Okeke v Nursing and Midwifery Council [2013] EWHC 714 (Admin)

Case No CO/1473/2012

[2013] EWHC 714 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 27 February 2013

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE LEGGATT

Between

OKEKEClaimant

Between

NURSING AND MIDWIFERY COUNCILDefendant

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Mr M Egan (instructed by McMillan Williams) appeared for Claimant

J U D G M E N T

[1]MR JUSTICE LEGGATT: This is an appeal against a decision made by a panel of the respondent's Conduct and Competence Committee on 13 January 2012 to strike the appellant off the Nursing and Midwifery register.

[2]The charges against the appellant which led to that decision were five in number and fell into two categories. Charges 1 and 2 alleged lack of competence as a band 6 midwife. More particularly, it was alleged by charge 1 that on a series of occasions which occurred while the appellant was employed as a band 6 midwife at Queen Mary's Hospital between 3 January 2006 and 24 February 2006, the appellant failed to demonstrate the standards of knowledge, skill and judgment required to practise without supervision as a band 6 midwife. Charge 2 made similar allegations based on incidents said to have occurred while the appellant was undertaking a period of supervised practice at King George Hospital between 9 November and 1 December 2006.

[3]In its decision, the panel found all the allegations made under those two charges proved and that they demonstrated a lack of competence which impaired the appellant's fitness to practise. The remaining charges, 3, 4, 5 and 6, all alleged misconduct as a nurse. Charges 3 and 4 involved two occasions on respectively 1 and 3 July 2006 on which, while working on the coronary care unit for Newham University Hospital NHS Trust, the appellant failed to sign a patient's medication chart to show that medication had been administered. Those allegations were admitted at the hearing by the appellant and therefore found to be proved, but the panel held that they were not sufficient to amount to misconduct.

[4]The final charge, 5, related to a further incident two days later on 5 July 2006 in which it was alleged that, while working in the Accident and Emergency Department, the appellant had allowed a patient to remove spinal immobilisation equipment in order to go to the lavatory, despite having been told by a colleague that the patient would have to use a bed pan as she had to remain immobile, without seeking any other advice from medical or nursing colleagues and without carrying out a clinical assessment. At the hearing, the panel found this charge proved and that this charge did amount to misconduct.

[5]The panel therefore went on to consider what was the appropriate sanction. Having considered the various lesser sanctions available to it and given reasons as to why it did not consider them appropriate, the panel made a striking-off order to strike off the appellant from the Register of Nurses and Midwives. Explaining that ultimate decision, the panel said in its reasons:

"Overall, the allegations in this case amounted to such a serious departure from the standards expected of a registrant set out in the NMC Code of Professional Conduct 2004 as to be fundamentally incompatible with her continuing to be on the register. Public confidence in the profession could only be maintained by an order that Miss Okeke be struck off. Having applied the principle of proportionality and taking all relevant matters into account the panel has concluded that the only appropriate sanction was to remove Miss Okeke from the register by making a striking-off order."

[6]The appellant appeals to this court against that decision and her case as clearly and effectively argued on her behalf by Mr Egan is based on two grounds of appeal.

[7]First, it is argued that, in deciding what sanction to impose for the findings of lack of competence, the panel was wrongly advised by its Legal Adviser that striking off was an available sanction in relation to those charges and, accordingly, acted on a wrong view of the law.

[8]The second ground of appeal is that it is said that the length of delay which occurred before the appellant's case was heard and determined by the panel was unreasonable and infringed her right to a fair hearing under

Article 6 of the European Convention on Human Rights

. As a result, it is argued, a fair hearing was not possible; alternatively if that is wrong, the appellant is nevertheless entitled to be granted some remedy for the unreasonable delay which it is said occurred. Mr Egan submitted that the appropriate remedy would be for this court to direct that any sanction imposed, if the case is remitted to the panel, should not be more severe than an order imposing conditions on the appellant's practice. In the further alternative, it was argued that the panel's decision was in any event flawed and ought to be reconsidered because the panel did not take any account of the fact that there had been unreasonable delay in deciding what sanction was appropriate.

