Amao v Nursing and Midwifery Council [2014] EWHC 147 (Admin)

Case No CO/5361/2012[2014] EWHC 147 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Rolls Building, Fetter LaneDate 31/01/2014
London, EC4A 1NL
Before
MR JUSTICE WALKER
Between
Margaret Olapeju AmaoClaimantNursing and Midwifery CouncilDefendant
The appellant appeared in person for in personMr Salim Hafejee (instructed by Nursing and Midwifery Council) for DefendantHearing Hearing dates: 31 October 2013
Judgment
[1]The appellant (“Ms Amao”) is a registered nurse. The respondent is the Nursing and Midwifery Council. I shall refer to it as the “NMC”. Its functions are governed by the Nursing and Midwifery Order 2001 (“the NMO”), made under Section 62(9) of the Health Act 1999.[2]On 25 April 2012 the NMC wrote to Ms Amao, setting out findings of a panel of the Conduct and Competence Committee (“the CCC”). In particular, the letter recorded decisions on the part of the panel that Ms Amao had been guilty of misconduct, that her fitness to practise was impaired, and that a striking off order should be imposed. The letter also recorded that, pending any appeal by Ms Amao, the panel had made an interim suspension order for a period of 18 months.[3]The decisions of the panel were based on charges concerning a single incident in 2009 involving Ms Amao and Ms Booth, the practice manager at the clinic where Ms Amao was practice nurse. The panel’s decision on sanction was announced on the afternoon of 13 April 2012, the final day of a hearing which had lasted a total of eight days.[4]Ms Amao appeals under article 29(9) of the NMO. Her grounds of appeal were lodged on 22 May 2012. They said, in essence, that the panel had acted unfairly, and that the sanction of striking off was disproportionate.[5]Unless the context otherwise requires, references below to “the panel” are to the panel of the CCC which made the decisions described in the letter of 25 April 2012, and references to “the prosecutor” or “the prosecution” are to the NMC in its capacity of putting forward allegations for consideration by the CCC and the panel. At the hearing a case presenter appeared on behalf of the prosecution. On days one to five the case presenter was Ms Rachel Ellis. On days six to eight the case presenter was Mr Ian Brown.[6]At the hearing Ms Amao did not have legal assistance. She attended, gave evidence, asked questions of witnesses and made submissions.[7]Each day of the hearing was also attended by a legal assessor. On days one, two and three the legal assessor was Mr Michael Vere-Hodge. On days four and five it was Mr Nicholas Leviseur. On days six, seven and eight it was Mr Christopher Aylwin.[8]As the hearing progressed the legal assessors, in open session, gave the panel advice on legal matters. It is plain from the transcripts that the legal assessors had at the forefront of their minds the difficulties which Ms Amao faced in the absence of legal representation. During the course of day six Mr Aylwin explained his approach in that regard: … we are all aware that [Ms Amao] is a litigant in person and that, because of that fact, everybody in the room has to make doubly sure that she is treated fairly in the course of these proceedings and, of course, part of that involves ensuring not only that she understands what the proceedings are about, but that she has a full opportunity to explain to the Panel what it is that she wants to explain. Part of my job, as a Legal Assessor, is to ensure, of course, that these proceedings are conducted fairly towards [Ms Amao]. If something needs to be said or done because she is not fully familiar with procedure, in order to ensure that she is fairly treated, I regard it as my job to make sure that that is said or done… Making sure that she is treated fairly does not, however, involve my making her submissions for her, or constructing her cross-examination for her. That is something that she must do and she must make her own decisions about how she does it. There can be occasions when the difference between ensuring fair play for [Ms Amao] and helping [Ms Amao] with her submissions or cross-examination can be a very difficult distinction to draw but, as a general rule, I regard my position as, in a case where the litigant is in person, of ensuring that she is treated fairly by the Tribunal. I say that not only for the Panel’s benefit, should they wonder why occasionally I might intervene on [Ms Amao’s] behalf, but also for the benefit of [Ms Amao] so that she can understand what it is I can help her about and what it is that I cannot help her about.[9]Where a person facing disciplinary proceedings is unrepresented, the tasks arising at the hearing for the unrepresented person, and for legal assessors, are unlikely to be easy. As will be seen, in this case the tasks at the hearing, not only for the unrepresented person and the legal assessors, but also for the panel, were particularly difficult. For reasons set out below, I conclude that this is a case where:(1) procedural mishaps occurred during the first part of the hearing, concerned with factual matters;(2) in the particular circumstances of the present case, the effect of those mishaps was not such as to require the panel’s findings of fact to be quashed in the interests of justice;(3) however, when the panel moved on to consider misconduct, impairment and sanction, Ms Amao was not given a fair opportunity to address the panel’s concern that she had no insight with regard to her future professional obligations; it follows that the decision to strike off cannot stand;(4) the appropriate order to have been made by the panel would have been an order that Ms Amao’s registration be suspended for a period of one year; as Ms Amao has now in effect been subjected not only to a one year suspension but also to a substantial extension of that suspension, the court’s order should allow the appeal, quash the decision to strike off, and decline to remit the case to the CCC;(5) there are grounds for concern that prior to the panel’s decisions on misconduct, impairment and sanction the chairman of the panel may have met witnesses in circumstances which might, on grounds of perception of bias, require the court to quash the panel’s decision to strike off; however the quashing of that decision for procedural unfairness makes it unnecessary to reach a concluded view on this point. B. The NMC and the CCC[10]Part II of the NMO creates the NMC and identifies its principal functions. They are described in Article 3(2) in this way: (2) The principal functions of the Council shall be to establish from time to time standards of education, training, conduct and performance for nurses and midwives and to ensure the maintenance of those standards.[11]Article 3 also identifies the main objective of the NMO when exercising its functions. As set out in Article 3(4): (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.[12]The CCC is one of four committees of the NMC, created by Article 3(9). By Article 27 the CCC is to consider any allegation referred to it by the NMC or, among others, the Investigating Committee. Article 29 deals, among other things, with the powers of the CCC where it considers that an allegation is well founded. Under Article 29(4) the CCC may refer the matter for mediation, itself undertake mediation, or decide that it is not appropriate to take any further action. If, however, a case does not fall within Article 29(4), then by Article 29(5) the CCC shall:(a) make an order directing the Registrar to strike the person concerned off the register (a “striking-off order”);(b) make an order directing the Registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a “suspension order”);(c) make an order imposing conditions with which the person concerned must comply for a specified period which shall not exceed three years (a “conditions of practice order”); or(d) caution the person concerned and make an order directing the Registrar to annotate the register accordingly for a specified period which shall be not less than one year and not more than five years (a “caution order”). C. The court’s role on appeal[13]The role of the court on an appeal under article 29(9) of NMO, while specific to article 29(9), will generally involve application of principles identified in other types of disciplinary appeals. As stated by Laws LJ in Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46, this court will correct material errors of fact and law and will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of relevant principles to the facts of the case.[14]In addition, I proceed upon the basis that if a procedural mishap caused injustice to Ms Amao, then the court should intervene. In that regard I refer by analogy to what was said by Bingham LJ in Bagga Khan v Secretary of State for the Home Department [1987] Imm AR 543. At page 555 Bingham LJ said this: If a procedural mishap occurs as a result of misunderstanding, confusion, failure of communication, or even perhaps inefficiency, and the result is to deny justice to an applicant, I should be very sorry to hold that the remedy of judicial review was not available.[15]As regards the panel’s decision on sanction, the panel must judge what measures are required to maintain the standards and reputation of the profession: see Marinovitch v General Medical Council [2002] UKPC 36. As noted by Laws LJ in FatnaniandRaschid, the function of the panel, in maintaining the standards and reputation of the profession, differs from that of a court imposing retributive punishment. As with all matters of judgment, the court must give great weight to the special expertise of the panel to make the required judgment. D. The background and the charges[16]The resident doctor at the clinic was Doctor Gonsai. When Ms Amao started as practice nurse in 2006 he had been there full time. By 2009, however, he had changed his role so as to practise on a part time basis only. Locum doctors attended the clinic on the days that Dr Gonsai was not there. At the time of the incident he was away. The only doctor at the clinic on the day in question was a locum doctor.[17]As noted earlier, Ms Booth was the practice manager. She reported to Ms Reena Gonsai, Dr Gonsai’s daughter, who was the business development manager at the clinic. Ms Booth was not a clinician. Nor was Ms Gonsai. It would become apparent at the hearing that Ms Amao was concerned that in her role as practice nurse she should not be given instructions on clinical matters by non-clinicians.[18]The single incident in question occurred at and outside the clinic on 13 July 2009. The incident arose after the clinic receptionist asked Ms Amao to test a pregnant patient’s urine, and Ms Amao advised that the patient’s urine sample should be sent to the laboratory instead. On 21 August 2009 Ms Amao was dismissed from her employment at the clinic because she was found in the course of the incident on 13 July 2009 to have made threats to kill Ms Booth which were in breach of the clinic’s violence and aggression at work policy, and because Ms Amao’s refusal to treat a patient (being part of the incident on 13 July 2009) contravened the clinic’s general standards of care. An internal disciplinary appeal hearing took place on 6 November 2009, and by letter dated 7 November 2009 the clinic advised Ms Amao that the decision dismissing her was confirmed. It was in these circumstances that the clinic lodged a complaint with the NMC about Ms Amao.[19]The charges against Ms Amao comprised six specific allegations about what happened on 13 July 2009, (“the factual allegations”), along with an assertion that in the light of those matters Ms Amao’s fitness to practise was impaired by reason of misconduct (“the impairment allegation”).[20]The factual allegations were that on or around 13 July 2009 Ms Amao:(a) shouted at Kathleen Booth, the Practice Manager at the Clinic;(b) said to Kathleen Booth words to the effect of “I will kill you”;(c) said to Kathleen Booth words to the effect of “I will cut you up into little pieces”;(d) said to Kathleen Booth words to the effect of “I will bury you in the ground”;(e) said to Kathleen Booth words to the effect of “I will poke your eyes out”;(f) called Kathleen Booth a ‘racist bastard’ or words to that effect.[21]The impairment allegation was set out immediately below the factual allegations. It was in these terms: AND, in light of the above, your fitness to practice is impaired by reason of your misconduct. E. Witness statements relied on by the prosecution[22]Witness statements were supplied to Ms Amao by the prosecution prior to the hearing. In the remainder of this section I give an account of some of the things that they said. I stress that in this section I am not making findings of fact: I am simply setting out some of things in the statements.[23]The prosecution witness statements included five made by members of staff at the clinic. The most senior of these were Ms Booth and Ms Gonsai.[24]As noted earlier, Ms Booth was the practice manager. Her statement recounted being approached by Ms Wade just before 10am on 13 July 2009, and being told by Ms Wade that Ms Amao had refused to carry out a urine test for a pregnant patient. Ms Booth arranged for the patient to provide a sample, and went to Ms Amao’s room. She asked Ms Amao to see the patient, but Ms Amao did not respond or acknowledge her. She (Ms Booth) returned to the reception area to collect a hazard bag for the urine sample, and was speaking to Ms Wade when Ms Amao approached her, asking her what she was doing. Ms Booth replied that she was testing the patient’s urine and would have preferred it if Ms Amao had seen the patient. Ms Booth then returned to her office. After about five minutes Ms Amao came into the office and shouted at her repeatedly, as well as shouting at Ms Wade when she came into the office. Attempts to calm Ms Amao by Ms Booth, and also Ms Lovelace and Ms Culverhouse, were unsuccessful. Ms Booth said that she felt very anxious and intimidated by Ms Amao’s behaviour.[25]Ms Booth admitted that during the course of the incident she threw a hazard bag containing the urine sample on the floor. Ms Booth said that she did this because she was distressed by Ms Amao’s behaviour. Ms Amao then pointed at the hazard bag containing the urine sample and said, “Look at that, I will pick it up and pour it all over you”. Ms Booth said that she felt upset and intimidated and so went outside. Ms Lovelace followed her, and while Ms Lovelace and Ms Booth were talking, Ms Amao came out of the clinic, shouted at her, and said, among other things, the matters asserted in factual allegations (b) to (e). Ms Amao then went back into the clinic, and Ms Booth and Ms Lovelace followed. When Ms Booth had returned to her office Ms Amao came into the office. Ms Booth said, “Margaret, can you leave my office. If you don’t I will call the police.” In response, Ms Amao shouted, “Call the police you racist bastard, I am not an illegal immigrant”.[26]As noted earlier, Ms Gonsai was the business development manager at the clinic. She was responsible for, among other things, managing personnel issues, liaising with patients, and ensuring compliance with the clinic’s policies by staff. Ms Gonsai was not present at the clinic on 13 July 2009. Her evidence was concerned with the clinic’s policies and its disciplinary investigation.[27]The remaining witnesses from the clinic were two receptionists (Ms Culverhouse and Ms Wade) and the senior receptionist, Ms Lovelace.[28]Other witness statements relied upon by the prosecution included those of Mr McDermott, a patient registered at the clinic who lived nearby, and of Mr Cable and his daughter Ms Hennessey, both of whom lived opposite the clinic. Mr Cable’s statement said that he was registered at the clinic. On 13 July 2009 he was in his daughter’s kitchen opposite the entrance to the clinic. He heard shouting. Looking out of the window he saw Ms Amao and Ms Booth facing each other. They were standing on the street corner next to the clinic. His statement included the following description of what he saw and heard:(1) Ms Amao was waving her arms in the air and shouting at Ms Booth, using words to the effect of: “I’m going to kill you. I will cut you up into little pieces. I am going to bury you.”(2) from what Mr Cable recalled, Ms Amao was the only person shouting. He did not hear Ms Booth say anything; and(3) although the exchange only lasted a few minutes, he found Ms Amao’s aggression frightening. F. The course of the hearing

