White v Nursing And Midwifery Council [2014] EWHC 520 (Admin)

[2014] EWHC 520 (Admin)Case No CO/12023/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 11 February 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
WHITEClaimantv
Between
NURSING AND MIDWIFERY COUNCILDefendantTURNERClaimantvNURSING AND MIDWIFERY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr J Townsend (instructed by Royal College of Nursing) appeared for ClaimantMr S Phillips, QC (instructed by NMC Legal) appeared for DefendantJ U D G M E N T (As Approved by the Court)
[1]MR JUSTICE MITTING: Sharon Turner and Tracy White were both sisters in the accident and emergency department of Stafford General Hospital from 4 December 2003 until 4 October 2009 and from July 2000 to July 2010 respectively.[2]Following the events which gave rise to the Francis Inquiry the Nursing and Midwifery Council brought disciplinary proceedings against them. They were heard and determined by a Conduct and Competence Committee over 14 days between 4 March 2013 and 25 July 2013. Mrs Turner faced six groups of charges and Mrs White five. The committee found some proved and some not proved. It found that the ability of both to practise was impaired by reason of serious misconduct and ordered that the names of both be struck off the Nursing and Midwifery register. Both appeal against that order.[3]The ground of appeal raises an important point of practice: whether or not anonymous hearsay is admissible in professional disciplinary proceedings. Insofar as the facts need to be understood they can be summarised briefly. In 2004/2005 the Department of Health set a target of four hours maximum for the discharge of patients who had been admitted to an accident and emergency department. They required hospitals to collate figures to show the extent to which that target had been met. Managers above the two appellants paid keen attention to the achievement of that target. Any omission to do so was treated, in the language used by all members of the department, as a "breach". One of the duties of the appellants was to achieve compliance with that target or, in the language used in the department, to avoid "breaches".[4]The times spent by a patient in the accident and emergency department were recorded on casualty cards which were commonly referred to as cas cards. They started to run when the patient's arrival was recorded on the casualty card at the accident and emergency department reception and ended when they were discharged from that department, either to a ward or to a Clinical Decisions Unit or to home via an ambulance or by personal transport. The time of discharge was recorded on the casualty card.[5]The charges against both appellants alleged that they had made false entries on the casualty cards, mis-stating the time of discharge to avoid "breaches" and had instructed other more junior nurses to do the same and that, by so doing, they had put patients at risk. In one instance it was alleged that a patient had been discharged, whereas she was still receiving treatment in the accident and emergency department. The patient was elderly and it was alleged that the manner in which she was treated was not conducive to her welfare.[6]It was also alleged that both appellants bullied and made disparaging remarks to and about other members of staff and, in the case of Mrs Turner, racist remarks about junior doctors. The heart of the case against each was, however, the falsification of discharge times on the casualty cards and the consequence to patients of placing the avoidance of "breaches" ahead of their welfare. Evidence was given on behalf of the NMC by four nurses, or sisters, Mrs 1, Mrs 2, Mrs 3 and Miss 5, by one head of nursing, Mrs 4, and by one receptionist, Miss 6. The NMC also relied on two letters of complaint written anonymously to Mrs 4 and one to Mr Ovington. The two appellants gave live evidence and called witnesses in their support and read statements from witnesses who could not attend.[7]As presented to the committee by both sides, the case turned on the evidence of witnesses and not on the examination or interpretation of contemporaneous documents. At the start of the hearing, Mr Townsend for the appellants, submitted that the NMC should not be permitted to adduce three anonymous statements, the three which had been made to Mrs 4 in the course of her initial investigation of what was going wrong in the department. The legal assessor drew the committee's attention to Rule 31(1) of the Fitness to Practise Rules 2004 as amended and told them that, subject only to the requirements of relevance and fairness, the practice committee may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings:
"In other words the test for you quite simply is, is this evidence relevant and fair."
[8]Mr Townsend had cited NMC v Ogbonna [2010] EWCA Civ 1216 in the course of his submissions. The legal assessor made a passing reference to it. He went on to state:
"The good and cogent reason put forward here is that the NMC do not know who the person is or the people are who made the allegations that are at the moment in dispute. You have to decide whether it would be fair to allow a registrant to face a anonymous accuser. You have to, however, take account of how that fits in with the larger case that is put before you. You are invited effectively by the registrant's counsel to make a ruling that no anonymous evidence should ever form the basis of a charge. That, in my opinion, is going too far. If it were to be the only charge and if the anonymous evidence were to be the only evidence you might find it very easy to decide that that would be unfair. However, here you should look at the totality of the charges, where this evidence fits within the totality of the charges insofar as you can assess that from the charges themselves and then ask yourself that question, would it be fair to proceed in this case."
