCC found that the Appellant’s fitness to practise was impaired.
The Appellant appealed.
Handed down by Holman J.
The Appellant contended the findings of fact by the CCC as being unreliable. She stated that the CCC placed undue reliance on the SOM report and on the evidence of one witness, and that the witness statement overall was inconsistent. Holman J stressed that he was not concerned with the issue over the witness evidence, rather that the focus of the hearing was the CCC’s reliance on the SOM investigation. The Appellant further challenged the finding of impairment and the sanction. Holman J also refused to consider these issues. He stated that “in short, this judgment and my reason for allowing the appeal is focused and based on a single ground”, namely the influence of the SOM report in the determination of the CCC.
Holman J referred to CPR rule 52.11(3):
“The appeal court will allow an appeal where the decision of the lower court was –
(a) Wrong; or
(b) Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
Holman J stated “I wish to make it crystal clear at the outset that it is not my view that the decision of the Committee was necessarily “wrong”. Indeed, I do not have any view or position as to whether it was right or wrong”. Instead, his decision was based on his view that there was a serious irregularity in the CCC’s proceedings.
Holman J also referred to rule 31 of the Nursing and Midwifery Council Rules 2004, which allows that:
“Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place).”
He acknowledged that, although it enlarged the scope of evidence which could be put before a Committee, it clearly stated that any such evidence be relevant and fair.
Holman J noted that there was “considerable difficulty” in understanding exactly what evidence had been placed before the CCC, as neither the case presenter for the Appellant or for the Nursing and Midwifery Council had been present at this hearing. However, it appeared from the determination of the CCC that they had some knowledge about the SOM investigation and, specifically, that they were aware of the outcome of the investigation. The case presenters were unable to confirm whether the CCC had seen a copy of the SOM report, redacted or otherwise.
Holman J acknowledged that many hearings heard by the CCC would no doubt have involved an earlier local investigation and that the CCC may have some knowledge about the outcome of that. However, he noted that “there is a world of difference” in being aware of an investigation and in paying heed to the outcome of that investigation when making their own findings about the matters at hand. He referred to a submission by the Appellant’s case presenter in the CCC hearing in relation to certain witness evidence and agreed that “normally the findings or fact made at some earlier investigation by another panel or another person are not admissible in proceedings before this Committee”.
As such, although Holman J acknowledged that the CCC conducted the hearing with care, he stated that “there must be a risk here that in some way they allowed themselves to be influenced, even if only peripherally” by the knowledge that all the allegations referred to them had previously been upheld by the SOM investigation. The CCC should have declined to admit any evidence relating to the outcome of this investigation, treating the findings and decision of this as “completely irrelevant and excluded from their consideration”, in accordance with rule 31.
Holman J noted he had the power to substitute any other decision that the CCC could have made although he felt this would be “wholly impossible and inappropriate”. Instead, he directed that the matter be remitted to the Nursing and Midwifery Council for review and disposal. He made it clear that, if the matter was to be reheard, it should be reheard by a “completely fresh panel who approach it from scratch”.
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