F1. Days one to four: Oral evidence and submissions on facts

[29]Oral evidence was given by prosecution witnesses, including those identified in section E above, on days one and two of the hearing (4 and 5 October 2011). Ms Booth gave evidence on day one. She read out her statement, confirming the matters described in section E above. When dealing with charge (e), Ms Booth’s statement had explained that after Ms Amao came outside and made the threats described at charges (b) to (d): Ms Amao then began pacing up and down and threatening to kill me again which made me feel distressed and frightened. I tried to comfort Ms Amao. I said, “Margaret, what is wrong with you? Why won’t you listen to me?” Ms Amao continued shouting at me. I then said, “Margaret, I am not scared of you.” Ms Amao then stepped back and said, “I am not scared of you”. She added, “Don’t point your fingers at me or I will poke your eyes”.[30]After Ms Booth had read this passage out, the chairman asked whether at that stage Ms Booth had pointed her fingers at Ms Amao. The reply by Ms Booth, and the subsequent exchange between Ms Booth and the case presenter, were as follows: MS BOOTH: I think I did point my finger because she was right in my face, like this, and I just said, “Margaret, I’m not scared of you”. Then it went from there. Yes I did. CASE PRESENTER: Were you scared of her? MS BOOTH: Yes, very. CASE PRESENTER: Why were you scared of her? MS BOOTH: I thought she was going to hurt me and she was really aggressive. She was completely in my face. I had to back up onto the wall. Then I got this really bad sharp pain up my back into my neck and I didn’t know what was happening. CASE PRESENTER: Were you scared of her?

CASE PRESENTER: Why were you scared of her?

[31]Ms Booth then read out the passage in her statement dealing with charge (f): see section E above. In answer to supplemental questions from the case presenter Ms Booth gave evidence about what she described as the “quite bad” effect of the incident on her, describing nightmares, inability to concentrate, and other continuing effects. At the conclusion of Ms Booth’s evidence in chief, the chairman noted that giving evidence had been upsetting for Ms Booth and asked if she would wish to take a break before cross examination. Ms Booth replied that she did not wish to take a break. The chairman asked Ms Amao whether she would like some time to speak to the legal assessor. Ms Amao said that she would like to do that and the panel accordingly rose.[32]After a ten minute break the hearing resumed with cross-examination by Ms Amao of Ms Booth. Ms Booth accepted that she did not witness the conversation between Ms Amao and the receptionist. Ms Booth accepted that when she went into Ms Amao’s room there was a patient with Ms Amao. She accepted that there had been conversations at practice meetings concerning not coming in to the consultation room while Ms Amao had a patient. Ms Booth maintained that the receptionist had not merely told her that Ms Amao would not test the patient’s urine, but had also told her that Ms Amao would not see the patient. Ms Amao suggested that Ms Booth had thrown the urine bag at Ms Amao while she (Ms Amao) was at the door of the kitchen with a cup of tea. Ms Booth’s reply was: MS BOOTH: You weren’t at the door. You were standing outside my office and Pam was talking to you to calm down. You didn’t have a cup of tea in your hand, and I didn’t throw it at you, I threw it to the floor because you wouldn’t calm down. Staff members were trying to calm you down because the patients could hear everything that was going on and it was patient confidentiality we were really concerned about at the time.[33]Ms Amao suggested that patients could not hear the conversation that was taking place at this stage. Ms Booth replied that patients were hearing what Ms Amao was shouting on the other side of the hallway.[34]In re-examination Ms Booth said, among other things, that she had not barged into Ms Amao’s room: she had knocked first, which was in accordance with policy. The case presenter asked Ms Booth whether, when she saw the patient in the room, she had still thought it was appropriate to go in and speak to Ms Amao. Ms Booth replied: MS BOOTH: I just sort of had the door on the jar, I didn’t push right in. I just said, ‘Margaret, can you test the patient’s urine?’ – fit in the patient. She had an empty clinic. She just wouldn’t say, ‘Yes’, ‘No’, nothing. She just said nothing. When she came out, I can’t remember exactly whether I spoke to Margaret there or on the outside of her office, that Maureen [Ms Wade] said that she wouldn’t see this patient. I don’t know if I had that conversation there with Maureen or just went back in to the reception and Margaret came out. But I just wanted the patient reassured, but it wasn’t going to happen and Margaret wasn’t very happy. …[35]The panel then asked numerous questions of Ms Booth. Among other things, she said that the corridor where the argument took place was just a few yards from where patients were sitting. Ms Amao, said Ms Booth, had paced the hallway, shouting.[36]The panel asked Ms Booth whether her working relationship with Ms Amao was in general good. She replied that she thought that it was good, that she thought that it was fine and that there did not seem to be any problems.[37]Ms Amao then asked Ms Booth further questions in cross-examination. The case presenter in turn asked additional questions. When those questions were concluded the chair asked if Ms Booth could be released, but the case presenter responded that Ms Booth might be needed at a later stage.[38]During the remainder of day one Ms Culverhouse, Ms Wade and Ms Lovelace gave evidence. Each was cross-examined by Ms Amao. However, to the extent that these witnesses gave evidence of Ms Amao making the statements alleged in charges (b) to (f), Ms Amao did not challenge that evidence. It is convenient at this point to note that Ms Amao, in cross-examination of Ms Booth, had similarly not challenged Ms Booth’s account of the words used by Ms Amao.[39]Day two began with the evidence of witnesses who were not employed at the clinic. Among them were Mr McDermott and Mrs Hennessey, who described certain of the statements attributed to Ms Amao in charges (b) to (e). Ms Amao did not specifically challenge their description of those statements when cross-examining. Mr Cable also gave evidence. During examination in chief he read out the passage in his statement (see section E above) saying that Ms Amao was shouting at Ms Booth and waving her arms in the air, and that he recalled her shouting words to the effect of:
“I am going to kill you. I will cut you up in little bits.”
. The exchange that took place between him and the case presenter in this regard was as follows: MR CABLE: … There’s something there. She didn’t say ‘cut you up’, she said ‘chop you up in little bits – in little pieces’, and ‘I am going to bury you’. CASE PRESENTER: Just to clarify, you heard Ms Amao shouting those words. MR CABLE: Yes. CASE PRESENTER: And she said, ‘I will chop you up into little pieces’ rather than – MR CABLE: That’s what I put in my original you see, but it’s been altered. CASE PRESENTER: And you’re able to say that because you’ve compared the two. Is that right? Or because you remember – MR CABLE: Oh no, no, no. They’re the same. Yes.[40]Again, Ms Amao, when cross-examining Mr Cable, did not specifically challenge his description of the words that she used. In his evidence in chief Mr Cable had added that he found Ms Amao’s conduct very unprofessional, describing himself as “just stunned… a woman of that calibre, which is a professional job, shouldn’t act that way.” He also said that, without being asked by the surgery to do so, he had made a complaint, “to say that I wouldn’t like myself or anyone else to have that nurse treat me.” In cross-examination Ms Amao questioned Mr Cable about the making of the statement, but did not challenge his evidence concerning his reaction to what he had seen and concerning his decision to make a complaint.[41]Ms Gonsai gave evidence on day two, and explained that she had been away on 13 July 2009. She had received in the mid to late morning of that day a text message from Ms Amao, asking that she contact Ms Amao. She had rung Ms Amao and left a message on her voicemail telling her that she would be away for a couple of days. She had then received a missed call on her mobile telephone from Ms Amao, and so sent Ms Amao a text message asking Ms Amao to contact Ms Booth in her absence. At that point she had not known about the incident, and had not considered there would be a problem in asking Ms Amao to approach Ms Booth. Staff were aware that if she and Dr Gonsai were away from the clinic then Ms Booth was in charge. Ms Amao had sent a text in return, which said that Ms Amao would speak to her upon her return. In response to a question from the case presenter, Ms Gonsai said that if Ms Amao was told to do something by Ms Booth then she (Ms Gonsai) would expect Ms Amao to do it. Ms Gonsai then gave evidence about the receipt of complaint forms from patients and about the disciplinary procedures which were then followed by the clinic.[42]Ms Amao cross-examined Ms Gonsai, asking about the extent to which complaint forms and statements had been anonymised at the disciplinary hearing, and taking issue with certain other aspects of what occurred at the disciplinary hearing.[43]Ms Gonsai was then questioned by the panel. Among other things, she said that when she returned to the clinic after the incident of 13 July 2009 it was “a very tense and upset environment, totally the opposite of how the practice normally is on a day to day basis.” A little later she explained that as part of her responsibilities for Ms Amao’s personal development plan, she had met with Ms Amao individually three times a year. She added that there was an agreed personal development plan for Ms Amao, which would have been on file. The following exchange then took place between Mr Collins, a member of the panel, and Ms Gonsai: MR COLLINS: Were there any concerns about her performance or any development needs that you jointly identified that you felt should be met? MS GONSAI: The development needs usually centred around her continued training but no personal issues that we were concerned about. MR COLLINS: So in terms of the three years she had been with you prior to the incident you were quite satisfied with her performance and there were no concerns. MS GONSAI: In the practice nurse role yes, as part of the PDP and performance management.[44]After Ms Gonsai had completed her evidence, the prosecution closed its case as far as the factual allegations were concerned. It was noted by the case presenter that there would be a further need for Ms Gonsai to attend if the panel reached the second stage concerned with impairment.[45]Ms Amao gave oral evidence starting shortly before 2:30pm on day two, and ending shortly before 4pm that day. Ms Amao began by reading her account of the incident. The receptionist, Ms Wade, had asked her to test a pregnant patient’s urine and prescribe antibiotics because she had an infection. Ms Amao had replied that she was not willing to prescribe antibiotics unless there was a clarified diagnostic indication for it. At that stage Ms Wade had reported the matter to Ms Booth, who “with her usual dictatorial style of handling issues barged into the consultation room and requested that I prescribe antibiotics…”. Ms Booth had also claimed that Ms Amao had refused to see the patient until the following week. When Ms Amao stood her ground, Ms Booth had gone to the reception area, “shouting at the reception in anger.” Later Ms Amao had gone to Ms Booth’s office, where Ms Wade denied saying that Ms Amao had refused to see the patient. Ms Amao had then said it was not acceptable for Ms Booth and Ms Wade to undermine her clinical judgment, and cited occasions when Ms Booth had done that. An argument ensued with Ms Booth shouting at Ms Amao and throwing the patient’s urine at her, after which Ms Booth ran out through the surgery’s back exit. Ms Amao considered what had happened to be “an assault on my person” and went out to question Ms Booth’s irrational behaviour. Ms Amao had told Ms Booth that this was not acceptable “and sternly warned that this occurrence should never repeat itself because this is the second occasion such assault will take place.” Ms Amao’s written statement concluded by saying that Ms Booth had not accepted her fault, “and the argument went on with exchange of words for a while until things eventually fizzled out.”[46]In additional oral evidence Ms Amao accepted that she had raised her voice, but stressed that she would never use a swear word. She added that, “things like, ‘I will kill you’ would not be something I would use at all.” As to the reference to poking eyes, Ms Booth “was bringing her finger into my eyes,” something which she had done in the past. Ms Amao added that she would not have said “I will cut you into pieces”. She continued: But because she assaulted me with the urine bag, and I tried to get hold of Reena, Reena was not picking up her phone, she only texted me afterwards to say she was out of town, I thought to myself I have a right to go and ask her, ‘Why did you throw the urine bottle at me?’, and that is why I went outside. But she didn’t even reply anyway. …[47]Under cross-examination Ms Amao accepted that patients may have thought that she was shouting. However she did not agree that she was shouting: she had raised her voice, and it was not for patients to decide whether she was shouting. Far from her own shouting causing Ms Booth to leave the building, Ms Amao maintained that Ms Booth normally left the building when she had incidents with other staff. Ms Amao acknowledged that she knew that Ms Booth was upset, “because I was upset as well at her behaviour which is what she did first and not my reaction.” Ms Amao accepted that after the urine had been thrown she (Ms Amao) could have just walked away, but said that there was “still no reason why I couldn’t have asked her why she did it.”[48]Ms Amao accepted that she had waved her arms around at the stage when she and Ms Booth were outside, but denied being close up in Ms Booth’s face. She did not know whether her warning to Ms Booth had been intimidating. As to returning to Ms Booth’s room, Ms Amao said she could not recollect being aggressive, nor going back in to Ms Booth’s room. She did however remember a threat by Ms Booth to call the police, but denied calling Ms Booth a “racist bastard”.[49]The panel then questioned Ms Amao. She agreed that the accounts given by witnesses differed considerably from the account that she had given. Her only explanation was that the witnesses were “liars.” Ms Amao added that she was someone who normally had a loud voice, and when she was angry that voice would be raised. In the course of questioning by the panel, an exchange took place with the chairman as follows: CHAIR: Is it possible that you lost your temper a bit and maybe said things that in hindsight you wouldn’t normally say, shouldn’t have said, and went against your own values and it’s difficult for you to accept that maybe you did say something? REGISTRANT: No, I don’t use swear words and I would not. The only mention of poking of eyes is what I’ve just explained to you, which she did in the first instance and which I told her it must not repeat itself when she was bringing her finger close to my eyes. I wonder why people did not see that particular incident and it was what I said that people saw.[50]Following this exchange the chairman took Ms Amao through the names of each of the witnesses called by the prosecution, and in each case Ms Amao confirmed that her evidence was that the witness was lying in relation to the words that were said to have been used. In further evidence by Ms Amao she expressed a concern that the panel had not heard from all the witnesses, only those who supported what was said against her.[51]On day three (6 October 2011) Ms Amao asked the panel to adjourn so that oral evidence could be given by Ms Brown, a witness who supported her case. The panel granted the adjournment requested by Ms Amao.[52]The hearing resumed on 18 January 2012 (day four). Oral evidence was given on behalf of Ms Amao by Ms Brown, who had been in the reception area of the clinic with other patients at the time of the incident. She said that she had heard Ms Amao shouting, and that both Ms Amao and Ms Booth had raised voices. Her evidence was that clinic staff handed out complaint forms to patients, encouraging them to complain. The panel then heard closing submissions by the prosecution, closing submissions by Ms Amao, and advice from the legal assessor.