[9]I will consider those grounds of appeal in the order in which they were advanced, starting therefore with the contention that striking off was not, as a matter of law, an available sanction in relation to the lack of competence finding. This question depends on the correct interpretation of Article 29(6) of the Nursing and Midwifery Order 2001 which regulates proceedings relating to, amongst other matters, misconduct or lack of competence alleged against a person who is a registered member of the Nursing and Midwifery Council profession.

[10]Article 29 sets out the orders which a panel of the Conduct and Competence Committee may make if, as the case may be, it concludes that an allegation is or is not well-founded. Where, as here, the panel concludes that an allegation is well-founded, paragraph 5 sets out four orders which are potentially available. They are, respectively:(a) an order directing the registrar to strike the person concerned off the register (a "striking-off order");

(b) an order directing the registrar to suspend the registration of the person concerned for a specified period which shall not exceed 1 year (a "suspension order");

(c) an order imposing conditions with which the person concerned must comply for a specified period which shall not exceed 3 years ("a conditions of practice order"); or

(d) a caution order, which is not relevant here. Paragraph 6 goes on to state as follows:

"A striking-off order may not be made in respect of an allegation of the kind mentioned in Article 22(1)(a)(ii) or (iv) unless the person concerned has been continuously suspended or subject to a conditions of practice order for a period of no less than 2 years immediately preceding the date of the decision of the committee to make such an order."

[11]Article 22(1)(a)(ii) and (iv) concern allegations made against a registrant to the effect that his or her fitness to practise is impaired by reason of, respectively, lack of competence or his or her physical or mental health. On behalf of the appellant, Mr Egan submitted that the effect of Article 29(6), as it applies here, is that a striking-off order could not be made in respect of the allegations of lack of competence made against the appellant because she had not been continuously suspended or subject to a conditions of practice order for a period of no less than 2 years immediately preceding the date of the panel's decision on 13 January 2012.

[12]The words "continuously suspended", Mr Egan submitted, mean in this context suspended under a suspension order of the kind referred to in paragraph 5(b) of Article 29 and do not include any period of suspension under an interim suspension order for which separate provision is made in Article 31 of the 2001 Order. Article 31(2) provides that:

"If the committee is satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest or is in the interests of the person concerned for the registration of that person to be suspended or to be made subject to conditions it may: (a) make an order directing the registrar to suspend the person's registration (an "interim suspension order") or (b) make an order imposing conditions with which the person must comply (an "interim conditions of practice order") during such period not exceeding 18 months as may be specified in the order."

That 18-month time limit is capable of being extended on an application to the court.

[13]In the present case the appellant was initially subject to an interim conditions of practice order which was imposed on 10 July 2007. On 9 April 2008 that order was replaced by an interim suspension order. The interim suspension order was extended on several occasions and remained in place at the time of the hearing before the panel in October 2011 and when the panel gave its decision on 13 January 2012 and has been further extended pending the determination of this appeal.

[14]Mr Egan submitted that although the appellant had thus been subject to an interim suspension order for a period of over 2 years at the time of the panel's decision, that is not a relevant form of suspension for the purpose of Article 29(6). That result, he submitted, could be arrived at both as a matter of analysis of the wording of the 2001 Order and in principle. Mr Egan argued that an interim suspension order is a qualitatively different type of order from a suspension order imposed as a sanction. Its purpose is to hold the position until such time as allegations have been determined. Article 29, he submitted, is not to be understood as making the availability of sanctions depend on whether or not such an interim order has been imposed pending the decision reached by the panel.