In its ruling on this issue, the committee reminded itself of the terms of Rule 31(1) and stated:
"The panel does not accept the submission that all anonymous evidence should always be rejected. It will often be the case that it would be unfair to admit anonymous hearsay evidence, especially when this forms the sole or central focus of a case. It will always be a balancing exercise. The panel next considered the charges it was effectively being asked to dismiss by excluding hearsay evidence in the context of those that were agreed and should remain. On that basis the panel is of the view that the hearsay evidence did not form the sole or principal basis of the case against you and that it could fairly be admitted by giving it such weight as would be appropriate in all circumstances."
It therefore proceeded to admit the evidence and, as I shall show, addressed it in its findings.[9]Mr Phillips QC, who did not appear below but who represents the NMC on this appeal, does not support the advice given by the legal assessor or the ruling of the committee. He is right not to do so for reasons which I will explain. It is settled law that Article 6(1) ECHR applies to disciplinary proceedings of which the outcome can be the removal, temporarily or permanently, of a person's right to conduct professional practice (see Le Compte, Van Leuven and De Meyere v Belgium [1981] 4 EHRR 1 at paragraph 48 and an unbroken line of subsequent decisions to like effect).[10]However, Article 6(3) does not apply to disciplinary proceedings so that there is no express right for a person "to examine or have examined witnesses against him" as in criminal proceedings. The statutory framework applicable to these disciplinary proceedings is drawn in broad terms in Rule 31(1) of the Nursing and Midwifery Council Fitness to Practise Rules 2004:
"Upon receiving the advice of the legal assessor and subject only to the requirements of relevance and fairness the practice committee, considering an allegation, may admit oral, documentary or other relevant evidence whether or not such evidence would be admissible in civil proceedings."
[11]Despite the permissive wording of Rule 34(1) the ability of the committee to admit relevant evidence, whether or not admissible in civil proceedings, is constrained by "the requirements of ... fairness" (see the analysis of what is required by Stadlen J in Ronhoeffer v GMC [2011] EWHC 1685 (Admin), which was not cited to the committee) and the requirement on the facts for the registrant to have the opportunity to test the evidence of a significant complainant in NMC v Ogbonna [2010] EWCA Civ 216. The general approach of the Strasbourg and UK courts to anonymous and hearsay evidence in criminal proceedings can inform the committee's decision on the admission of either category of evidence. As always, the issue is fact-specific. There is no reason of principle why anonymous or hearsay evidence should not be admitted (see Doorson v Netherlands [1996] 22 EHRR 330 as to anonymity and Al-Khawaja v UK [2012] 54 EHRR 23 as to hearsay). In a criminal case the court is astute to see if adequate measures are available to balance the unfairness which the admission of the evidence would otherwise cause.[12]In England and Wales the admission of anonymous hearsay in criminal proceedings is, in principle, prohibited (see R v Ford [2010] EWCA Crim 2250), though academic commentators have rightly observed that section 117 of the Criminal Justice Act 2003 authorises the admission of anonymous hearsay by way of business documents, so that the rule is not absolute.[13]In the context of disciplinary proceedings, it is difficult to conceive of circumstances in which the admission of potentially significant evidence about the attitude and conduct of a registrant which is both anonymous and hearsay will not infringe the requirement of fairness. This is not because the rule in criminal cases applies without more, but because of the underlying principle which it applies and illustrates. It cannot normally be fair for significant evidence about the attitude and conduct of a registrant to be admitted against her which she has no opportunity to test or meet by anything beyond a bare denial. Anonymity prevents her from advancing any informed reason why the informant might be critical of her attitude and conduct, but does permit cross-examination of the informant. The fact that the evidence in hearsay precludes testing by cross-examination but not by other enquiries or conflicting evidence.[14]In a case such as this, in which, from the evidence given by live witnesses it was clear that there were two views of the registrant's attitude and conduct amongst the staff of the departments in which they worked, removal of both means of subjecting the evidence to critical appraisal meant that the requirements of fairness could not be satisfied. The evidence of anonymous members of staff who could not have been cross-examined should not have been relied on probatively.