Faulkner v Nursing & Midwifery Council [2009] EWHC 3349 (Admin)

Case No CO/6570/2009

[2009] EWHC 3349 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday 7 December 2009

The Strand

London

WC2A 2LL

B e f o r e:

MR JUSTICE CRANSTON

B E T W E E N:

Between

JULIAN FAULKNERAppellant

NURSING AND MIDWIFERY COUNCILRespondent

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Wordwave International Ltd (a Merrill Communications Company)

165 Fleet Street, London EC4

Telephone No: 020 7404 1400; Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

Mr Adam Clemens (instructed by MacLaren Britton Solicitors,

Nottingham NG1 2AY) appeared for Appellant

Mrs Elizabeth Forbes (instructed by Nursing & Midwifery Council)

appeared for Respondent

J U D G M E N T

Monday 7 December 2009

Introduction

[1]This is a statutory appeal by a nurse from the decisions of the Competence and Conduct Committee of the Nursing and Midwifery Council ("the Committee"). The decision under challenge is a decision to proceed in his absence at a hearing on 30 March 2009. If that decision were to be wrong, the appellant would also seek to challenge the decision to strike him off the register.

Background

[2]The appellant was a registered nurse. He was subject to a series of allegations which date back to 2004. They relate to his time as a staff nurse at Heanor Memorial Hospital, a GP led community hospital providing rehabilitative and remedial care for adults over the age of 50.

[3]As formulated before the Committee, the allegations were as follows:(1) On 15 February 2006, causing distress to Patient A by failing to take him to the toilet despite being requested to do so twice, resulting in his soiling himself.

(2) On 11/12 April 2006, causing distress to Patient B by throwing grapes at his head.

(3) On an unknown date, abusing Patient A by deliberately spraying cold water on him.

(4) On various unknown dates, in the presence of colleagues and/or patients, making inappropriate comments, in particular in relation to his sex life, the sexuality of his colleagues, and patients' genitalia.

(5) On numerous occasions between 28 May 2004 and 15 June 2006, accessing inappropriate websites while at work.

(6) On an unknown date, behaving inappropriately by asking a colleague to look at a computer screen and then bringing up an image of an erect penis.

[4]The hearing was due to take place on 15 July 2008. The appellant did not appear. The Committee considered the matter and adjourned the hearing for the reasons it gave in a letter which was subsequently sent to the appellant. It read in part:

"1. The [appellant] is currently unwell with stress. 2. He wishes to attend the hearing and to be represented in order to challenge some, or all, of the evidence to be called. 3. The Panel have taken into account the legal advice given and have in mind the considerations set out in rule 32 of the Nursing and Midwifery Fitness to Practise Order of Council 2002. 4. The Panel are satisfied that in the circumstances it would be unfair to the [appellant] to proceed today without allowing the [appellant] a further opportunity to be present and to be represented."

The Committee gave the following directions regarding the next hearing:

"1. The case was to be listed for hearing by the end of September 2008. 2. Should the appellant still be unwell and request a further adjournment, he must give detailed written medical evidence to show that he is unfit to attend the hearing as opposed to return to work. 3. The effect of rule 23(4) which prohibits an unrepresented registrant from cross-examining directly a witness who is an alleged victim where the allegation is sexual in nature would, in our view, include evidence about charge 6. This is a matter to be brought to the [appellant's] attention and also the Council. ...."

[5]The adjourned hearing did not come on by the end of September 2008, as anticipated.

[6]Eventually a second hearing was scheduled for 1 and 2 December 2008. The appellant made an application for an adjournment. He had sent correspondence dated 11 July and 21 November, in which he set out why he could not attend the hearing. The first letter suggested that he was extremely distressed and in no fit state to attend the hearing. The second letter, from his general practitioner, stated that he was struggling psychologically with the strain of the ongoing inquiry and that he was reluctant to appear at the hearing without proper legal representation, which he could not afford.

[7]At the preliminary hearing on 28 November the chairman of the Committee asked the legal assessor for advice. She then said this:

"Looking at the paperwork again, although the GP's last letter is flimsy in its details as to the amount of strain [the appellant] is under, that, together with his lack of representation, leads me to believe that the hearing should be postponed because in reality it would be very unlikely that it would go ahead. However, it would be unlikely, if this was put before another chairman, at another time, that another adjournment would be granted, given the time-scale that will have passed if [the appellant] still hasn't got legal representation. I don't consider that would be an argument that could be, without evidence, put before a chair again. So my decision is that the hearing be adjourned, with the proviso that [the appellant] perhaps considers providing evidence, if he wishes to adjourn at any future date, of how he has gone about gaining legal representation. Perhaps I might add that consideration ought to be given as to whether a directions hearing is necessary to impress upon the [appellant] the need under Rule [23] to obtain representation."

