Suddock v The Nursing and Midwifery Council [2015] EWHC 3612 (Admin)

Neutral Citation Number: [EWHC 3612 (Admin)]

Case No CO/4080/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/12/2015

Before

MRS JUSTICE ANDREWS DBE

Between

VASANTA MARNI SUDDOCKAppellant

THE NURSING AND MIDWIFERY COUNCILRespondent

The Appellant appeared in person for in person

Ms Saima Hirji and Ms Helen Fleck (instructed by The Nursing and Midwifery Council) for Respondent

Hearing Hearing date: 26 November 2015

Approved Judgment

Introduction

[1]This is an appeal brought pursuant to Articles 29(9) and 38 of the Nursing and Midwifery Order 2001 by the Appellant, Ms Suddock, against decisions made by a panel of the Conduct and Competence Committee of the Respondent (“the NMC”) in disciplinary proceedings against her, which were heard in tandem with proceedings against another registrant, (“Registrant C”). The hearing of the disciplinary proceedings took place over eighteen days in total between 23 March and 14 April 2015 (the fact-finding hearing) and 20 July to 24 July 2015 (the decision, impairment and sanctions hearing).

[2]The matters on which the charges against Ms Suddock were based allegedly took place while she was Home Manager and Matron at the Warberries Nursing Home (“the Home”) in Torquay between February 1994 and 18 October 2011. Many of the residents of the Home were elderly and frail, with complex needs. Most of them were referred to the Home by Torbay Care Trust (“the Trust”), an NHS body.

[3]Ms Suddock faced a total of 17 charges of professional misconduct, but a number of these charges were broken down into separate sub-charges (as representing examples of the conduct complained of under the main heading of the charge). Thus for example, Charge 1 alleged that Ms Suddock, on unknown dates, failed to ensure that appropriate clinical care was provided to residents, but there were ten separate examples of such failure encompassed within that charge, of which only five were found to have been proved. Ms Suddock, who represented herself before the panel, as she did before this Court, denied all the charges against her and denied that her fitness to practice was impaired.

[4]Ms Suddock told the Court, and I accept, that she had not appreciated that the second part of the disciplinary hearing was set down for five days. The transcript of the hearing on 13 April 2015 (when final submissions were made) demonstrates that the Chairman explained why the panel felt that there was insufficient time for it to complete its fact-findings before close of business on 14 April. He then said that the panel had determined that the appropriate time to allocate for the resumption of the case was five days, to cater for the possibility of its having to consider impairment and/or sanctions were it to find any of the charges proved, and that the earliest that the panel could regroup was 20 July 2015. Ms Suddock either did not hear this properly, or misunderstood what he said.

[5]The panel’s decision to take time to consider the evidence and reach its findings on each of the many charges and sub-charges was understandable and justified. It was only fair to Ms Suddock and to the other registrant involved that the panel should take an appropriate amount of time to digest the considerable amount of information it had been provided with by the parties, and to assess whose evidence it accepted and what weight to place on it. As I shall go on to explain, credibility was at the heart of many (though not all) of the charges. The two month gap between the hearings was unavoidable: as the transcript makes plain, having consulted their diaries, the panel members found that this was the earliest date that they could get back together.

[6]Ms Suddock plainly feels that there was a change in the panel’s attitude towards her case between the two dates, and the adverse decisions came as a shock to her. That does not mean that her perception was objectively justified, let alone that there was any procedural unfairness.

[7]In the course of giving the panel legal advice at the end of submissions by the parties, the legal assessor accurately told it that the nature of Ms Suddock’s defence was very clear; he put it in terms that her case was that there was a vendetta or a conspiracy against her, and that the alleged events did not take place. He also gave the panel an exemplary “good character” direction; but neither of those matters were indications of support for her defence. The legal assessor was simply doing his job. It was not his place to express any view on the merits (except, where appropriate, to advise on a submission of no case to answer), nor did he do so.

[8]Ms Suddock may well have felt at the end of the first part of the hearing that she had made considerable headway in her cross-examination of the witnesses, and optimistic about her prospects of success, but it is clear from the transcript of 13 April 2015 that the panel was (quite properly) keeping an open mind until after it had finished its deliberations. Many a litigant has felt optimistic at the end of a hearing, only to have his or her hopes dashed when the judgment is delivered.

[9]When someone does not have a lawyer to represent them, there is a particular danger of reading too much into efforts made by the decision-maker to ensure that the points that the unrepresented party wishes to make are properly articulated and to help him or her to put their case fully and fairly – for example, by asking further questions of a witness so as to clarify their evidence, or reformulating the question to put a point more clearly. The fact that the tribunal appears to be helpful or sympathetic to the difficulties faced by a litigant in person is no gauge of how it will decide the case on the merits.

[10]In any event, even if the panel had taken an initially favourable view of some of the points Ms Suddock had raised, it would not have been procedurally or substantively unfair for it to have reached a different conclusion on reflection, provided that conclusion was legitimately open to it. If the conclusion was not legitimately open to it on the evidence, it is immaterial if it changed its mind.

[11]When the hearing resumed in July 2015, the panel communicated its decision that some, but not all, of the allegations of professional misconduct charged against Ms Suddock had been proved. Charges 5, 6, 8, 9, 11, 12, 16 and 17 were not proved. Charges 4, 10, 13, 14 and 15 were found to be proved in their entirety; some elements of Charges 1, 2, 3 and 7 were found proved, others were not proved. None of the charges alleging dishonesty was proved. The panel went on to decide that Ms Suddock’s fitness to practice as a nurse was impaired by reason of her misconduct, and made a striking off order. That decision was communicated orally to Ms Suddock by the Chairman of the panel at the resumed hearing, and confirmed in a letter dated 28 July 2015.