[15]The evidence was admissible for a much more limited purpose to explain the circumstances in with the registrants came to be investigated and, had there been any disagreement about it which there was not, perhaps also to show that there was discontent or disharmony in the accident and emergency department. As I hope is apparent from what I have stated nothing in the principles which must be applied prohibits the introduction and reliance on anonymous hearsay in all circumstances. In particular when the equivalent of business records in a hospital context are relied upon, for example a note of a patient's record about his or her condition, it may not always be possible to identify the author, but such evidence is plainly admissible under Rule 31(1) because it does not infringe the requirement of fairness. It is what it purports to be: a contemporaneous note by someone doing their job of something which is apparent to them at the time. The evidence here was of an entirely different category as I have explained. Given that the committee erred in admitting the anonymous statements, it is necessary to go on to determine what impact that had on the fairness of the hearing and of the committee's findings. There were five groups of charges against Mrs Turner:[16]"1. On 2 July 2007, in relation to Patient C you: (a) inappropriately arranged for her to be transferred to the Clinical Decisions Unit ("CDU"): (i) knowing that she required a trolley, (ii) knowing that the CDU did not have any trolleys, (iii) when it was apparent the patient required further treatment. (b) did not ensure Patient C's medical records were accurate in that you did not record that she was still in A&E; 2. On 28 October 2007, when informed that several patients had breached the four hour target on the minors section in A&E, you: (a) told Staff Nurse Kelly to inform Staff Nurse Donnelly to 'lie about it' in reference to the breach times, (b) stated 'for fucks sake what's going on', or words to that effect, (c) stated 'What the fucking hell have you done that for', or words to that effect, when informed that then Clinical Site Manager was aware of the breaches; 3. On Various unknown dates between December 2003 and October 2009, you: (a) spoke about staff, and/or patients, in an inappropriate manner in that you said: (i) in relation to Sister Rock: (A) she was 'stupid' or words to that effect, (B) she was 'incompetent' or words to that effect, (C) 'I hate that woman' or words to that effect, (D) 'I am going to have her if it's the last thing I do!' or words to that effect, (ii) Staff Nurse Donnelly was a 'Junior Muppet' or words to that effect. (iii) in relation to Charge Nurse A that (A) you 'would make his life hell and get rid of him in six months', or words to that effect, (B) you 'would drive him to drink and he would be out of here', or words to that effect, (C) 'He should have taken a few more pills and done the job properly' or words to that effect, following his admission to hospital after taking an overdose, (iv) in relation to Sister Peters, 'I don't care if she lives or dies' or words to that effect, following her admission to A&E with a head injury, (v) Staff Nurse Myatt was: (A) 'a fat waste of space', or words to that effect, (B) 'useless', or words to that effect, (vi) in relation to patients: (A) 'they can fucking wait', or words to that effect. (B) 'they want to get real', or words to that effect. (C) 'I don't give a flying fuck', or words to that effect, (vii) in relation to junior doctors of Asian origin? (A) 'what have you got in your rucksack doctor, is it a bomb?' or words to that effect, (B) 'him over there, Osama's mate', or words to that effect'. (C) 'the suicide bombers', or words to that effect, (D) 'him with the turban', or words to that effect, (E) 'her with the yashmak', or words to that effect, (b) mimicked foreign accents, (c) did not support and/or provide adequate leadership to your junior colleagues, 4. Your conduct as set out in Charge 3 (a)(vii) and/or 3 (A)(vii)(C) and/or 3(a)(vii)(D) and/or 3(a)(vii)(E) and/or 3(b) was racially motivated, 5. On various unknown dates between December 2003 and October 2009, so as to prevent breaching four hour waiting time targets, in relation to A&E patients, you: (a) inaccurately recorded patient discharge times from A&E, (b) told other members of staff to inaccurately record patient discharge times in A&E, (c) recorded in patient records that patients had been transferred to the Clinical Decision Unit ("CDU") when they had not, (d) transferred patients to the CDU before they had been appropriately assessed by medical staff in A&E, (e) instructed staff to transfer patients to Wards with soiled sheets."[17]The committee dismissed all but one subcharge which depended on anonymous statements only: 3(ii), 3(v) and 5(c) and (d). It also dismissed three further subcharges for other reasons: 3(vii), (D) and (E) and 3(c). The one subcharge dependent only on anonymous statements which it found proved was 3(i)(B). This added nothing to the charges in the same subgroup all of which concerned disparaging comments alleged to have been made about one of the witnesses against Mrs Turner. It found six subcharges proved on the basis of anonymous statements taken together with confirmatory live evidence or an admission: 3(a)(iii)(A), 3(a)(iv) and 3(b), 3(a)(vii)(c), 3(b)4-3(a)(vii)(C) and 4-3(b). It found charges 1, 2, 3(a)(i)(A),(C) and (D), 3(a)(iii)(B) and (C), 3(a)(vi) and 3(a)(vii)(A), (B) and (C) and 4 proved on the basis of live evidence only. Of the charges so far referred to, charges 1 and 2 are significant as to the sanction ultimately imposed, the remainder less so, mostly much less so. Charges 5(a),(b) and (e) were of critical importance to the outcome of the case. In the case of 5(a) and (b) the committee made reference to anonymous statements as I shall show. On the basis of its findings on 5(a) and (b) the committee found that Mrs Turner's actions had been dishonest. There were four groups of charges against Mrs White:
"1. Between March and May 2006, Patient A, having been attended to in A&E by Senior Staff Nurse Donnelly, had exceeded the four hours waiting time target and you: (a) directed a receptionist, Mary Smith, to change the computerised records so as to show that Patient A had left A&E at an earlier time than they had. (b) wrote over an entry made by Senior Staff Nurse Donnelly in Patient A's records, so as to record an earlier discharge time; 2.