[15]Mrs Thompson, who appears for the respondent, has argued that that interpretation is wrong and that the words "continuously suspended" in Article 29(6) are capable of including an interim suspension order. She submitted that the purpose of suspension, whether imposed as an interim order or as a sanction following a finding that an allegation is well-founded, is in each case the same, namely to protect the public. Therefore, she submits, it should not make any difference in principle to the availability of striking off as a sanction whether the relevant period of at least 2 years' suspension has been imposed as an interim order or as a sanction. The purpose of the provision, she submits, is to give the person concerned an opportunity to show improvement before a decision to strike that person off the register is made. That, she submits, can be shown whilst a person is suspended, for example by undertaking a training course or by working competently in another related occupation. That could just as well be shown whether the suspension has been imposed on an interim basis or as a final sanction. Therefore, Mrs Thompson submitted, Article 29(6) is properly to be read as contemplating suspension of either kind as sufficient to render available a striking-off order.

[16]The starting point when considering those submissions must be the language of the 2001 Order and, in particular, Article 29. Article 29(6), in defining the relevant 2-year period, refers not only to the person concerned as having been "continuously suspended", but as an alternative to that person having been subject to a "conditions of practice order". A "conditions of practice order" is a term defined in paragraph 5(c) of Article 29, where it is identified as a sanction.

[17]There is also provision under Article 31, as I have mentioned, for the making of an "interim conditions of practice order". The language of the 2001 Order thus draws a distinction between, on the one hand, a "conditions of practice order", and on the other hand, an "interim conditions of practice order". In Article 29(6), it is a "conditions of practice order", and not an interim "conditions of practice order", which is the only relevant kind of order referred to.

[18]Assuming, as I should, that the language has been deliberately chosen, it follows that only a conditions of practice order and not an interim conditions of practice order may count as part of the 2-year period. But, if that is so, it seems to me impossible to discern any logic by which, if an "interim conditions of practice order" cannot count as part of the 2-year period, an "interim suspension order" might nevertheless do so. Simply as matter of analysis of the language of the Order, that seems to me strongly to point against the contention that an interim suspension order is included within the period referred to in Article 29(6).

[19]It is necessary to look further, however, at the scheme and purpose of the Order. Article 29 is dealing with sanctions. It would in my view be surprising if the availability of a sanction were determined, not by what sanctions have previously been imposed on the basis of allegations held to be well-founded, but by what order has been made on an interim basis. It is true that the purpose either of an interim order or of a sanction is in each case to protect the public, but I do not accept that the two kinds of order should be viewed in the same way. It is one thing to take account of whether a sanction has previously been imposed in deciding what sanction is appropriate in the particular case and quite another to take into account an order imposed, not as a sanction for any proven lack of competence, but simply to hold the position until the truth or otherwise of allegations can be determined. I find it hard to see how it could in principle be correct or appropriate to treat the imposition of an interim order made without any finding that an allegation has been proved as a proper reason to justify a more stringent sanction.

[20]In addition to that, the point is made by Mr Egan - which in my view is a powerful point - that if the interpretation contended for by the respondent were correct it would follow that delay in bringing the matter to a hearing, including unreasonable delay, would put a person at risk of a more severe sanction which would not have been available if the matter had been pursued more expeditiously. It seems to me that this would be a perverse result and one which I should not come to unless driven to do so by the wording of the 2001 Order.

[21]It was argued by Mrs Thompson on behalf of the respondent that, if the appellant's interpretation were correct, it would follow that a person could never be struck off for a first finding of lack of competence under Article 29, but only after reviews had taken place under Article 30. Even if this were correct I would not consider it to be a sufficient reason to reject the appellant's interpretation of Article 29(6); but this argument raises the question of whether it is in fact possible to strike off a person on a review under Article 30 in circumstances where that was not an available sanction at the time of the original decision.

[22]Article 30 provides for orders made under Article 29 to be subsequently reviewed by the Conduct and Competence Committee. On such a review, the committee has powers under paragraph (1) of Article 30 to make the following orders:

"(a) with effect from the date on which the order would, but for this provision, have expired [to] extend or further extend the period for which the order has effect; (b) with effect from the expiry of the order [to] make an order which it could have made at the time it made the order being reviewed; [or] (c) with effect from the expiry of a suspension order, [to] make a conditions of practice order with which the practitioner must comply if he resumes the practice of his registered profession after the end of his period of suspension."

