Ogundele v Nursing & Midwifery Council [2013] EWHC 2748 (Admin)

[2013] EWHC 2748 (Admin)

Case No CO/3508/13

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT AT LEEDS

Venue Leeds Combined Court

1 Oxford Row

Venue Leeds, West Yorkshire LS1 3BG

Date Tuesday, 2nd July 2013

B e f o r e:

HIS HONOUR JUDGE JEREMY RICHARDSON QC

Between

OGUNDELEClaimant

Between

NURSING & MIDWIFERY COUNCILDefendant

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Miss Holt (instructed by {"Claimant Solicitor}) appeared for Claimant

Ms Fleck (instructed by Nursing & Midwifery Council) appeared for Defendant

J U D G M E N T

HIS HONOUR JUDGE JEREMY RICHARDSON QC:

[1]This is an appeal by Ojoke Ogundele ("the appellant") against adverse findings in respect of her fitness to practise by the Conduct and Competence Committee ("the Panel") of the Nursing and Midwifery Council ("NMC") of 4th March 2013. There is an additional appeal in relation to the sanction imposed following the findings.

[2]The appellant seeks to challenge the findings based upon four grounds; and, in respect of sanction, upon two grounds. In the result the main argument in the appeal has revolved around the assertion that it was plainly wrong and a serious procedural irregularity for the Panel to admit certain hearsay evidence and, in particular, to base findings upon a witness in respect of whom there was no cross-examination. There are other grounds of appeal to which I shall turn later in this judgment.

[3]The adverse findings against the appellant relate to her period as a band 5 staff nurse at the Royal Liverpool and Broadgreen Hospitals between January 2007 and January 2009. A total of 11 charges against the appellant were found proved. A further nine charges were not proved. Consequently the Panel determined that in light of the findings the appellant's fitness to practise as a nurse was impaired by reason of her lack of competence. The sanction imposed by the Panel was that certain conditions of practice were attached to her practising certificate such that, inter alia, she must work under active supervision by a senior nurse on duty concurrently with the appellant(a Condition of Practice Order). 4. The hearing before the Panel lasted 13 days and was bifurcated by an adjournment of several months. The first tranche occurred in August 2012 and the second tranche was in February 2013. The decision was promulgated on 4th March 2013 in a 36-page letter setting out the various decisions of the Panel and the reasoning in respect of the findings. It was and remains a comprehensive document. 5. I remind myself that I may allow the appeal where the decision of the lower Tribunal (the Panel in this case) was wrong or unjust by reason of a serious or other irregularity in the proceedings below - see CPR Part 52.11(3). For the purposes of this appeal it is unnecessary to set out the facts of the case save in outline. 6. The appellant is aged 48. She trained as a nurse in Nigeria between 1985 and 1988. English is her second language. She also speaks German. She came to Liverpool in 1999 and undertook a Nursing Adaptation Course. At first she worked in the Royal Liverpool Hospital in respect of which there was no complaint before the Panel. In 2006 she moved to Broadgreen Hospital in Liverpool; at first on acute wards and then in the out-patients department. It is during the period at Broadgreen Hospital that all the findings relate. During 2007 and 2008 senior nurses were concerned about her performance as a nurse. A decision was made to monitor her which included an "action plan". It is unnecessary to detail the action taken during this period of monitoring. 7. During this period a number of consultant physicians and surgeons, with whom the appellant worked, wrote to hospital managers about serious concerns they had about the appellant’s professional competence. The letters of this group of doctors and others has been very helpfully reduced to a single bundle that I entitled "The very poor performance correspondence bundle". I will simply quote from a few to give a clear indication of the tenor of them all. Mr Branson FRCS and Mr Sinopidis FRCS (who were both consultant orthopaedic surgeons) wrote on 23rd January 2007:

"I write on behalf of Mr Sinopidis and myself as we have concerns regarding this nurse. She has been in our clinic for several weeks and to be blunt I find her communications skills poor to non existent. I have little faith that when I ask for things to be carried out that they actually will be carried out and, in addition, she appears to require instructions to carry out even the simplest tasks again and again. In short, I have no confidence when working with this person and I feel that the impression given to the patients is not professional. I should be grateful if you would arrange for any other nurse to work with us in clinic."