(a) "

I am not going to lift her [Patient B]" or words to that effect, (b) "She [Patient B] is just constipated and not taking her Lactulose, naughty little monkey" or words to that effect, (c) "well you can't, so just get rid of her" or words to that effect, when the doctor stated that he wanted to examine Patient B's abdomen; 3. On various unknown dates between July 2000 and July 2010 you: (a) spoke about staff, and/or patients, in an inappropriate manner in that you said: (i) "Helene [Donnelly] and Katie [Kelly] will need to watch their backs because there was more than one way of getting rid of them" or words to that effect, (ii) Senior Staff Nurse Donnelly was a "Junior Muppet" or words to that effect, (iii) In relation to a patient who had attended A&E following a termination of their pregnancy, "she can wait, if you can do that to your baby", or words to that effect. 4. On various unknown dates between July 2000 and July 2010, so as to prevent breaching four hour waiting time targets, in relation to A&E patients, you: (a) inaccurately recorded patient discharge times from A&E, (b) told other members of staff to accurately record patient discharge times from A&E, (c) changed patient records so as to inaccurately record patient discharge times from A&E, (d) transferred patients to the CDU before they had been appropriately assessed by medical staff in A&E, (f) told other members of staff to transfer patients to the CDU before they had been appropriately assessed by medical staff in A&E, (g) instructed staff to transfer patients to Wards with soiled sheets."[18]1 was dismissed at the conclusion of the NMC's case, or in the main findings of the committee. The committee dismissed all charges against Mrs White which depended on anonymous statements only, 3(a)(i) and (ii) and 4(c),(d)and (e). It found charges 2 and 3(i) and 3(iii) and 4(f) proved on the basis of live evidence only. Charges 4(a), (b) and (g) were of critical importance. In the case of 4(a) and (b) the committee made reference to anonymous statements. On the basis of its findings in 4(a) and (b), the committee found that Mrs White's actions had also been dishonest.[19]Mr Townsend, in measured and succinct submissions, contends that the committee's judgment on the critical questions was, or may have been, influenced by anonymous statements and so cannot stand. He submits that the findings adverse to the appellants must be quashed and sent for re-determination to a freshly-constituted committee. Mr Phillips in his written skeleton argument initially accepted that where anonymous statements had been referred to by the committee in the context of its findings, that is to say 5(a) and (b) for Mrs Turner and 4(a) and (b) for Mrs White, the findings should be quashed and the case remitted to a freshly-constituted panel to re-determine those issues and, in the light of its determination, and findings which would remain undisturbed, what the appropriate sanction was.[20]At my invitation overnight he reconsidered that stance and has submitted orally today that the committee's findings on the critical questions, 5(a) and (b) and 4(a) and (b), should be upheld. In a case in which all turned on the credibility of live witnesses the correct test is that identified by Rimer LJ in Ogbonna at paragraph 30, namely, whether or not there is a real risk that the committee factored in anonymous statements to its assessment of the credibility of the live witnesses called by the NMC and the appellants.[21]A number of general points can be made about the committee's determination. They are not controversial and were accepted by Mr Townsend. First, the committee's written judgment is both meticulous and detailed. Secondly, it has applied the law as directed by the legal assessor accurately not only as to the erroneous advice as to the anonymous statements but, more important, as to the approach which it should take and the standard of proof which it should apply to correctly admitted evidence. Thirdly, it has not, in respect of critical charges, relied on other findings to support findings based on the evidence which went directly to those issues. The starting point for the committee was its assessment of the live witnesses who gave direct evidence about critical questions. In the case of Mrs Turner it stated:
"The panel considered that the evidence given by all NMC witnesses, in particular Mrs 1, Mrs 3 and Miss Five, to be credible, reliable and consistent. Despite the passage of time, all witnesses provided candid accounts to the best of their recollection. The panel considered Mr Townsend's submission, who invited the panel to consider the reliability of these particular witnesses with considerable caution. As regards Mrs 1, the panel was of the view that she was an open and honest witness, who was both confident and clear in her demeanour. Mrs 1 was honest when she was unable to recall specific details, which in the panel's view added to her credibility. Although there were some inconsistencies in her evidence, the panel was of the view that these inconsistencies were minor and did not impact on her overall credibility, reliability and honesty as a witness, and therefore on balance, the panel accepted her evidence. In the panel's judgment, Mrs 1 was a witness of truth. It was therefore satisfied that Mrs 1 did not, as Mr Townsend submitted, have "an axe to grind"
. As regards Mrs 3, the panel acknowledged that a difficult working relationship existed between you. Against this backdrop of "bad feeling", Mr Townsend invited the panel to exercise grave caution in considering Mrs 3's evidence. In the panel's judgment, it was satisfied that Mrs 3 provided a genuine and consistent account of her recollection of events. Further, the panel was of the view that Mrs 3 was dignified when giving evidence in relation to questions over her competence at the material time. Mrs 3 was honest when she was unable to recall specific details, which in the panel's view added to her credibility. Mrs 3 acknowledged difficulties in her working relationship with you; however the panel was of the view that she did not let this have an impact on the evidence she gave during the course of these proceedings. The panel was therefore satisfied that Mrs 3 was a reliable, open and honest witness, who may have had an "axe to grind" but this did not present itself in her evidence. As regards Miss 5, Mr Townsend invited the panel to consider that Miss 5 had a considerable level of resentment towards both you and Mrs Tracey White. Miss 5, however, strongly denied this, stating that she had no reason to dislike you in either a personal or professional capacity. The panel considered Miss 5 to be a confident witness, who had a clear recollection of a number of allegations. Miss 5 was honest when she was unable to recall specific details, which in the panel's view added to her credibility. The panel did not accept Mr Townsend's submission that Miss 5 had an "axe to grind". Rather, the panel considered Miss 5 to be honest and open in her demeanour. Furthermore, she was candid in her explanation to why she submitted an anonymous complaint in the first instance, and then made the decision to put her name to the complaint, appearing before her regulator in order to give evidence." Then in relation to the two appellants the committee used the same words, substituting the name of one for the other:
