Ballesteros v Nursing & Midwifery Council [2011] EWHC 1289 (Admin)

Case No CO/12141/2010[2011] EWHC 1289 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate Tuesday 22 February 2011
West Yorkshire
LS1 3BG
Before
MR JUSTICE KENNETH PARKER
Between
BALLESTEROSClaimantNURSING & MIDWIFERY COUNCILDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Miss Maudsley (instructed by Davies Gore Lomax) appeared for Claimant.Mrs McDonald (instructed by Nursing & Midwifery Council) appeared for Defendant.
Judgment
[1]On 26 October 2010 a Panel of the Conduct and Competence Committee of the Nursing and Midwifery Council (“CCC”) made an order striking the appellant, who is Mrs Julie Ballesteros, off the nursing register. This is an appeal by which she seeks to challenge both the finding that her fitness to practise as a nurse was impaired and the imposition of the striking off order. She also challenges the decision of the CCC to impose an interim suspension order pending the disposal of an appeal although, in the circumstances of this hearing, that aspect of the appeal was not pursued.[2]The respondent opposes the appeal on the basis that the charges found proven involved two cases of dishonest conduct culminating in a conviction for ten counts of dishonesty. That is significant misconduct. The serious nature of the misconduct properly supported the finding that the appellant’s fitness to practise was impaired and also in making the striking off order the specialist Panel gave effect to the public interest considerations which underpin regulatory proceedings.[3]The statutory framework is as follows. The Nursing & Midwifery Council (“NMC”) is the body responsible for regulation of the nursing and midwifery professions across the whole of the United Kingdom, a body corporate registered charity funded entirely by the annual subscriptions of the nurses and midwives on its register. It performs a number of regulatory functions provided for under the Nursing and Midwifery Order 2001 (“the NMO”), in particular Article 3(4) the main objective of the Council in exercising its functions shall be to safeguard the health and well being of persons using or needing the services of registrants. Part 5 of the NMO provides the framework for the adjudication of allegations that a nurse’s fitness to practise is impaired and where impairment is established allegations of misconduct ultimately are heard by the CCC which has power under Article 29 of the NMO to impose a range of sanctions, the most serious of which is a striking off order.[4]The Nursing and Midwifery Fitness to Practise Rules 2004 (as amended by the 2007 Rules) sets out the procedures. It is a three-stage process. The CCC considers the factual allegations and makes its findings based on oral and documentary evidence. It then goes on to consider whether the facts proved amount to misconduct and, if so, the nurse’s fitness to practise is impaired. Fitness to practise is defined in a somewhat circular way as the suitability of the nurse to remain on the register without restriction. Plainly the determination of these issues involves an exercise of professional judgment by the CCC and is not subject to establishing the burden or standard of proof. If the CCC concludes that fitness to practise is impaired it finally goes on to consider the appropriate sanction. Again this involves an exercise of the Panel’s professional judgment. The power to make a striking off order arises under Article 29(5)(a) of the NMO. The jurisdiction on appeal is provided by Article 29(9) of the NMO. It says that a person concerned may appeal against an order made under paragraph five and then the powers on appeal are to dismiss, allow the appeal, quash the decision, substitute the decision or remit the case to the Practice Committee. That of course refers to the internal procedure. The appellant then has an unfettered right to this court.[5]A number of authorities have set out the approach that this court should take on appeals of this nature. In Preiss v General Dental Council [2001] WLR 1926 it is said that the appellate body:[6]Similarly in the case of Garfoot v General Medical Council [2001] 1 WLR 1915 (a well-known case in this context), Lord Millett noted:[7]Most recently McCombe J in Azzam v General Medical Council [2008] EWCA Civ 2711, drawing on the approach of the Court of Appeal in Fatnani v General Medical Council [2007] EWCA Civ 46, referred to the relevant points at paragraph 25 in the following terms. Firstly, the Panel is concerned with the reputation and standing of the medical profession rather than the punishment of doctors (and in this case nurses). The judgment of the Panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession. The Panel’s judgment should be afforded particular respect concerning standards of professional practice and treatment. Fourthly, the court’s function is not limited to a review of the Panel’s decision but it will not interfere unless persuaded that it was wrong. The court would therefore exercise a secondary judgment as to the application of the principles to the facts of the case before it.