Kituma v Nursing and Midwifery Council (Rev 1) [2009] EWHC 373 (Admin)

[2009] EWHC 373 (Admin)Case No CO/4882/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/03/2009
Before
THE HONORABLE MR JUSTICE KING
Between
CECILIA WANYANA KITUMAClaimantNURSING AND MIDWIFERY COUNCILDefendant
Mrs Sarah Stanzel (instructed by Alomo Solicitors) for ClaimantMrs Melanie McDonald (instructed by Nursing & Midwifery Council) for DefendantHearing Hearing dates: 17 th October 2008
Judgment
[1]This is an appeal by Miss Cecilia Wanyana Kituma, a registered midwife, against the decision of the Conduct and Competence Committee ( the “CCC”) of the Nursing and Midwifery Council ( the “NMC” ) finding that five charges of misconduct had been proved against her, that her fitness to practise was thereby impaired, and imposing the sanction of a striking off order. An interim suspension order pending appeal was imposed. The appeal is brought pursuant to Article 38 of the Nursing and Midwifery Order 2001. The powers of this court on appeal are set out in sub paragraph (3) of that Order.[2]The CCC decision together with reasons was delivered orally on the 10th of May 2007 after a three day hearing commencing on the 8th of May and was confirmed by letter dated the 16th of May. The contents of that letter mirrors in the terms of the decision and the statement of reasons that delivered orally.[3]At the time of the events under investigation by the committee, the Appellant was employed as an agency midwife at the Watford General Hospital. Since 1998 the Appellant had been registered and practising as a midwife following two years’ training although she was registered as a nurse in 1984. Her date of birth is the 3rd of September 1960. Thus at the material times of this matter, she was some 44 years of age.[4]On the 21st of January 2004 she undertook the care of Patient D who was in labour with her first child. Patient D was at the time employed as a clinical psychologist working with offenders in a secure unit. Four of the charges of misconduct which she faced and which were found proved all related to her clinical management of the labour and delivery. Patient D had been in the care of the Appellant between 19.50 on the 21st of January 2004 and the time she, Patient D, was returned to the ward around 6 am on the 22nd of January. Delivery of patient D’s daughter was at 1.10 hrs on the 22nd. Immediately before at 1.09 the Appellant had performed an episiotomy that is to say she made a cut in the perineum to enlarge the vaginal opening to facilitate the child birth. This was subsequently sutured by the Appellant, a process which according to the evidence of patient D and Mr D, took some one and a half hours.[5]The charges found proved under this first head were expressed as follows:
“That you, while contracted as an agency midwife by Watford General Hospital: 1. In the course of assisting in the labour of patient D on the 21and 22 January 2004: a. performed a lateral episiotomy on Patient D ,rather than a medio- lateral episiotomy; b. in the course of delivering Patient D’s placenta, pulled on the umbilical chord with excessive force ; c. failed to i. notice ii. record and iii. inform colleagues that Patient D had suffered a severe post-partum haemorrhage d. failed to remain with patient D between the birth of her baby and the complete delivery of her placenta, contrary to trust policy and safe practice.”
[6]The second head of charge related to events after complaint was made by patient D, and to the Appellant’s custody of photocopies of patient D’s medical and midwife’s notes and of the letter of complaint which the appellant had had been given by one Nora Lucey a consultant midwife on an occasion at the hospital in June 2004 when the Appellant had attended without prior notice to address the issue of the complaint. On her own admission she subsequently left these copies on a train en route to the hospital for another meeting with Nora Lucey. Two charges were preferred under this head. The first charge (2(a)) that she had removed these documents from the hospital premises without authority or permission, was found not proved. However the charge under 2b relating to the loss of the notes was found proved by her own admission. That charge read:
“ Having been notified by Watford General Hospital that Patient D had made a complaint against you following your attendance at the delivery of her child on 20 and 21 January 2004,………b. on a day between 3 June and 24th of June left medical records and correspondence relating to Patient D in a public place.”