Mr Sinopidis sent a further communication entitled "serious concern". On 12th February 2008 Mr David Mellor (a consultant arthroplasty surgeon) wrote as follows on the 2nd April 2008:

"I don't normally write letters of complaint but I am becoming increasingly concerned about one of your nurses [the appellant]. She is perfectly pleasant but does sit back and let the others take the lion's share of any work that is going, to the extent that they are being run off their feet. She is in no way a team player and contributes very little to this clinic. I don't know if anything can be done to rectify this situation."

[8]There were other complaints by other doctors. All wrote in far from complimentary terms and several gave specific examples of incompetence. Of importance was a long letter from Mr Walker FRCS (a consultant foot ankle and orthopaedic surgeon) of 13th November 2008, relating to an episode involving a patient who was simply known as patient A. Mr Walker wrote an account of the episode and concluded:

"My experience of the nurse above is one who has little knowledge and little application of the knowledge that she has to the profession of nursing. I think it is very reasonable for people to be given a chance to improve and learn but over 2 years I have seen little evidence of improvement in her. However this is the first time I have come across a patient who has been harmed by her and I must insist that you act on this concern of mine and she is removed from the clinical setting until she has proved she is safe to look after patients. I believe that immediate action is required now that this has been brought to our attention. This letter puts down on paper the concerns that I raised when we spoke today."

[9]Mr Gur (a colo rectal surgeon) wrote in similar terms on 9th October 2008. 10. The appellant was given a formal warning by the management of the hospital on 13th October 2008. She was suspended on 9th December 2008 pending investigation. There was a disciplinary meeting on 16th April 2009 following which she was dismissed. 11. The appellant's case was referred to the NMC in September 2010. An investigation was undertaken, which resulted in 20 charges that called for determination by the Panel. The 20 charges fell under three categories and were further subdivided to represent examples of the failures within the three categories. The only way to demonstrate the structure of the charges and the findings thereon is to refer to the Panel's decision under the heading "details of charge": "That you while employed by the Royal Liverpool and Broadgreen University Hospital NHS Trust ("the Trust") a band 5 staff nurse between January 2007 and December 2008 failed to demonstrate the standards of knowledge, skill and judgment required to practise without supervision as band 5 staff nurse in that: 1. While practising as a band 5 staff nurse, with the Trust's out patient department between January 2007 and March 2008, you failed to demonstrate those standards in the following areas:(a) dressings and bandaging. Not found proved allegation deleted under rule 24 (7)

(b) removal of sutures. Not found proved.

(d) professional communication with patients and third parities. Found proved.

(e) the leading and directing a team of staff. Found proved. 2. While undergoing a period of performance review under the Trust capability policy and procedure between April 2008 and September 2008, you failed to demonstrate that you were capable of working safely on the department without supervision, in particular: (a) on unknown dates failed to effectively communicate with patients and colleagues. Found proved. (b) on or around 2nd April 2008 failed to effectively assist colleagues daily clinical duties and/or tasks. Not found proved. (c) on or around 23rd June 2008, while assisting consultant orthopaedic surgeons Mr Davidson you demonstrated a lack of insight into relation to the working requirements of an out patient clinic found proved. 3. While undergoing a further period of performance review under the Trust capability policy and procedure between October 2008 and January 2009, you failed to demonstrate that you were capable of working safely on the department without supervision. In particular: (a) on 2nd October 2008 when removing patient A's dressing you (i) did not adequately communicate with patient A. Found proved. (ii) provided inadequate treatment to patient A in that you did not provide the patient with a glass of water following his request. Found proved. (iii) failed to correctly apply the saline to the dressing. Not found proved. (iv) continuously pulled at the dressing. Found proved. (v) failed to immediately activate the emergency buzzer following patient A fainting. Found proved. (vi) failed to carry out the basic emergency procedures on patient A. Found proved. (b) on 9th October 2008, when applying a dressing to a patient's abdomen you (i) took approximately 1 hour to apply dressing to the patient. Found proved. (ii) incorrectly applied the dressing to the patient's abdomen. Found proved. (c) on 30th October 2008 you were rough when removing sutures from a patient. Not found proved. (d) on around 7th January 2009 you. (i) absconded from the clinic area while on duty. Not found proved. (ii) failed to notify your colleagues. Not found proved. (iii) failed to arrange for a colleague to cover your duties not found proved. And in the light of the charges above, your fitness to practise is impaired by reason of your lack of competence. Found proved." 12. I do not intend to set out the detailed findings of the Panel. The broad conclusions may be distilled in this way: (i). The appellant was given an opportunity to address deficiencies in her practice and given support but her performance remained below the level of competence expected of a band 5 nurse. (ii). The facts found proved amounted to a lack of competence in the fields of communication, wound management, emergency response procedures and leading and directing a team. (iii). The appellant's actions had caused a patient harm and could have damaged public confidence in the profession. (iv). The appellant's lack of competence could be remediable, but at the time of the hearing had not been fully remedied; nor did the appellant fully recognise and show insight into her lack of competence; and (v). there was a real risk of the behaviour being repeated.

