Moseka v Nursing and Midwifery Council [2014] EWHC 846 (Admin)

Case No CO/8102/2013[2014] EWHC 846 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/03/2014
Before
MR JUSTICE GREEN
Between
Rose MosekaAppellantNursing and Midwifery CouncilRespondent
The Appellant appeared in person for in personIan Brown (instructed by The Nursing and Midwifery Council) for RespondentHearing Hearing dates: 19 th February 2014
JudgmentMr Justice Green :
[1]This is an appeal against the decision of the Nursing and Midwifery Council (“NMC”) dated 30th May 2013 by which the NMC ordered the striking off of the Appellant from the NMC register with effect from 28th June 2013. B.

(i) The Parties

[2]The Appellant is a trained nurse. She was employed at Ealing Hospital as a Band 5 critical care staff nurse. She had been employed with the Trust since 1st February 2010. In or about May 2010 it came to the notice of the Trust that the Appellant had failed to disclose on her on-line application form for employment that at the time of the application she had been subject to an ongoing NMC fitness to practise investigation. In the employment application form was found the following question:
“Are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or in any other country?”
The Appellant answered “No” to this question. In fact the Appellant was, as of the date of the application, subject to an ongoing fitness to practise investigation which subsequently resulted in the imposition of a 12 month caution on 23rd November 2009. At this time however various additional concerns had been raised by colleagues of the Appellant in relation to the level of her professional competence. The most notable of these were made the subject of charges before the NMC. They included the refusal to conduct a respiratory function test upon a patient; the failure to maintain adequate records by failing to record a patient’s fluid balance, respiratory status or neurological status; the failure to remove a patient’s lignocaine patch until 6 hours 30 minutes after it was supposed to be removed; the obtaining of an incorrect concentration of dextrose fluid for a persistently hypoglycaemic patient and then being unable to explain the difference in concentrations; the removal of a Kaltostat dressing on a patient despite being told not to remove it; and the incorrect recording of a patient’s overall fluid balance on two separate occasions.[3]The Respondent, the NMC, is the body responsible for the regulation of the nursing and midwifery professions across the United Kingdom. It is a body corporate and registered charity funded entirely by annual subscriptions of the nurses and midwives on its register. The functions of the NMC are set out in The Nursing and Midwifery Order 2001 (2002 No. 253) (“the NMO”). Pursuant to Article 3(2) NMO the core function of the NMC is 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. The principal objective of the NMC is set out in Article 3(4): “The main objective of the Council in exercising its functions shall be to safeguard the health and well-being of persons using or needing the services of registrants”.[4]Article 3(4) thus makes clear that the duty of the NMC is, inter alia, prophylactic. The NMC would, necessarily, be required to have this objective in mind whenever it exercised the powers and performed the duties conferred upon it by the Order. (ii) The charges against the Appellant[5]I turn to consider the 9 charges brought by the NMC against the Appellant. These were in the following form: 1. On an unknown date in August 2009, completed and submitted an application for employment for the position of Staff Nurse Critical Care at Ealing Hospital NHS Trust (“the Trust”) stating that you were not the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK, when you were 2. On 28 May 2010, you refused to perform a respiratory function test when asked to do so by Senior Staff Nurse Ms 3 3. On 22 June 2010 you did not keep adequate records in respect to Patient A, in that you:a. Did not record patient A’s overall fluid balance at the following times: i) 16:00 hours ii) 17:00 hours iii) 18:00 hours iv) 19:00 hoursb. Did not record patient A’s respiratory statusc. Did not record any detail in respect to patient A’s neurological status 4. On 22 June 2010, did not remove patient A’s lignocaine patch that was due to be removed at 12:00 hours until 18:30 hours 5. On 29 June 2010: a. Obtained 5% concentration of Dextrose fluid when asked to obtain 50% concentration of Dextrose fluid by Senior Staff Nurse Ms 6 b. Could not explain the difference between 50% and 5% concentration of Dextrose fluid 6. On 30 June 2010, removed a Kaltostat dressing when told not to do so by Senior Staff Nurse Ms 6 7. On 29 July 2010, you incorrectly recorded patient B’s overall balance at 08:00 as -198ml when it was -1769ml 8. On 30 July 2010, you incorrectly recorded patient B’s overall fluid balance as +2945ml when it was +1762ml 9. Your actions as set out in Charge 1 above were dishonest And in light of the above, your fitness to practise is impaired by reason of your misconduct. Decision to amend the charges Before reading the charges, Ms Eales, on behalf of the NMC, made an application to amend charges 7 and 8. Ms Eales applied to amend the date contained in charge 7 from “29 July 2010” to “1 July 2010”. She also applied to amend the date contained in charge 8 from “30 July 2010” to “30 June 2010”. Ms Eales submitted that these amendments would cause no injustice to you and are consistent with the evidence. Ms Eales referred the panel to Rule 28 of the Nursing and Midwifery (Fitness to Practise) Rules 2004. Ms Maudsley, on your behalf, did not oppose this application”. a. Did not record patient A’s overall fluid balance at the following times: i) 16:00 hours ii) 17:00 hours iii) 18:00 hours iv) 19:00 hours b. Did not record patient A’s respiratory status c. Did not record any detail in respect to patient A’s neurological status a. Obtained 5% concentration of Dextrose fluid when asked to obtain 50% concentration of Dextrose fluid by Senior Staff Nurse Ms 6 b. Could not explain the difference between 50% and 5% concentration of Dextrose fluid Decision to amend the charges (iii) The disciplinary proceedings/the application to amend the charges