"Mrs Turner, you gave evidence before the panel. You had a good recollection of events in providing considerable detail in relation to a number of instances. Furthermore, you made some omissions in respect of swearing. However, the panel finds it incomprehensible that you vehemently deny, falsify or inaccurately recorded discharge times. Most of the witnesses called on behalf of the NMC admitted to recording discharge times that were sometimes inaccurate. In the panel's view these witnesses provided credible explanations as to why discharge times may be 'out' by up to 10 minutes describing this as 'common practice' in the department. You denied being aware of this."
The committee noted that, in relation to witnesses relied on by the appellants, most of the them could not comment directly on the allegations which they faced. They noted however that they provided positive evidence attesting to their professionalism and character.[22]The observations about Mrs 1 were set out word-for-word in the first paragraph in relation to Mrs White but the committee went on to note that:
"Mrs 1 told the panel that she was aware that other members of staff, including you, would change the discharge time by twenty to thirty minutes or sometimes more, and that patients would have received treatment in A&E after they had been discharged according to their cas card. She further stated that you would often demand that she or her colleagues change the discharge time on patients' cas cards to avoid a breach. Mrs 1 told the panel that you would 'speak nastily and swear at people who did not change the time of discharge, or [you] would change the breach time yourself'. Mrs 1 gave evidence to the effect that she was aware that you would change the discharge times of her patients behind her back. Mrs 1 stated that you would use 'scaremongering tactics' to make staff comply with such demands. She told the panel that you would tell staff that if they had a patient who had breached they would be in trouble, the department could be shut down, the Trust would receive a fine or they could lose their jobs. In addition, Mrs 1 explained that if she or her colleagues refused to lie about the discharge time, you would 'call them names, give them the cold shoulder, bark orders at them and generally make it clear that they were annoyed that they were not doing what they asked'. Mrs 1 told the panel that the demands by you to alter discharge times would appear frequently. She further explained that if the demands were not directed at her she would overhear the demands made of other colleagues. Miss 5 was of the view that you seemed to think that if you did not record your breaches, this would make you look competent and avoid any difficulties from management. She stated that consequently, you would 'smudge the figures' and document that the patient had been discharged from A&E, when the patient was actually still awaiting medication and treatment in A&E. She explained that this would involve documenting an incorrect discharge time in the appropriate blank box on the cas card, as opposed to altering a discharge time already filled in. Miss 5 confirmed that she did not witness this happening, but was 'aware of it'. Miss 5 supported the evidence of Mrs 1, to the effect that often nurses in A&E would change the time on patient's cas cards by up to ten minutes, if the patient was ready to be discharged and was just waiting for a porter to transfer them. She told the panel that it was fairly common practice to allow a few extra minutes leeway in these circumstances, so as to avoid being reprimanded for a breach. Similarly, Miss 5 stated that if the patient had breached the target by thirty five to forty minutes, it was not acceptable to document that the patient was discharged within the target which, according to Miss 5, is what you did on occasions. Miss 5 told the panel you did would not only change the discharge times on the records of the patients you were in charge of, but, as you were in charge of the shift, you would also alter the discharge times of other patients, dealt with by other colleagues. She told the panel that if a nurse had yet to complete a patient's cas card, and it was apparent that the patient had breached the target, you would direct that nurse to leave the cas card with you, stating words to the effect of 'leave it with me, I'll deal with it'. Miss 5 told the panel that she did witness this happening. Miss 5 also stated that she was aware that members of management told staff in the department to leave cas cards with them, so that they could complete the cards. She went further to state that she would also suggest that other members of staff lie on patient cas cards. She told the panel that she was 'fairly sure', following heated discussions, that you did ask her to change times if one of her patients had breached the target, however she would never do it and so you eventually stopped asking. Miss 5 stated that she believed you would alter cas cards to avoid the hassle of having to document the reason for a breach. Also the cas cards of all patients who had breached had to be photocopied and sent to the manager and, therefore, if the breaches did not appear, you would have nothing to answer for. Miss 5 told the panel that the alterations to cas cards did not necessarily involve changing discharge times already recorded on the card, but rather 'backing the time up' by recording earlier discharge times on blank cas cards so as to make it appear as though the patient had not breached the target. Miss 5 told the panel that she witnessed this occurring. Miss 5 told the panel that if you were in charge of a patient who breached the target, you would either cover it up, by lying on patient's cas cards, or if you were found out following the list of breaches that the receptionists generated from the computer system, you would hardly be reprimanded by management. This was not the case with other staff members in the department who breached the targets as they would be reprimanded by members of management. Mrs 3 confirmed that she did not personally witness you physically alter the breach times on the cas cards. However she did state that she heard you say that it did not matter if the breach times were altered by ten minutes or so. Mrs 3 recorded that other staff in A&E would also alter