[7]Each of these allegations raised issues of fact. In relation to the charges under the first head the Appellant’s case was that none of the alleged facts had occurred and she had done nothing wrong in her care of Patient D. This still remains her position. In relation to the second charge her case was that she was under great stress at the time, being in disbelief and shock at the untrue and unbelievable allegations being made against her. (day. 2 – 40).[8]At the hearing the CCC heard evidence from the complainant patient D and her husband, Mr D; from Josephine Ashby a community midwife responsible for patient D’s post natal care who first saw patient D on Saturday 24th January, the day after her discharge; from Mr Tayob consultant obstetrician and gynaecologist who had first seen the couple on the 3rd of February 2004 and subsequent dates thereafter and who later in August 2004 performed corrective surgery by way of revision of the episiotomy to correct a deficiency at the site; Paula Clarke a midwifery expert instructed by the NMC; Nora Lucey and Maria Nicholson who gave evidence about the removal of the copies of the notes and their subsequent loss. The Committee also heard evidence from the Appellant who represented herself at the hearing. In addition it had access to material clinical notes and certain other exhibits. A complete transcript of the hearing is before me. The reference to days of evidence in this judgment are references to these transcripts.[9]Both the transcript of the hearing and the decision letter demonstrates that the CCC had undertaken its decision making process in three distinct stages, and announced its decision and its reasons at each separate stage.[10]First it decided whether the allegations of fact said to amount to misconduct had been proved to the criminal standard of beyond a reasonable doubt. This was the fact finding stage. It found the facts were so proved to the extent indicated and gave reasons.[11]Secondly it went on to decide whether the facts found proved constituted misconduct which impaired the Appellant’s fitness to practise as a nurse. For this purpose it purportedly applied the test whether “the misconduct was such that that it was not appropriate for the Appellant to remain on the register without restriction” and found this was the case. This is it didon the basis that they considered these facts demonstrated a number of “serious departures” from the standards established by the NMC’s Code of Professional Conduct and the Midwives Rules and Code of Practice as in force at the material time and by reference to what they described as the Appellant’s “lack of insight into the failings demonstrated by the events in question” and her “failure to accept what (the panel had) concluded were serious departures from accepted norms and practice”. They gave the following particulars in support of support of this conclusion of serious departure from standards: “ …you failed to respect Mrs D as an individual, you failed to maintain your professional knowledge and competence and failed to minimise the risk to your patient. Furthermore you failed to protect confidential information in your possession. The panel is particularly concerned that both in reaction to the site of the episiotomy and the post partum haemorrhage ,you failed to detect a deviation from the norm and to seek appropriate assistance”.[12]Finally the Committee made its decision on sanction. For these purposes it had before it the Indicative Sanctions Guidance provided to it by the NMC. Under “Striking – Off “order, paragraph 13 reads as follows:
“this sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registrant”
. There then follows a list of indicators, expressly said not to be exhaustive, which includes for present purposes the following: - serious departure from the relevant standards as set out in the Code of professional conduct or other of the Council’ standards and/or where there is continuing risk to patients/clients or others; - confidence in the Council would be undermined if the person is not struck off . “As we have indicated, your conduct represented a serious departure from the standards which the NMC and the public have a right to expect from a registered midwife. Your lack of insight into your failings and the serious physical and psychological consequences which those failings have clearly caused to Mrs D and the distress caused to Mr D in our view demonstrate that there is a continuing risk to patients should a similar situation arise again. Although we recognise the mitigation which you have produced, in our view confidence in the Council would be undermined if you were not struck off”.[13]In this particular appeal the appellant seeks to attack the decision of the CCC at all three stages, that is to say in relation to each of the findings of fact, bar that admitted under charge 2b (relating to the leaving of the patient records), it is said that on the evidence before it, the CCC “incorrectly concluded” the charge was proved beyond reasonable doubt; then in relation to the finding of impairment to practise assuming the facts be proved, it is said this decision was reached unreasonably and contrary to the evidence. Finally the striking – off order is attacked as being wrong and unjustified.[14]In the round therefore two basic submissions are made. First, that on the evidence the finding of the CCC that the Appellant’s fitness to practise was impaired was a finding which no reasonable tribunal could have reached - either on the basis that the evidence did not support the findings of fact or that even if proved, the charges were less serious than the view taken by the committee in that any departure from standard did not justify the significance attributed to it by the committee. In this context particular complaint is made that in relation to the charge relating to the episiotomy the effects of any failure upon the patient had not in fact on the evidence had the significance attached to it by the committee, and similarly in relation to the charge under 1d. Secondly, on sanction it is submitted that on the evidence the Appellant is and has generally been a competent practitioner and any proper assessmentofthe seriousness of the charges found proved could not in these circumstances justify a striking – off order.