[13]The Panel made a Condition of Practice Order for 12 months based point the following broad considerations: (i). The deficiencies were serious but not fundamentally incompatible with being a nurse. (ii). The appellant's lack of competence may be remediable; and. (iii). The conditions of practice imposed were necessary in the public interest to protect the public and in the appellant's own interest and had been drafted after balancing these competing interests.

[14]The first ground of appeal asserts that the charges failed to particularise the details in relation to the following charges: 1(d), 1(e), 2(a), 2(c) and 3(a)(i). It is averred it was impossible to meet these charges due to their imprecise, vague and unclear nature. This point was argued before the Panel more than once as the case unfolded. The basis of the case against the appellant was that there was a pattern of conduct and the evidence amply revealed that. The Panel accepted that and declined to uphold the appellant's objection.

[15]There can be no doubt whatever that a person brought before a Professional Conduct Committee must know what is alleged against them and have disclosure of the evidence that forms the foundation of the charge or charges. That is a matter of elementary fairness. There was no application by the appellant made in advance of the hearing for further particulars of the charges. It seems to me there is force in the submission of the NMC that in a case where it is asserted there is a long-standing pattern of lack of confidence, and not simply a few isolated episodes, there inevitably will be a volume of incidents revealing the pattern. The material before the Panel plainly revealed this and, in my judgment, there cannot be a shred of misunderstanding as to the thrust and detail of the alleged incompetence.16. The evidence of the NMC (as revealed in the few extracts I have selected) reveals a plain pattern of incompetence. The appellant had to meet this case. Miss Holt, on behalf of the appellant, did not press this ground of appeal as it was plainly not the strongest. Miss Fleck, for the NMC, addressed the appellant's arguments at paragraph 6.6 to 6.10 of her skeleton argument by reference to the details taken as a whole, and specific charges where challenge is taken. Her written submissions are compelling. No useful purpose is served by recitation of them. I adopt them without a shred of doubt as providing a powerful riposte to the appellant's argument. There was sufficient detail in the charges. The evidence relating to each is as plain as plain could be to reveal a pattern of utter incompetence. There is nothing in the first ground of appeal.

17. Grounds 2 and 3 really merged during the course of argument and the real thrust of the appellant's case on appeal was that there was late service of the witness statements of witness A and Miss Furnedge, with accompanying documentation. I shall come to witness A later and the problem in relation to him. That is the only issue in this appeal that has given me any cause for concern.

18. Complaint is made by the appellant that there was late service of Miss Furnedge's witness statement and in consequence the request for an adjournment was improperly refused, giving rise to procedural irregularity of a high order. Let there be no doubt the statement of Miss Furnedge should have been served well before the hearing. It was not. That provided a level of understandable concern in the appellant's camp. The real question is whether the tribunal (the Panel in this case) fairly dealt with this procedural issue or question. The evidence upon which the NMC wished to rely should have been fully furnished well before the hearing in a timely way. That is elementary fairness. An application for a general adjournment by the appellant was refused. An afternoon was allowed to cope with the new material.