F2. Day five: Decision of the panel on the facts

[53]At 1:10pm on day five (19 January 2012) the chairman gave the panel’s decision on the facts. The panel found that the facts set out in paragraphs (a) to (f) of the charges had been proved.[54]The reasons for this decision were then described by the chairman. He said that Ms Amao’s case had been that witnesses had colluded with each other to support the prosecution case. However, the panel had heard no evidence which supported any inference of collusion at all. The words described by the witnesses were powerful words which would undoubtedly shock and remain in the memory of those who heard them. Ms Brown’s evidence supported the allegation that Ms Amao shouted at Ms Booth. It stretched credibility to suggest that Ms Brown was a member of the alleged conspiracy.[55]As to Ms Amao, the chairman said this: The Panel did not find Mrs Amao to be a credible witness. Whilst accepting that [Ms Amao] is not legally trained, it was noticeable that with one exception she did not challenge the witnesses as to their recollection of the events set out in sub-paragraphs 1(b) to 1(f) when she cross-examined them; most of her cross examination related to matters of practice and procedure. She did however cross examine them about … allegation 1(e) which related to poking out Mrs Booth’s eyes. Having seen her give evidence the Panel was not satisfied that her recollection of the events of the 13th July 2009 was accurate.[56]The chairman then turned to each of the specific charges in the factual allegations. As to charge (a), shouting at Ms Booth, this was proved by evidence of Ms Booth, Ms Lovelace and Ms Brown in relation to shouting inside the clinic, and by Mr Cable as regards shouting outside the clinic. What had happened clearly struck the witnesses as being very unusual and unprofessional.[57]On charge (b), saying to Ms Booth words to the effect of, “I will kill you”, this was proved by evidence of Ms Booth and Ms Culverhouse and Ms Hennessey.[58]On charge (c), saying to Ms Booth words to the effect of, “I will cut you up into little pieces”, this was proved by evidence of Ms Booth, Ms Lovelace, Mr Cable and Ms Hennessey.[59]On charge (d), saying to Ms Booth words to the effect of, “I will bury you in the ground”, this was proved by evidence of Ms Booth, Ms Lovelace, Mr McDermott, Ms Hennessey and Mr Cable.[60]On charge (e), saying to Ms Booth words to the effect of, “I will poke your eyes out”, this was proved by evidence of Ms Booth, Ms Culverhouse and Ms Lovelace[61]On charge (f), saying to Ms Booth words to the effect of, “racist bastard”, this was proved by evidence of Ms Booth, Ms Wade, Ms Culverhouse and Ms Lovelace.[62]Having gone through each allegation in turn, the chairman explained that the panel would now turn to the impairment stage. In relation to that stage he said that the panel knew that there were witnesses waiting.

F3. A problem emerges

[63]At 2pm on day five the hearing resumed to deal with impairment. Ms Ellis said that it was proposed to call Ms Booth and Ms Gonsai again to deal with a specific matter. At this point the legal assessor said that there was an aspect on which it would be appropriate for the prosecution to make a submission. The chairman indicated that the panel was unaware of what this concerned. Ms Ellis then explained that it was intended to call evidence relating to previous concerns by the clinic about Ms Amao’s attitude, in particular the fact that she had refused to see a patient in an emergency and the way that she had spoken to Ms Booth in the past. These matters had occurred some time before the incident forming the subject matter of the charges. Ms Ellis added that the prosecution were not inviting the panel to determine the facts of what happened previously, but nevertheless said that what happened previously was highly relevant in the sense that Ms Amao had been warned specifically about the type of behaviour in question.[64]After further discussion the legal assessor drew attention to the answer given by Ms Gonsai in reply to the panel, namely, that there had been no concerns prior to the incident of 13 July 2009 (see section F1 above). Ms Ellis then revealed that Ms Gonsai had telephoned the case officer after giving evidence, expressing a concern that this answer had not been correct. Ms Ellis added that she (Ms Ellis) had told Ms Gonsai that Ms Gonsai was to stick to the facts of the incident, and that previous matters would not be relevant until the impairment stage.[65]The panel then referred to what Ms Booth had told them, namely that she thought the working relationship with Ms Amao was fine and that there didn’t seem to be any problems. The chairman commented that while the previous evidence had been that there were no real problems, his understanding was that the same witnesses were now coming forward at the impairment stage to say that there had been problems. He added: I totally accept that there may be things we do not know about yet – but purely on what we have so far I have to say that I am very uncomfortable with that, and I am going to ask the Legal Assessor for his view; … Just on that basis how big an issue is this, or can we get round it if we want to get round it?[66]After further discussion the legal assessor gave advice that the prosecution could call Ms Booth and Ms Gonsai, that it could ask them about matters which were or might be important, including what they had said in their earlier evidence, and that Ms Amao was entitled to cross examine without restriction. In response to a further point raised by the chairman, the legal assessor advised that Ms Amao should have been given information once Ms Gonsai’s telephone call came to the attention of the prosecution, and that it was quite improper that that had not occurred. An exchange then took place between the chairman and Ms Ellis as follows: THE CHAIR: … We have just found facts and part of the Registrant’s defence to your case was that these people were telling lies. We have found on the basis of what we knew at the time and the evidence that we saw and the information received by us that the witnesses were not … telling lies and that the evidence that they had provided to us on oath was correct; and on the basis of that we have today found all of the six allegations proved. My question is: where do we now stand, even though this is a side issue and even though the witness came to the case officer and said, “I may have made a mistake?” I make this point particularly as this was a defence put forward by Miss Amao – it is not something that had not been part of our consideration. So where do we now stand where we have a witness saying on oath “I did not tell the truth”, for whatever reason and I totally accept it may have been a genuine mistake. Where do we now stand? THE CASE PRESENTER: Sir, certainly I would say that the witnesses will maintain that what they said about the incident in question was the same. I think it is not an acceptance that they did not tell the truth.

THE CHAIR: …

[67]In further submissions Ms Ellis urged that both Ms Booth and Ms Gonsai should be called to give evidence on impairment that afternoon, during which there would be an opportunity to explore the evidence that they had given earlier. In that regard Ms Ellis recognised that Ms Gonsai’s evidence might be longer than that of Ms Booth. She suggested that the panel might be able to hear Ms Booth’s evidence in what remained of the afternoon and that Ms Gonsai might be able to come back on a later occasion. After a short adjournment the chairman announced that the panel would hear the totality of Ms Booth’s evidence that evening. He asked the panel secretary to pass on the panel’s apologies to Ms Booth and Ms Gonsai for the length of time that they had been kept waiting.