Decision to amend the charges

[6]The disciplinary proceedings to determine and adjudicate upon these charges were conducted over three days from 20th May – 22nd May 2013 before the Conduct and Competence Committee (“the Committee” or “CCC”) of the NMC. The Committee comprised a lay chair together with two other members one of whom was a registered nurse. The Committee had the support of a “Legal Assessor” whose function was to advise the panel upon procedure and law but who was wholly independent of the panel. The Appellant was represented by counsel.[7]Before the charges were read counsel for the NMC made an application to amend charges 7 and 8. In particular counsel applied to amend the date contained in charge 7 from “29th July 2010” to “1st July 2010” and the date contained in charge 8 from “30th July 2010” to “30th June 2010”. The application was not opposed by counsel for the Appellant. Counsel for the NMC submitted that the amendment would cause no injustice to the Appellant and was consistent with the evidence.[8]Pursuant to Rule 28 of the Nursing and Midwifery (Fitness to Practise) Rules 2004 it is provided that at any stage prior to the making of a finding of fact the CCC was empowered to amend the charges set out in the notice of hearing or the facts set out in the charge upon which the allegation was based unless:
“…having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice”
. It is quite clear that the point in time when the application to amend was before that when findings of fact were made and, accordingly, the NMC had the power to amend the charges subject to any issue of injustice arising. As to the exercise of that power the CCC considered that the proposed amendments did not have any impact upon the “nature” of the charges against the Appellant and that she was not thereby disadvantaged in her ability to defend herself. The fact that counsel for the Appellant did not oppose the application was also taken into consideration. The CCC concluded that the proposed amendments would not cause any injustice to the Appellant and the amendments were thereby permitted. I refer to this because the grounds of appeal allege that some unfairness arose out of the lateness of the proposed amendments in question.[9]In the course of the proceedings it became clear that charges 1, 2, 3a, 3b, 3c, 4, 5a, 7 and 8 were admitted. This left only charges 5b, 6 and 9 in dispute. Upon this basis the CCC concluded that there was no need to make specific findings of fact in relation to those charges which were admitted. The CCC therefore addressed itself only to the disputed charges, viz 5b, 6 and 9. I set out below a summary of the CCC’s findings in relation to these charges. (iv) Findings in relation to charge 5b[10]In relation to charge 5b (that the Appellant could not explain the difference between 50% and 5% concentration of dextrose fluid) the CCC found the charge proved. The Committee heard evidence from the Appellant and a witness who became the Appellant’s mentor in May 2010 (and who was recorded in the NMC decision as “Ms 6”) and was responsible for supporting and supervising the Appellant during her shifts. This witness gave evidence that on 29th June 2010, on the Intensive Treatment Unit, a patient was persistently hypoglycaemic and that Dextrose 50% concentration was prescribed to address the condition. Ms 6 explained that this concentration was necessary to raise the patient’s blood sugar rapidly and the witness requested the Appellant to obtain a bag of Dextrose 50% concentration. Instead, the Appellant brought a bag containing Dextrose 5% concentration. This fact was not disputed by the Appellant in the course of the hearing. The witness – Ms 6 - also gave evidence that she pointed out to the Appellant the error and in response the Appellant stated “oh they are the same thing”. The witness gave evidence that she was concerned that the Appellant did not understand the difference between 50% and 5% concentrations. In her evidence to the CCC the Appellant explained that the bag of Dextrose 5% concentration had been placed on the same shelf as the 50% concentration and that she had taken it by mistake. She gave evidence that when she realised her error she “rushed back” to obtain the correct bag unprompted by the mentor witness. She denied that Ms 6 had questioned her about the difference between the Dextrose 50% and 5% concentration or that she had shown a lack of comprehension about the difference. In relation to this the Committee made the following findings: “The panel found the evidence of Ms 6 to be clear and consistent. She was very balanced in her responses. She conceded that it was possible to pick up the wrong bag. She was clear however that she had questioned your understanding of the difference in the concentration levels. She maintained that she was so concerned that you were not able to explain the difference between the two levels of concentration that she raised this with you. The panel found her to be a credible witness in this regard. By contrast, the panel found your evidence to be vague in regard to who identified that it was the wrong bag. At times you indicated that you realised your own mistake, later that Ms 6 might have pointed it out and finally that you both realised it at the same moment. The panel has therefore concluded that it is more likely that you were prompted to change the bag and that that gave rise to Ms 6 raising with you the difference between 50% and 5% concentration levels. The panel therefore preferred the evidence of Ms 6 and concluded that you were prompted, the extent of your knowledge was questioned and you failed to explain the difference in concentrations. On the balance of probabilities, charge 5b is proved”.