19. The decision of the Panel is fully set out on pages 3 to 6 of the letter of 4th March 2013 which I forebear to recite. It is however clear that they had well in mind the relevant factors. The Panel considered the nature of the new material and the relevant rules permitting adjournments namely rule 32.2 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 ("the 2004 rules"). Miss Furnedge was notified as a witness in advance of the hearing (which fact had been overlooked by the appellant's representatives). It is also pertinent to note that the Panel placed into the balance the public interest. I am far from persuaded the Panel approached their task erroneously. A short adjournment was permitted to master the rather less than voluminous, indeed comparatively limited, new material. Had it been a vast volume of lever arch files or a raft of material substantially altering the case or ambush evidence then rather different considerations would have obtained.

20. As it is both counsel and the appellant herself had to work hard overnight to master the material. The new material was able to be mastered. Complaint is made that other witnesses would have been called. I have considered that; and my conclusion is that the appellant herself was able to cover the relevant territory relating to training courses and other events she attended. As for the monitoring which concluded prematurely, according to the appellant, she was able to give evidence herself. There was a potential witness who the appellant thought could verify her account. The alleged collaborating witness was unknown and unidentifiable. Given the short adjournment that was allowed there is simply no valid argument of unfairness and the Panel did not fall into error. There is nothing in this ground of appeal.

21. The one area that has caused concern and was the subject of the greatest debate during submissions related to patient A. He was a male patient who had part of his great toe amputated in the orthopaedic surgical department. He attended out patients in October 2008 to have a dressing removed. The appellant was required to perform this task. I do not intend to recite his account but, if he is right, the appellant undertook the task very, very poorly. There were four witnesses to the events: patient A and the appellant, a ward Sister and Mr Walker (a consultant orthopaedic surgeon). The account of the appellant is to be found in the transcript at pages 561 to 569 of the appeal bundle. There are several matters which vary from the account of the events by patient A. Ordinarily he would have been cross-examined about this and findings made. The Panel had the evidence of the Sister which rather fell in line with patient A's version.

22. Patient A was ready, willing and available to give evidence at the hearing in August 2012. Because of the delays occasioned by the late service of some of the evidence and other legal argument, the oral evidence commenced very late. Patient A was simply not reached by the end of the five-day slot for the case. The case was then adjourned to February 2013. Unfortunately patient A was on holiday in Thailand and scheduled to return a few days after the end of the case. In consequence he was not heard as an oral witness and was not cross-examined. His statement was admitted by the panel. There was no application to adjourn to hear his oral evidence a few days later. There was no complaint of this to the Panel at that stage.

23. The result was that the Panel had the version of the appellant tested by cross-examination and the version of the Sister tested by cross-examination, but no oral evidence from patient A. In many respects that is unsatisfactory. The real issue is whether it was unfair.

24. The Panel covered this aspect of the case between pages 21 to 27 of their written decision, which related to charges 3(a)(i),(ii),(iii),(iv),(v) and(vi). It is very pertinent to observe that the Panel acquitted the appellant of charge 3(a)(iii). It is not necessary to set out all of what the Panel stated but the essence of the charges amounted to this: 1. Inadequate communication with patient A. 2. Inadequate care by not providing him with water when he felt ill. 3. Incorrect application of a saline dressing (not proved) 4. Continuously pulling at the dressing. 5. Following the faint by patient A the appellant failed to activate the emergency buzzer immediately. 6. When removing dressing failed to carry out emergency procedures.