[15]In relation both to the decision on impairment to practise and sanction, further particular complaint is made that the CCC failed to give appropriate weight to the record of the Appellant as a midwife both before and after the events giving rise to the charges found proved. It is said that the charges proved should be viewed as a single isolated occurrence in the context of an otherwise unblemished career. The Appellant had continued to practise for some three and a half years as an agency nurse between the dates of the events and the final determination by the CCC and it was not disputed that during that period no complaints had been received. There were a number of supportive testimonial letters before the CCC which this court has seen. The effect of these is fairly summarised in the Appellant’s Amended Grounds of Appeal in the following terms: “ …a letter dated 12th December 2006 from (the) contracts Manager at the Standard Nursing Agency confirming that A had worked for (the agency) since 7th August 2005 and had been found to be a committed, dedicated, trustworthy, honest and reliable midwife…..a letter dated 10th January 2007 from (JA) supervisor of Midwives giving essentially a glowing reference of A’s work over the period 11th August 2005 to 2nd June 2006 (the period reviewed). In addition ….good references from A’s training period (1996 -1998)…..In particular a reference from (SK) supervisor of midwives, who was A’s manager from April 1998 and November 2002 confirmed A’s competence during this period”.[16]In support of these particular submissions Mrs Stanzel on behalf of the Appellant referred me to two decisions of the Privy Council in Silver v GMC [2003] UKPC 33 and in Bijl v GMC (PC Appeal No 78 of 2000).[17]In Silver the Privy Council held that the Committee had failed to consider as a separate issue whether the conduct of the doctor in failing to visit a patient notwithstanding being informed of the need on four occasions over 8 days amounted not merely to professional misconduct but serious misconduct. The Privy Council said that if the committee had done so it was not self evident that it would have answered in the affirmative and in this context “it was relevant to consider that this was an isolated incident relating to one patient (albeit over a number of days ) as compared with a number of patients over a longer period of time” and it was further relevant “to take account of his long period (some 40 years) of unblemished conduct and the particular difficulties of conducting a single handed practice in a deprived area of London”.[18]In Bijl the doctor had carried on an operation to remove a kidney stone for far too long and had abandoned the patient post operation when her condition was still serious. The Privy Council referred to the 4 year period between the operation and the committee’s decision during which the doctor had been employed as a locum urologist in other hospitals without complaint as to his standard of work. In the light of these circumstances the Privy Council stated at paragraph 14 that they had difficulty in being satisfied that erasure involving a complete cessation of the doctor’s work was necessary “ when suspension with the possibility of imposing detailed conditions on his carrying on practice is available” (my emphasis) The judgment continues :
“The two charges of which (the doctor) was convicted arose out of one operation, at the later part of a career of service …..both involved serious errors of judgment but neither involved any allegation against his practical skills as a doctor such as might be difficult to improve at a late stage of a career. Mr Bijl has had a serious lesson which on the evidence available should prevent a repetition of these errors of judgment, (my emphasis) were he to be allowed to practise in the future ,particularly if he does so under conditions intended to avoid such repetition.”
[19]The CCC in this case in their stated reasons on fitness to practise did however purport to take into account the written evidence of the Appellant’s clinical work since January 2004, and a March 2006 training course attended by her, but in effect found that this was outweighed by other factors namely “your obvious lack of insight into the failings demonstrated by the events in question and your failure to accept what we have concluded are serious departures from accepted norms and standards of practice”.(again my emphasis)[20]Equally in its stated reasons on sanction ,the committee referred (in its explanation for rejecting a caution as insufficient a sanction) to the “Appellant’s previous history, the fact there had been no repetition of the behaviour since the incident, and the contents of the references and testimonials” but said it had to balance this against “compelling evidence of the direct harm to Mr and Mrs D as a result of the misconduct which we have found proved, your failure to make admissions in the face of overwhelming evidence and your lack of any insight into your failings.” Again, as already indicated, in its justification for imposing a striking off, the committee said “although we recognise the mitigation which you have produced, in our view confidence in the Council would be undermined if you were not struck off”.[21]A further general complaint arising out of this reasoning on fitness to practise and on sanction, is that too much weight was attached to what the committee considered was the Appellant’s “lack of insight” into her failings and her failure to accept them The point is put in these stark terms “It failed to appreciate that since as far as A was aware she had done nothing wrong, this was not something she could have accepted”.[22]I have been reminded of the guidance given by the Court of Appeal in Fatnani v. GMC (2007) EWCA Civ 46 on the approach this court should adopt on an appeal such as the present.[23]As far as the findings of fact are concerned, the court will obviously interfere if the CCC has made any material errors of fact on the basis of the evidence before it but it is not for this court to set about a fresh fact finding exercise. In other words it will not interfere with any finding which was reasonably open to the CCC on the evidence before it. It was for the CCC and is not for this court to adjudge which witnesses to accept and which to reject. This is of particular importance in the present case where the evidence of the Appellant on the principal events under the first head of charge was in stark conflict with that asserted by Patient D and her husband. Equally this court will correct any errors of law. However when it comes to the committee’s decisions on fitness to practice and then sanction, I have firmly in mind the guidance given in Fatnani at paragraphs 16 to 20. The function of this court is to exercise a distinctly secondary judgment. This court has to have always in mind the special expertise of the panel to make the required judgment. As was by Lord Hope in Marinovictch v. GMC at paragraph 28 in a passage cited with approval by the court in Fatnani at paragraph 18:
“……..the Professional Conduct Committee is the body best equipped to determine questions as to sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.”
[24]Further as regards sanction, the court in Fatnani emphasised that the professional bodyis not primarily concerned with matters of punishment so that considerations which normally weigh in mitigation of punishment have less effect. The panel is centrally concerned with the reputation or standing of the profession rather than the punishment of the practitioner. In summary at paragraph 26, Laws LJ emphasised the two principles especially important in this jurisdiction – namely the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal.