(v) Findings on charge 6

[11]In relation to charge 6 (that the Appellant removed a Kaltostat dressing when told not to do so) the Committee found the charge proved. Once again the evidence before the Committee was from the Appellant and Ms 6. The evidence of Ms 6 was that on 30th June 2010 she had allocated the Appellant to work with a patient who had a central venous catheter inserted into her left femoral vein. The witness gave evidence that she had applied a Kaltostat dressing over the site of the insertion and that she had secured this with tape. This was a particular dressing used to staunch bleeding and to assist the clotting of blood. A Kaltostat dressing works by collecting the plasma fluid or platelet from blood at the wound and hence encouraging the blood to clot. The evidence of Ms 6 was that she explained the rationale of the Kaltostat dressing to the Appellant and told her that after 10-15 minutes following application the dressing would become soaked but that the dressing should not be taken off “even when soaked”. She gave evidence further that she left the Appellant with the patient but that when she returned after a short while she found the Appellant holding the Kaltostat dressing detached from the wound. When asked why she had removed the dressing the Appellant answered that this was because the dressing had become soaked, it had become very wet and had fallen off and that because the patient was conscious and able to move this may have been the cause of the dressing falling off. She said that on previous occasions she had seen this type of dressing become soaked and fall away in this manner. This evidence was contradicted by the evidence of Ms 6 who explained that in her experience such dressings did not fall off. She gave evidence that the only way in which it could have become detached was through deliberate removal or, conceivably, if it had been in place for a very long period of time, which was not the case here. Ms 6 was certain she had secured the dressing tape and she was particularly concerned by this incident. In order to close the wound the surgical team ultimately had to be called in. As to this the Committee concluded: “The panel found Ms 6’s evidence to be consistent, clear, balanced and credible. The panel were satisfied on the balance of probabilities that charge 6 had been made out. Accordingly it found charge 6 proved”. (vi) Findings on charge 9[12]With regard to charge 9 (that the employment application form was deliberately and dishonestly completed) the Committee found the charge proved. The Appellant had admitted that the application form had been inaccurately completed. However, the Appellant argued that this was an innocent oversight. In her evidence she explained that she had asked her 13/14 year old daughter to complete the on-line job application as she was better than the Appellant “with the use of the computer”. She explained that she did not check the application before it had been transmitted and that she had been unable later to amend the application. The Committee was not convinced by this explanation. It pointed out in the Decision that in a letter dated 20th June 2010, prepared for the purposes of earlier investigatory proceedings at the Trust, in which the Appellant sought to explain the reasons for the error, she made no reference to her application having been completed by her daughter but, to the contrary, explained that at the time she was under stress domestically by virtue of difficulties related to the upbringing of her eldest child, by a crisis in her marriage, and by reason of the fact that she had recently given birth. All of this was against a context whereby the Appellant accepted that she had, herself, completed the application form on-line. The application form failed to record the Appellant’s previous employment as a registered nurse at St George’s Hospital in Tooting when she had been made subject to a Fitness to Practise investigation and subsequently to a caution order for 12 months, on 23rd November 2009. In the course of mitigation by her counsel it had been explained that this earlier incident had been treated by the authorities as one involving an element of dishonesty; though it has to be said of a relatively low level which explained why only a caution had been administered.[13]In relation to these facts and matters the Committee addressed itself to the test of “dishonesty”. It concluded that this was a phrase with “ordinary meaning, that it was a term understood by all and it took account of the observations of Singh J in Uddin v The General Medical Council [2012] EWHC 2669 (Admin) (23rd July 2012).