Clarke, R (on the application of) v United Kingdom Central Council for Nursing, Midwifery & Health Visiting [2004] EWHC 1350 (Admin)

Case No CO/6592/2003[2004] EWHC 1350 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 27 May 2004
Strand
London WC2
B E F O R E:
MR JUSTICE RICHARDS
Between
THE QUEEN ON THE APPLICATION OF ARLEY ERLESTER CLARKEClaimant-v-
Between
UNITED KINGDOM CENTRAL COUNCIL FOR NURSING, MIDWIFERY AND HEALTH VISITINGDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR EDMUND COFIE (instructed by AM Walters & Co) appeared for CLAIMANTMR ROBERT LAWSON (instructed by penningtons) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE RICHARDS: This is an appeal against a decision of the Professional Conduct Committee of the respondent, the Nursing and Midwifery Council ("NMC"), made on 21 August 2003 at the conclusion of a two-day disciplinary hearing. At the hearing the appellant faced seven charges of misconduct in respect of incidents alleged to have occurred while he was employed as a Registered Mental Nurse at Havelock Nursing Centre, South London.[2]The factual allegations in four of the charges were found proved, and in each case the Committee went on to make a finding of misconduct. The penalty was to remove the appellant's name from the register without specifying a period of time. By this appeal, the appellant challenges the findings of the Committee and the penalty imposed. Legal framework[3]The NMC is governed by the Nursery and Midwifery Order 2002. On 1 April 2002 it took over from the United Kingdom Central Council for Nursing, Midwifery and Health Visiting ("the UKCC") as the regulatory body for the nursing and midwifery professions, and the maintainer of the registry of nurses. The UKCC was governed by the Nurses, Midwives and Health Visitors Act 1997. As part of its function it had to determine by rules the circumstances and means by which a practitioner should be removed or suspended from the register and by which they might be restored or have their suspension terminated: see section 10 of the 1997 Act.[4]The relevant rules were contained in the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 (as amended). They include a procedural framework for the hearing of charges of misconduct. Pursuant to transitional provisions contained in the 2002 Order, disciplinary hearings before the NMC are currently dealt with under the terms of the 1997 Act and the 1993 Rules.[5]Each of the charges in this case allege misconduct, defined by Rule 1(k) of the 1993 Rules as "conduct unworthy of a registered nurse, midwife or health visitor as the case may be". The decision in question was, as I have indicated, that of the Professional Conduct Committee of the NMC. There is a right of appeal against such a decision by virtue of section 12 of the 1997 Act. The appeal is governed by CPR Part 52 and by Rule 52.11(3). An appeal can be allowed only if the Committee's decision was(a) wrong, or(b) unjust because of a serious procedural or other irregularity in the proceedings.[6]In broad terms, the approach of the court on an appeal is as follows. Although its function in respect of a statutory appeal is to conduct a re-hearing, it is one usually conducted, and conducted in this case, on the basis of a transcript of the hearing below. The appellate court must bear in mind that the decision-making Committee had the advantage of seeing and hearing the oral evidence given, and it must accord an appropriate measure of respect and weight to the judgment of the Committee on measures necessary to maintain professional standards and provide adequate protection to the public: see generally Ghosh v General Medical Council [2001] 1 WLR 1915, and Gupta v General Medical Council [2002] 1 WLR 1691, to both of which I will refer further in due course. The facts[7]The charges against the appellant were as follows:
"That you, whilst employed as an RMN at Havelock Court Nursing Centre: 1a on an unknown date between 1 April 2001 and 1 August 2001, failed to safeguard and promote the interest and well-being of patient A, in that you: (i) said words to the effect of, 'Go back to your fucking room, we don't have time to give you tea and a fag now', after 'A' had asked for an early morning cigarette and a cup of tea; (ii) pushed 'A' towards his bedroom; and b that having so failed to safeguard and promote the interests and well-being of a patient, you are guilty of misconduct. 2a on an unknown date between 1 April 2001 and 1 August 2001, pushed Patient B after he refused to leave his wife's bedroom; and b that having so pushed a patient, you are guilty of misconduct. 