Ogunlola v NMC (Admin Court, 19 October 2016, unreported)
The Appellant did not have strong grounds to bring an appeal and it is of note that a significant ground was instantly rejected, as it had not been pursued via the correct route. Nonetheless what is interesting is the finding that stress and anxiety, caused by the FtP process, could not in this case be relied upon to seek an adjournment as inevitably relief from illness can only be sought via a conclusion to the proceedings.
High Level Summary
An appeal was brought against the Nursing and Midwifery Council which challenged the Conduct and Competence Committee's (CCC) determination in relation to; proceeding in the registrant's absence, producing insufficient reasons and issuing a disproportionate sanction. The Appellant further attempted to seek a judicial review of the decision of the Investigating Committee to refer her case to the CCC under the guise of an appeal. The appeal was dismissed on all grounds.
The Registrant (Appellant) was subject to fitness to practise proceedings before the Nursing and Midwifery's Conduct and Competence Committee (CCC) in relation to allegations that she inappropriately accessed patients' records, without clinical justification, and that she had acted aggressively towards a patient with mental health issues.
The Appellant argued that she had acted in the public interest by accessing the records, as she believed that her line manager had been undertaking practices which posed a risk to patients. The Appellant had argued that she was whistleblowing.
The Appellant was unable to attend her substantive CCC hearing as she was unwell at the material time. She provided evidence to the Committee that she was suffering from stress, low mood, insomnia and a family bereavement. The letter she provided was allegedly from her GP, however, it was found to have been signed by a receptionist. Nevertheless, out of fairness to her, the Committee invited her GP to give oral evidence in relation to her illness. Her GP suggested that the stress and anxiety was related to the ongoing FtP proceedings and therefore it would not disappear until the hearing process had concluded.
The Committee determined that the Appellant's fitness to practise was impaired and issued a sanction of 12 months suspension from the register.
The Appellant appealed the Committee's decision on 5 grounds:
- The case should not have been referred by the Investigating Committee (IC) to the CCC
- The Council had failed to provide full disclosure in the lead up to the hearing
- The Committee had been wrong to proceed in her absence
- The Committee was biased against her and failed to explain its decision adequately
- The sanction was disproportionate
The appeal was heard by Mr Justice Haydon.
The first ground of appeal was easily dealt with as inevitably it should have been brought as a judicial review action and therefore the Court did not have jurisdiction to deal with it under Art 38 of the Nursing and Midwifery Order 2001.
In relation to the second ground, Haydon J could see that the Appellant had requested a number of documents that she may not actually have been entitled to see and therefore he did not find that the Council had breached their disclosure obligations.
The decision to proceed in the Appellant's absence was found to be a correct one. The Appellant's GP had indicated that her stress and anxiety was directly linked to the FtP proceedings and in light of this, no relief would be sought until the hearing had passed and thus no gain could be made by granting the adjournment.
Haydon J found that the Committee's reasons were "a model of succinct and clear reasoning" (reference made to Cheatle v General Medical Council  EWHC 645 (Admin)). He noted that they had engaged with the whistleblowing argument. During the appeal, the Appellant had focused on the allegations pertaining to inappropriately accessing records; however, Haydon J noted that Committee had found her behaviour in front of the patient to have been deeply unprofessional and had amounted to misconduct.
In reference to ground 5, the Court reiterated its reluctance to interfere with the decision of a professional Committee save for exceptional circumstances, and as none were present here, it would not interfere with the findings on sanction.
The appeal was dismissed in its entirety.
Please note that this case has yet to be officially reported.