[8]In relation to impairment I was directed to some helpful passages in the fifth Shipman report made by Janet Smith LJ and in particular at 25.67 she seeks to formulate certain conduct that could fall within the scope of conduct that would put at risk the registrant’s fitness to practise. In that context she refers specifically to a practitioner having in the past acted dishonestly and been liable to act dishonestly in the future. Plainly the dishonesty there can relate both to clinical performance but also to other aspects of behaviour that may not impact directly on clinical performance.[9]Finally I should perhaps refer to Meadow v General Medical Council [2006] EWCA Civ 1396 and a passage in Azzam at paragraph 40. The purpose of FTP proceedings in that case is not to punish the practitioner for past misdoings but to protect the public from those who are not fit to practise. The FTP first looks forward, not back. However, in order to form a view as to the fitness of a person to practise today it is evident that it will have to take into account the way in which the person concerned has acted or behaved in the past.[10]In this case the appellant did admit by the time of the hearing before the CCC that she had indeed committed a number of acts of dishonesty while on certificated sick leave between 12 October and 15 October 2006. She worked the night shift of 13 October 2006 at another hospital (that is other than the one by which she was employed, namely the University College London Hospital), that was at the Parkside Hospital, and she also worked a shift on 14 October at another hospital, St Anthony’s Hospital. Whilst medically certified off sick from 16 October to 31 October she worked a bank shift at Parkside Hospital on 20 October 2006, began a full time position at Parkside Hospital on 23 October 2006 and worked bank shifts at St Anthony’s Hospital on 30 and 31 October 2006. When medically certified off sick on 31 October to 25 December 2006 she worked a number of shifts at Parkside Hospital as a full time employee and worked bank shifts from 3 November 2006 to 6 November 2006 at St Anthony’s Hospital. Finally, whilst medically certified off sick between 16 October and 18 October she worked five shifts on various wards at St Anthony’s Hospital and attended a training day of 7.5 hours.[11]In summary, therefore, the appellant, while employed full time at the University College London Hospital, presented herself as being unfit for work but then worked at a number of other hospitals for which she was paid. It is clear that that conduct did occur over a significant period of time, a period in which she could have reflected upon what she was doing and perhaps have desisted. I should say immediately that there were considerable extenuating circumstances, namely her mother was very seriously sick indeed; her mother later died from her condition. The appellant was under financial pressure to help her mother in her predicament and that formed the background to this particular conduct.[12]She was then dismissed from University College London Hospital and it appears that the University College London Hospital did not present the matter to prosecuting authorities. They took the view, it appears, that her dismissal was a severe punishment in itself for the conduct and that the public interest did not require a prosecution in relation to what, on the face of it, appeared to be a fairly significant criminal conduct. However, having been dismissed, the appellant, not long after, began yet another course of dishonest conduct because she was then employed by Mayday Healthcare and in summary she created a false timesheet which she then herself signed in the name of other nurses who were working at the relevant hospital or hospitals in order to support false claims for payment. That conduct began around 4 or 5 April 2007 and went on to 1 June 2007. That conduct was also detected and on that occasion the appellant was indeed prosecuted and she pleaded guilty to obtaining money by her fraudulent behaviour.[13]The Panel in accepting her admissions of guilt concluded that the conduct did constitute misconduct, a finding against which no objection could be taken, and then moved on to deal with the question of impairment. The Panel referred to the NMC Code of Professional Conduct which at paragraph 7.1 stated:
“You must behave in a way that upholds the reputation of the profession. Behaviour that compromises this reputation may call your registration into question, even if it is not directly connected to your professional practice.”