Paragraph (5) provides that the committee may not extend a conditions of practice order by more than 3 years at a time or a suspension order by more than 1 year at a time.

[23]In my view, Article 30 does not permit the committee on a review to make an order of a kind which it could not have made at the time of its original decision. Under paragraph (1)(a) it may extend the period of an order already made. That would allow the committee, for example, to extend a period of suspension, but it would not enable the committee to convert a suspension order into a striking-off order. Under paragraph (1)(b) the committee has power to make an order which it could have made at the time it made the order being reviewed. But if the position is that at the time it made the order being reviewed the committee could not have made a striking-off order because of the effect of Article 29(6), then it seems to me that on the clear wording of Article 30(1)(b) it has no power to make such an order on a review. Paragraph (1)(c), which is the only other power available, allows the committee to make a conditions of practice order upon the expiry of a suspension order, but not to impose a more stringent order on the expiry of the suspension order by striking off the person concerned.

[24]It follows, in my view, that the clear scheme of the regulations and their overall effect is that, by reason of Article 29(6), a first finding of lack of competence against a person cannot result in an order that they be struck off the register. The person concerned may, at the most, be suspended. That suspension may be continued but only for 1 year at a time. It can never, without further findings against the person concerned, be converted on review into a striking-off order. It can be converted into a conditions of practice order and if, during a period in which the person concerned was subject to such conditions of practice they were shown to have demonstrated further lack of competence then, on the second occasion, if the overall period of suspension or conditions under which they were subject to conditions of practice exceeded 2 years, the person concerned could be struck off.

[25]Whether it is desirable that a finding of lack of competence can never result in striking off is not for me to say, but it is in my view the clear effect of the 2001 Order. It follows that the decision taken by the panel in the present case was made on a wrong view of the law because the panel was misadvised that it was open to it to make a striking-off order in relation to the findings of lack of competence based on the period of interim suspension which the appellant had undergone.

[26]It is fairly and properly accepted by the respondent that if I come to this conclusion it must follow that the sanctions order made by the panel should be quashed and the matter remitted to the panel to reconsider on the basis of what I have held is the correct interpretation of the Order.

[27]On such reconsideration, it will be necessary for the panel to consider whether a striking-off order could be justified by the one incident of misconduct which it held was well founded. There is certainly nothing in principle which prevents the committee from concluding that striking off is the only appropriate sanction for a single incident of misconduct, if that misconduct is sufficiently serious. It will be a matter for the panel, which is better placed than the court to evaluate the relevant facts, to consider whether that sanction is the only appropriate sanction in the present case. I do not express any conclusion therefore as to whether striking off would in this case be the appropriate sanction for the misconduct which was found. I would only express the view that it would seem to me to be a draconian sanction if it is sought to reach that result by reference only to the misconduct that was demonstrated in the present case.

[28]I turn to consider the second ground of the appeal which is the argument that there was unreasonable delay in bringing the matter to a hearing. It is common ground that the appellant had a right under Article 6 of the Human Rights Convention to a fair hearing within a reasonable time and that, in calculating whether the time which elapsed in this case was reasonable, the relevant period started from when the appellant was given notice that an allegation made against her had been referred to the respondent. Such notice was given in March 2007. The relevant period to consider therefore commenced on that date and ended with the decision of the panel reached on 13 January 2012. That is a period of about 5 years.

[29]The approach which the court should adopt in considering whether the time that elapsed was reasonable is also common ground. I was referred to the decision of the Privy Council in Dyer v Watson

[2004] 1 AC 379

and in particular to a passage in the judgment of the Privy Council given by Lord Bingham, who (at paragraph 52) said this:

"In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive."

Lord Bingham went on to refer to certain areas calling for particular enquiry. It was common ground before me that the relevant circumstances, which need to be considered, include the importance of the matter to the individual concerned, the complexity of the case and the conduct of the parties to the relevant proceedings.