[25]The Panel made these findings, inter alia:

"Patient A had undergone the partial amputation of his big toe under local anaesthetic on 22nd September 2008. He returned to the hospital on 2nd October 2008 for the removal of stitches. Patient A's written account is dated 4th January 2009, some 3 months after the events in question. He recorded that post operatively he was pain free and had no need for pain killing medication. He stated that as [the appellant] began removing the outer dressing he was caused a 'little pain as the remaining section of the toe was pulled from side to side.' He informed [the appellant] 'of the onset of discomfort' but 'did not hear a reply'. Patient A continued by stating 'as she began to remove the actual dressing covering the wound' he felt 'a tremendous increase in pain and informed her of this. Once again, I did not hear a reply.' The evidence is that patient A subsequently fainted. Mr 10 [that was the code for the consultant orthopaedic surgeon] attended in response to Miss 1 [code for the Sister] called for emergency medical help and treated patient A with oxygen. Miss 1's evidence was that as soon as patient A came round he told her what had happened. The account he gave her was that [the appellant] had not spoken to him throughout the procedure of removing the dressing nor had she explained anything to him about what she was going to do. Indeed Miss 1 records him as saying that after [the appellant] had applied some liquid to the dressing she had continued to remove the dressing 'despite his discomfort and distress' still saying nothing to him. [The appellant's] evidence was that she did communicate with patient A, for example when he wanted to remove the dressing himself she told him he should not do so. The Panel preferred the account given by patient A notwithstanding that it was not tested under cross-examination. His account was supported by Miss 1's evidence of what he said to her at the time. There was further support from Mr 10's letter of 13th November 2008 and his statement dated 22nd January 2009, stating that in his opinion patient A was not prone to complaint. It also had in mind its finding of charges 1D and 2A which both relate to a failure of communication with patients. In the Panel's judgment the failure to adequately communicate with patient A is part of a pattern of failure to communicate with patients. The Panel has no doubt that [the appellant] had a duty to explain what she was doing to patient A. She had a duty to listen to patient A and to respond to his concerns including his remarks experiencing discomfort and then increasing pain. The Panel is therefore satisfied this charge is found proved."

[26]The Panel plainly had in mind the absence of cross-examination of patient A. They also preferred patient A's account in other respects too, as recorded later, in their findings. In relation to to the other charges about the tardy emergency response the Panel said this:

"The Panel is satisfied that the circumstances of patient A’s collapse constituted a medical emergency. [The appellant] returned to the room and found him on her own evidence 'unresponsive'. She did not indicate that her assessment of his condition included establishing whether he was breathing or had a pulse, although in evidence she said he was breathing. [The appellant] had a duty to take the appropriate steps in an emergency to safeguard her patient's life. This required that she stay with him. She had the means to obtain help without leaving him unattended, namely the emergency buzzer. It was her responsibility to immediately activate that call for help. She failed to do so and instead left patient A and went to Miss 1's to ask her to come to provide assistance. The Panel is therefore satisfied this charge is found proved."

A little further on in relation to charge 3(a)(vi) the Panel stated as follows:

"The Panel concluded that the immediate activation of the emergency buzzer was one of the basic emergency procedures. Other requirements were that the patient be placed flat, medical help be summoned and the patient's condition be assessed to establish whether he is breathing and whether there is circulation. [The appellant] did not immediately activate the emergency buzzer to summon medical assistance, she left her patient unattended. She did not place him flat and she did not commence observation of his vital signs for a significant period of time. The Panel is therefore satisfied this charge is found proved."

[27]In weighing this ground of appeal I have paid close attention to the evidence of the appellant before the Panel. She gave her account clearly, but plain it was that the Panel preferred the version advanced by patient A. It is axiomatic, but nevertheless important, to state the Panel must adopt a fair process for determining factual disputes. That premise is non negotiable. How they give effect to that is distinctively fact and case specific. That requires the exercise of judgment. This court on appeal may only interfere if the Panel were wrong to do as they did.28. Miss Holt, for the appellant, has argued it was manifestly unfair that she could not cross-examine patient A. Miss Fleck, for the NMC, accepted it was not ideal but that did not make it unfair, particularly as there was no application to adjourn for a few days to await the return of patient A. She also argues that the Panel plainly had the fact that patient A was not cross-examined well in mind when they made their findings.

29. There was a need for the Panel to proceed with caution in the absence of cross-examination of an important factual witness. It was important for them to view his evidence to see if there was any inherent or other weakness. Additionally the Panel needed to ascertain if there was evidence supporting or buttressing the untested evidence. In the result the Panel was requested to make a fair assessment in all the circumstances.