[8]In a letter dated 1 December 2008 the Council gave the appellant notice of the hearing which was fixed to take place on 30 March to 1 April 2009. In the course of that letter, in bold type, there appears the following sentence:

"If you do not attend, the panel has the power to proceed with the hearing in your absence."

Under the heading "Witnesses" there appears the following:

"You have the right to call witnesses to the hearing. You also have the right to cross-examine any witness called by the Council or panel."

[9]On 2 March 2009 the appellant telephoned the case officer, Clare Stringfellow. He was advised that if he required an adjournment he should make a written application. The file note records the conversation, in part, as follows:

"He asked about his hearing date. I told him that we had sent him a notice on 1 December 2008 and that the date was 30 March 2009 to 1 April 2009. He said that he still did not have representation and that he would not attend without. I told him that if he wanted an adjournment he should write to the Committee via me and show that he has made efforts to find representation."

[10]The Council says that there was no further communication with the appellant between that date and the commencement of the hearing on 30 March. In a witness statement produced for this hearing, the appellant says that he spoke to Clare Stringfellow on at least three occasions between 2 March and 1 April, confirming that he was still unwell and that he was still waiting to hear from the Bar Pro Bono Unit.

[11]On 30 March 2009 a Panel of the Committee convened. The appellant was not present. The legal assessor advised that, under rule 21, the Committee had a discretion to proceed in the absence of the appellant, provided that all reasonable efforts had been made in accordance with the rules to effect service of the notice of hearing upon him. The legal assessor advised that, once satisfied on service, the Panel had a discretion whether to proceed. The legal assessor said:

"In exercising that discretion the Panel must be appropriately cautious before proceeding. In that context it must remember that, if fitness to practise is found impaired, one of the possible sanctions would be erasure from the register. The Panel should consider all the facts and circumstances before it. Among them are the fact that the [appellant] has apparently not asked that the matter be adjourned to enable him to attend, or for any other purpose, and the Panel must also have in mind that expeditious dealing with a matter of this nature is a matter which is very much in the public interest. Those are the matters which the Panel should specifically have in mind, together with anything else that is before them in regard to this application." "

Further, we have considered whether or not to proceed in the absence of the [appellant]. We have considered all the information before us and we have noted that the [appellant] has not applied for an adjournment. There are some nine witnesses present and the Panel is aware of the need to proceed expediently. In all the circumstances, the Panel is happy to proceed in the absence of the [appellant]."

[12]On the following day, 31 March, in accordance with standard procedure, the presenting officer made submissions on the facts. Advice was given by the legal assessor, following which the Panel announced it decision on the facts. The presenting officer then made submissions on whether those facts constituted misconduct. Following advice again from the legal assessor, the Panel found that the allegations had been proved and they found that the appellant's fitness to practise was impaired. The matter was adjourned to the following day.

[13]On 1 April the Panel resumed at 9.15am. In the meanwhile the appellant had contacted the Council. The presenting officer notified the Panel that the appellant had made contact that morning following press reports about the case. The result was that the appellant made submissions via telephone link to the Committee. He gave sworn evidence about his case. He was informed that he could only give evidence in relation to sanction because by that stage the Committee had made its decision about misconduct. The proceedings were finally adjourned at almost 6.30pm and the Chairman explained that the hearing would have to be reconvened.

[14]On 23 April the hearing was reconvened. The appellant attended in person. Despite the fact that the Committee had already retired to deliberate on sanction, it allowed him to make further representations. The Chairman explained that these were unusual circumstances but that the appellant should be given the opportunity to address them. When the Committee resumed, having deliberated on the matter, the presenting officer explained the history which I have outlined in this judgment, namely the scheduled hearing in July 2008, its postponement at the written request of the appellant, the decision that if the appellant was still unwell he should apply with written medical evidence, the written request dated 21 November that the December hearing be postponed, the decision by the Chairman on 28 November to that effect, and the fact that in a telephone conversation with him on 2 March Clare Stringfellow had told him that if he wanted a yet further adjournment he should apply in writing and show that he had made efforts to obtain legal representation. The appellant was asked by the legal assessor whether he accepted that that was an accurate account of what had transpired. The following exchange took place:

"THE APPELLANT: Yes, that is correct. I have not got a problem with that at all. THE LEGAL ASSESSOR: And that on the two previous occasions you did make a specific request to postpone the matter? THE APPELLANT: Yes. THE LEGAL ASSESSOR: But you did not do so for this hearing? THE APPELLANT: That is correct. THE LEGAL ASSESSOR: Can I ask you a further question, that you are content with the position the case has reached now, that you are not asking for the Panel to do anything other than to continue with the hearing, are you? THE APPELLANT: No, that is correct."