F4. The further evidence of Ms Booth

[68]At the start of her further evidence Ms Booth was asked by the case presenter to read two paragraphs in her witness statement which had been redacted in the version provided to the panel for the purposes of her earlier evidence. Those paragraphs referred to a discussion between Ms Booth and Ms Amao in April 2008 about timekeeping, and an alleged refusal by Ms Amao on 1 May 2009 to see a patient. Ms Ellis reminded Ms Booth that on day one she had told the panel that she thought the working relationship with Ms Amao was fine and that there didn’t seem to be any problems. Ms Booth replied: Can I just rephrase that? I did say it was fine and it was a professional relationship in the workplace because it had to be; we have to be professionals as a practice manager and as a nurse. It was fine but there were times when it wasn’t fine.[69]Ms Booth’s further evidence continued: Q. What was your relationship like with Ms Amao at that point [before the incident of 13 July 2009]? A. I can only put it as warm. It wasn’t perfect but it was professional and that’s how it had to stay – professional. … She used to get an attitude if I asked her to do something, whether it was to see a patient, whether it was to do with paperwork. And sometimes she wouldn’t speak to me, which was very awkward at times. … … I don’t think there were personal problems between us at all because I didn’t know her in a personal way. But you had to be professional so in that way we were fine. Q. So although you obviously described some issues in your view the relationship was still fine professionally? A. It was always fine because I would get on with my work and she would do her work. It was if an issue came up… and I had to go in as the manager, and the nurse didn’t like it.[70]Ms Amao then cross examined Ms Booth. The cross examination challenged the substance of the matters raised by Ms Booth concerning the discussions about poor time keeping and concerning the incident in May 2009. It did not challenge the evidence that Ms Booth had given about what she had said on day one.[71]Ms Ellis did not seek to re-examine. The panel asked questions of Ms Booth. Among other things the questions concerned what had happened on past occasions when there had been a difficult working relationship with Ms Amao. Ms Booth then gave examples of occasions when she felt that Ms Amao had not considered that patients’ priority should come first. Ms Booth expressed a fear that when problems arose with Ms Amao her answers were short, or they had slight attitude with them, and then Ms Amao wouldn’t speak to Ms Booth for two or three days.[72]By agreement, evidence of Ms Booth as to personal medical matters was heard in private. When the hearing resumed in public questions were asked of Ms Booth by the chairman, and answers were given by Ms Booth, as follows: THE CHAIR: … in the light of what you have just told us I am going to put something to you and it is not very pleasant. I am going to say, based upon what you said the last time when you were asked that question by [a panel member] you gave your answer and your said the relationship was fine, it was good and there were no problems, based on what you have said today, that that was not the truth, what you told us back in October. What do you say about that? A. No. What can I say? I don’t tell lies. I would say I had a good, professional relationship with Miss Amao – that is what I’m saying today; the same as what I said in October, a good professional… Not a personal relationship but I was wary of Miss Amao – wary. I was wary to go in and ask her anything; I was wary to go in and speak about patients. Q. Why did you not say, at the time when you were asked, “I did have a professional relationship but there were certain issues that I was wary of”? A. Because I was very nervous when I came in here – very, very nervous. I was supposed to do it on a screen; it was supposed to be a video link; I wasn’t supposed to come in this room because of what was going on with my treatment. I can’t remember the other lady I was dealing with, a solicitor, but she promised that I could come in by video link, and the week I had to come in here and appear I was told, “No, you have got to come in and face Miss Amao,” which was the person I didn’t want to face. I was unnerved and I wasn’t comfortable.[73]Further evidence was given by Ms Booth in private session about her health. The hearing then resumed in public and Ms Amao asked further questions of Ms Booth. These questions concerned Ms Booth’s evidence earlier that day about incidents prior to 13 July 2009, but did not touch on the accuracy or otherwise of what Ms Booth had said in her evidence on day one.[74]At the conclusion of Ms Booth’s evidence the chairman asked that she should not discuss her evidence with Ms Gonsai or anyone else until the case had fully terminated. The matter was then adjourned to a date to be fixed for the hearing of evidence from Ms Gonsai.

F5. Day six: the hearing resumes on 11 April 2012

[75]It was not until 11 April 2012 that the hearing resumed. When it did so there was a new case presenter (Mr Brown) and a new legal assessor (Mr Aylwin). As noted earlier, the adjournment on day five had been with a view to hearing further evidence from Ms Gonsai. However Mr Aylwin had reviewed the position and had prepared a note which was made available to all parties. His note recorded that the prosecution witness statements provided to Ms Amao prior to the hearing had included the passages which dealt with events prior to 13 July 2009, and which had been redacted in the versions of the witness statements supplied to the panel at the fact finding stage. Accordingly, it would have been possible for Ms Amao, if she had wished to do so, to have cross examined on the truth of the answers given at the fact finding stage, answers which were now said to be incompatible with the evidence to be given at the impairment stage. Mr Aylwin’s note concluded: 21. The following questions may arise: regarding findings of fact:(i) Is the Panel required, in the circumstances that have arisen, (a) to recuse itself and, if not (b) to re-visit its findings of fact. Regarding impairment:(ii) Does the fact that the allegation of impairment has been framed solely by reference to charges (a) to (f), limit the Council’s case upon impairment to reliance upon the facts found? If the answer is “No”:(iii) Is evidence of the fact that Mrs Amao previously received a warning as to her time-keeping or to the effect that she should follow orders, evidence which is relevant to the question of impairment when the allegation of impairment is based upon charges relating to shouting at a fellow employee and issuing threats of violence?(iv) Is the Panel able to hear evidence of impairment from witnesses whose oral evidence has now been called into question? If the answer is “Yes”:(v) Is Mrs Amao entitled to cross-examine those witnesses as regards inconsistencies between their witness statements and their previous oral evidence? (a) to recuse itself and, if not (b) to re-visit its findings of fact.[76]Mr Aylwin noted that the parties were agreed on the answers that should be given to three of the questions he had identified. As regards question (ii), it was agreed that the prosecution’s case on impairment was not limited to facts found on charges (a) to (f), provided that the evidence upon which the prosecution sought to rely with regard to impairment was relevant. As regards question (iv), the parties were agreed that the panel was able to hear evidence of impairment from witnesses whose oral evidence had now been called into question. As regards question (v), the parties were agreed that Ms Amao was entitled to cross-examine those witnesses as regards inconsistencies between their witness statements and their previous oral evidence.[77]As regards questions (i) and (iii) however, there was no agreement. The panel decided that as Ms Gonsai was waiting to give evidence on impairment, they would seek to resolve question (i).

F6. Ms Amao’s recusal/revisiting application

[78]At 2pm on day six the panel heard submissions on Mr Aylwin’s question (i). Ms Amao submitted that the panel should recuse itself. If it did not recuse itself, then her second request was that the panel should revisit its findings of fact. She pointed out that she was an unrepresented layperson and said that there were matters which had taken her by surprise. I shall refer to her requests in this regard as her “recusal/revisiting application”.[79]Mr Brown opposed the recusal/revisiting application. Nothing had occurred which warranted recusal. It had not been suggested that the panel had been unfairly prejudiced. Nor was there good reason to revisit the panel’s findings. He submitted that Ms Amao had been aware of the inconsistency between the oral evidence and what was in the statements. She had chosen not to cross-examine for her own reasons.[80]After supplementary submissions and advice from the legal assessor the panel retired at 2:40pm. They returned at 3:55pm. The chairman announced that the recusal/revisiting application had been refused and that the reasons would be given at a later stage.[81]The chairman then continued: The position we are in now is that Ms Gonsai is here. She is only available today. The writing up of our decision will take longer than will take us to the end of today, so what we have decided to do is we will write up the decision and deliver that tomorrow but Ms Gonsai is here today and it is important that she is called and she is given the opportunity to give any evidence and to be cross-examined by yourself. In order that we have time to do that, and you have time to cross-examine, we are going to do that now and we will give our reasons for our decisions tomorrow, once they have [been] written up.

F7. The prosecution declines to call Ms Gonsai

[82]Unbeknown to the panel, however, the prosecution had decided that it would not seek to call Ms Gonsai on the question of impairment. Immediately following the remarks of the chairman quoted above, Mr Brown said this: … I do not propose to call Ms Gonsai because I do not propose to rely on anything that she would say now.[83]Mr Aylwin then advised that there was no compulsion on the prosecution to call Ms Gonsai to give evidence on the question of impairment. If she had been called, either to give evidence, or as a witness tendered for cross-examination, then Ms Amao would have been able to cross-examine her. As that had not happened, Mr Aylwin turned to deal with the position if Ms Amao were herself to call Ms Gonsai.[84]Mr Aylwin said that if Ms Amao were herself to call Ms Gonsai then there would be dangers for Ms Amao. Unless certain events occurred, she would not be able to challenge answers that Ms Gonsai gave to any questions that Ms Amao might ask.[85]The chairman asked Ms Amao whether she had understood the advice. Ms Amao replied that she had understood the advice and that she was not calling Ms Gonsai because she would not be able to cross-examine her or challenge her answers.

F8. Closing stages of day six

[86]Following the decision by the prosecution not to call Ms Gonsai, and Ms Amao’s decision that she would not call Ms Gonsai either, the chairman asked Mr Aylwin whether anything he (the chairman) had said was incorrect, or needed to be added to. Mr Aylwin replied that nothing needed correcting or adding to. The chairman then said this: THE CHAIRMAN: Thank you very much. We are in the position now that, I think what I need to do when we rise – Ms Gonsai has been here previously, she has been here all day today, she is not going to be called and that is an issue for me, as Chair, to address. We are back to the position we were in on our previous decision on the points that we had to address on the papers at paragraph 21. We will resume back to… completing our determination and getting that typed up.[87]Arrangements for the following day were then discussed. Day six of the hearing concluded at 4:15pm.[88]Thus it was that on day six Ms Gonsai, for a second time, attended to give evidence on impairment but was not called to do so. When she attended to give evidence on day six she was accompanied by Ms Booth. In the course of the present appeal questions have arisen as to what was said, and by whom, to Ms Gonsai and Ms Booth on day six after the conclusion of the hearing. I will return to those questions in section G below.

F9. Day seven: reasons for rejecting Ms Amao’s application

[89]On day seven (12 April 2012) the hearing did not begin until 1:50pm. The chairman began by giving reasons for the panel’s decision the previous day to reject Ms Amao’s recusal/revisiting application. In those reasons he recounted the background, noting that Ms Amao had been representing herself. It was, said the chairman, entirely appropriate that Mr Aylwin raised the matters which he did at the outset of day six, “in particular bearing in mind our duty to ensure that these proceedings are conducted in a manner which is fair to Ms Amao.”[90]The chairman noted that Ms Amao had accepted that the panel had not heard any evidence which was prejudicial. Instead she had based her application upon procedural unfairness and upon the fact that the evidence of the two witnesses might be considered to have been inaccurate. As to whether the panel had heard anything prejudicial, the panel had itself considered that question and determined that as a matter of fact it had not. The suggestions of procedural unfairness were then examined by the chairman and rejected as unfounded. He added: Of greater concern to the Panel was the fact that Ms Booth and Ms Gonsai had both given oral evidence to the effect either that they had got on well with Mrs Amao (said by Ms Booth) or that that there had not been any previous concerns about Mrs Amao’s conduct (said by Ms Gonsai), when the redacted portions of their witness statements indicated that this was not the case. Furthermore, after we had given our decision on the facts, we were informed by the Case Presenter that Ms Gonsai had telephoned the Council to tell them of her misgivings about the content of her evidence shortly after she had given it and that the Case Presenter had known about this before we conducted our fact finding and that she had not told us or Mrs Amao.[91]The chairman explained that the panel had considered whether it was unfair for the case presenter to have withheld information about Ms Gonsai’s telephone call from Ms Amao. Its conclusion was that the failure to inform Ms Amao of this had been wrong, but had not given rise to unfairness. Ms Amao had not needed to be informed of Ms Gonsai’s telephone call in order to realise that there was an inconsistency between what was said in the witness statements and what had been said by the witnesses. The panel considered that Ms Amao would have been alive to the possible questions of inconsistency during witness testimony. That fact, in particular, removed any unfairness.[92]The chairman then turned to the question whether in the light of what had now been learned about the evidence of Ms Booth and Ms Gonsai, the panel’s findings of fact might be considered unreliable. As to Ms Booth, the panel had been informed that Ms Booth had been told before she gave evidence that she should not go outside the unredacted portions of her statement. The questions which had given rise to the present difficulty had come from the panel, which was wholly unaware of what lay beneath the redacted portions of the statement. It was clear to the panel that Ms Booth had tried to do her best in the difficult situation in which she found herself, and that there was no intention on her part to mislead the panel. Turning to Ms Gonsai, the chairman noted that she had been sufficiently concerned about the position to telephone the NMC after giving her evidence. In that telephone call she had openly expressed her concerns. The panel concluded that, although it had been misled by Ms Gonsai during the giving of her original evidence, she had not deliberately intended to mislead the panel.[93]In relation to both these matters the panel reminded itself that Ms Amao had had the opportunity to cross-examine Ms Booth and Ms Gonsai about these matters if she had wished to do so. Moreover, the panel considered these matters in the context of the evidence it had heard from other witnesses. Many of those other witnesses were not members of staff at the clinic. The panel had found their evidence reliable.[94]The chairman concluded the reasons by saying this: The Panel concluded that the evidence given by Ms Booth and Ms Gonsai, and the matters which had since been revealed with regard to what they had said about their relationship with Mrs Amao, was not such as to require the Panel to reopen the fact finding aspects of this case. The Panel remains entirely satisfied that its findings of fact were correct and that nothing that could emerge from revisiting the fact finding process, in order to further examine these matters, would alter those findings, or that reopening the fact finding stage was either necessary out of fairness to Mrs Amao or that a failure to do so could give rise to any impression of unfairness. The Panel does not accept that it is appropriate for the Panel to recuse itself, or that it should revisit its findings of fact. In the circumstances, Mrs Amao’s applications are dismissed.