[14]The conclusions of the CCC in this regard were as follows: “The panel found your evidence to be neither credible nor consistent. It found it unlikely that you would have delegated the completion of a document of this importance, requiring detailed responses to specific questions, to your young daughter, without there being significant input from you into its completion. Further your reluctance to complete the form on-line is inconsistent with your expressed competence in the use of computers as indicated in the application form. The panel does not accept your explanation for the omission from your application of your employment at St George’s which may have given rise to questions about NMC proceedings. Your explanation to the Trust and the letter dated June 2010 indicates that you completed the form. It makes no mention of the involvement of your daughter. The panel were satisfied that your account could not support your suggestion of carelessness and/or the negligent mistake on your part. The panel was, therefore, satisfied that you had completed the application and had omitted to disclose that you were subject to a Fitness to Practise investigation or proceedings so that this information would not be discovered which was dishonest. Accordingly the panel found charge 9 proved”. (vii) Findings on misconduct and impairment/sanction[15]Having found that charges 5b, 6 and 9 were proven, and that all other charges were admitted, the CCC proceeded to consider two further matters. First, whether the Appellant’s actions amounted to misconduct and, in consequence thereof, whether her Fitness to Practise was currently impaired. Secondly, whether if the Appellant’s Fitness to Practise was currently impaired what the appropriate and proportionate sanction to impose was.[16]With regard to impairment the CCC heard specific submissions on behalf of the Appellant and on behalf of the NMC. It took account of the “overarching duty to protect the public and the wider public interest”. As I have already explained (see paragraphs [3] and [4] above) the principal objective of the NMC is to safeguard the public. The CCC addressed itself to the test of “misconduct (in Roylance v General Medical Council (No. 2) [2000] 1 AC 311) as words of general effect involving acts or omissions falling short of what would be proper in the circumstances. The CCC accepted the submissions of counsel for the NMC that the Appellant’s conduct fell short of what would be expected of a registered nurse. They addressed themselves to the NMC Code Standard of Conduct, Performance and Ethics for Nurses and Midwives (2008) and to the criteria set out by Dame Janet Smith in the 5th Shipment Report as cited in CHRE v(1) NMC and(2) Grant [2011] EWHC 927 (Admin) (14th April 2011): See discussion at paragraphs [24] and [25] below. The CCC also took into account the relative lack of insight shown by the Appellant into her conduct.[17]The CCC concluded that:
“…the panel were satisfied that your actions fell seriously short of what is reasonably expected of a registered nurse and that they, cumulatively, amounted to misconduct”
. Having arrived at this conclusion the Committee then proceeded to examine whether the Appellant’s Fitness to Practise was currently impaired by reason of that misconduct. They set out the criteria posited by Dame Janet Smith and referred to in CHRE v (1) NMC and (2) Grant (ibid) and concluded that the Appellant’s misconduct fell within each of the indicators identified on that occasion. The CCC was satisfied that the Appellant’s conduct had put patients at unwarranted risk and that her dishonesty had brought the profession into disrepute:
“The nature of your misconduct was such that you breached fundamental tenets of the profession”
. The CCC was of the view that the conduct was not capable of remedy: “There is nothing before the panel to reassure it that you are currently safe to practice unrestricted. Moreover it cannot be satisfied that such misconduct would not be repeated. Your misconduct was so serious that the panel has concluded that your Fitness to Practise is currently impaired. The panel is satisfied that the need to protect the public, to uphold proper professional standards and public confidence in the professions and in the NMC as the regulator would be undermined if finding of impairment were not made in this case. The panel has therefore concluded that your Fitness to Practise is currently impaired by reason of your misconduct”.[18]Finally, in relation to sanction the CCC considered the range of options potentially open to it including caution, the imposition of conditions of practice, suspension or striking off. The conclusion of the Committee was that a remedy short of striking off was inappropriate:
“The panel concluded that you breached the requirements of honesty and trustworthiness which are the bedrock of the nursing profession, compounded by serious clinical failures. In the light of the serious nature of the misconduct and the real risk of repetition, given your previous dishonest conduct and lack of insight, the panel found your conduct to be fundamentally incompatible with continuing to be a registered nurse. It concluded that a suspension order would be neither appropriate nor sufficient as a sanction. In reaching its decision the panel has weighed your interests including any financial impact that an order may have on you, against the interests of the public. It has determined that the only proportionate and sufficient sanction is a striking-off order. The serious nature of the matters proved is incompatible with continuing registration. Public confidence in the profession and the NMC could not be maintained if your name were not removed from the register”
. C. The Law[19]Before considering the Appellants individual grounds of appeal I address:(i) the test I must apply to this appeal;(ii) the meaning of dishonesty and the approach to be adopted by the NMC towards that concept; and(iii) the approach to be adopted towards impairment.