The language of that paragraph reflects what I have already cited from the observations of Janet Smith LJ in the Shipman case.[14]The Panel then went on to say that although the conduct in question could be the subject of what the Panel call “remediation” or “remedy”, the Panel here was not satisfied that adequate steps had indeed been taken to remedy the position. They said:
“…in the circumstances of this case, it has not been remedied and the registrant’s misconduct has a continuing negative impact on her fitness to practise. It was apparent to the panel that in respect of one of the witnesses called on the registrant’s behalf at the impairment stage, namely Mr Martin, the registrant had not fully revealed to him the extent of her prior misconduct. This is significant, in the panel’s view. Further, it was apparent to the panel during the course of the registrant’s own evidence that she has yet to demonstrate full insight into the consequences of her misconduct.”
[15]On behalf of the appellant Miss Maudsley (who presented her case most ably and succinctly) stressed a number of points. Firstly, she sought to challenge the findings of the Panel in relation to Mr Martin’s evidence. She submitted that Mr Martin, having regard to the evidence as set out in the transcript, was confused about the two sets of misconduct. He thought that there was just one set of misconduct, namely relating to the events at the University College London Hospital and that the criminal charges had indeed been brought in relation to that sequence of events. However, it seems to me that the Panel were entitled to give the weight that they did to Mr Martin’s evidence. It is plain that Mr Martin was not informed by the appellant that indeed there were two sets of relevant dishonest behaviour, firstly that at University College London for which no criminal charges had been pressed in the circumstances to which I have alluded, and then shortly thereafter the appellant, as I described, completed false time sheets. It is not entirely clear why the appellant had not been fully candid with Mr Martin but the inescapable inference is that he was not fully in the picture and that was largely the responsibility of the appellant who had called him as a witness. Mr Martin was then left in the embarrassing position that he had to concede in cross-examination that he had not been told the full story by the appellant. It is plain from the tenor of his evidence that he was much surprised by that. Therefore even allowing for the evidence given by Miss Hawsey, which made plain that she indeed knew all of the circumstances, the Panel were entitled to give weight to the fact that a significant witness on the part of the appellant before the Panel had not had the full story told to him and was put in a difficult position. That was a matter to which they could have regard in deciding just how candid and honest the appellant was behaving, even after all these matters which founded the disciplinary proceedings against her, were behind her. Therefore it does not seem to me to be a fair criticism of the Panel that they gave the weight to that evidence (which, I stress again, they heard and I have not heard) that they did in their decision.[16]The second main element under impairment related to the area of remediation – as it was labelled – to the risk of future misconduct, having regard to all the circumstances. Again Miss Maudsley points to the fact that the appellant was, on all the evidence, a highly competent and valued nurse; that she had had no history of dishonesty in 16 years of practice and it was only due to those very serious extenuating circumstances that she committed the misconduct in which she had engaged. Also, since 2007 she had not committed any further misconduct of that nature or indeed at all; she had shown remorse and had regretted what she did. However, the Panel were well aware of all those facts and they did refer in their decision to each of those circumstances. Nonetheless, they concluded that the appellant still did not have sufficient insight into her offending conduct and therefore the risk that she might in future engage in similar behaviour could not be discounted and that the protection of the public needed a finding that her practice was impaired.[17]I have to bear in mind again on this aspect that I do not have the benefit of having heard that primary evidence given by the appellant and others at the hearing. Therefore the Panel, on an issue of this kind, does have a great advantage over this court. However, Mrs McDonald, on behalf of the Midwifery Council, referred me to certain passages in the transcript that she submitted supported the Panel’s conclusion. The appellant was asked at one point in cross-examination how the recognition of her misconduct made her feel about herself as a nurse. It does seem to me that the answer that she gave suggested strongly that the focus was still on her and on the circumstances in which she had come to commit the very serious misconduct that I have described. She did have an opportunity there to say that whatever those circumstances might have been what she had done was plainly wrong and that she had come to appreciate that conduct like that could not be tolerated, and that she fully understood that in future any temptation to behave in that way had to be resisted because it was simply wrong to