3a on an unknown date between 1 April 2001 and 1 August 2001, failed to safeguard and promote the interests and well-being of Patient C after he had urinated on the dining room floor, in that you: (i) slapped Patient C on the back; (ii) said words to the effect of, 'What the fuck are you doing?', to 'C'; (iii) Pushed patient C towards his bedroom; and b that having so failed to safeguard and promote the interests and well-being of a patient, you are guilty of misconduct. 4a on an unknown date between 1 April 2001 and 1 August 2001 failed to safeguard and promote the interests and well-being of Patient C after he had urinated on his bedroom floor, in that you: (i) said words to the effect of, 'What the fuck are you doing?' to 'C'; (ii) slapped patient C on his back; (iii) said words to the effect of, 'Go to your fucking bed', to 'C'; and b that having so failed to safeguard and promote the interests and well-being of a patient, you are guilty of misconduct. 5a on an unknown date between 1 April 2001 and 1 August 2001, were verbally abusive to Patient D, more particularly you said words to the effect of, 'If you speak to me like that I will break your hands'; and b that having so verbally abused a patient you are guilty of misconduct. 6a on an unknown date between 1 April 2001 and 1 August 2001 slapped Patient E after he had urinated in the bathroom sink; and b that having so slapped a patient you are guilty of misconduct. 7a on an unknown date between 1 April 2001 and 1 August 2001 pulled Patient E along the floor from the dining room to his bedroom; and b that having so pulled a patient along the floor you are guilty of misconduct."
[8]The hearing before the Committee commenced with the reading out of those charges. The appellant was represented throughout the hearing by a Mr Caderdina of the Transport and General Workers' Union. Let me say at once that I had some initial concerns on reading the transcript of the hearing as to whether the appellant's case was presented as well as it might have been. The appeal is not however based on any alleged incompetence on the part of his representative, and I am satisfied on consideration of the case as a whole that, despite my concerns, an appeal could not have been advanced successfully on such a ground.[9]The hearing proceeded as follows. First, the nature of the case against the appellant was explained by the NMC's solicitor, Mr Girling, in opening. It was explained that the factual elements of charges 1, 2, 3 and 7 were witnessed by two care assistants, Mrs Hall and Mrs Haynes, whilst the factual elements of charges 4, 5 and 6 were witnessed only by Mrs Haynes. After the opening, evidence was called: first, in the form of evidence from the manager of the Centre, Mr Cunningham, who gave background information and explained when he had received, and how he had dealt with, the complaints against the appellant that formed the basis of the charges. This was followed by evidence from Mrs Hall. Following her evidence, there was a short adjournment while the NMC solicitor took instructions. Upon the resumption of the hearing he announced that it had been his intention to call Mrs Haynes, but that she was not present and that efforts to make contact with her had been unsuccessful. He went on, addressing the Chairman:
"Madam, for reasons which it would be prejudicial for me to go into, it is unlikely that Mrs Haynes is going to be attending here today. For that reason, madam, the position of the Council in relation to three of the charges which were previously denied by Mr Clarke is that the Council would offer no evidence in relation to those ..."
[10]Accordingly, no evidence was offered in respect of charges 4, 5 and 6. Those were the charges the factual elements of which had been witnessed only by Mrs Haynes.[11]The case against the appellant concluded. The appellant's representative made a submission of no case to answer in respect of paragraph (iii) of charge 3a, a submission which was accepted by the Committee. In relation to the balance of the charges, the hearing then proceeded. The appellant gave evidence which took up the remainder of the first day.[12]The second day began with the recalling of Mr Cunningham and then the appellant. Thereafter, the appellant's representative summed up on the factual elements of the outstanding charges, and the Committee retired to consider its decision on the facts. It returned after one and a half hours and announced that the outstanding charges were proved, and gave its reasons as follows:
"... the Professional Conduct Committee find that the facts alleged in charge 1a(i) are proved, in 1a(ii) are proved, in 2a are proved, in 3a(i) are proved, in 3a(ii) are proved, and in 7a are proved. The reasons for this are: the Professional Conduct Committee have considered the evidence very carefully and are satisfied that the facts alleged in the charges are proved. The reasons are that the Committee have found Mrs Hall to be a credible and reliable witness. They are sure beyond reasonable doubt that she is telling the truth."