30. It is plain to me that the Panel made that assessment. After all, the appellant was acquitted on one charge. This was not a case of blanket acceptance of the NMC case against the appellant. Additionally the Panel gave reasons; indeed cogent reasons for their findings and expressly stated that they took into account the disadvantage to the appellant by the absence of cross-examination of patient A.

31. I have viewed this issue with particular care, but in the result I have come to the clear conclusion that the appellant was able to more than adequately present her case and her version of events. Whilst regrettable that patient A could not be cross-examined, it was not fatal to the fairness of the proceedings as the detail of the findings of the Panel demonstrate.

32. In relation to the hearsay evidence of the doctors and others that I referred to at the outset of this judgment, complaint is made that they were not cross-examined and the Panel ascribed too great an importance to the contents of these letters when considering weight to be attached to the material in the context of a case alleging a pattern of ill practice.

33. The real question is whether the hearsay was unfairly handled by the Panel. It is again important to record the appellant was acquitted of a significant body of charges. There was not slavish adherence to the NMC case. The appellant had ample opportunity to present her case. In my judgment, the Panel was not wrong. This was a "pattern" case and it would have been disproportionate to call every doctor in respect of every item of complaint. There were adequate witnesses who could be and were cross-examined. As I have said, the appellant was able to meet the case and give her account. I discern nothing wrong with the procedure adopted or the findings of the Panel in this regard. The process was fair, the findings were fair and the analysis was fair. The Panel were not wrong.

34. I have taken the opportunity to review the findings of the Panel in their entirety. I have also reviewed the procedure adopted by the Panel in relation to the grounds of appeal advanced on paper and orally before this court. I have not once thought that any of the findings adverse to the appellant were unfair or based upon questionable evidence or determined by an unfair process. There is nothing at all arguable in the grounds of appeal relating to the adverse findings of the Panel against the appellant.

35. The appeal against this aspect of the case falls to be dismissed.

36. I turn to the question of sanction. I commence by viewing the decision of the Panel on impairment in the light of the individual charges. I have to say it seems to me the Panel made measured and justifiable observations - see pages 28 to 31 of the letter of the Decision Letter.

37. In relation to sanction the Panel made these observations, inter alia:

"The Panel took account of what it considered to be aggravating and mitigating features of the case as follows. Patient A had been caused harm; [the appellant] has little insight; [the appellant] has not fully remedied her deficiencies; [the appellant] has not been before this or any other NMC Panel previously; [the appellant] had worked as a nurse without any complaint for 2 years after being dismissed; [the appellant] had engaged with NMC throughout these proceedings. The Panel accepted the advice of the legal assessor. He reminded the Panel of the need to act proportionately. He took account of the NMC's indicative sanctions guidance (ISG). The Panel noted the decision as to what sanction, if any, should be imposed is a matter for its professional judgment. It has applied the principle of proportionality weighing the interest of the public with those of the [the appellant] and taking into account the mitigating and aggravating factors in the case. It has noted all of the sanctions available. It also noted it should impose the least restrictive sanction which is necessary to allow the Panel to protect the public and maintain public confidence in the profession and the NMC." 38. Having set out various limited sanctions that were available to Panel, the Panel concluded: "