do what she had done. I make allowances – no doubt the Panel made allowances – for the stressful circumstances in which she found herself at that stage. Nonetheless, that was the answer she gave and the Panel, even making due allowance for the very considerable stress under which she must have been under at this hearing, drew the inference that they did. It does not seem to me that I, sitting in this court, can really say that that inference from an answer of that kind was one that no reasonable Panel could have made and with which I should interfere. Similarly, a member of the Panel asked her a direct question later on about what was going through her mind when she was certified as sick and then was actually looking after patients at another hospital. It appears that there may have been a period of self-certification for sickness but at a later point a general practitioner must have been induced by the appellant to sign a certificate that she was not fit to work. Therefore the appellant was either deceiving the general practitioner as part of her general strategy or she was to some extent unwell but was still continuing to work with patients. Again there was an opportunity for her in answer to say, “Well, I was cheating the general practitioner; I realise that was entirely wrong and it was simply the way that I wanted to get the money given my mother’s situation. I wasn’t sick at all; no patients were at risk.” Alternatively she could have said, “Well I actually was pretty unwell but because of the financial pressures I went out and worked and I of course realise that it was entirely wrong to do that because if I was unwell to the extent of obtaining a certificate I should not have been working at all. I should have been recovering.” Again the answer really is not in those terms and again making as much allowance as I possibly can for the circumstances in which she was responding to questions, I cannot say that the Panel acted unreasonably by attaching weight to answers of that kind. The third example was put by the same Panel member in which she was exploring how the appellant might respond in future if she found herself under the same financial pressure. Here was a second opportunity, if not even more than a second opportunity, for the appellant to say, “Well, you know, it’s really unthinkable. I’ve now come to appreciate that my behaviour was totally wrong and it would not matter what the financial circumstances were; I would never do that again.” Her immediate response rather focussed on whether indeed she would find herself in that sort of position in the future where she had insufficient financial resources to meet some pressing need. The member of the Panel pressed her further obviously because she was not entirely happy with that response and in fairness the appellant did recover to some extent. However, it may be that the Panel thought that the first answer was the spontaneous one that continued to reflect a worrying potential absence of real understanding of what she had done.[18]Therefore in those circumstances there is no alternative open to me, given my appellate jurisdiction, but to conclude that this Panel had fairly and squarely before it all the material circumstances relating to impairment and took them into account but concluded, by virtue of the matters that I have gone through in some detail, that the appellant’s fitness to practise was indeed impaired. Notwithstanding the forcefulness of the submissions of Miss Maudsley I do not believe at the end of the day the points that she made can undermine the Panel’s finding in relation to impairment.[19]Moving now to sanction, the Panel first of all considered that the appellant’s behaviour could have caused indirect patient harm because it would have resulted in a significant loss of resources. Miss Maudsley responded to that by pointing out that the appellant had paid back the amount that she had wrongly taken. That indeed is very much to her credit and was no doubt taken into account by the criminal court when deciding the just disposal of the criminal charges. Nonetheless, from a regulator’s perspective she did indeed have the potential of causing a significant loss of resources because her conduct might not have been detected. I agree that on the facts of this case there was probably a low probability because the fraud was not that sophisticated but again it may have escaped detection because those working at the other hospital may not have identified her as they did. The Panel then went on to say that she had made a full and early admission that showed some insight, but the Panel said they were satisfied that she had not been open and honest about her misconduct with her employers. They said that on initially being questioned by three of the people in the organisation about her employment contracts and shift work she had an opportunity to tell the truth and in fact lied to each one of them. That is not without relevance. It does not seem to me that the Panel could be fairly criticised for taking that into account. On the one hand they gave credit for the plea at the Panel’s own hearing, but did point out that she had initially tried to cover up what she had done which remained a worrying aspect.