[15]Following an address by the legal assessor, the Panel withdrew to deliberate. It concluded that, given that the appellant had been found guilty of three separate incidents involving the deliberate causing of distress to patients and that he was unable to assure the Panel that there would be no repetition, there would be a continuing risk if he remained on the register.

Legal Principles

[16]The fitness to practise regulatory regime for nurses is set out in Part V of the Nursing and Midwifery Order 2001, SI 2002 No 253 ("the 2001 Order"), supplemented by the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004, SI 2004 No 1761 ("the Fitness to Practice Rules 2004"), as amended by the Nursing and Midwifery Council (Fitness to Practice) (Amendment) Rules Order of Council 2007, SI 2007 No 893.

[17]Under these provisions, if the Committee finds proved an allegation of impairment of fitness to practise by reason of misconduct, it may make a striking-off order.

[18]Rule 21 of the Fitness to Practise Rules 2004 deals with the absence of the practitioner at a hearing. It provides:

"21(2) Where the registrant fails to attend and is not represented at the hearing, the Committee: (a) shall require the presenter to adduce evidence that all reasonable steps have been made in accordance with these Rules, to sever notice of hearing on the registrant; (b) may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant, or (c) may adjourn the hearing and issue directions."

[19]As to proceeding in the absence of a person subject to disciplinary proceedings, in Jawid Yusuf v The Royal Pharmaceutical Society of Great Britain

[2009] EWHC 876 (Admin)

Munby J (as he then was) agreed that the key issue was whether the person had voluntarily chosen not to attend. A disciplinary body had to be alert to the need to exercise with the utmost caution its discretion to proceed in a person's absence, but there was no need for it to make extensive enquiry.

[20]Rule 32 of the Fitness to Practice Rules 2004 deals with postponements and adjournments. As relevant, it provides:

"(1) The Chair of the Practice Committee may, of her own motion, or upon the application of a party, postpone any hearing of which notice has been given under these Rules before the hearing begins. (2) A Practice Committee considering an allegation may, of its own motion or upon the application of a party, adjourn the proceedings at any stage, provided that -- (a) no injustice is caused to the parties; and (b) the decision is made after hearing representations from the parties (where present) and taking advice from the legal assessor. .... (4) In considering whether or not to grant a request for postponement or adjournment, the Chair or Practice Committee shall, amongst other matters, have regard to -- (a) the public interest in the expeditious disposal of the case; (b) the potential inconvenience caused to a party or any witnesses to be called by that party; and (c) fairness to the registrant."

[19]In Tait v Royal College of Veterinary Surgeons

[2003] UKPC 34

, the Privy Council considered a refusal to grant an adjournment and, in referring to R v Jones

[2002] UKHL 5

;

[2002] 2 WLR 524

, identified three factors as significant: the seriousness of the case against the perpetrator; the risk of reaching a wrong conclusion about the reason for his absence; and the risk of reaching a wrong conclusion on the merits.

[20]Rule 23 of the Fitness to Practise Rules deals with vulnerable witnesses. It provides that the Committee may treat as vulnerable any witness where the allegation against the registrant is of a sexual nature and the witness was the alleged victim. Sub-rule (4) of Rule 23 provides that in such a situation the registrant shall not be allowed to cross-examine the witness directly in person.

The Appellant's case

[21]In his witness statement prepared for this hearing, which I allowed despite objection by Mrs Forbes on behalf of the Council, the appellant responds to the allegations made against him. He contends that the witnesses collaborated and that the alleged events either did not happen or were exaggerated. As to the failure to adjourn the hearing on 30 March, he says that he was still depressed, that he was being treated for severe stress, and that he was waiting to hear from the Bar Pro Bono Unit. He says:

"I therefore believed that nothing had changed in the situation since December and I believed that they would simply do the same thing as before." "

I was trying as hard as I could to fight and get the hearing adjourned. The first thing I heard that the hearing had progressed without me was when I telephoned at 9.05am on 1 April."