F10. Impairment: evidence, advice and NMC submissions

[95]The next stage for the panel was to turn to the question whether, as alleged by the prosecution, the factual allegations amounted to misconduct which impaired Ms Amao’s fitness to practise. Mr Aylwin told the panel that overnight he had considered the three matters on which Mr Brown intended to rely as regards impairment. The third of these was the incident of 13 July 2009. Reliance upon this by Mr Brown was not a concern. The first two, however, were the two prior matters described in the redacted parts of Ms Booth’s statement. As to those, Mr Aylwin said this: … I do not doubt that those two incidents, the first and the second, might be considered relevant to questions of impairment. However, my concern is that your duty is constrained, circumscribed if you like, by the charge sheet and the way in which the charge sheet is framed indicates that the Council’s case on impairment is based on (a) to (f). It is not said to be based on incidents on other occasions. Had they been included in the charge sheet, of course, you would be fully entitled to hear all about them, but my concern is that they are not referred to in the charge sheet. The charge sheet, quite deliberately, circumscribes the allegation of impairment by reference to (a) to (f) and that it might not be a proper course for you to take to consider when you are deliberating about impairment, the first and second incidents referred to in the evidence of Ms Booth.[96]There was then a discussion as to whether the panel should make an immediate ruling on the point, or should first hear Ms Amao’s evidence on impairment. The panel proposed to defer its ruling, adopting the second of the two courses identified. Ms Amao confirmed that she wanted to give evidence only about the incident on 13 July 2009. Mr Aylwin then said this: LEGAL ASSESSOR: Chairman, the position with regard to evidence about 13 July is that you have already made findings of fact about what happened that day. I do not know what Mrs Amao would wish to say that may be in addition to what already has been said. She may have something to say, we simply do not know what it is, but if what she says is confined to the events of 13 July 2009, and does not suggest anything regarding past or future conduct, then, as I have already said, the door to incidents one or two will, by my advice, remain closed. …[97]Ms Amao then gave evidence. In half a dozen sentences she summarised her own account of events, saying that she had had no option than to leave the premises to find Ms Booth in order to question Ms Booth’s irrational and aggressive action.[98]Mr Brown then cross-examined Ms Amao as to whether she agreed with the panel’s findings on each of the factual allegations. Mr Aylwin intervened at the start of this exercise, saying that the purpose of the question appeared to be to elicit evidence from Ms Amao indicating a lack of insight. Ms Amao might be concerned that she was being asked to admit something which she had previously denied. It would not be proper for Mr Brown to seek to get Ms Amao to admit that events occurred which she previously denied. However, advised Mr Aylwin, in order to establish impairment it was perfectly proper for Mr Brown to ask whether Ms Amao accepted the decision of the panel, even though she may disagree with it.[99]Ms Amao protested. She said that she wanted clarity on the choice of words and the question. The following exchange then took place: THE CHAIRMAN: If I could say, Mrs Amao, it is not appropriate at this point for you to seek clarification about the whys and the wherefores of his reasoning to ask the question. Really, you just need to answer it. THE REGISTRANT: Before I would put my hands into anything that would give me a problem later, I would rather get it at this stage. I will not go further unless I have clarity. I am sorry. THE CHAIRMAN: Unless the Legal Assessor wants to say anything else, I think it is appropriate – again, I am sorry, Mr Brown, if you could just repeat the question again and, Mrs Amao, unless the Legal Assessor disagrees with me, I think an answer is required.[100]Mr Aylwin did not disagree.[101]Following that exchange Mr Brown asked in turn about each of the findings of the panel on factual allegations (a) to (f). On each of them Ms Amao said that she did not accept the findings of the panel on the allegation in question. A further exchange then took place: Q. [Mr Brown] So, for the avoidance of doubt so the Panel can be absolutely clear, you do not accept the findings of your regulator that you did those things set out in charges 1(a) through to (f)? A. [Ms Amao] Yes, I do not.[102]What then happened was that Mr Brown, despite the earlier advice by Mr Aylwin that at the impairment stage it was not permissible to ask Ms Amao questions requiring her to admit that events occurred which she had previously denied on oath, turned to ask this: Q. … All of those witnesses that came forward to give evidence, are you saying that they were mistaken, or not telling the truth?[103]Mr Aylwin queried whether this was a proper question, and suggested that Mr Brown might explain, in the interests of fairness to Ms Amao, what issue his question was concerned with. Mr Brown protested that it was of vital importance on the question of insight, a question critical to impairment, to know whether Ms Amao said that the witnesses were lying or were not telling the truth. Mr Aylwin advised that such a question was not relevant to insight, and referred to his earlier advice as to the impropriety, at the impairment stage, of questions aimed at establishing the falsity of what Ms Amao had said in her evidence at the fact finding stage.[104]Mr Brown then moved on to a new question. That question, and the exchange that it led to, was as follows: Q. Mrs Amao, do you think these are serious matters, these allegations?A. Can you repeat that question, please? Q. Do you think these allegations are serious?A. Serious as in – I do not understand what you mean. Q. Mrs Amao, it is quite a simple question: are these allegations serious allegations or are they not serious allegations?A. As I said earlier, I will not be answering questions unless, and I am entitled, even when I am unrepresented or not, I am entitled to know what I am answering. If you are not giving any clarity on it, I am sorry, I will not answer the question. I will not be forced to do it. Thank you. LEGAL ASSESSOR: Chairman, if I may, with your permission, that question I advise is a perfectly proper question to ask because it does go to the question of insight and, Sir, if I may, of course, if Mrs Amao seeks a ruling on the matter then, of course, you must give one, but you are entitled to ask her, please, to answer the question in the light of the advice that I have given if you think that that is a proper course to take. THE CHAIRMAN: I do believe that it is an appropriate question at this stage. It is not open to Mrs Amao to go behind the question, and seek clarification as to why it is being asked. It requires an answer and the question was, to Mrs Amao: do you consider that these are serious matters, that these allegations are serious? That is the question that Mr Brown put to you. THE REGISTRANT: I do appreciate what you have just said but I am entitled not to give any answer at all and you can put it down that I said so. I am not prepared to answer until when I know I am answering that question. Thank you. THE CHAIRMAN: So we will put that down as a “declined to answer”.[105]Mr Brown then turned to asked whether Ms Amao accepted that the allegations in the present case, if they were proved against someone, amounted to misconduct. This led to a discussion involving Mr Brown, the chairman, and the legal assessor as to whether it was appropriate to ask Ms Amao whether she admitted either or both of misconduct or impairment. It was a lengthy discussion. The upshot was a single question from the chairman. Although it was a single question, it led to a series of exchanges. The question and the exchanges were as follows: THE CHAIRMAN: … So let me reframe the question then to Mrs Amao; do you admit your impairment? THE REGISTRANT: One minute please, I am writing. Can you repeat the question, please? THE CHAIRMAN: Yes. Do you admit that you are currently impaired and impairment is defined, if I could use that word, or is suggested by the NMC as, non impairment is an ability to remain on the register without restriction. Therefore, impairment is the opposite of that, restriction may be required? THE REGISTRANT: Say the question again, please? THE CHAIRMAN: Are you currently impaired? THE REGISTRANT: No, I do not admit. THE REGISTRANT: One minute please, I am writing. Can you repeat the question, please? THE REGISTRANT: Say the question again, please?

THE CHAIRMAN: Are you currently impaired?

[106]Mr Brown then asked Ms Amao whether she was aware of the Code of Conduct for nurses and midwives issued in 2008. She replied that she was. He then asked whether she was aware which part of the Code of Conduct was breached by the charges against her. The chairman referred to the questions thus far having gone “backwards and forwards an awful lot”, adding that they were not questions that he had encountered in his experience before at this or any point in disciplinary proceedings. The legal assessor advised that it was a proper question in the context of impairment, because it went to the issue of self awareness within a professional context, and to the issue of insight. The question was then repeated: Q. Are you aware of the parts of the 2008 Code that may have been breached by these charges?A. Okay.[107]At this point the chairman intervened again. He queried whether this was a fair question. Mr Brown explained that he was not asking “which numbers and things like that”, but that if Ms Amao had become aware of the requirements of the Code of Conduct, that would be a matter for the panel to consider when looking at issues such as repetition. The chairman responded that he had an issue with the relevance and fairness of the question, and whether it was helpful or not, and asked Mr Brown to move on. Mr Brown’s reply was that he had no further questions for Ms Amao.[108]The chairman explained that the next stage would be for Mr Brown to make submissions on impairment. Ms Amao asked for clarification. The chairman responded that he would let Mr Brown go ahead and Ms Amao could hear what Mr Brown’s submission was. It would then be Ms Amao’s opportunity to reply.[109]Mr Brown opened his submissions by explaining that the panel must look at whether or not the charges that it had found proven amounted to misconduct. If they amounted to misconduct, the panel must look at whether or not Ms Amao’s fitness to practice was currently impaired. He added: What that means is, of course, … looking forward and, of course, in looking forward you must have regard to what has gone previously.[110]Mr Brown then went through relevant parts of the Code of Conduct. He submitted that the charges, as found proven by the panel, amounted to misconduct. That misconduct had not been remedied because Ms Amao still said none of these events had happened. There was, he submitted a stark lack of insight, with a risk of repetition. There had been no evidence put before the panel as to any attempt for such behaviour to be remedied. Ms Amao had declined to answer the question whether the charges were serious. This again showed a real lack of insight into her behaviour. A finding of impairment, he submitted, was needed to show the profession’s disapproval of the conduct set out in the charges.[111]At this point the chairman suggested that Ms Amao should make her submissions on impairment the following morning. Ms Amao agreed to that course.