(i) Nature of appeal

[20]Any appeal from any order or decision of the CCC lies to the High Court: Article 38(1) and (4) NMO 2001. The Appellant accordingly has an unfettered right to challenge the decision of the CCC. Practice Direction 52D to CPR 52 governs the procedure which must apply to appeals to the High Court under Article 38 NMO (see PD 52D paragraph 19.1). It provides that every appeal must be supported by written evidence and if the Court so orders oral evidence and will be by way of “re-hearing”. The appeal is conducted under CPR 52 which provides at CPR 52.11 that every appeal will be limited to a review of the decision of the lower court unless a practice direction makes different provisions for a particular category of appeal or the Court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. Prima Facie the appeal court will not receive oral evidence or evidence not before the lower court. However, this is subject to the power of the court to direct otherwise. An appeal court will allow an appeal where the decision appealed against was: “(a) wrong; (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.[21]The appeal court may draw any inference of fact which it considers justified on the evidence. The nature of the task performed by the court has been considered on a number of occasions in numerous cases: See for example Meadow v GMC [2000] QB 462 in particular at paragraph [197]; Priess v General Dental Council [2001] WLR 1926 in particular at paragraph [26]; Ghosh v General Medical Council [2001] 1 WLR 195 in particular per Lord Millett at paragraph [33C]; Gupta v General Medical Council [2001] UKPC 61 per Lord Rodger at paragraph [10C]; Uddin v General Medical Council [2012] EWHC 2669 at paragraph [4] et seq.[22]For present purposes it suffices to summarise the principal points emerging from the case law in the following way: i) The appellate body has full jurisdiction on the appeal but this does not mean that it will, necessarily, not pay some deference to the fact finding function of the lower court or body (e.g. Priess paragraph [26]); ii) It will be unusual for the appellate body to hear oral evidence (e.g. Priess paragraph [26]); iii) In assessing the findings of fact of the lower court or tribunal the appellate court will have regard to the fact that the lower body is a specialist tribunal whose membership is selected for its experience in the subject matter of the matters before it (Meadow paragraph [197] per Auld LJ); iv) The appellate tribunal will recognise that the lower court or tribunal has had the benefit of hearing and seeing the witnesses and is therefore in a better position to judge their credibility and reliability than is the appellate court. In Gupta Lord Rodger stated: “…in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on the matters of fact taken by the first instant body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision in such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position”. (ibid paragraph [10C]). v) The same degree of judicial deference will not arise where the decision of the court or tribunal below is not based upon an assessment of the credibility or reliability of witnesses. For example where the appellate body is in materially the same position as the lower court or tribunal then it will be more inclined to form its own view on the facts or matters in issue. vi) Accordingly to succeed upon an appeal the appellant will normally be required to demonstrate a procedural error before the NMC or in its decision.[23]In the present case the Appellant has appeared in person. She has had no legal advice or representation since the hearing below. It seemed to me that in such circumstances, which sadly are of rapidly increasing incidence, the Court cannot adopt an unduly technical or procedural approach to the appeal. In this case Ms Moseka has done her best properly to complete Court forms and produce skeletons. However, in order to understand her case I have been required to engage in a significantly more detailed exercise than would have been necessary had she been legally represented. It is quite plain that with access to even modest legal advice, court time and overall costs would have been saved. (ii) Dishonesty[24]In relation to the question of “dishonesty” the CCC referred to the judgment of Singh J in Uddin (ibid). In that case the Judge had been urged to give some guidance on the meaning of “dishonesty” albeit that it was not strictly necessary for him to do so. He made the following observations. First, that care was required in applying the classic Ghosh test (R v Ghosh 75 Cr App R154). This