[22]In his careful and realistic submissions on behalf of the appellant, Mr Clemens contends that the decision to proceed on 31 March was wrong, and that the exercise of discretion to proceed in the appellant's absence was wrong. The fact that the previous Committee had taken the view that he would not be able to cross-examine one of the witnesses, if he was not legally represented, was not taken into account. Mr Clemens acknowledged that, the appellant having made no application for an adjournment and not having produced written evidence as to either his medical condition or as to the explanation for not obtaining legal representation, I would ordinarily not interfere with the exercise of discretion by the Panel. However, he lays stress on the peculiar circumstances in which the earlier 2008 direction about direct cross-examination had not been relayed to the March Panel. The upshot was that the Panel was not in a position properly to exercise its discretion. There was a failure on the Council's part to inform the Panel that the appellant had been told, in the clearest terms, that without legal representation he would not be able to cross-examine at least one of the witnesses at the hearing.

[23]Moreover, Mr Clemens submitted that the exercise of discretion to proceed in the appellant's absence on 31 March was also flawed because too much weight was given to the fact that the witnesses were present and ready for the hearing. Instead of the detailed advice that had been given at the earlier hearing in 2008, informed as it was by both the Tait and Jones cases, on this occasion the advice given by the legal assessor was cursory, and the reasons given by the Chairman for continuing with the hearing in the absence of the appellant did not take into account all the relevant factors. That being the case, submitted Mr Clemens, the decision to continue was flawed. It was not in accordance with the authorities. Particular weight was given to one factor rather than a proper consideration of all the factors which should have informed the decision to continue.

Discussion

[24]By 30 March the appellant had not adduced any evidence either as to his medical condition or as to the reason for his not yet having obtained legal assistance. He asserts in his witness statement that he made contact with the Council on various occasions between the conversation with Clare Stringfellow on 2 March and his contact with the Council on the morning of 1 April. I treat that assertion with considerable scepticism. First, it is not supported by any contemporaneous note or other evidence on his side. Secondly, I note that the Council has kept clear and contemporaneous notes of their contact with the appellant and these alleged contacts are not recorded. Thirdly, when on 21 April the history of the matter was recounted, including the one contact with Clare Stringfellow on 2 March, the appellant accepted that that was an accurate account. There was no assertion on his part of further contact after that conversation and before 1 April.

[25]In any event, the appellant had been explicitly told by Clare Stringfellow on 2 March that if he wished to seek an adjournment he should do so in writing. He had done that on previous occasions in 2008. On 21 April he accepted that he had not done that on this occasion. In my view there was no wrongful exercise of discretion by the Committee on 30 March to continue. The appellant was clearly entitled to a fair hearing. However, he knew of the hearing date but failed to make an application for an adjournment and failed to provide written evidence both as to his medical state and his difficulties in obtaining legal representation. As Munby J put it in Yusuf, he voluntarily chose not to attend.

[26]In my judgment the Committee cannot be said to have fallen into reviewable error in the exercise of its discretion as regards the cross-examination point. It came to its decision on the basis of the material available. It was apparently not informed of the earlier direction as to the appellant's inability personally to cross-examine because charge 6 involved an allegation of a sexual nature. However, the appellant did not appear on 30 March. The fact that he was deprived of the opportunity to remind the Committee of the matter was attributable to his failure to engage following the conversation with Clare Stringfellow on 2 March.

[27]The advice given by the legal assessor on the morning of 30 March was certainly briefer than that which had been given to the Committee which had considered the appellant's case in 2008. Although the reasons given by the Chairman were not as extensive as on the previous occasion, in my view they adequately addressed the factors that needed to be considered. There was no explanation from the appellant, as there had been on the previous occasions. The Committee was advised to proceed cautiously. The reasons given by the Chairman cannot be said to be inadequate.

[28]The Council accommodated the appellant on a number of occasions. During the course of the hearing, which began on 30 March, the Panel went out of its way to receive further submissions by the appellant both by telephone on 1 April and then in person on 23 April, notwithstanding that by 23 April it had already begun to consider sanction. It seems to me that the appellant can have no complaint. Despite the submissions made by Mr Clemens on his behalf, it cannot be said in particular that the decision taken on 30 March is flawed. On that basis I dismiss the appeal. MRS FORBES: My Lord, the appellant is publicly funded. I would ask for an order for the respondent's costs be made in principle? MR JUSTICE CRANSTON: Yes, in the ordinary way. MR CLEMENS: My Lord, I cannot resist that.