My Conclusions:

[25]With these principles in mind and in the light of the submissions made to me both in writing and orally, I have carefully reviewed the transcript of the hearing before the CCC.[26]In the light of this review I have concluded that there is no basis upon which this court could properly interfere with the conclusions of the CCC at any of its three stages. My reasoning is as follows.[27]I turn first to the committee’s findings of fact on the individual charges and their assessment of those facts as a misconduct amounting to serious departures from the applicable professional standards.[28]The reasons given by the CCC for this finding of fact were that it had: “heard evidence from Ms Ashby the community midwife who attended Mrs D and from Mr Tayob, the consultant obstetrician who examined Mrs D on a number of occasions between February and June 2004 and performed corrective surgery in August 2004. They were both very clear in their evidence that the episiotomy which midwife Kituma performed was lateral rather than medio- lateral. We accept that evidence”.[29]In my judgment having read the evidence given by both these witnesses the CCC was entitled to find the charge proved once it accepted that evidence in preference to that of the appellant which the committee was obviously entitled to do .[30]The principal complaint which is made is that the evidence on this issue was equivocal. I do not agree. My attention was drawn to a passage under cross examination where (at day 2 – 11D- E) Mr Tayob described the episiotomy as “verged more to the lateral rather than the medio – lateral” as if this were expressing some doubt on his part. However this has to be seen in the context of the overall evidence of Mr Tayob and Ms Ashby. I do not here rehearse here every line of this evidence. Suffice it to say that both of the witnesses relied on by the CCC had examined the perineum of Patient D. As already indicated, Mr Tayob had first seen Patient D and her husband on the 3rd of February. At that stage the perineum was healing badly, the suture line was gaping. He went onto describe how eventually the incision site did heal but it had taken a substantial time to do so and with a deficiency, meaning that the underlying muscular tissue had not come together. The sutures had broken down and the episiotomy had healed by secondary granulating which produced significant scarring. He described a resultant dense band of fibrous tissue below the vaginal epithelium which would have made for pain and discomfort. This he suspected (day 2 – 4) was contributing to the painful difficulties in lovemaking of which the patient had spoken at one of his reviews. He had the patient in for review on a number of occasions which led to the decision to carry out corrective surgery to repair the scarred area. At day 2-5, he described what that surgery involved including this description:
“I found a very scared, irregular incision site or cut which I then proceeded to remove completely; completely take away that irregular line of healing in the scar tissue”
. Mr Tayob spoke in the context of his highlighting the need for this revision surgery at a review in April, of his concern being that “the cut or episiotomy deviated from the standard medio- lateral episiotomy and it was more lateral. So rather than running obliquely, it was running laterally or horizontally” (day 2 – 4 D). Ms Ashby (day 1 – 50) gave evidence that “as the swelling went down …it appeared to me to be a lateral episiotomy that had been performed …it is very unusual”.I agree with the respondent’s submission that the transcript shows they did each give unequivocal evidence that the position of the scarring was entirely consistent with a lateral episiotomy.[31]I am also satisfied that the evidence before the committee justified their view that this particular failing was a serious departure from professional standards that had had a significant adverse effect upon the patient.[32]On the departure from standards, Mrs Ashby produced local hospital guidelines (day 1 – 51) on an episiotomy stating that “a right medio- lateral incision should be used in preference to midline incision”, which she said would be available to all midwives coming into the hospital, whether payroll or agency. When asked why a medio-lateral was the preferred incision she replied “because it produces less trauma, there is less likelihood of it extending and tearing, so the less the trauma…the less the blood loss. The healing is easier and less risk of infection”.[33]Mr Tayob gave evidence (day 2- 6) that this kind of episiotomy was extremely unusual if carried out in a controlled situation. He explained why such a lateral episiotomy was not recommended because of potential problems with healing and repair. It did not heal as well and took longer to repair. The concern about the length of time was that the area was very vascular, with a very rich blood supply which would continue bleeding during repair. In addition he spoke of it having the potential to cause painful lovemaking, of which as already indicated the patient had made complaint to him. (“it also increases the probability of painful lovemaking subsequently”). Hence, he said, “the current guidelines are if there is to be an incision, it is either midline, straight down the middle, or medio- lateral”. Earlier (day 2 – 5) he had said that because “the cut line or episiotomy line was more lateral, lateral rather than medio – lateral, there is a real concern that any repair itself would cause further distortion”.[34]It must be a proper inference from the committee’s reference at various stages in its reasoning to the evidence of “the direct harm” to Mr and Mrs D as a result of the misconduct found proved and to the serious physical and psychological consequences the failings had caused Mrs D, that it had concluded that the complications from which Mrs D was found to be suffering by Mr Tayob giving rise to the need for corrective surgery, had flowed from the way the way this particular episiotomy had been carried out by the Appellant. Although it is true that under cross examination (day 2 – 14 C) Mr Tayob had conceded that problems with lovemaking can arise even from medio-lateral episiotomies if poorly sutured (a matter with which the Appellant had never been charged) I accept the Respondent’s submission that in this particular case the Committee were entitled to reach such a conclusion of cause and effect. The damage suffered by patient D in this context was on any view entirely consistent with the potential consequences of a lateral episiotomy as identified by Mr Tayob in his evidence before the Committee.. When asked by the Appellant whether he said the site of the episiotomy had caused the problems with lovemaking he replied (day 2 – 14): “ Well, the area was very scarred; the area took a substantial amount of time to heal. There was a quite a dense band of fibrous tissue below the vaginal epithelium ,the vaginal tissue, and that would have made for pain and discomfort ,certainly yes .It was extremely tender when touched”.