Although [the appellant's] deficiencies are serious, they are not fundamentally incompatible with her being a registered nurse. There is no evidence of general incompetence. She has engaged in these lengthy proceedings and has had to travel from Liverpool to do so. The Panel understands she has experienced some financial hardship in the process. [The appellant] may be able to remedy the failings that led to this hearing. The Panel conclude it was appropriate to give her the opportunity to take the necessary steps. Suspending the appellant's registration would not assist her in addressing her lack of competence. The Panel determined the following conditions of practice are workable, reasonable, proportionate, measurable and enforceable. They are necessary in the public interest for the protection of the public and in [the appellant's] own interests. The conditions of practice are as follows: 1. You must notify the NMC within 14 days of any nursing appointment whether paid or unpaid that you accept within the UK or elsewhere and provide the NMC with contact details of your employer. 2. You must inform the NMC of any criminal or professional investigation started against you and any criminal or professional disciplinary proceedings taken against you within 7 days of you receiving notice of them. 3. At any time that you are employed or otherwise providing nursing services you must place yourself and remain under the indirect supervision of a band 6 nurse or equivalent nominated by your employer. The indirect supervision will consist of working at all times on the same shift but not necessarily the direct observation of a registered nurse of band 6 or equivalent who is physically present in or on the same ward unit, floor or home that you are working in or on. Such supervision should however include some direct observation of your attitude and skills in the following areas: communication with patients and staff; ability to lead and direct staff; management of a multi disciplinary team; ability to respond to emergencies and wound management and dressings to ensure you are practising safely. 4. You must work with your line manager if a registered nurse or their nominated substitute who must be a registered nurse, to formulate a personal development plan specifically designed (a) address the deficiencies in the following areas of your practice, communication with patients and staff and management of a multi disciplinary team, ability to respond to emergencies, wound management and dressings and (b) demonstrate by reference to practical examples that you understand the effect of inadequate communication on patients and colleagues. 5. You must meet with your line manager if a registered nurse or their nominated substitute who must be a registered nurse monthly to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 6. You must forward to the NMC a copy of your personal development plan at least 14 days before any NMC review hearing or meeting. 7. You must send to the NMC a report from your line manager if a registered nurse or there nominated substitute who must be a registered nurse or their nominated deputy setting out the standard of your performance and your progress towards achieving the aims set out in your personal development plan at least 14 days before any NMC review hearing or meeting. 8. You must immediately inform the following parties that you are subject to a condition of practice order under the NMC's Fitness to Practise Procedures and disclose the conditions at 1 to 7 above to them. (a) any organisation or person employing, contracting with or using you to undertake nursing or midwifery work. (b) any agency you are registered with or apply to be registered with at the time of application. (c) any prospective employer at the time of application; and (d) any educational establishment you are undertaking a course of study connected with nursing midwifery or any such establishment to which you apply to take such a course at the time of application." 39. The Panel concluded:

"The Panel concluded the Panel has noted that this sanction will restrict [the appellant's] ability to practice her chosen profession and as a consequence, she may be caused financial hardship. However in balancing the appellant's own interests against the wider public interest the Panel had regard to the need to protect the public and the wider public interest."

[40]The Condition of Practice Order was imposed for 12 months.

[41]It is argued that the determination as to sanction was wrong on the basis that the appellant is effectively incapable of lifting herself out of the sanction because she will not be able to demonstrate she can act in an unsupervised way. I disagree. The Panel plainly had all relevant factors well in mind. The Panel observed:

"The Panel directs that this Condition of Practice order imposed for a period of 12 months. This will allow the appellant to undertake the work required to develop insight and fully rehabilitate herself as a nurse. The period also reflects the gravity of the facts found proved."

[42]I have considered written and oral submissions of Miss Holt on behalf of the appellant. It must be remembered that the Panel must act proportionately and the public's confidence in the profession is a key factor, well ahead of the impact on an individual practitioner. I am particularly mindful of the approach of this court as articulated by McCombe J (as then was) in Azam v General Medical Council

[2008] EWHC 2711 (Admin)

. I have to be persuaded the Panel was wrong. I am not. The Panel plainly calibrated the sanction with some care.

[43]It would not be right to conclude this judgment without observing that most, if not all, of the problems that arose which have been highlighted in this appeal could and should have been addressed and resolved at a pre-hearing review convened under rule 18 of the 2004 Rules. Issues about late service, admissibility, the order of witnesses, hearsay and the like should have been resolved earlier than the first few days of the hearing (resulting in a three day delay to the commencement of evidence). This case was not the subject of effective case management. Consequently, there was delay and that costs money quite apart from it being potentially unfair to all the parties.