[13]The Committee went on to consider the question of misconduct in respect of the facts that had been found proved. The appellant did not admit misconduct, but did not adduce any separate evidence or make any separate submission on this question. Following deliberation, the Committee announced that it found misconduct proved in respect of each of the outstanding charges, and gave its reasons; namely:
"The reasons for this are that as a registered nurse you should act always in such a manner as to promote and safeguard the interests and well-being of patients and clients. The patients in your care, as we have heard, were particularly helpless and vulnerable, their behaviour was part of their condition. Your actions at slapping, pushing and shouting at patients were seriously detrimental to them and the committee have therefore found your actions to be conduct unworthy of a registered nurse."
[14]After that, the NMC solicitor recalled Mr Cunningham to give previous history evidence. The appellant then called a character witness, Mr Cyrus, who said that he had known the appellant for 34 years and had worked with him as a psychiatric nurse in a number of hospitals, and who gave evidence favourable to the appellant. The appellant then gave evidence himself. Various questions were asked by the Committee, to which I will return. There was a short plea and mitigation by the appellant's representative.[15]The Committee retired to consider its decision on penalty, and after just over one hour returned to announce its decision in these terms:
"Mr Clarke, the committee has considered your case very carefully. First, we considered whether to postpone judgment and we decided that postponement was not appropriate in your case. The committee has decided to remove your name from the register with immediate effect. We considered whether to specify that removal should be for a particular period of time and decided that it would not be appropriate to specify any period. The reasons for this are the charges which have been found proved are extremely serious. You were the only qualified nurse on duty caring for extremely vulnerable patients and you abused that position of trust. This was not just one isolated incident but several abusive acts against patients in your care. We have considered all the mitigation points raised on your behalf, including the verbal character reference from Mr Cyrus and the fact that you have had a long period of nursing. However, you have not demonstrated today that you are aware of the seriousness of your actions. You have not presented before the committee today evidence that would mitigate against such serious charges. The committee note in particular that you failed to produce any up-to-date references from your current or previous employer. The Committee therefore feel that your name should be removed from the register in the interests of public protection."
Issues[16]The grounds of appeal raise four main issues which can be summarised as follows: 1. Whether it was unreasonable for the Committee to find proven the factual charges that it did. 2. Whether the Committee gave adequate reasons in respect of its decision on the facts. 3. Whether the Committee acted in a procedurally unfair manner in relation to its decision on penalty. 4. Whether the Committee's decision to remove the appellant's name from the register for an unspecified period of time was excessive and disproportionate.[17]In addressing those issues, both counsel put forward their oral submissions with commendable clarity and brevity. The two sides' respective positions were already set out very well in skeleton arguments from both counsel, which I have also taken fully into account in reaching my conclusions. First issue[18]The submission advanced by Mr Cofie, for the appellant, is that the Committee's decision to find proved to the criminal standard the charges that were upheld against the appellant was unreasonable. The starting point for the submission is that, as was plainly the case, the evidence against the appellant in respect of the charges found proved consisted solely of the uncorroborated evidence of one person, Mrs Hall. It is not necessary to refer in detail to her evidence, or to that of the appellant himself, relevant to each of the individual charges. It suffices to say that there was a clear, direct conflict of evidence between them, and the question for the Committee was whether they were sure that Mrs Hall was a credible and reliable witness.[19]Mr Cofie points to a number of reasons why Mrs Hall should have been considered an unreliable witness. First, she was unable to provide dates, even approximate dates, when the alleged incidents occurred. This is reflected in the fact that the charges specified in each case "an unknown date between 1 April 2001 and 1 August 2001". It is right to say that no complaint was made at the time on behalf of the appellant about the formulation of the charges in that way, and in my view no criticism can sensibly be made of such a formulation. Plainly, however, Mrs Hall's vagueness on the question of dates was a matter to be taken into account in determining the reliability of her evidence.[20]The second point made is that Mrs Hall did not report the incidents to her superiors at the time when they were alleged to have occurred. Nor did she make any contemporaneous notes of them. She made her allegations only on 29 July, some four months after the start of the period during which the incidents were alleged to have occurred.[21]Thirdly, it is said that she had a motive for telling lies, in particular because there had been friction between her and the appellant as a result of the appellant taking issue with her about her sleeping on duty and matters of that sort.