[35]Furthermore in the light of the evidence of the Appellant herself (day 2 – 44C) that she had done the episiotomy in the way intended, and was happy with it, the Committee must have been entitled in its characterisation of this failing as a serious departure from standard, to rely (as it did) on the Appellant’s failure to detect a deviation from the norm and to seek appropriate assistance. This evidence, I might add, is also material to the finding of the Appellant’s lack of insight, upon which the committee placed reliance at various stages of its reasoning on fitness to practise and sanction[36]The Committee’s stated reasons for this finding were: “that the panel heard evidence from Mr and Mrs D that the force used by Midwife Kituma when pulling on the umbilical cord was sufficient to move Mrs D down the bed. We accept that evidence. The use of such level of force was clearly excessive”.[37]The principal point taken here is that the findings of the CCC cannot live with the absence of any evidence of damage sustained as a result and the undisputed evidence that the umbilical cord did not in fact break and the evidence of the Appellant (although unsupported by any expert testimony) that if excessive force had been used the cord would have snapped altogether. I agree however with the Respondent that none of this precluded the Committee from accepting – as their reasons indicate they did - the evidence of Patient D and her husband that the force used by the Appellant when pulling on the umbilical cord was sufficient to move Mrs D down the bed or from characterising as they did such level of force as excessive. I agree that “excessive” has to be understood in the context of the expert evidence before the tribunal that the correct practice would be for the application of gentle traction. Patient D gave evidence of excruciating pain and spoke of the placenta being ripped out of her (day 1 -12; 22); Mr Tayob‘s evidence (day 2- 7) was that he would expect gentle sustained traction rather than tugs and if that were not successful in separating the placenta, then the different procedures should be adopted; Paula Clarke (day 2 – 21/22) gave evidence of the expected procedure being that of sustained gentle traction of the cord, without any tugging, and that she would not expect somebody to be in excruciating agony whist the placenta was being delivered by controlled cord traction.[38]Other points are taken on behalf of the Appellant that there are inconsistencies between the evidence of Patient D and her husband as to precisely where the Appellant’s hands were at the material time of the pulling complained of, and that one version, that of patient D, (hand on stomach) would be inconsistent with the patient being pulled down the bed. These however are at best jury points. They are not a basis for this court to find the Committee’s acceptance of the couple’s evidence perverse.[39]Given the evidence of correct practice to which I have referred, the evidence of real if transient suffering to patient D, and the obvious risk of more long term damage to which this failing exposed the patient, even if it did not materialise in the event, I can further see no basis for impugning the committee’s characterisation of this particular departure from standards as serious.[40]The Committee’s stated reasons were these: “The panel heard evidence which we accept from Mr and Mrs D that she was losing a great deal of blood after the delivery. The panel also heard evidence from Mr Tayob and Ms Ashby, which again we accept, that the drop in Mrs D’s haemoglobin levels between 21st of January and 23rd January suggested a blood loss of in excess of 2 litres, even making allowances for some possible inaccuracies in the earlier level. We have no doubt that Mrs D did suffer a post partum haemorrhage and that Midwife Kituma did not notice the level of blood loss. Having failed to notice it, it follows that she did not record it or inform her colleagues”.[41]The Appellant maintains that the evidence was insufficient to establish that any significant post partum haemorrhage had occurred. She relies upon what she describes as the circumstantial evidence that she herself had not recorded any abnormality in the patient’s blood pressure or pulse while she was in her charge (although there is no evidence that the appellant had recorded any results of such vital signs) and that those subsequently in charge of the patient after she had been returned to the ward (as recorded in Post Natal Observations, commencing at 06.50 on the 22nd of January) and those in charge of her discharge (as recorded on the Discharge Record )) had equally recorded none. Nor had Ms Ashby who had seen the patient on the Saturday.[42]The difficulty with this submission is that this circumstantial evidence did not stand alone. The committee had before it other strands of evidence which – if accepted by them – fully justified the conclusion they reached. First there was the graphic evidence of both patient D and Mr D that the patient was losing a great deal of blood soon after delivery. Descriptions were given of blood pumping out. This is fully set out in the transcript of their evidence and I can appreciate why it might be described as compelling if one accepted the witnesses as honest. Then there was evidence from the patient herself and from Ms Ashby who saw her on the Saturday of her exhibiting physical signs – being weak, tired and pale - consistent with blood loss. Ms Ashby spoke of her being very tired and pale. Importantly, there was the expert evidence of Mr Tayob of the conclusions to be drawn on blood loss from the known drop in haemoglobin levels between the sample taken at 01.59 on the 21st January and that on the 23rd January at 14.02 hours, which was a fall from 13.4 grams per decilitre to that of 8.6 (day 2 – 8). Delivery had been at 01.10 on the 22nd. According to Mr