[30]Applying these undisputed principles, I consider that in this case the period which elapsed is one which, on its face and without more, gives ground for real concern. As I have said, the period in question was one of nearly 5 years. It is notable that the Council is not only under a statutory duty to conduct proceedings expeditiously, but in the material published on its website states that it aims to complete all cases within 65 weeks. Whilst I accept of course that that is an aspiration and that, as the statement indeed goes on to point out, cases may take longer because of particular circumstances, nevertheless the discrepancy between the target publicly espoused by the Council and the time taken to complete this case is so great that it very clearly, in my view, gives rise to concern as to the length of time which elapsed.

[31]I turn then to consider the relevant circumstances. First, the importance of the matter to the appellant is obvious in circumstances where she potentially stood as a result of any decision reached to be struck off from the register of practitioners in her profession. Furthermore, during the period leading up to the hearing she was prevented from practising without there having been any determination as to whether the allegations were well-founded or not, because of the interim suspension orders imposed. In circumstances where the person concerned is prevented from practising by virtue of an interim order, it is clearly all the more important to keep any delay to a minimum.

[32]Secondly, the complexity of the matter. There were two references made to the Council: one in relation to the lack of competence allegations, and the other in relation to the misconduct allegations. As regards the lack of competence allegations, I consider that there was some complexity resulting from the fact that they occurred at two different hospitals, involved a series of incidents which had to be investigated, and evidently involved a number of witnesses. Accordingly, the investigation of those matters reasonably took a certain time. It is much harder to see that the misconduct allegations necessitated any lengthy investigation, relating as they did to three discrete incidents which all took place at one hospital within a period of four days in July 2006.

[33]Turning finally to the conduct of the parties, it is not suggested that the appellant took any step or did anything to prolong the proceedings against her or that any period of the delay can be attributed to any conduct on her part.

[34]Looking then at what is given as an explanation of the delay by the respondent on whom, in accordance with the principles that I cited from the Dyer case, the burden lies to explain and justify such lapse of time as appears on its face to be excessive, there is no evidence placed before me by the respondent to explain the delay. What is said in the respondent's skeleton argument (in paragraph 20) is that while it is accepted that there was a period of inactivity between December 2007 and July 2008, other periods of delay can be attributed to the fact that two separate referrals were made and investigated and the fact that the final hearing which took place over 10 days was clearly a difficult one to schedule. With regard to that latter point, Mr Egan submitted - and it was accepted by Mrs Thompson for the respondent - that difficulties of scheduling or case load are not a reason for delay which is, in principle, capable of satisfying the reasonable time requirement.

[35]Looking more closely at the helpful chronology which Mrs Thompson provided, the lack of competence allegations were referred for investigation in May 2007 and the results of that investigation submitted in December 2007. Although the file was then returned to the external lawyers for further investigation, it appears that, for unexplained reasons, nothing was done in that regard between December 2007 and July 2008. Meanwhile, the misconduct allegation had been referred in November 2007 and an investigation commenced in March 2008. The results of that second investigation were completed in November 2008 but apparently resulted in a need for further investigation, which was not completed until November 2009.

[36]In the absence of any explanation I cannot consider that the time taken to investigate these matters, and in particular the relatively simple allegation of misconduct, could reasonably justify the overall period of 2 years and 4 months which was taken in this case. Simply considering the time taken to investigate the allegations, that was in my view unreasonably long.

[37]One would have hoped that, at that stage, when the investigations had been completed, there would at least have been expedition in bringing the matter to a hearing. But, unfortunately, there was not. In December 2009 the case was referred to the Conduct and Competence Committee and in April 2010 that committee decided that the case should be dealt with at a hearing. There then elapsed a period of a year and a half before that hearing took place. Even allowing for the fact that a 10-day which involved the attendance of several witnesses might take some time to bring on, that period, particularly in the absence of any more detailed explanation or justification of it, seems to me plainly unreasonable.