was a test devised in the context of criminal law whereas the standard of proof in the present context was the ordinary civil standard of a balance of probabilities and not the criminal standard. Secondly, there was no need to give the so-called Ghosh 2-part direction albeit that, in the regulatory context arising, a two part direction might be required where there was an issue as to whether the respondent to the proceedings realised that the conduct charged was dishonest by the standards of reasonable and honest people. The Judge observed that there would be no such issue in many cases and it would be perfectly apparent that if the conduct alleged took place then it “clearly was dishonest”. He observed that in many instances the real issue was whether the conduct took place and with what state of mind: Was it done knowing that it was false or that it may have been or was the conduct the result of an innocent or negligent mistake? It is not necessary for me to delve into the exact definition of and meaning of “dishonesty” in this case. I do agree with the observations of Singh J that(i) these are not criminal proceedings;(ii) the standard of proof is different being the civil standard of a balance of probabilities. I would make one additional observation. The consequences for an Appellant of being struck off are particularly severe. They entail the loss of livelihood. This can be a much more severe sanction that many a low level criminal punishment. The severity of the potential consequences is a factor that a regulatory authority will need to bear in mind when applying the civil standard of proof. It is trite that the standard of proof can adjust to the context. In a regulatory case where dishonesty is the issue even on the civil standard the CCC should apply particular care. If dishonesty is found then the likelihood of a severe sanction being imposed (including striking off) is quite high. For the reasons I set out below in relation to charges 1 and 9, no issue arises as to the conclusion of the CCC on dishonesty being inadequate by reference to the evidence. There is no need for me therefore to say more about the law in the context of this particular case.(iii) Impairment[25]Finally, in relation to the question of impairment the four tests identified by Dame Janet Smith in her 5th Shipman Report cited in CHRE v(1) NMC and(2) Grant (ibid) at paragraph [76] appear to me to be eminently suitable to be applied in cases of this sort. In that case Cox J concluded that the test articulated by Dame Janet Smith was appropriate not only to consider impairment of a doctor’s fitness to practise but “…would be equally applicable to other practitioners governed by different regulatory schemes”. The “Shipman” test was in the following terms: “Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/orb. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/orc. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/ord. has in the past acted dishonestly and/or is liable to act dishonestly in the future”.[26]In paragraph 76 of CHRE v(1) NMC and(2) Grant Cox J stated that the value of the test was, first, that it identified the various types of activity which would arise for consideration in any case where fitness to practise was in issue; secondly, it required an examination of both the past and the future; and thirdly, it distilled and reflected for ease of application, the principles of interpretation which appear in the authorities. Cox J concluded that it was a concise expression in a way which was readily accessible and readily applicable by all panels called upon to determine such questions. I agree with those conclusions. D. Grounds of appeal[27]The grounds of appeal in the present case are advanced by a litigant in person. In my view, in such circumstances which are, regrettably, increasingly common, it is necessary for an appellate court to seek to interpret the grounds of appeal in a way which makes sense of them and not to adopt an excessively legalistic approach towards their drafting and interpretation. In the present case the Appellant’s grounds were first set out in the Skeleton Argument attached to the Appellant’s Notice. The Appellant then served two further documents very shortly before the hearing which added a series of new grounds. I am grateful to the Respondent, and to Mr Brown appearing for the Respondent, for the helpful and patient manner in which the appeal was conducted. E. Conclusions on the grounds of appeal[28]I have read the Appellants various documents with care and I now set out my findings in relation to each of the grounds of appeal raised.