Tayob a normal haemoglobin would be anything between 12 and 15, and 500 ml of blood would represent 1 gram of haemoglobin. Mr Tayob accepted that there might have been an exaggeration in the original high count attributable to other factors, but even allowing for that his evidence was that these findings represented a loss of at least two litres of blood. His evidence was that “the drop of haemoglobin from 13 down to 8 is significant and ……you can only explain that as blood loss and significant blood loss at that” (day 2 -13). His further evidence was that blood loss was most likely to have occurred at the time of delivery and could have been caused, for example in the carrying out the repair and stitching of an episiotomy, the prolongation of which increased the chances of blood loss ,it being a very sensitive and vascular area. (day 2 -8 ; 13 ; 16;) His evidence could not exclude the possibility that the blood loss had occurred after the patient had been returned to the care of others but the very post natal documentation relied upon by the Appellant in support of her contrary submissions, relating to such care, showed there was no evidence that the patient had suffered a haemorrhage at any other point after the patient had left the Appellant’s care. The Appellant herself had estimated a blood loss during the period attributable to her care of only some 400 mls. She denied the accuracy of that which Patient D and Mr D described and did not accept any blood loss as great as 2 litres.[43]In the light of the totality of the evidence on blood loss it is impossible for this court on an appeal to hold that it was not open to the Committee to find this particular charge proved. It is to be remembered that under this charge the committee was concerned only with whether a post partum haemorrhage had occurred whilst the patient was under the Appellant’s care. It was not concerned with determining the question of its precise causation. Nor in such light is it possible for this court to find as unwarranted the characterisation of this departure from standard as serious. Again in this context the panel must have been entitled to rely – as it did - on the Appellant’s failure to detect a deviation from the norm and seek appropriate assistance.[44]The Committee’s reasons were that: “the panel had heard convincing evidence ,particularly from Mr D, that midwife Kituma left the room in the course of the third stage of labour. We accept that evidence. On the basis of the evidence we have heard we have no doubt that leaving the room at that stage was contrary to Trust policy and safe practice”.[45]Again having reviewed the transcript of the evidence of Patient D and Mr D on this issue it is impossible for this court to find – as in effect the challenge to this finding of fact invites – that it was perverse of the Committee to accept this evidence in the face of the contrary and strongly expressed evidence of the Appellant that she never left the patient.[46]The real challenge under this head goes to the second stage of the Decision that this finding impinged on the Appellant’s fitness to practise. The evidence of Mr D was that the Appellant had left the room briefly in the middle of the process for the delivery of the placenta, at a time when his wife was in a lot of pain. The expert evidence of Paula Clarke (day 2- 22) was that it would be “usual and standard practice” to remain with the woman for the duration following the birth “until safe delivery of the placenta and blood loss thereafter, estimated to be within normal limits, prior to any midwife leaving the room”. When asked the danger of a midwife leaving the room in such circumstances, she replied: “its probably the most vulnerable time for a woman really ,following the delivery of her baby until the placenta is cut. She is more likely to haemorrhage then than at any other time and indeed following delivery of the placenta”.[47]Again I find it impossible to find in the light of this evidence that the panel were precluded from regarding a failure to remain with a patient in such circumstances as constituting misconduct amounting to a serious departure from standards. The applicable professional Code contained an express obligation to act as to minimise the risk to the patient.[48]As indicated, there is no challenge to this finding of fact. The real challenge here is to the relevance of this finding to the decision on fitness to practice, it being submitted that this failing could not properly be characterised as serious given the circumstances in which it came about.[49]The complaint is that the committee failed to take into account that the Appellant at the time she lost the records, was in a distressed condition, as a direct result of facing the allegations and that the records were lost accidentally and not deliberately. In evidence (day 2 – 40) the Appellant described herself as being in disbelief and shock, that she had left the records along with personal belongings on a train when alighting at her destination at Watford Junction. She expressed to the panel sincere apologises for distress caused to the patient and her family.[50]Notwithstanding these submissions, the leaving of the records on a train was patently a failure to protect confidential information in breach of the professional standards identified by the panel in its reasons. There was then the additional and significant factor of the circumstances in which the loss of the records came to be disclosed by the Appellant. The material evidence was that of Nora Lucey. She (day 1 – 59) described how the loss only came to light at the end of the meeting when the Appellant asked for another copy of the notes, simply saying “I left mine on train”. In these circumstances I accept the respondent’s submission that the panel must have been entitled to regard this evidence as demonstrating a total lack of insight into the significance of this failure which the Appellant apparently viewed solely from the standpoint of the inconvenience to herself in being deprived of the notes relevant to the allegations against her, as opposed to the potential damage to the patient of the loss of confidentiality.[51]In other words I again find it impossible in these circumstances to hold that the panel were not entitled to find this was a serious departure from standards in not protecting confidential information, which was unrecognised as such by the Appellant at the time, and which inevitably impinged on fitness to practise.