[38]I therefore conclude that, looking at the matter overall, in the circumstances of this case the delay which occurred from when the referral was notified to the appellant until the hearing took place some 4½ years later, was unreasonable.

[39]As a matter of law, it is common ground that it follows from that that there has been a breach of Article 6. What I must next do is go on to consider the consequences of that breach. I was referred to another judgment of Lord Bingham, this time in Attorney General's Reference (No.2 of 2001)

[2004] 2 AC 72

, where Lord Bingham said at paragraph 24:

"If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's convention right under art 6(1). For such breach there must be afforded such remedy as may be just and appropriate (s 8(1) of the Human Rights Act 1998) or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant."

It is common ground that those principles apply equally to disciplinary proceedings of the kind at issue here.

[40]I was further referred to another Privy Council decision in Spiers v Ruddy(Scotland) [2007] UKPC D2. Again the judgment was given by Lord Bingham, who examined the case law of the Strasbourg Court on this issue and said at paragraph (16):

"The cases concerned a situation where there has (or may have been) such delay in the conduct of proceedings as to breach a party's right to trial within a reasonable time but where the fairness of the trial has not been or will not be compromised. The authorities relied on and considered above make clear, in my opinion, that such delay does not give rise to a continuing breach which cannot be cured save by a discontinuation of proceedings. It gives rise to a breach which can be cured, even where it cannot be prevented, by expedition, reduction of sentence or compensation, provided always that the breach, where it occurs, is publicly acknowledged and addressed."

It follows that there must be some remedy for the breach which I have found occurred in this case, but the nature of the remedy must depend on the circumstances and the effect of the breach.

[41]I first consider, therefore, the submission made by Mr Egan that the result of the delay in this case was that the appellant did not receive a fair hearing. Mr Egan submitted that it can be seen from the transcript that the appellant was unable to recollect many of the matters which were the subject of the allegations and denied the allegations in many cases on the basis of what she thought she would have done rather than any actual recollection of what she did. This, submitted Mr Egan, may have resulted in unfairness, in particular because it may have led the appellant to deny allegations to which, had the hearing taken place without any unreasonable delay, she might have adopted a more realistic response. That, he said, prejudiced the appellant, if not in terms of the findings made by the panel as to whether the incidents actually took place as alleged, then in relation to the panel's view of the appellant as being somebody who was "in denial", which counted against her when they came to consider what sanction was appropriate.

[42]In order to evaluate that argument, it was necessary for me to read the transcript of the appellant's evidence which I did over the lunch adjournment. It seemed to me from that review that the response of the appellant differed as between the lack of competence and misconduct allegations. In relation to the misconduct allegations, my reading of her evidence was that she appeared to have a detailed recollection of the incidents and took issue as to the facts of what happened based on that recollection. In those circumstances I can discern no prejudice suffered by the appellant by reason of the delay and nothing in my reading of the transcript which indicates any fairness or potential unfairness in the way that those allegations were considered and determined by the panel.

[43]In relation to the lack of competence allegations, the position was somewhat different. There, my impression from the transcript is that the appellant did not recollect many of the incidents which had taken place and denied them principally on the basis that she would not have acted in the way suggested. She was faced with evidence by a number of witnesses about the incidents in question and in many cases by documented reports made at the time about what had occurred. Her essential response was to assert that the allegations against her had been deliberately made up and were motivated by spite, if not racial hatred, which, she asserted, had manifested itself in the way she had been treated by the witnesses concerned during the periods in which she had worked with them at the two relevant hospitals.

[44]The panel rejected those contentions that the evidence against her was in effect a conspiracy as completely without foundation and untrue. I am satisfied that the panel was able fairly to reach that conclusion at the hearing and that the appellant suffered no disadvantage in defending herself by reason of the lapse of time which had occurred.