[22]The first two of those points were raised clearly in cross-examination. The third was raised to some extent, although was not pursued forcefully, even though the Committee's legal assessor and NMC's solicitor had raised during the course of the hearing the necessity of putting to Mrs Hall any motive that she might be alleged to have for lying. The issue was also touched on in the questioning of the appellant, both in cross-examination and questions from the Committee, though the appellant's own evidence was that he had felt there had been a good working relationship between himself and Mrs Hall. So all these matters were clearly before the Committee, and in my judgment, the Committee must have had them all well in mind when reaching a view on whether Mrs Hall was a credible and reliable witness. The decision that she was nonetheless credible and reliable is one that, to my mind, is unassailable on appeal. It was an assessment that was plainly reasonably open to the Committee.[23]Mr Lawson has referred me to a passage in Gupta at paragraph 10 where Lord Rodger, delivering the judgment of the Privy Council, stated:
"The decisions in Ghosh and Preiss are a reminder of the scope of the jurisdiction of this Board in appeals from professional conduct or practices committees. They do indeed emphasise that the Board's role is truly appellate, but they also draw attention to the obvious fact that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee ... "
[24]That passage is entirely in point as regards the appellate jurisdiction of this court in respect of decisions of the Committee. There is, in my judgment, no basis for interfering with the assessment made by the Committee as to the credibility and reliability of Mrs Hall.[25]One further matter I should deal with under this head is a concern expressed by Mr Cofie about what was said to the Committee about the non-attendance of Mrs Haynes, that is that "for reasons which it would be prejudicial for me to go into", it was unlikely that Mrs Haynes was going to attend the hearing. Mr Cofie submits that that may have left in the minds of the members of the Committee an impression adverse to the appellant. I cannot see how that could be so. No indication was given about the nature of the prejudice that would arise if the reasons for Mrs Haynes non-attendance were gone into. They might have been prejudicial to the appellant or to the witness personally or to the case against the appellant. The reference to prejudicial reasons was taken no further and was in itself neutral. It was not capable of having the adverse effect suggested by Mr Cofie.[26]I therefore reject the first ground on which the appeal is advanced. Second issue[27]Mr Cofie submits next that the Committee should have provided full reasons why it found the facts alleged in the relevant charges to be proved, why it found Mrs Hall to be a credible and reliable witness, and why the members of the Committee were sure beyond reasonable doubt that Mrs Hall was telling the truth. Full reasons were said to be required since the appellant's case was that Mrs Hall had a motive to tell lies -- something which with which the Committee should have dealt in its decision-making process.[28]It is also said that the issue of the reluctance of Mrs Haynes to give evidence should have been addressed once it had been raised, as it was, at the hearing. The case as to deficiency of reasons faces a formidable obstacle in the form of the decision in Gupta. In that case, the Privy Council held in essence that there was no general duty on the Professional Conduct Committee of the General Medical Council to give reasons for its decisions on matters of fact, particularly where its decision depended essentially on resolving questions of the credibility of witnesses. What was said in relation to the General Medical Council is equally applicable to other professional bodies such as the NMC.[29]Mr Lawson took me in particular to paragraph 13 of the judgment, where the principal reasoning in support of that conclusion is set out. I do not think it necessary, however, to quote the passage here. It is plain that in Gupta the Privy Council considered that it was not generally necessary even to indicate formally which witness's evidence was accepted and which was rejected, let alone to set out why a particular witness's evidence had been accepted or rejected. There were considered to be sound policy reasons for not adopting such a course. It is true that in paragraph 14 this was said:
"14. Their Lordships would add this. They have rejected the submission that there is a general duty to give reasons in cases where the essential issue is one of the credibility or reliability of the evidence in the case. Nonetheless, while bearing in mind the potential pitfalls highlighted by Lord Mustill, the Committee can always give reasons, if it considers it appropriate to do so in a particular case. Their Lordships would go further: there may indeed be cases where the principle of fairness may require the Committee to give reasons for their decision even on matters of fact ... "