the breach times by approximately ten minutes at the time which was common practice; Mrs 3 however described this practice as 'fraud'; Mrs 3 did not accept recording a discharge time which was not strictly true, because of a member of staff, for example, was waiting for a porter to arrive. Mrs 3 was of the view that there were fewer breaches on your shift because you would falsify the cas cards to ensure that patients did not breach the four hour target. She told the panel that it may not necessarily be the case that she would alter the time on the cas card, but rather that she would record it inaccurately in the first place. Mrs 3 told the panel that management must have understood this to be the practice, as patients were still in beds in A&E after their paperwork showed that they had been discharged from the department... Ms 6 told the panel that when she was on an early shift with you, she would have to look through the cas cards to see if they were filled in correctly. She explained that sometimes they might have been filled in incorrectly and on some occasions, you looked at the breaches and asked to change the discharge time on the records by a few minutes. Ms 6 told the panel that she believed that this was because the time taken for the patient to go up the ward. Ms 6 explained that she found you to be 'alright', but sometimes if she disputed changing the discharge time you would become 'irate', get red in the face, and say 'you've got to change it, it's not my fault'. Ms 6 told the panel that she was often asked, as a Receptionist in the A&E department, to make sure that discharge times 'tallied' with the four hour target. She told the panel that she felt pressured by requests from nurses to alter discharge times and so made it a practice to record the name of the member of staff who made the request in the Hospital's computer database. You told the panel that you were aware of pressures from management to meet targets. You denied, however, there being any pressure to falsify patients' discharge times. You told the panel that discharge times were audited by management. You explained that you were never questioned by management as regards discharge times that you had entered. You denied asking members of staff to record an inaccurate discharge time on the patient's cas card. You further denied recording inaccurate discharge times yourself."
The committee also noted the supporting evidence given on behalf of Mrs White.[23]The committee's conclusion was stated in similar terms in each case. In the case of Mrs Turner:
"The panel is satisfied on the basis of the evidence of Mrs 1, Mrs 3 and Miss 5 that charges 5(a) and 5(b) have been proved to the requisite standard. Furthermore, their evidence is supported by the anonymous letter submitted to Mrs 4 adding weight to the evidence already adduced in support of these charges."
In the case of Mrs White:
"The panel is satisfied, on the basis of all of the evidence adduced by the NMC in respect of charges 4(a), 4(b) and 4(c), as outline (sic) above, that these charges have been proved to the requisite standard. Furthermore, their evidence is supported by the anonymous letter submitted to Mrs 4, adding weight to the evidence already adduced in support of these charges."
[24]Mr Townsend accepts correctly that the committee made it clear that it based its finding only on the admissible evidence of live witnesses. The anonymous statements were referred to only after the committee had stated its conclusion on the basis of the admissible evidence and then only referred to it as supporting a finding already made.[25]The manner in which the committee expressed its conclusion is unsurprising given the way in which it dealt with the anonymous statements in this part of its judgment. It devoted precisely five lines to it in each case in identical terms:
"Mrs 4 referred the panel to one of the anonymous complaints she received following the 'Time Out' session in October 2007. The complainant explained she knew that you would frequently lie about breach times and change the breach time on the back of the documentation if someone else has written a correct breach time down."
[26]I am satisfied, on the basis of that necessarily detailed recitation of the committee's express findings, that it did not factor into its assessment of the critical evidence on which it based its findings, the anonymous statements which it should not have been directed, that it could take into account. It is in hindsight fortunate that, despite that advice, the committee expressed its conclusion as it did. In my judgment it thereby made it clear beyond argument what it had relied on and that it did not include the inadmissible material. Mr Townsend submits that the committee was not composed of professional judges. He asserts that he could not have made the submission that he did in relation to a judgment of a High Court judge, who had erroneously taken into account in the small respect in which this evidence was admitted before the committee, material which should not have been admitted. He submits that the case is more akin to that of a jury given an erroneous direction by a judge.[27]It is true that the panel does not consist of trained lawyers and in that respect resembles a jury. But when, as here, it has taken the trouble to set out in meticulous detail how it has reached its findings, it is in my judgment impossible to conclude that it has gone awry. Both its conclusion and its reasoning on the critical are unassailable. I therefore decline to quash its findings on charges 5(a) and (b) in the case of Mrs Turner, and 4(a) and (b) in the case of Mrs White. As Mr Townsend realistically accepts, if those findings remain in place then, taken together with the other unchallengeable findings, the ultimate conclusion, that the sanction of an order striking them off the register, is also unassailable. There is no separate ground of appeal directed to sanction. Accordingly, as to the substance of these appeals, they are dismissed, save that those findings which depend in part upon the anonymous statements in the case of Mrs Turner must be quashed. To that very limited extent, her appeal is allowed. Otherwise both appeals are dismissed.[28]MR TOWNSEND: My Lord, in relation to the charges that have been quashed, the ones that were identified which relate only to Mrs Turner, are those that are set out at 8(c) of his skeleton. My learned friend and I are not sure that your Lordship had read all those out.[29]MR JUSTICE MITTING: I did my own analysis and the ones I have read out are those that I came up with. There were other charges which were found not proved, depending in whole or in part on severance and they have gone anyway. Say what they are.[30]MR TOWNSEND: The charges which my learned friend and I agreed would appear to be covered by this ruling are 3(a)(i)(b).