F11. Day 8: impairment, misconduct and sanction

[112]Day six (Friday 13 April 2012) accordingly began with submissions by Ms Amao. She insisted that as a clinician it was Dr Gonsai who was invariably her line manager. Ms Booth, by contrast, was not in a position to act as line manager on clinical issues, a fact which Ms Booth had found difficult to accept. As a professional, Ms Amao did not think that she was exempt from the kind of personality clash which had occurred between herself and Ms Booth.[113]Ms Amao referred to previous instances of that personality clash. In the present case, Ms Booth had encouraged collusion with patients, and in that regard Ms Amao relied upon the evidence of Ms Brown.[114]Ms Amao then made a series of complaints about what had happened in the case. Ms Booth and Ms Gonsai had had to retract previous evidence. Ms Ellis had not informed Ms Amao about Ms Gonsai’s retraction. Ms Ellis had wrongly accused Ms Amao of being the aggressor, whereas it was Ms Booth who had thrown the urine specimen. Neither the patient who was pregnant nor her mother, who had asked for the urine sample to be tested, had been called to give evidence, nor had Dr Gonsai been called to give evidence. There were flaws in the referral to the NMC, and without a shadow of a doubt Ms Booth’s motive in making the referral was “to cover her tracks of any wrongdoing – I refer to the assault on my person…”.[115]Turning to Mr Brown’s submissions, he had asked inappropriate questions. She added: His comments regarding my refusal to answer questions appear to be purely judgmental on fear and prejudicial. I am allowed under the Fifth Amendment, both in criminal and even in civil proceedings, the privilege against answering a question if the question or questions calls for a self-incriminating response.[116]Ms Amao then went through the passages in the Code of Conduct that Mr Brown had relied upon. She asserted that in the past she had complied with relevant parts of the Code of Conduct. If what Mr Brown was referring to was “a one off incident in which an aggressive and irrational behaviour on the part of Mrs Booth aggravated matters,” Ms Amao said she did not agree that she had put her profession in any form of disrepute.[117]Mr Aylwin then gave legal advice to the panel. He noted that Ms Amao had referred to the second of the earlier incidents described by Ms Booth, and advised that it would be permissible for the panel to have regard to that incident accordingly. He said that his advice could be summarised: the panel should first consider whether there had been misconduct sufficiently serious that it went to Ms Amao’s fitness to practise. If so, the panel should consider whether by reason of that misconduct Ms Amao’s fitness to practise was currently impaired. For that purpose the panel should address past conduct and the future, taking account of all the circumstances of this particular case, and forming its own judgment in respect of Ms Amao’s insight into her failings, and with respect to the issue of remediation. The panel should confine itself to relevant evidence. In addition, it should ask itself whether in all the circumstances of this case the need to uphold proper professional standards and public confidence in the profession would be undermined if it did not make a finding of impairment of fitness to practise.[118]The panel retired at 10:45am. Shortly before 2pm the hearing resumed, and the chairman explained that the panel had considered the questions of misconduct and impairment with the greatest of care. In relation to misconduct, he described the panel’s finding in this way: The panel has had regard to the Nursing & Midwifery Council Code of Professional Conduct of May 2008, hereafter called “the Code”. In summary, the Code expects that a registered nurse will make the care of people your first concern, work with others to protect and promote the health and well-being of those in your care, provide a high standard of practice of care at all times, be open and honest, act with integrity and uphold the reputation of your profession. The panel found in light of its findings of fact in Charges (a) to (f) Ms Amao had breached the following requirements of Code: Part 3, “You must treat people as individuals and respect their dignity”; 24, “You must work co-operatively within teams and respect the skills, expertise and contributions of your colleagues”; 27, “You must treat your colleagues fairly and without discrimination”; and 61, “You must uphold the reputation of your profession at all times”. The panel bore in mind Ms Amao contended that she had been provoked by the behaviour of Ms Booth. However, it has no doubt that, even if Ms Booth behaved as has been suggested by Ms Amao, and the panel does not accept that she did, Ms Booth’s behaviour neither justified nor excused the consequent conduct of Ms Amao. The panel has no doubt that the facts as found when judged in the context of the Code of Conduct amounted to misconduct on the part of Ms Amao and it so finds.[119]The chairman explained that having found misconduct, the panel went on to consider whether Ms Amao’s fitness to practise was currently impaired by reason of that misconduct. After referring to relevant legal guidance, the chairman continued: Although Ms Amao’s behaviour did not in this case involve direct patient harm, the panel considered that the attitudinal issues of aggressive behaviour exhibited on 13 July 2009, as found in the charges, would have placed patients at unwarranted risk of harm in the future. We have addressed the risk of repetition below. The panel has considered whether the charges found proved were such as to bring the reputation of the profession into disrepute. The threat to kill Ms Booth together with repeated threats of a similarly serious nature went far beyond what might have been considered a legitimate or understandable loss of temper in the workplace. The panel has had regard to the impact of Ms Amao’s behaviour on Ms Booth and upon those who witnessed it. The panel is acutely conscious of the fact that patients and members of the public could hear the abuse directed to Ms Booth. The panel has no doubt that Ms Amao’s conduct was such as to bring the profession into disrepute. Further, the panel regards Ms Amao’s actions as a breach of one of the fundamental tenets of profession, that is to say that they went far beyond what might be considered acceptable behaviour by a member of the nursing profession.[120]The chairman then turned to the question of insight, saying: The panel has considered whether there is evidence that in the intervening period since 13 July 2009 Ms Amao has demonstrated insight into her problems such as to suggest a remediation of the impairment demonstrated by her misconduct, so that the panel might take the view that her fitness to practise is not currently impaired and/or that her misconduct is unlikely to be repeated in the future. The panel has had the opportunity to consider Ms Amao’s evidence and submissions, and to observe her conduct and demeanour during the course of this part of the proceedings. Ms Amao has persisted with the allegation that the witnesses in this case were in collusion against her. The panel had previously concluded that there was no collusion involving the witnesses and is satisfied that its conclusion was correct. Even making allowance for the fact that Ms Amao is a litigant in person, the panel is concerned that Ms Amao’s persistence in continuing with this allegation and the manner in which she did so, which was self-justifying and dogmatic, demonstrates a lack of insight into her situation and an unwillingness to accept decisions with which she does not agree and that in a professional context there is a serious risk of recurrence of the kind of problems which occurred on 13 July 2009. The panel has further heard evidence from Ms Amao that she does not accept the decisions of the panel on its findings of fact. It was made clear to Ms Amao that when she gave this evidence the panel wished to draw a distinction between whether or not Ms Amao disagreed with the findings, which she was perfectly entitled to do, and whether she accepted them. She said that she did not accept them. …[121]At this point the chairman referred to Ms Amao being asked whether she agreed that the facts found against her were serious, and declining to answer the question. He explained that the panel in its deliberations had given no weight to the refusal by Ms Amao to say whether she accepted that the findings made against her were serious. In addition, the panel had given no weight to the second incident referred to in Ms Booth’s evidence. He then described the panel’s conclusion on insight in this way: The panel has concluded that Ms Amao has absolutely no insight either with regard to her conduct or professional obligations in this regard, and that there has been no remediation of the misconduct which occurred on 13 July 2009.[122]The chairman then turned to the risk of future misconduct, as to which he said this: The panel considers that there exist underlying attitudinal issues which have not been addressed or remedied and has concluded there is a high risk of repetition of Ms Amao’s behaviour. The panel considers in all the circumstances of this case that there is a real risk of Ms Amao repeating the misconduct which was the subject of the allegations and which we have found proved in our findings of fact.[123]The chairman then described the panel’s conclusion on impairment in this way: Throughout its deliberations the panel has borne in mind its responsibility to protect the public interest. The public interest includes the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour amongst members of the profession. The panel is of the view that there is a high level of risk of repetition of Ms Amao’s misconduct such as will have the potential to put patients at risk of harm and such as to seriously undermine public confidence in the nursing profession. The panel finds that for all those reasons Ms Amao’s fitness to practise was impaired at the time of her misconduct and that it remains currently impaired.[124]Having explained the panel’s decision on impairment, the chairman explained that the next issue to deal with concerned the issue of sanction. In that regard the panel would be using advice set out in the NMC’s Indicative Sanctions Guidance. Mr Brown then made submissions in which he noted that what was set out in the Indicative Sanctions Guidance comprised “guidelines and not tramlines”. It was for the panel to decide what sanction was appropriate in the circumstances of the case. The chairman then asked Ms Amao whether she wished to make a submission on sanction, to which she replied that she did not.[125]Mr Aylwin then gave advice concerning the decision on sanction. He, too, referred to the Indicative Sanctions Guidance. I set out in section L below certain passages in that guidance. For present purposes, I note here that Mr Aylwin reminded the panel of certain general principles. First, the panel must have regard both to the public interest and to the interests of Ms Amao. Second, the public interest includes the protection of members of the public and the maintenance of public confidence in the profession and the Council. It also includes declaring and upholding proper standards of conduct and performance. Any sanction imposed should demonstrate a considered and proportionate balance between the interests of the public and Ms Amao, and any mitigating or aggravating factors present in this particular case.[126]Neither Mr Brown nor Ms Amao sought to make any comment following Mr Aylwin’s advice. The panel retired at 2:11pm.[127]The hearing resumed at shortly before 4pm. The chairman announced that the panel had considered the case very carefully and had decided to make a striking off order. He then gave reasons for that decision. In that regard he noted that while Ms Amao had not made any submissions on the matter of sanction, the panel had borne in mind everything that she had previously said.[128]After referring to general principles, in terms which reflected the advice given by Mr Aylwin, the chairman went on to explain why the panel considered that it would be wholly inappropriate to take no action in the present case. He also explained why the panel considered that a caution order would be inappropriate, and that it would not be appropriate to impose conditions of practice. The next most serious sanction was that of suspension. The chairman described the panel’s approach in this way: The panel went on to consider the sanction of suspension. In doing so it noted the guidance contained in the Indicative Sanctions Guidance in relation to suspension. Given the serious nature of Ms Amao’s behaviour coupled with her lack of insight, the panel concluded that a suspension order would be neither appropriate nor sufficient to uphold the standards of, and maintain public confidence in, the nursing profession.[129]The chairman then set out the final section of the panel’s reasons, as follows: The panel concluded that Ms Amao’s actions as set out in Charges (a) to (f), the actual impact on patients, members of the public and professional colleagues as well as the potential for such impact and the interests of the profession and the Council as a regulating authority are such that as may be fundamentally incompatible with Ms Amao remaining on the register and the panel must consider a striking off order. Although the panel has received no specific information about the potential impact of a striking off order on Ms Amao in terms of the financial and professional hardship this would create, the panel recognises, and has borne in mind, the fact that a striking off order would prevent Ms Amao from pursuing her chosen profession and deriving an income from it. The panel is of the view that Ms Amao’s actions have demonstrated a fundamental departure from the relevant standards as set in the Code and public confidence in the nursing profession and in the NMC as its regulator would be undermined were the panel not to impose a striking off order. The panel is also of the view that there remains a continuing risk to the public. The panel considers that in this case the public interest outweighs the interests of Ms Amao. The panel has considered whether a suspension order might nonetheless be appropriate and proportionate in the circumstances. It has decided that it would not be. The panel has determined that a striking off order would be proportionate and as such an order is the only appropriate order in this case. The panel therefore determines that a striking off order should be imposed. G. Events after the hearing on day six[130]On 12 April 2012, the day after day six of the hearing, a telephone note was made by Philip Otton, a case officer employed by the NMC. It described a telephone call from Ms Gonsai, and was in these terms: Call from Reena Gonsai She wanted to fill me in on what had happened at the hearing yesterday. She said she had arrived before 12 and just after 12 was informed that there was some legal wrangling and that she may be called at about 3pm. At 4.30 she was informed that she would not be required to give evidence after all. She said that the case presenter and the chair had come and spoken to her and Kathy [Ms Booth] and explained that they were happy with the information she had given and had no further questions. They had asked Ms Amao if she had any questions for her. Ms Amao had initially said that she did but when it was explained that she would effectively become her witness and would not be able to interrogate her she had decided that she did not have anything further to ask She said that she had mentioned her concerns to the chair about having a black mark against her name and not being considered as reliable. She said the chair had confirmed he had seen the phone note and that he had no reason to think she had lied or think that her testimony could not be trusted. She had explained to the chair that she was previously told the original 8 charges were proven and then told they may not be proven. She asked the chair if they had found them proven or not and was told that he could not comment but that Ms Amao had been asked to return for the next 2 days and there was a possibility that they may not finish in those 2 days. She asked that if a decision is made on facts that I let her know straight away. She said that she and Dr Gonsai had found them proven and dismissed Ms Amao for gross misconduct. She said that a finding by the NMC on those facts would bolster her original decision and provided them with further support should Ms Amao decided to file for unfair dismissal.