(i) Charges 1 and 9 (dishonesty)

[29]First, charges 1 and 9 are connected. Charge 1 concerns the incorrect completion of the application form and charge 9 concerns the inferences to be drawn from the facts arising in charge 1 for a finding of “dishonesty”. The inaccuracy of the application form was admitted by the Appellant through her counsel upon the first day of the hearing. On page 7 of the transcript of 20th May 2013 it is recorded that the chairman of the CCC asked the Appellant whether she wished to enter her own pleas to the charges or whether she would like her counsel to do it on her behalf. The Appellant expressly answered that she wished counsel to plead on her behalf. In relation to charge 1 counsel for the Appellant stated that it was “accepted”. The Chairman confirmed that it was therefore “admitted”. There is no suggestion in the Appellant’s Skeleton Argument that the instructions given to her counsel were incorrect. In her later statements the Appellant has suggested that her counsel misunderstood the case. I have read the transcripts of the hearing and the underlying evidence. There is no conceivable basis upon which the Appellant’s counsel can be said not to have understood the case or made an inappropriate concession on these or other charges. There is moreover nothing in the transcript of the hearing which suggests that when counsel for the Appellant admitted charge 1 that the Appellant was in disagreement with that plea made on her behalf. Indeed the evidence given by the Appellant in the course of the hearing was to deny that the error was anything other than an honest mistake.[30]In the present case the Committee was faced with an admission that the application form was inaccurate. The question for the panel members was whether that omission amounted to dishonest misconduct. They concluded by reference to the available evidence that it was. On the facts of this case the appellant gave directly inconsistent explanations for the omission and in particular the evidence given by her at the hearing lacked credibility. The question posed on the form was clear and unequivocal. The explanation given to me that the Appellant was confused because the caution had not yet been imposed does not bear scrutiny. The question on the form asked whether proceedings were ongoing and as to this the Appellant clearly knew that they were. The fact that as of the date of the application they had not come to a culmination and no sanction had yet been imposed was beside the point. Crucially, the CCC simply did not accept the Appellants evidence. They were entitled to form a view having heard the witnesses under cross examination.[31]This part of the appeal does not succeed. (ii) Charge 5b[32]In relation to charge 5b (the 5% or 50% issue) the CCC, as recorded above (see paragraph [10]), accepted evidence from witnesses called by the NMC and concluded that this evidence was clear, consistent and balanced and to be accepted. They contrasted the evidence they accepted with the evidence of the Appellant which they did not accept. Once again there is no basis upon which I can discern any error in the approach which the CCC adopted either towards the evidence or as the conclusions that they arrived at based upon it. As I have recorded at paragraph [22] above an appellate court should be reluctant to interfere in findings of fact based upon the lower court or tribunal’s findings of fact about the credibility and reliability of witnesses. This is not, I would emphasise, to say that an appellate court will not interfere if there is a proper reason so to do. However, in the present case there is none. In particular it is not appropriate for me to depart from the CCC’s findings simply because before me the Appellant asserts that she did in fact know the difference between 5% and 50% and to suggest otherwise is “absurd”.[33]The appeal in relation to charge 5b is rejected. (iii) Charge 6 and 7[34]During the appeal before me Ms Moseka explained that her complaints in relation to charges 6 and 7 were in relation to the late application to amend the dates in the charges.[35]So far as the Appellant’s contention is that the CCC erred in granting permission to amend the charge to the NMC I have set out the relevant facts at paragraphs [7] and [8] above. Nothing in the Appellant’s Skeleton Argument challenges the correctness of the decision made by the CCC on that occasion to the effect:(i) that it was within their power to grant permission to amend the charge;(ii) that there was no prejudice to the Appellant given that she was able to meet the “nature” of the charge against her; and (iii), that she was advised by counsel who did not oppose the application to amend. In her oral submissions to me Ms Moseka simply alleged that the late amendment was unfair. I have reviewed the transcript to see if real prejudice could be identified from the late amendments. I could find none. Ms Moseka’s point is a very technical one. She says that in their un-amended form she can prove that she had left the hospital by the dates alleged. She did not say that she was unable to meet the charge once the dates were correctly stated. It is plain moreover from the transcript of the hearing that she accepted at her hearing that she was present at the incidents in question.[36]When questioned by me about possible unfairness Ms Moseka could not explain why she said it was “unfair” for the charges to have been amended in this manner.[37]In these circumstances the appeal on the basis of charge 6 is rejected. (iv) Remedies/striking off[38]As far as the order striking the Appellant’s name off the register is concerned I have set out in detail the approach which the CCC adopted towards this decision. It is not an approach that can be criticised. The Committee addressed itself to the relevant considerations including the test of proportionality. It applied the precautionary test laid down in Article 3(4) of the NMO. The CCC was entitled, upon the basis of the facts that it found including the admissions, to come to the conclusion that the only appropriate remedy was that at the most extreme end of the sanctions spectrum, namely striking off.[39]In the circumstances the appeal against the order striking off the Appellant from the NMC register is rejected.