MR JUSTICE MITTING: Correct.

[32]MR TOWNSEND: 3(a)3(A).

MR JUSTICE MITTING: Correct.

[34]MR TOWNSEND: 3(a)(iv).

MR JUSTICE MITTING: Correct.

[36]MR TOWNSEND: 3(a)(vii)(C).[37]MR JUSTICE MITTING: No. That is dependent on the evidence of Mrs 1 and Miss 5, is it not?[38]MR TOWNSEND: Yes, but not wholly dependent, in part. Those were the ones that were identified as being supported by direct evidence, to use my learned friend's phrase, but apparently primarily relying on the anonymous evidence.[39]MR JUSTICE MITTING: This is dealt with at page 907. You are quite right, I should have included that within it, it is not just Mrs 1 and Mrs 5, it is supported contextually, they said, so I agree with you, that should go too. I think that is it, is it not?[40]MR TOWNSEND: I think that is it. 3(b) my learned friend points out.[41]MR JUSTICE MITTING: That was one which depended entirely on anonymous evidence; that, too, goes. That is 3(a)(i)(B), is it?[42]MR TOWNSEND: 3(b).[43]MR JUSTICE MITTING: Mimicking foreign accents, yes, you are quite right, that is based in part on anonymous evidence.[44]MR TOWNSEND: Then 4(iii)(a)(vii)(C).[45]MR JUSTICE MITTING: What is this a reference to? There is not a 4(iii)(a)(vii)(C). There is a 3(a)(vii)(C), the suicide bombers. No?[46]MR PHILLIPS: My Lord, it is the compendious charge 4 that refers to certain charges being racially motivated.

MR JUSTICE MITTING: I see what you mean, yes.

[48]MR PHILLIPS: And therefore, if it is the case that the relative charge goes, in this case 3(a)(vii)(C).

MR JUSTICE MITTING: Then 4, which is an inference based upon that must also go, agreed.

[50]MR PHILLIPS: Correct, and the same applies to 4(iii)(b). In other words, the seven charges that I have characterised in my paragraph 8(c).[51]MR JUSTICE MITTING: Yes, understood. Your analysis has been better than mine and more comprehensive. Would you please draw up an order which includes the right subparagraphs? I will correct the text of the transcript to include those when I come to correct it.[52]MR PHILLIPS: My Lord, I am grateful. In that respect, might I very briefly mention one matter, a factual matter, it is not a matter of any substance. When my Lord at the commencement of the judgment was referring to the anonymous hearsay statements my Lord referred to the three statements being produced by witness number four. In fact, two were produced by that witness, PG1 and PG2. The third was produced by Mr Ovington.[53]MR JUSTICE MITTING: You are quite right, it was a letter. You are absolutely right.[54]MR PHILLIPS: It is not a point of any substance and indeed in respect of that third one, my learned friend in his submissions, before the committee had much less to say.[55]MR JUSTICE MITTING: You are absolutely right. I will put that right in the transcript. You will already have noticed that I stumbled when reciting the committee's findings in relation to Mrs Turner and Mrs Wright on charges 5(a) and (b) and 4(a) and (b) respectively. I will also correct that.[56]MR PHILLIPS: My Lord, it is a well-recognised feature of these cases that sometimes the paragraph numbering of the charges is less than helpful when it comes to a verbal resuscitation of the schedule.[57]MR JUSTICE MITTING: I have no comment on that. I do however have a comment on the practice of making witnesses read out statements. It is pointless. The practice of the courts is to allow the statements to be admitted and read by the judge or panel.[58]MR PHILLIPS: Yes. My Lord, if it assists, certainly I am able to speak from knowledge of General Medical Council proceedings where, as my Lord will be aware, statements are now accepted as evidence-in-chief as a matter of course. The practice there is for the statements to be read, in camera, by a panel and not read into the record. In this case the original statements with their paragraph numbers are easier to read, I am bound to say, than a transcript that contains the witness having read out their statement.[59]MR JUSTICE MITTING: It, a, uses up a lot of time which could be more productively spent and, b, it requires something that is already written down to be transcribed. It is ridiculous. It is only an observation and one hopes that sometimes one's observations are acted upon. I doubt that that would meet with resistance from any quarter. Anything left?[60]MR PHILLIPS: On our part there is the matter of costs in this case. I have taken instructions as to this. The substance of the appeals have been dismissed. Whilst my Lord will not determine this on a numerical basis it is right to observe that in respect of the both appellants some 36 charges have been sustained; some seven charges have been quashed. No charges have been quashed so far as the appellant White is concerned. Having said that we do recognise that my learned friend has argued a point that has succeeded in relationship to one aspect that has meant that seven charges have gone, but the substance is not changed. In those circumstances we would invite your Lordship to consider an apportionment of the respondent's costs in these proceedings. If it is not an impertinence we can suggest a figure for that apportionment but of course this is entirely a matter for your Lordship.