Call from Reena Gonsai

[131]It will be seen from the telephone note that Ms Gonsai believed that it was not only the case presenter, but also the chairman of the panel, who had come and spoken to her and Ms Booth, and explained that they were happy with the information that Ms Gonsai had given. The NMC has queried whether Ms Gonsai may have been mistaken in thinking that it was indeed the chairman of the panel who saw her and spoke with her that afternoon. I return to this topic in section M below. H. The appeal[132]On 22 May 2012 solicitors on behalf of Ms Amao lodged an appellant’s notice. The notice said that grounds of appeal would be lodged by 1 June 2012. This promise was not fulfilled. No grounds of appeal were lodged by 1 June 2012. What then happened was that Ms Amao herself lodged grounds of appeal by letter dated 13 June 2012. Her letter asked that all future correspondence should be sent to her at her home address.[133]The grounds of appeal comprised two numbered paragraphs. The first, headed “Fairness”, concerned the panel’s decision on facts. I set it out below, numbering the sentences as [1.1] onwards: 1. Fairness: [1.1] The Panel ought not to have accepted the evidence of the Defendant’s witnesses uncritically. [1.2] The Panel seemed to have concluded that because of the sheer number of people who came forward to give evidence that the words alleged were heard, a fortiori, the Claimant must be seen not to be credible. [1.3] It is impossible for 8 witnesses to have heard the same words at the same time, since some of the incidents occurred at different places. [1.4] The fact that all the witnesses claimed to have heard the same words is indicative of collusion. [1.5] The Panel did not carry out the necessary scrutiny and balancing exercise in making its determination of facts. [1.6] The Panel ought to have tread more carefully in the light that two witnesses withdrew their original evidence. [1.7] The Claimant accepted that she made remarks but not the egregious remarks attributed to her.[134]The second ground of appeal was headed, “Disproportionality”. It concerned the panel’s decision to strike off. I set it out below, numbering the sentences as [2.1] onwards: 2. Disproportionality: [2.1] The sanction of striking off is disproportionate in all the circumstances of this case. [2.2] It is plainly patent that the Claimant was provoked. [2.3] The Panel misconstrued the effect of provocation on the Claimant and opined that a Professional Nurse ought to be able to maintain control. [2.4] The incident was not between the Claimant and a patient and the Claimant has no duty of care to a ‘provocateur’. [2.5] It is submitted the words even if used, which is denied, did not engage the ‘Code’ since the Code contemplates situations between Nurse and patients, and colleagues to colleagues. [2.6] Miss Booth was not the Claimant’s colleague and the proper jurisdiction for adjudicating the misdemeanours should be through the Contract between the Claimant and the employer. [2.7] The only reason why the Panel gave the ultimate sanction of striking off was because the Claimant disagreed with the Panel findings of fact. [2.8] This is plainly unreasonable and disproportionate.[135]The hearing of the appeal was listed for 19 April 2013. On 3 April 2013 the NMC lodged a skeleton argument. Under the heading, “Response to the appeal” it submitted that the panel had given clear and comprehensive reasons for its findings of fact. In addition, the panel had addressed “head on” the potential issue that it may have been misled. As to striking off, Ms Amao’s conduct had involved clear and unambiguous threats of violence, along with verbal abuse, including accusations that Ms Booth was a racist. Colleagues and patients were, on their evidence, left shocked at the conduct. Ms Booth gave evidence of the long term impact it had had on her health. When dealing with impairment, the panel had identified a risk to patients in the future arising out of Ms Amao’s “attitudinal issues of aggressive behaviour”. When considering sanction, the panel found that Ms Amao had no insight, was dogmatic and self-justifying, was unprepared to accept decisions, and therefore there was a “serious risk of repetition”. In those circumstances the NMC submitted that the panel were left with a very difficult decision to make when considering sanction. In all the circumstances the sanction was submitted not to have been disproportionate.[136]It later emerged that the Administrative Court Office had overlooked Ms Amao’s request that correspondence should be sent to her home address. The result was that correspondence concerning the hearing scheduled for 19 April 2013 had been sent to Ms Amao’s original solicitors, who in fact were no longer acting for her – although there had been a failure to lodge the appropriate form in that regard. By a consent order dated 18 April 2013 the hearing was adjourned. It was noted in the order that the adjournment had been requested by Ms Amao in order to allow her time to secure representation.[137]The consent order also noted that the interim order of suspension restricting Ms Amao’s right to practice as a nurse would expire on 12 October 2013. It became apparent to the NMC that it would be necessary to apply to the court for an extension of the interim order. An appropriate application was made to the court. On 4 October 2013 Deputy High Court Judge Gill extended the interim order until 3 February 2014.[138]The appeal was listed to be heard on 31 October 2013. By an application notice dated 29 October 2013 Ms Amao sought a further adjournment, again in order to seek legal representation. I directed that the application for an adjournment should be dealt with at the hearing on 31 October. At that hearing Mr Hafejee, who had settled the skeleton argument for the NMC, appeared on their behalf. Ms Amao appeared in person. I refused the application for an adjournment because I was not satisfied that there was a real prospect that Ms Amao would be able to secure legal representation within a reasonable time. Ms Amao expressed concern at the degree of stress that the appeal was causing her. I asked the parties to consider whether in these circumstances the preferable course would be for the appeal to be determined on the papers with further written submissions from both parties.[139]After taking time to consider the matter, both sides agreed upon the course which I had asked them to consider. Mr Hafejee indicated that the NMC would wish to serve additional submissions concerning the panel’s conclusion not to hear further evidence from Ms Gonsai. My order of 31 October accordingly set a date of 18 November for such submissions to be filed and served, with submissions in response from Ms Amao to be filed and served by 2 December 2013.[140]On 18 November 2013 Mr Hafejee provided the court and Ms Amao with a copy of the file note described in section G above. He asked for further time to deal with the matters raised in that note. I granted an extension, with a corresponding extension of time for Ms Amao’s submissions.[141]In due course the NMC lodged its written submissions. In those submissions, among other things, Mr Hafejee accepted on behalf of the NMC that an erroneous approach had been taken when the NMC declined to call Ms Gonsai on day six (see section F7 above). Ms Gonsai had already been called by the NMC and had given evidence, and could have been recalled for further cross-examination. Mr Hafejee nevertheless submitted that the appeal should not be allowed. Ms Gonsai had not given evidence about what Ms Amao had said, the reason being that Ms Gonsai was not present on 13 July 2009. The panel had carefully considered the matter, identified the key issues, and gave a properly reasoned decision as to why its finding on facts remained.[142]On 16 December Ms Amao lodged her written submissions in answer. The first point which she made was this: 2. I have never been told what ‘impairment to practice’ means. I have never been referred to any rule or code that defines the meaning. I have been looking after patients very well and there has never been any occasion when my employer complained that I was unable to look after patients as a result of any impairment. Impairment suggests to me that there must be some medical condition that affects my ability to look after patients. If the NMC has a different meaning, I have never been told where to find it nor have they stated in my charge sheet what it means. As a result of this, my cross examination was not focussed as I did not understand what I had to prove or disprove. If the NMC had told me exactly what it meant by ‘impairment’ I would have been more prepared and focussed more during the hearing. In the circumstances, I feel that I did not have a fair hearing both under Article 6 of the Convention on Human Rights and Natural Justice.[143]Additional points were made by Ms Amao. I will touch on these later in this judgment where they have relevance to matters under consideration. [There is no section I.] J. Ms Amao’s challenge to factual findings

[There is no section I.]

[144]An important strand of Ms Amao’s complaint about the factual findings concerns the incorrect evidence that was given by Ms Booth and Ms Gonsai as to whether there had been earlier incidents causing concern. Both had been told by the prosecution that in their evidence as to factual matters they must not make reference to earlier incidents. In these circumstances it is understandable that when asked about earlier matters by the panel they found themselves in difficulty. Ms Gonsai clearly acknowledged, when she first contacted the NMC after giving her evidence, that what she had said was incorrect. Ms Booth, under questioning when recalled, was less willing to accept that she had said anything which was inaccurate. The panel was, in my view, entitled in the light of her evidence to conclude that while what she had said was not accurate, this had come about innocently as a result of the instructions that she had been given by the NMC before her evidence began.[145]In her original grounds of appeal, Ms Amao’s point [1.6] (see section H above) was that what occurred made it incumbent upon the panel to “tread more carefully”. In her later submissions, however, Ms Amao noted what had been said by the chairman in the exchange between the chairman and the case presenter quoted in section F3 above. In that passage he stressed that the panel had made its findings of fact on the basis that the witnesses were not telling lies, and that the evidence they had provided to the panel was correct. This led to criticisms by Ms Amao that the panel knew that the earlier accounts of Ms Booth and Ms Gonsai were unreliable, yet still based its judgment on those statements. The decision of the panel was therefore said to be “flawed and biased right from the outset.” Ms Amao added that as Ms Booth and Ms Gonsai had given misleading accounts on oath the consequent decisions of the panel at the fact finding stage were unsafe.[146]I certainly agree with Ms Amao that the information which emerged made it incumbent upon the panel “to tread carefully”. If the panel had not done so, then some, at least, of Ms Amao’s criticisms might be justified. What is striking in the present case is the conspicuous care which the panel took, as soon as it learnt of Ms Gonsai’s concern that she had given inaccurate evidence, to ensure that there were investigations into the matter and to satisfy themselves as to whether what had happened might have any impact on the accuracy of the findings that had already been made.[147]What happened at the fact-finding stage in this regard can, in my view, properly be described as a procedural mishap. There seem to have been assumptions by the NMC(1) that if the panel were to have regard to earlier incidents there would be a danger that this might have an adverse impact on Ms Amao at the fact-finding stage, and(2) that this was a danger which should be avoided by shielding from the panel any information about those earlier incidents. For reasons which I explain below, I consider that any such assumptions were misguided. The question for present purposes, however, is whether this procedural mishap, and a second procedural mishap when Ms Gonsai was not recalled for cross examination, led to injustice to Ms Amao.[148]If either or both of these procedural mishaps had led to injustice then I would be very reluctant to hold that the finding of the panel could stand. It would then have been necessary for me to consider whether I could properly make a finding on the basis of the transcripts of evidence before me. For the reasons given by the panel, however, I conclude that there is no injustice arising at the fact finding stage in this regard. I am satisfied that Ms Amao could, if she had thought it desirable, have questioned the witnesses at the time about their statements to the effect that there had been no previous concerns. Ms Amao did not do so.[149]Moreover, even if Ms Amao had cross examined Ms Booth and Ms Gonsai on the point, I do not consider that there is any prospect that this would have affected the panel’s findings of fact. As regards the specific factual allegations, and the specific words that were alleged to have been used, the evidence against Ms Amao was overwhelming. I have carefully considered the transcripts of evidence. In relation to each charge the allegation is supported not merely by evidence from Ms Booth, but by evidence from others. There is no realistic possibility that all these witnesses were mistaken or lying or colluding. Each of the relevant witnesses described the words used in his or her own way. Indeed Mr Cable when giving evidence in chief had at once expressed concern when he thought that the statement he was reading out did not accurately reflect what he had originally said: see the extract in section F1 above from the transcript of his evidence, setting out both the initial concern and his later realisation that the statement he was reading out was in fact the same as his original statement. The evidence given by Mr Cable and other witnesses was such that the factual allegations were all amply proven even without the evidence of Ms Booth. None of the factual allegations was reliant on evidence from Ms Gonsai. There is no realistic prospect that Ms Amao’s case on collusion would have been assisted by cross examination of Ms Gonsai to the effect that she had lied when she said there were no previous concerns.[150]In these circumstances Ms Amao’s challenge to the findings of fact does not succeed.