[45]However, I cannot rule out the possibility that the appellant might have taken a different approach to the evidence against her, which I would describe as a more realistic approach, and might not have resorted to what the panel concluded was a wholly unjustified counter-attack, if the allegations had been determined more promptly and at a time when the appellant could better recollect what had occurred. That concern which I have does not affect the validity of the factual findings of lack of competence which were made by the panel; but it does raise an issue which in my view ought to be taken into account in deciding to what extent it is fair and right to justify the imposition of a more severe sanction on the basis of the attitude which the appellant took to the case presented against her.

[46]I reject therefore the primary submission of the appellant that she did not in this case receive a fair hearing in relation to the question of whether the allegations were well-founded. I have concluded in any event on the basis of the first ground of appeal that the decision as to sanctions must be quashed and reconsidered. I would also reach that same conclusion on the basis of the second ground of appeal because it appears that the panel did not, in considering what sanction was appropriate, take any account of the delay which had occurred in bringing the matter to a hearing. The panel is not to be criticised for that since no submission was made to it that there had been unreasonable delay or that this was a matter which should be taken into account in mitigation. But fairness requires that, on reconsideration, the panel does have regard to this. In particular, it will need to take account of what I consider was unreasonable delay and the effect which that had on the appellant.

[47]The interests of the registrant are one of the matters which the panel must consider when deciding what is the appropriate sanction. It is relevant in that regard to take into account the fact that, as a result of the delay in bringing this case to a hearing, the appellant has already been subject to suspension from practice under interim orders for a very significant period. The panel will also need to consider, as I have indicated, whether the delay may have affected the attitude which the appellant took to her defence of the allegations. It will further need to consider whether, by way of remedy for what must be acknowledged to have been a breach of the appellant's right under Article 6, it is appropriate to make a reduction in the sentence which would otherwise have been imposed.

[48]All those matters in my view are best considered by the panel itself on a reconsideration of the sanction. It was submitted that I should give a direction that the matter should be considered by a different panel from the one that has previously considered the appellant's case. I decline to make that direction. I do not think that the conclusion follows from the decision that I have reached and I leave it to the good judgment of the respondent as to whether it is thought right for the case to be considered by the same panel or more appropriate that a new panel should consider the case.

[49]In the result, the order that I make is to declare that there has been a breach of Article 6 in this case and that the decision as to sanctions was taken on an incorrect legal basis. I quash that decision and remit the matter to the Conduct and Competence Committee for reconsideration.

[50]MRS THOMPSON: My Lord, may I just make one observation and that is in relation to the interim order that was put in place by the practice committee on delivery of the sanction. Under Article 31, such an interim order is said to - the period of such an order is to last - if there is an appeal against the order when the appeal is withdrawn or otherwise finally disposed of. I simply seek clarity so that everyone knows whether the order is still in place or not. Certainly the Council would invite you to declare that that order stays in place until the case is finally disposed of, without being part of the appeal.

[51]MR JUSTICE LEGGATT: It should stay in place until the case is disposed of. I do not need to give any direction, but it is obviously incumbent on the respondent to hold the further hearing with great expedition.

[52]MRS THOMPSON: Absolutely, my Lord. I will ensure that that is passed back.

[53]MR EGAN: Grateful for that, my Lord. I would ask for the appellant's costs in this matter. Unfortunately, we do not have a schedule of costs and the reason for that is there was a change of solicitors at the end of last week and a change of --

MR JUSTICE LEGGATT: What's the basis of funding?

[55]MR EGAN: It's publicly funded. We did ask for a breakdown of previous solicitors costs, but they have not reached us yet so we simply do not have that information. Subject to a detailed assessment if not agreed.

MR JUSTICE LEGGATT: Right.

[57]MRS THOMPSON: My Lord, I have no observations.

MR JUSTICE LEGGATT: I make that order.

[59]MR EGAN: Most grateful.

MR JUSTICE LEGGATT: Thank you both for your very helpful and constructive submissions.

Cited in 1 later judgment

Okafor v Nursing and Midwifery Council 2015