(v) Supplemental points

[40]In her supplemental statements Ms Moseka added a series of new points including as to charges she had hitherto admitted:- i. Charge 2: She challenged charge 2 upon the basis that the error arose because she was not properly being supervised at the time. This is an admission of the error and, in effect, a plea in mitigation. The CCC heard the evidence and mitigation, including as to this argument. They were entitled and right to arrive at the decision that they did. ii. Charges 3 and 4: She also challenged charges 3 and 4 upon the basis that the reason she failed to keep adequate records (charge 3) or remove the patch (charge 4) was because she had been sent elsewhere at the time to “cover an emergency job for another patient”. This argument, which was merely asserted and unsupported by any corroborating material, is, moreover, inconsistent with the evidence tendered before the CCC. For example the hearing transcript relating to the charge 4 incident records Ms Moseka as saying that she could not recall the reasons for her omission. She said noting about being called away on an emergency. The CCC was perfectly entitled to treat her evidence before them as her valid evidence. I am not prepared to accept a subsequent and inconsistent asserted explanation. iii. Charge 6: She challenged Charge 6 (the Kaltostat dressing) upon the basis that as recorded in the Decision the incident the subject of the charge is said to have occurred on 30 June 2012, which is well over a year after she had left the hospital. However, the actual charge sheet (which is correctly recorded in the transcript of day 1) clearly identifies the date for the alleged event as being 30th June 2010. That was the charge that Ms Moseka was required to meet and did address. She was not misled. The date in the Decision is merely a typographical error. It is an irrelevance to the merits of the case. iv. Charge 7: Ms Moseka added a point in relation to charge 7 which was that the charge sheet referred to a failure on 1st July 2010. Ms Moseka stated that her shift had finished at 07.30am and that therefore she did not record the patient’s overall balance at 08.00am. This was a charge that Ms Moseka had admitted during the hearing. The point she made on appeal was, with respect, wholly unclear and in any event inconsistent with her earlier admission. There is no basis upon which I can properly disturb the CCC’s reliance upon that admission. v. Charge 8: In relation to charge 8 (which she had also hitherto admitted) she now says that it could not have been her who recorded the erroneous figures because she had studied Intravenous Drug Administration previously and it is not the sort of mistake she could have made. Whether her explanation about the courses she had studied are true or not it does not affect the CCC’s findings which was based upon an admission. The new argument is mere assertion which is unsupported by any evidence. Nor does it actually demonstrate that no error was made. It would not be proper from me to depart from the CCC’s acceptance of the admissions made to it.

E. Conclusions

[41]In conclusion the appeal fails.

Cited in 1 later judgment