K. Decisions on misconduct, impairment and sanction

[151]In her original grounds of appeal Ms Amao used the term “disproportionality” to describe her complaints about the panel’s decision that she should be struck off. The first factor relied upon by Ms Amao as indicating disproportionality concerned provocation. Ms Amao said at [2.2] that it was patent that she was provoked. At [2.3] Ms Amao said that the panel had misconstrued the effect of provocation on her, and had opined that a professional nurse ought to be able to maintain control. At [2.4] it was said that Ms Amao had no duty of care to a “provocateur.”[152]I consider that the act of throwing the urine sample was an act which can properly be described as provocative. It does not matter for this purpose whether Ms Booth intended to throw it at Ms Amao rather than at the floor. In my view it is quite understandable that Ms Amao may, at the time, have concluded that the urine sample had been thrown at her even if it landed on the floor instead. Moreover, as regards an aspect of the case which I discuss further below, there appears to have been a background of unresolved tension between Ms Amao and Ms Booth.[153]That said, however, the evidence before the panel does not justify a finding that Ms Booth was deliberately acting as a “provocateur”. More importantly, even if all that Ms Amao says about provocation were correct, the panel in my view was plainly right to hold that it could not justify the conduct which occurred.[154]The next point taken by Ms Amao is that the Code of Conduct did not apply because Ms Booth was not a “colleague” of Ms Amao. It is right that the incident which took place was not an incident between Ms Amao and a patient. However, it undoubtedly caused real shock and concern to patients, and it was an incident which took place between Ms Amao and a fellow employee at the clinic. There is no reason to distinguish in this regard between those employees who are clinicians and those who are not. The Code of Conduct describes duties of treating people as individuals and respecting their dignity, working co-operatively within teams and respecting colleagues, treating colleagues fairly and without discrimination, and upholding the reputation of the profession. The NMC is fully entitled to consider, and the panel was fully entitled to conclude, that these duties, applied just as much to Ms Amao’s relations with Ms Booth as they did to Ms Amao’s relations with clinical colleagues and with patients.[155]I am more concerned, however, by the way in which the issue of impairment was dealt with at the hearing. In her recent submissions, Ms Amao comments that the word “impairment” is suggestive of a “medical condition that affects my ability to look after patients.” I agree that to a layperson the word “impairment” is indeed suggestive of something along these lines. Of course, it was not suggested at the hearing that “impairment” has this meaning – and Ms Amao does not suggest otherwise. However I agree with her that the transcript demonstrates confusion on her part as to what “impairment” really involved.[156]The feature of “impairment” which, to my mind, was never properly addressed in evidence and submissions, concerned the distinction between a failure to have insight into the misconduct which had occurred, and a failure to have insight into the need in future to avoid being in a position where such conduct was likely to recur. The relentless focus of the prosecution was upon what happened on 13 July 2009. It is apparent from the transcript that the proceedings on day seven (see section F10 above) left Ms Amao confused. It is difficult to see how, without legal representation, she could have been anything other than confused. Before Ms Amao gave evidence on impairment, Mr Aylwin had advised that because the charge sheet had alleged impairment by reference only to factual allegations (a) to (f), it might not be proper when considering impairment to consider the first and second incidents referred to in the evidence of Ms Booth. However he then went on to say in the second passage quoted in section F10 above that the position might be different if Ms Amao’s evidence on impairment were to make any suggestion as to her conduct before 13 July 2009 or her future conduct. The way Mr Aylwin put it was this:
“if what she says is confined to the events of 13 July 2009, and does not suggest anything regarding past or future conduct, then … the door to incidents one or two will, by my advice, remain closed.”
[emphasis added][157]Here, as it seems to me, there was a very important missed opportunity. There was a need to stand back from the emotionally charged incident of 13 July 2009. As the NMC acknowledges, the panel’s findings of fact meant that Ms Amao faced a substantial risk of being struck off. In determining whether that was the appropriate penalty, a key question for the panel would be whether Ms Amao had insight into the desirability of taking steps to ensure that in future no misconduct occurred. There was nothing to suggest that Ms Amao had any understanding of how important it was for her to give evidence and make submissions about her ability to take steps to ensure that in future there would be no incident similar to what happened on 13 July 2009. She had thus far proceeded, and continued thereafter to proceed, on the basis that the crucial question was whether she had said the things alleged against her on 13 July 2009 and whether she was at fault in doing so.[158]Far from indicating that it would be highly desirable for Ms Amao to stand back from events of 13 July 2009, and consider what she could say to assuage concerns about the future, Ms Amao was in effect told that this was a topic she should avoid.[159]Matters were made worse by a thoroughly inappropriate approach to cross-examination. The chairman himself commented that he had not previously encountered questioning of the kind which then occurred. The evidence about what occurred was, as I have said, overwhelming in showing that Ms Amao had said the words which she was alleged to have said. It also, to my mind, provided considerable support for the chairman’s suggestion to Ms Amao (see section F1 above) that she lost her temper, said things that she should not have said, went against her own values, and found it difficult to accept that she had indeed behaved wrongly.[160]In these circumstances it was both inappropriate and unnecessary for the prosecution to seek to question Ms Amao about whether she agreed with the panel’s findings on each of the factual allegations. Mr Aylwin rightly intervened. In my view, however, it would have been desirable to go further, for here was another opportunity to shift the focus. It was as plain as a pikestaff that Ms Amao was not going to alter her stance about what had occurred on 13 July 2009. In those circumstances, Mr Aylwin’s advice that it was proper to ask whether Ms Amao accepted the decision of the panel might have been technically correct, but was unlikely in practical terms to lead to anything other than confusion. As subsequent questioning proceeded, I have no doubt that the protests by Ms Amao were genuine. The distinction drawn between agreeing with the panel on the one hand, and accepting its findings on the other, was a subtle one. It was a distinction which was first suggested while Ms Amao was in the course of cross-examination. It was a distinction that Ms Amao, understandably, found impossible to grasp.[161]Moreover, as it seems to me, Ms Amao was perfectly entitled to say that she did not accept the findings of the panel: she had a right of appeal which she was entitled to exercise. In all the circumstances it was thoroughly inappropriate, almost Kafkaesque, to cross-examine Ms Amao in a way which implied that she would be acting improperly if she did not “accept the findings of your regulator”. She was at a loss, and confused, as to how to deal with this line of questioning. The remainder of the proceedings did nothing to make Ms Amao any less confused.[162]In her submissions the following day Ms Amao again focused on what happened on 13 July 2009. The closest that she came to any appreciation of the need to address insight into steps which could minimise future risk was her description (see section F11 above) of what happened that day as “a one off incident”. Even then, there is nothing to suggest that Ms Amao appreciated that there was a need for her to assist the panel on whether or not an incident of the kind that occurred on 13 July 2009 might recur in the future.[163]The reality was that Ms Amao did not have an appreciation of the real nature of the case that she had to meet in relation to impairment, namely that it was not just her insight into what happened on 13 July which the panel would wish to consider, but also her insight into what could be done in the future to avoid an incident of that kind recurring. In these circumstances, the panel’s finding that there was a high risk of repetition was vitiated by an unfair procedure. Nor am I in a position where I can make such a finding.[164]The panel’s reasons make it clear that its assessment of the risk of repetition was an important factor in the decision to strike off. That assessment having been vitiated, it follows that the panel’s decision on sanction cannot stand. While I have no hesitation in giving great weight to the special expertise of the panel in making the judgment as to sanction, in the present case that judgment was reached in a manner which was procedurally unfair to Ms Amao.

L. Should the court remit the matter?

[165]The NMC submitted that if the appeal were allowed the matter should be remitted back to a fresh panel to be heard again. The incident of 13 July 2009 was serious, and there remained a strong public interest in a panel properly hearing the case and disposing of it appropriately. I am, however, reluctant to remit the matter.[166]I agree that the findings are serious. In this context, I have regard to the Indicative Sanctions Guidance. At paragraphs 17 to 20 it states as follows: Suspension (for a specified period not exceeding one year in the first instance and must be reviewed) 17. This sanction may be appropriate when most of the following factors are apparent. This list is not exhaustive:• Misconduct but not fundamentally incompatible with continuing to be registered with the NMC• Apparently irremediable lack of competence but where striking-off is not available; and• Serious ill health but where striking-off is not available; 18. Having considered the general principles above, the panel must decide whether a suspension order is a sufficient sanction. If the panel decides that suspension is sufficient, it should consider whether it is necessary to impose an interim suspension order until the end of the appeal period (see paragraph 14). 19. If the panel considers a suspension order is insufficient, it should consider the next sanction. Striking-off order 20. This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registrant. The following list is not exhaustive.• Serious departure from the relevant standards as set out in the Code of professional conduct or other of Council’s standards and/or where there is continuing risk to patients/clients or others;• Confidence in the Council would be undermined if the person is not struck off;• Serious lack of competence where there is no evidence of improvement following two years of continuous suspension or conditions of practice; and• Serious ill health where there is no evidence of improvement following two years of continuous suspension or conditions of practice.• Misconduct but not fundamentally incompatible with continuing to be registered with the NMC• Apparently irremediable lack of competence but where striking-off is not available; and• Serious ill health but where striking-off is not available; Striking-off order• Serious departure from the relevant standards as set out in the Code of professional conduct or other of Council’s standards and/or where there is continuing risk to patients/clients or others;• Confidence in the Council would be undermined if the person is not struck off;• Serious lack of competence where there is no evidence of improvement following two years of continuous suspension or conditions of practice; and• Serious ill health where there is no evidence of improvement following two years of continuous suspension or conditions of practice.

Striking-off order

[167]In the circumstances of the present case, I conclude that even if there had been insight on the part of Ms Amao into steps that could be taken in future, nonetheless suspension for a period of one year is the minimum sanction that could have been adopted. In that regard the features identified by the NMC concerning the nature of the threats, the shock and alarm caused to both fellow employees of the clinic and members of the public, and the damage done to the standing of the profession, are all so serious that anything less than suspension for a year would not have adequately reflected the NMC’s important function of maintaining standards of conduct for nurses.[168]If it had been the case that Ms Amao had not merely failed to appreciate the relevance of considering whether in future steps might be taken to avoid anything of the kind recurring, but in fact had no insight into the desirability of doing so, then I would – as a matter of secondary judgment – have agreed with the panel that the sanction of striking off was called for. In the absence of such insight, Ms Amao’s behaviour would properly be categorised as “fundamentally incompatible” with being a registered nurse. However, for the reasons I have given, it would not be fair to Ms Amao to proceed upon the basis that she had no insight into the desirability of steps to avoid repetition in the future. Thus the only appropriate sanction which the panel could properly have imposed, in the light of what had transpired at the hearing, would have been suspension for a period of a year.[169]Had Ms Amao had an opportunity to demonstrate insight into whether in future steps might be taken to avoid anything of the kind recurring, and been able to demonstrate such insight, then the panel might well have concluded that neither the future risks to patients nor the damage to the standing of the profession, would have required striking off. I add in that regard that what was needed in the present case was to have had a proper examination of how it was that Ms Amao came to react in the way that she did. The panel was rightly concerned to know about her personal development plan and to know about previous incidents which had caused concern. Those, like the panel, who are familiar with the ways in which problems fester and matters can get out of control, rightly recognise that an understanding of what led to events in the past may well be important both in resolving conflicts of factual evidence as to what occurred and in assessing what the position is likely to be in the future. From the outset in the present case, however, the panel appears to me to have been hampered by misguided assumptions on the part of the prosecution that evidence concerning earlier incidents should be excised from the consideration of factual matters and introduced only at the stage of consideration of impairment.[170]Ms Amao has now been the subject of an interim suspension order lasting nearly two years. There is no suggestion that during this period anything has emerged to suggest that a repetition of the conduct which occurred in July 2009 is likely. It would in my view be unjust to subject her to a further hearing, and it would be unlikely to serve the public interest to do so. In these circumstances I decline to remit the matter to a fresh panel.[171]An alternative course urged by the NMC was that I should substitute a replacement sanction of a relatively short period of suspension, which would take effect prospectively. That would then enable the CCC to consider whether there should be an extension of that suspension or an alternative order under Article 30. I acknowledge that if the panel had ordered suspension for a period of one year then it would have been open to the CCC to extend that period. However Ms Amao has now in effect been subjected not only to a one year suspension but also to a seven month extension of that suspension. In all the circumstances it is in the interests of justice that the court should allow the appeal, quash the decision to strike off, and decline to adopt a course which involves any greater sanction than the period of suspension which Ms Amao has already undergone.

M. The possibility of bias

[172]I have not thus far made any finding as to what occurred after the conclusion of the hearing on day six. Mr Otton’s telephone note recorded Ms Gonsai as saying that the case presenter and the chair had come and spoken to her and Ms Booth and explained that they were happy with the information she had given and had no further questions. I noted in section G above that the NMC had cast doubt on whether Ms Gonsai was correct to believe that she had seen the chairman. The NMC’s submissions indicate that the chairman has been asked whether he saw Ms Gonsai and has replied that he does not believe that he did. On the other hand, it is clear from the transcript (see section F8 above) that he was concerned that Ms Gonsai had twice returned to give evidence of impairment, only to find on each occasion that she was not called upon. It would be consistent with that concern for him to have seen Ms Gonsai and sought to explain how matters had come about. If he did indeed see Ms Gonsai and Ms Booth, and say what Ms Gonsai described him as saying, then a question might arise as to whether a fair-minded and well-informed observer might conclude from all the circumstances that there was a real possibility that the decision on sanction, taken by the panel after this meeting, was biased by a desire to reassure Ms Gonsai.[173]I have already decided for different reasons that the decision on sanction cannot stand. The result is that I have resolved the question of sanction in favour of Ms Amao, and it is therefore not necessary for me to decide whether the decision on sanction was also vitiated by a perception of bias arising from what happened after the hearing on day six. In the circumstances I consider that the preferable course is that I should not seek to decide what happened on that occasion. If it had been necessary to decide that question, then I would have been minded to conclude that, despite the inevitable further delay, it would have been appropriate to investigate ways in which any conflict of fact as to what occurred could be properly resolved.

N. Conclusion

[174]For the reasons that I have given, I dismiss the appeal in so far as it concerns findings of fact as to what occurred on 13 July 2009, but allow the appeal as to sanction only. In that regard I quash the sanction imposed by the panel, I refuse the NMC’s application to remit, and I refuse the NMC’s application to substitute an alternative sanction in place of the sanction imposed by the panel.

Cited in 13 later judgments

and 4 more of the most senior