The finding of Impairment of Fitness to Practise

[52]I have already referred to the reasoning of the panel in reaching its decision that the charges found proved amounted to misconduct which impaired the Appellant’s fitness to practise as midwife. Given the primacy I must give to the judgment of the specialist professional tribunal on this issue, and given I can find no basis for a finding that the panel misdirected itself on the test to be applied (namely the suitability of the Appellant to remain on the register without any restrictions on practice) or took into account extraneous matters or failed to have regard to relevant material or that the panel came to a perverse conclusion on the evidence, I can find no basis upon which this court could properly impugn this part of the decision. I have already rehearsed the evidence which in my judgment entitled the panel if it so chose to regard each of the charges as a serious departure from the applicable professional standard amounting to misconduct. Unlike in Silver, this panel did expressly take into account the Appellant’s general good record both before and since the events under investigation. Nothing in the cases cited is authority in my judgment for the proposition that professional misconduct arising out of one isolated set of events (even if this be a proper characterisation of the present case which may be doubtful given the separate charge under head two) can never give rise to an adverse finding on fitness to practice. Every case must be determined on its own facts. I find nothing inappropriate in the weight this panel gave on this issue to the Appellant’s lack of insight into the failings found proved against her and her failure to accept them even now, which was not a feature in the two cases relied upon by the Appellant. The committee exercising their specialist professional experience had already characterised these failings as serious departures from accepted norms and practice. The committee must in such circumstances have been entitled to regard the continuing inability of the midwife involved to accept that these failings had occurred at all or to recognize such failings for what they were, as restricting her capacity to modify her professional practice to avoid any future departure of like seriousness. As the Respondent submits “it was precisely the fact” that “as far as she was aware she had done nothing wrong” that was of proper concern to this panel.

Sanction: the Striking – Off Order

[53]I turn then to the question of the sanction imposed, namely that of striking – off. Again I am obliged to give primacy to the judgment of the specialist panel on what measures are required to maintain the standards and reputation of the profession which is the central consideration at this stage. In my judgment I can only interfere with sanction if I am satisfied the panel has gone outside the ambit of its own indicative guidelines on sanction having regard to its findings on misconduct and fitness to practise, either by misdirecting itself as to that guidance or by misapplying it in the sense of reaching a wholly perverse conclusion - by for example again taking into account irrelevant matters or failing to have proper regard to that which was.[54]Again, much as I may have personal sympathy with the position of the Appellant given her otherwise unblemished record, I have found it impossible to find any such basis for interfering with the decision to strike off in this case.[55]It is patently obvious from the stated reasons that the panel did closely follow the indicative guidelines and consider each potential sanction in increasing severity by reference to the guideline indicators and gave sensible reasons for rejecting each as inappropriate, before finally deciding upon the sanction of striking – off as the appropriate one, on the grounds that in its view “the misconduct which we have found proved is fundamentally incompatible with being a registered midwife” and “although we recognise the mitigation you have produced confidence in the Council would be undermined if you were not struck off”. Again, I can find no basis for saying that this conclusion was perverse in the sense indicated.[56]It is clear that the panel did take the Appellant’s otherwise unblemished record both before and since the events in question into account at this stage but that what ultimately swayed with the panel was again the Appellant’s lack of insight into her failings and her refusal to accept even now that they had occurred, and when these failings had had been found by the panel to represent a serious departure from the standards which the NMC and the public had a right to expect from a registered midwife. Again I can find nothing perverse in the weight given to this factor by the panel since I accept that it is this factor which means that the panel could not be confident that the Appellant would not repeat this type of behaviour in the future, and as the panel said, demonstrates a continuing risk to patients should a similar situation arise again. The fact that there had to date been no such re-occurrence cannot not be determinative in undermining the weight to be given to this critical factor of lack of insight.[57]And it is this factor among others which clearly distinguishes this case from that of Bijl. Again, I do not regard anything in Bijl as authority for the proposition that professional misconduct arising out of one isolated set of events (even if, I repeat, this be a proper characterisation of the present case which may be doubtful given the separate charge under head two) can never give rise to a striking off order. Again every case must be determined on its own facts. As the highlighted passages in the citation from Bijl in paragraph 18 above show, the key to the reasoning of the court that a striking off was not justified in the light of the otherwise unblemished record, was that Doctor Bijl had acknowledged what were described as serious errors of judgment and could be said to have had “a serious lesson which on the evidence available should prevent a repetition of these errors” and when moreover “suspension with the possibility imposing detailed conditions on his carrying on practice is available”. In contrast this Appellant has not acknowledged her serious errors – as found by the panel – and which moreover, unlike in Bijl, do involve her clinical skills Furthermore in its earlier reasoning prior to reaching the level of striking – off, this panel had found that unlike in Bijl a conditions of practice order would not be appropriate in view of the “impossibility” (my emphasis) “of prescribing enforceable conditions, which would protect patients during the period they are in force and formulating appropriate and practical conditions of practice, bearing in mind that in general you have worked as an agency midwife”.