[30]Mr Cofie seized upon that last point and submitted that the present case is one where fairness required the giving of reasons, having regard to the factors identified under the first issue as casting doubt on the credibility and reliability of Mrs Hall and the reasonableness of the conclusion reached by the Committee. He submits that the Committee should have set out in detail the matters taken into account in order, at the very least, to show that those matters had indeed been properly considered. I reject those submissions.[31]There is nothing in the circumstances of this case which required the giving of more detailed reasons than were in fact given. The Committee spelled out that they had found Mrs Hall credible and reliable, which would, in any event, have been obvious from their finding that the relevant charges were proved. It was not incumbent on them to engage in a detailed analysis of the considerations taken into account in reaching that conclusion. Such a course is not required as a matter of fairness, and there are good reasons of policy, as indicated in Gupta, why such a course would be undesirable. Third issue[32]The main point advanced under the third issue is that the Committee acted in a procedurally unfair manner in failing to adjourn the case before deciding on what penalty to impose. By Rule 18(4) of the 1993 Rules, the Committee, where it finds charges of misconduct proved, is required next to consider and determine whether it should postpone judgment. It is apparent from the Committee's reasons when imposing a penalty that it had considered the point and had decided not to make a postponement. Mr Cofie's submission is that the Committee acted unreasonably or unfairly in not postponing, that is to say not adjourning the case, given in particular that no report on the appellant had been prepared by the Nurses' Welfare Service, and the appellant had no up-to-date references to produce; the more so since the Committee referred to the failure to produce any up-to-date references in its reasons for imposing the penalty it did. It is submitted that if the Committee was going to take that into account it should have adjourned so as to allow further references to be obtained. This court has had placed before it four references which, as I understand it, the appellant says he could have obtained for the Committee had there been an adjournment. Those references are undoubtedly favourable to him.[33]In considering the submissions advanced, it is important to bear in mind what actually happened before the Committee. It is apparent from the transcript of the proceedings that, after hearing the character witness called on behalf of the appellant and hearing the appellant himself, the Committee asked whether a report had been prepared by the Nurses' Welfare Service, and was told that no report had been prepared because the appellant had maintained his innocence throughout and there were no official issues that needed to be presented. The Committee also asked the appellant's representative if he had any up-to-date references for the appellant, to which he replied that he did not, and whether he had anything else to put before the Committee to mitigation, to which he responded by making brief remarks in mitigation. It is to be noted that there was no application by the appellant or his representative for an adjournment for sentence or a postponement of judgment. Nor can there be any suggestion that the appellant failed to foresee the need to adduce any evidence that he wished to rely on in mitigation. On the contrary, Mr Cyrus was in attendance for that very purpose and was duly called to give evidence.[34]It seems to me that, in those circumstances, no criticism can properly be levelled at the Committee for proceeding as it did. It was for the appellant to adduce any evidence he wished to rely on in mitigation. As I have said, he had a witness available for that purpose. He did not, and his representative did not, suggest to the Committee that time was needed in order to obtain any further evidence. There was nothing before the Committee to suggest that, if an adjournment were allowed, it might enable a Nurses' Welfare Service report to be produced or up-to-date references to be placed before the Committee. Both matters had been very fairly raised by the Committee itself, as indeed was the question of further submissions in mitigation. In my judgment, the Committee cannot be said to have acted unfairly or unreasonably in deciding in the situation that arose not to postpone judgment but to proceed at once to the question of penalty, as it did. Having lawfully proceeded to the final stage, the Committee cannot be properly criticised for taking into account the absence of up-to-date references. That was plainly a relevant factor in determining the penalty.[35]A further criticism made under this head is that the Committee acted unfairly by commenting in its reasons for the penalty that the appellant had not demonstrated that he was aware of the seriousness of his actions. In my judgment, however, it was highly relevant for the Committee to consider whether the appellant had shown insight into the misconduct found proved against him, and the assessment made was plainly one reasonably open to the Committee on the evidence before it. Accordingly, I reject the various points advanced in relation to the third issue. Fourth issue[36]The submission made finally is that the decision to remove the appellant's name from the register without specifying any period of time was too severe bearing in mind, in particular, the appellant's prior unblemished record and the mitigating evidence of Mr Cyrus, called on his behalf. As to the correct general approach of the court to a question of penalty, it is right to refer to paragraph 34 of the judgment in Ghosh. In that paragraph, Lord Millett, giving the judgment of their Lordships, referred first to Evans v General Medical Council (unreported) Appeal No 40 of 1984, where the Board had said:
"The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee ... The Committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards."