[44]It is not for me to advise the NMC how to improve matters. But I am convinced the issue of case management must be addressed soon. At the very least a pre-hearing review is needed in substantial cases (perhaps every case) to iron out procedural and other problems in order to provide an efficient trial process. Had this been adopted, patient A would have been heard well before his departure to Thailand and a prolonged adjournment in order to finish the case would have been obviated. It was intolerable to keep patient A waiting for several days as a witness. The lamentable case management of this case must not be allowed to happen again. 45. This appeal is dismissed. MISS HOLT: My Lord, I just have one point and it is in relation to the latter section. The rule that your Lordship quoted was rule 31 which is the rule as to admissibility of evidence, rule 18 is the preliminary meeting direction. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Do forgive me; I will correct that in the transcript. Rule 18. MISS HOLT: Rule 18. Thank you my Lord. HIS HONOUR JUDGE JEREMY RICHARDSON QC: I also spotted, as I was going through, that I got the date of the incident involving patient A wrong. I think I said it was November; I think it was October. It may have been the other way round. MISS FLECK: Yes, that is right, you did say November. There are two very minor things as well. Even though it is not at all obvious from your bundle it actually lasted 13 days. There is a day missing from the larger bundles which is in the respondent's bundle. We had I think five days in August and eight days in February, so 13 days in total. HIS HONOUR JUDGE JEREMY RICHARDSON QC: The trial lasted 13 days; I will correct that. MISS FLECK: The final detail is again right at the beginning of your judgment my Lord. You said that the appellant was working in on acute wards until she was to the Broadgreen Hospital at the end of 2006, in fact she was acute at the Royal Liverpool 2000/2001 and then out patients at the Royal Liverpool 2001 to the end of 2006. HIS HONOUR JUDGE JEREMY RICHARDSON QC: I will alter it to say "acute" and then "out patients departments". MISS FLECK: That is accurate now. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Very good. I will alter that when the transcript comes to be approved. Is there any matter that I have left out that I should have made observations about? I cannot think I have because I think I have covered everything that was subject of oral and written argument. MISS FLECK: The only thing for the sake of completeness is you made the order in relation to costs yesterday. That does not need to be in the judgment I do not suppose but needs to be accurate on the court document. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Technically, although I indicated yesterday the appeal would be allowed, I think it actually will be allowed to day -- MISS FLECK: No, the appeal was dismissed. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Forgive me. It does help if you get that bit right. Do forgive me. The appeal was dismissed, and it will be dismissed today with costs in the sum that I mentioned yesterday. So the order of the court will be drawn in very simple terms. Would you be kind enough before you go to give the Associate a very simple form of order, so that the office can put it together? MISS HOLT: I have a copy of the schedule that was prepared with the amount on it or I can draft an order whichever is convenient. HIS HONOUR JUDGE JEREMY RICHARDSON QC: It would be helpful if you draft an order in very simple terms and give it to the Associate. I will approve it and that is the end of it. MISS HOLT: Thank you. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Thank you both very much indeed. What I propose to do actually, for the purposes of transcription, since I quoted extensively, I am going to pull out from the bundle the bits that are needed, so that I can check those when the transcript comes and I can give you back the other bundles. MISS FLECK: My Lord, I do not know whether I am required to return them. If you allow me to check my phone I have sent an e-mail to my solicitor asking if they needed to be returned or whether they should be destroyed. I have only got a small bag, I might struggle to carry. That is my concern (Pause). HIS HONOUR JUDGE JEREMY RICHARDSON QC: We certainly do not want them. If you want them destroying, the Associate can destroy them but just let us to know within the next few minutes as to what you would like the court to do with them. I have removed the portions that I need to cross refer for the purposes of the transcript. There will be a transcript. All final hearings are transcribed or at least the judgment is. MISS FLECK: I am sure my instructing solicitors will want to see that. Can they write or will they -- HIS HONOUR JUDGE JEREMY RICHARDSON QC: It will have a neutral citation number as a matter of course and they will be able to obtain it through the usual channels. MISS FLECK: It will be promulgated. They do not have to pay for transcription or anything of that nature? HIS HONOUR JUDGE JEREMY RICHARDSON QC: It will be on the BAILLI website and also I think the Courtserve website. MISS FLECK: That is really helpful. Thank you. HIS HONOUR JUDGE JEREMY RICHARDSON QC: I cannot give you the neutral citation number but one will be ascribed to it fairly soon or when the transcript is available. Thank you very much indeed. Ladies, thank you very much.