The conditions of practice option

[58]I should make clear that I have anxiously deliberated over whether I should interfere with the refusal of the panel in this case to contemplate as appropriate, a conditions of practice order, given the strength of the Applicant’s clear record both before and since the events of 2004. The list of factors indicative of the appropriateness of such an order are given in the material guidance under paragraph 11 as including: - identifiable areas of the registrant’s practice are in need of retraining and there is no evidence of general incompetence (lack of competence cases) - potential and willingness to respond positively to conditions requiring retraining ( misconduct and lack of competence cases); - conditions which will protect patients and clients during the period they are in force ; and - possible to formulate appropriate and practical conditions of practice.[59]When I was hearing the appeal, my initial reaction was to question why such appropriate conditions could not be formulated in this case along the lines of those strongly urged upon me by Mrs Stanzel on behalf of the Appellant designed to improve the Appellant’s skills in and awareness of the correct procedures on episiotomy, third stage of labour; bleeding during delivery, through compulsory attendance on retraining courses, appropriate supervision and examination.[60]Ultimately however I have not felt able to say that this court is in any position to substitute its own judgment on the question of what is or is not possible, for that of the specialist tribunal and I have no material before me sufficient to hold that the finding of impossibility to prescribe enforceable conditions was a perverse one. It was very clear from the oral submissions made before me on each side that the key to any workable and enforceable conditions would be the element of appropriate supervision. The difficulty however as identified by the panel in its reasons lies in the Appellant’s practising as an agency midwife with the consequential absence of an available supervising employer able to provide the necessary supervision and support. The possibility of the NMC allocating a supervisor was canvassed before me by the Appellant but without laying before me any evidence that this would be either possible or practicable. The response of Mrs McDonald on behalf of the respondent was to inform me that such allocation was outside the ambit and role of the NMC and that there remained the need – absent in this case – of a supervising employer if a conditions of practice order were to be a possible option.[61]Thus I have ultimately concluded that there is no material before me which would justify this court holding – as submitted by the Appellant – that the “CCC erred in concluding on the impossibility of prescribing enforceable conditions”.

the issue of harm caused to patient D and MrD

[62]As already indicated, at the stage of giving reasons on sanction the panel placed reliance (in rejecting a caution) on what they described as “the compelling evidence of direct harm to Mr and Mrs D as a result of the misconduct we have found proved” and in support of their view “that there was a continuing risk to patients should a similar situation arise again “(one of the indicators for a striking off), upon “the serious physical and psychological consequences clearly caused to Mrs D and the distress caused to Mr D”.[63]I have also deliberated on whether there is any basis for my holding that the decision of the panel on sanction should be impugned on the ground that there was insufficient evidence before them either of such harm or such serious physical and psychological consequences to Mrs D given there was no formal medical report or other discrete expert evidence on these matters before the panel, apart from that which could be gleaned from the evidence of Mr Tayob or Ms Ashby.[64]Again I have ultimately concluded that there is no proper basis for my taking such a course. I say this for the following reasons, I am satisfied that there was ample evidence of significant if transient physical harm caused to Patient D arising from the substantial postpartum haemorrhage and the excessive force on the umbilical cord; and there was similarly in relation to both matters, evidence of exposure to risk of long term harm, even if in the event none materialised. Further, I have already explained my reasons for concluding that the panel were entitled to find that the physical complications in patient D which had developed requiring the corrective surgery, had arisen as a result of the particular siting of the episiotomy. Further, on any view on the evidence given both by Patient D and her husband, and that of Mr Tayob of their condition when he first met them, the panel was entitled to conclude that each had suffered considerable distress as a result of the way the Appellant had behaved in the ways set out in the first head of charges, and it would have been open to the panel when assessing Patient D as a witness to conclude she had suffered “psychological consequences”. However even if that latter conclusion was a step too far, the actual harm to the patient and her exposure to risk of harm, can be properly characterised as significant and that in itself, taken with the factor of lack of insight, must be sufficient to support the finding of continuing risk to patients. And finally, of course, under the guidance for a striking – off order, that “of a serious departure from relevant standards” is a free standing factor upon which the committee was entitled to rely.[65]For all these reasons I consider the challenge to the striking – off order made in this appeal must fail.[66]Accordingly this appeal is dismissed.