MR JUSTICE MITTING: Mr Townsend?

[62]MR TOWNSEND: My Lord, I do resist that application and indeed I make an application on behalf of the appellants and may I say why I make that in spite of the fact that in many ways the substance of the case has gone against the appellants. This appeal ought to have been completely unnecessary and I am afraid it arises against a background that is far from happy but which I need to bring to the attention of the court. The Nursing and Midwifery Council were alerted to the concerns about this evidence in October 2012 when the Royal College of Nursing wrote to the Nursing and Midwifery Council and asked them what steps they had taken to identify the anonymous persons who were giving evidence on the face of it against these two registrants. That provoked a reply, the relevant part of which is somewhat surprising because it asked the Royal College of Nursing to identify what the relevance of their request was to the charges that were being alleged against them. The Royal College of Nursing then wrote back in January 2013 pointing out that certain charges directly arose from the anonymous complaints and indeed citing Article 6. That got nowhere. The representative of the Royal College of Nursing was invited before the start of the hearing in February not to pursue the allegations based on a matter of hearsay, that was refused giving rise to the argument which your Lordship has seen.[63]I then add the following to the chronology. The determination is of course given in July. The grounds of appeal and straightforward skeleton were lodged in August. Since that time nothing was heard from the Nursing and Midwifery Council in spite of reminders from the Royal College of Nursing until yesterday when finally the point of importance, of principle, was in part conceded in my learned friend's skeleton although even then it appeared to be suggested that, looking at Bonhoffer(?) there would be circumstances in which anonymous hearsay evidence could be admitted. Indeed, I would invite the court to note that the initial stance of the Nursing and Midwifery Council yesterday was to the effect that some of the charges at least should be remitted.[64]In my submission the conduct of the respondent leaves a very considerable amount to be desired in relation to the whole proceedings. All this could have been avoided, and in particular the point of principle could have been avoided, by the respondent taking a sensible view before the start of the hearing. Indeed, as my learned friend fairly conceded in his skeleton, an appeal court might well ask why they decided to rely on this evidence at all.[65]In those circumstances I would invite the court to say that it was reasonable for these appellants, backed by the Royal College of Nursing on an important point of principle where the regulator was plainly wrong and could not have been more wrong, I would submit it is astonishing that they continued to pursue the particular line that they did. It was reasonable for this matter to be taken to this court. I accept that the outcome is obviously a disappointment to the appellants but they have succeeded, or at least one of them has in part. In those circumstances, I would invite the court to say as a matter of principle that costs should be awarded against the respondent.

MR JUSTICE MITTING: Anything in reply?

[67]MR PHILLIPS: My Lord, many of the points made are really referable to the hearing before the committee in respect of which a number of charges were dismissed, my learned friend really is harking back to that. It is not fair in my respectful submission to say that nothing happened until yesterday, as my Lord will appreciate, behind the scenes those instructing me were very active in supplying me with information in order that a review could take place as to what had happened before the committee. There was correspondence before the start of the hearing but that respectfully is a matter that pertains more to the hearing and less to the appeal. Those instructing me did keep the appellant's legal representatives notified what the position was in terms of the provision of bundles, the expectation of a skeleton argument being supplied, the provision of authorities and so forth. It is not fair to say that nothing happened until yesterday. Indeed, much of the material that my Lord has focused on, particularly in relation to the subdivision of the charges in this case which in my respectful submission has been of critical importance in terms of determining the outcome, that has only really arisen as a result of the way that the respondent has approached the appeal. Therefore the points do not improve by repetition. I would invite your Lordship to make an order as to costs, the contribution of the respondent's costs, as this appeal has in substance not succeeded.[68]MR JUSTICE MITTING: Thank you. There will be no order for costs between the parties. This appeal would not have been brought had the NMC not taken a mistaken view about an important question of principle and practice, namely the ability to rely on anonymous statements about the conduct and attitude of registrants. That issue has been decided in favour of the appellant. The outcome of this case will therefore be of some use to those who have to consider disciplinary charges against registrants in the future. Further, one of the appellants has succeeded to a modest extent in overturning a small number of relatively insignificant charges against them. Against that, the appellants have fundamentally lost appeal but, for the factors to which I have already referred, I would have undoubtedly made an order of costs against them but those factors permit me, as I do, to make no order for costs against them as I make none in favour of them either. Thank you both submissions.

Cited in 1 later judgment