[37]Lord Millett went on in giving the judgment in Ghosh:
"For these reasons the Board will accord an appropriate measure of respect to the judgment of the Committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the Committee's judgment more than is warranted by the circumstances. The Council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the Committee for reconsideration."
[38]The reference in that passage to the maintenance of professional standards and the protection of the public is important, because that is the primary focus of sanctions in cases of professional discipline. One sees that, for example, in paragraphs 21 and 22 of the judgment in Gupta.[39]In the present case the sentence may seem severe, but it must not be forgotten that the charges found proved against the appellant involved verbal and physical abuse of very vulnerable patients, and was conduct in relation to which, as appears from the Committee's reasons, the Committee took a serious view. In my judgment, it was plainly entitled to view that conduct seriously. Given that, and the other matters taken into account by the Committee -- matters that, as I have held, were properly taken into account -- it does not seem to me that the penalty imposed can be said to have been excessive or disproportionate. I bear in mind the advantages enjoyed by an expert professional committee in assessing the gravity of misconduct, but I stress that I reach my conclusion without deferring to the judgment of the Committee to a greater extent than is warranted. I have also borne in mind that it remains open to the appellant to apply in due course under Rule 22 of the 1993 Rules for restoration to the register. No doubt such an application would have no realistic prospect of success if matters remained as they appeared to the Committee when imposing the penalty it did. But if for example the appellant was able to produce fresh evidence to show that he had achieved a proper insight into his offending behaviour, together with evidence such as the additional references that have been produced to this court, it may be that his application would be viewed more favourably. What matters for present purposes, however, is that the procedure exists for making such an application, and that any such application can be expected to be given proper consideration. Therefore, although the penalty imposed is one of removal from the register without specifying any period of time, that penalty does not represent an absolute bar to the appellant returning to the profession in the future. It would be open to him to return to the profession if the view were taken that, in all the circumstances, he was now a fit person to be re-admitted. That is of some relevance to the question of proportionality, though I rely on it very much as a secondary factor in my reasons for upholding the Committee's decision on penalty. Conclusion[40]For the reasons given, I find against the appellant on each of the issues raised, well though his case was put on his behalf by Mr Cofie. Accordingly, the appeal must be dismissed.[41]MR LAWSON: My Lord, I would ask you to dismiss it with costs. My friend is on forewarning of this. The NMC is funded solely by subscription from members of the profession; it is not publicly funded, and I say that to distance myself from, for example, a legal aid situation, and so the costs of this are borne by the profession unless recoverable against Mr Clarke. There is a statement of costs which has been provided to my friend and I have one here. It is extremely similar in final amount to that of the appellant himself.

MR JUSTICE RICHARDS: May I see it?

[43]MR LAWSON: Certainly you may. I have a signed one here. There is a difference of just under £200 -- this being a hearing of less than one day, and, bearing in mind I will ask for, first of all, costs and in the sum set out in the schedule.[44]MR JUSTICE RICHARDS: Thank you very much. Mr Cofie, what do you say?[45]MR COFIE: My Lord, there is not much I can say bearing in mind that the appellant has been unsuccessful in his appeal.[46]MR JUSTICE RICHARDS: There are two points: one, the principle of costs, and what you say is, I think, wholly realistic about that. As to the amount, again on the face of it, it looks a perfectly reasonable sum that is put forward. I am told it is not dissimilar to the sum that the appellant had in his own schedule.[47]MR COFIE: Save for counsel's costs, my Lord.[48]MR JUSTICE RICHARDS: You may tease Mr Lawson in relation to that but I do not think that I can say that the amount claimed in respect of his costs is actually unreasonable, especially having regard to the very considerable assistance that was given to the court by his exposition of the legislative and factual framework.[49]MR COFIE: That is accepted, my Lord.[50]MR JUSTICE RICHARDS: In those circumstances, I am afraid that I am going to have to make an order that the appellant pays the respondent's costs of the appeal. I will summarily assess those costs in the amount set out in the schedule, which is £6,293.30.

Cited in 3 later judgments