[20]The Panel then went on to say that she did not have full insight into the consequences of her misconduct, specifically the impact of her behaviour on patients, colleagues and the service in which she was working. I have already referred to the criticisms that are made of that finding in the context of impairment and in my view the answer is the same, that there was material before the Panel which justified them in reaching that conclusion. It is also said that it was not an isolated incident, but deliberate dishonesty over a period of many months, a statement that was also true. They gave credit for the fact that the appellant was a competent nurse with a previous good history and there has been no repetition of this behaviour since the incident. She had made an apology and at all material times she had been acting under considerable emotional and financial pressure. On the basis of those circumstances Miss Maudsley said that no reasonable panel could have required the most extreme sanction in this case, namely removal from the register, that that really was disproportionate having regard to all the circumstances.[21]However, in my judgment in this case it is plain that the most decisive factor that weighed with the Panel was the fact that after she had been detected in acts of serious misconduct at University College Hospital, after that institution had declined to press criminal charges – which would have been very serious given the nature of that conduct – the appellant should have appreciated that what she had done was utterly wrong (and she herself was expressing that she had put that behind her), very shortly thereafter she engaged in another sequence of quite serious dishonest behaviour. It does seem to me that seeking to extract what the Panel may have thought in this case, that had indeed her dishonesty stopped at the University College Hospital, a lesser sanction in all probability would have been imposed. What shifted the Panel was the further serious misconduct – dishonesty – against the background that I have described. Taking account of the other features, namely the worrying concerns about lack of insight into her conduct, the Panel therefore concluded that the risk was too great, that there was indeed a risk for the future that conduct of this kind or similar in nature could be committed by this appellant and that that would be contrary to the public interest, including the safety of patients. Again it seems to me that this court cannot interfere with that conclusion. It was a perfectly rational conclusion to reach, that the second set of dishonest behaviour caused real concerns about this particular appellant. Having had the full opportunity to mend her ways thoroughly she declined to take it, but set about again a course of serious dishonesty.[22]Therefore it does not seem to me that this court, exercising its appellate jurisdiction, could conclude that the imposition of the sanction, draconian and devastating though it obviously is to the appellant, was not justified in this case. Miss Maudsley also referred to Article 8 of the European Convention on Human Rights and contended that that Article was engaged because of the actual effect upon the appellant’s family of a decision in effect to prevent her working in her chosen profession. No authority was cited to the court that Article 8 is engaged in circumstances of this kind. There have been many cases where decisions of disciplinary bodies have been challenged, but I am not aware of any challenge that has been based upon Article 8 by reason of the indirect effect that decisions of erasure or removal might have either on the individual’s private life or on the family life more generally. Therefore, in my judgment, Article 8 is unlikely to be engaged. Article 6 is often invoked in this context but there is no argument about the fairness as such of the proceedings before the Panel. Sometimes in the present context Article 1 Protocol 1 of the Convention is invoked but it is well known that the justifications for such interference with enjoyment of property are very broad indeed and that line of challenge very rarely, if at all, succeeds. In any event, even if Article 8 were engaged, the exceptions under Article 8.2 refer to matters of health and safety and it seems to me that the decision properly taken under provisions of national law that are intended to protect public safety and protect the public interest more generally have been in this case satisfied and therefore Article 8.2 would in any event apply even if Article 8, contrary to my first impression, was engaged.[23]Therefore for these reasons I decline to accept the points cogently argued by Miss Maudsley for the appellant and must dismiss this appeal. MRS MCDONALD: My Lord, I do apply for my costs and my understanding is that the appellant is legally aided, so I ask that the order shall be made in the usual terms. MR JUSTICE KENNETH PARKER: Yes, I will do that because there is no issue on the entitlement of the costs. You are happy with the order on costs? MISS MAUDSLEY: Yes, my Lord. MR JUSTICE KENNETH PARKER: Thank you very much indeed for your helpful submissions. These cases are always very difficult because, as I said earlier, there is no doubt about the competence of the appellant as a nurse and about the good work that she does as a nurse, but for the reasons I have given, however unfortunately, what she did has not qualified her to remain on the register. Thank you very much. ________________

Cited in 1 later judgment