[12]Ms Suddock told the Court at the hearing of the appeal that she does not pursue her challenge to the finding of professional misconduct in relation to Charge 4. As regards the remainder of the charges (including sub-charges) that were found proved, she contends that there has been an abuse of process “that has led to a wrong decision by way of acting unfairly irrationally and unlawfully”.

[13]Ms Suddock makes two main allegations: i) that she was not afforded a fair hearing and that there has been a breach of

Article 6 ECHR

. ii) the adverse fact-findings and decisions made by the panel that the charges had been proved were against the weight of the evidence, ignored contemporaneous documentary evidence, or were based on evidence that was demonstrably unreliable and/or untruthful. In my judgment, the second of these criticisms is demonstrably well-founded so far as certain of the charges are concerned. In the exceptional circumstances of this case, the consequence is that the findings made by the panel that other charges were proved can no longer be regarded as safe.

[14]The real problem, as I shall go on to explain, is not one of procedural unfairness, or a denial of access to justice; it is that the panel failed to appreciate that there is evidence that strongly supports Ms Suddock’s assertion that someone, acting in bad faith, has set out to ruin her hitherto unquestioned professional reputation and her career. I have regrettably concluded that the panel’s approach to the question of credibility and reliability is so undermined in consequence that I cannot, in fairness, allow its adverse findings to stand.

[15]I should hasten to add that the NMC is wholly blameless in this regard; there is no suggestion that it has acted in anything other than good faith in bringing the disciplinary proceedings, as there appeared to be sufficient evidence to justify it taking that course. Nor do I wish to appear unduly critical of the panel: the expertise of its members lies in fields other than the law. The panel obviously did its best to reach a fair conclusion, and to consider the evidence with care, as is demonstrated by the fact that it rightly found that a significant number of the charges against Ms Suddock had not been proved. What caused it to fall into error was a failure to examine the evidence in the way that a court or other legal tribunal would. In consequence of this, it placed far too much reliance on the demeanour of the witnesses. This case sadly illustrates the potential for grave injustice that can arise in proceedings of this nature when a person in Ms Suddock’s position does not have legal representation.

[16]This appeal raised a multitude of issues which necessitated close examination of the transcripts as well as the documentary evidence. I have tried to keep this judgment as short as I can, consistently with the obligation to give a sufficient explanation of why I have reached the conclusions that I have.

BACKGROUND

[17]On 2 August 2011, the company which ran the Home went into administration. Several members of staff left. The administrators, Ernst & Young, removed the directors and appointed a management consultancy, Health Care Management Solutions (“HCMS”) to support the operations of the Home during the administration. A new owner, Margaret Rose Care Ltd (“MRC”) purchased the Home in November 2011.

[18]The administration halted certain maintenance work that was then being undertaken in accordance with recommendations of the Care Quality Commission (“CQC”), who had inspected the Home in May 2011. Ms Suddock sent an email expressing concern to the administrators, HCMS, CQC and the Trust. Following a meeting between HCMS and the Trust, Ms Suddock was given to understand that the maintenance work would continue, but it did not. On 17 August 2011 Ms Suddock emailed the Regional Manager of HCMS, setting out a series of additional concerns. HCMS suspended Ms Suddock from duty four hours later.

[19]Subsequent to her suspension, HCMS instructed a Human Resources Manager, Ms 14, to investigate allegations of bullying and harassment. In the course of that investigation, other matters of concern were raised, resulting in a referral by HCMS to the Independent Safeguarding Authority (“ISA”) and to the NMC on 4 November 2011. The NMC began the extensive investigation which eventually led to these disciplinary charges. The ISA, after its examination of the allegations, decided to take no further action.

[20]Ms Suddock was dismissed from her post on or around 18 October 2011. She subsequently made a successful claim to the Employment Tribunal for unfair dismissal. Ms Suddock’s case was (and is) that she was being victimised because she had acted as a “whistleblower”. She alleged that there was a serious deterioration in the level of care of the residents after HCMS took over the administration of the Home, which continued (and ultimately led to five patients being permanently removed from the Home and relocated to other nursing homes) after she ceased to act as its Manager. According to Ms Suddock, this deterioration was due to the fact that HCMS were running the Home as a residential care home rather than a nursing home, without regard to the complex nature of the needs of its patients. She had reported her concerns about these matters to the relevant authorities before (and after) HCMS decided to suspend her. She made numerous protected disclosures before 4 November 2011.

[21]Ms Suddock also alleged that following her suspension, two of the healthcare staff, Ms 2, and Ms 15, who were members of “Team 3”, took the opportunity to make up allegations of bullying against her because she had challenged that team about the poor level of care that they were providing. She said that the carers on Team 3 had voiced their discontent in October 2010 about having to wait for qualified nursing staff to give suppositories to the patients for whom they had been prescribed, and that therefore they took steps, including the making of false entries on the charts recording bowel movements of those patients, to avoid their being given suppositories. This had led her to re-allocate a senior member of staff to oversee Team 3, and make sure that the suppositories were administered in a timely fashion, and to move Ms 11 to a different team, which caused resentment. (Pausing there, the admission of the false chart entries and other wrongdoing, albeit with a different explanation for it, namely, that the carers were trying to prevent the patients from being administered suppositories and laxatives unnecessarily and excessively, played a large part in the panel’s decision to accept the evidence of the witnesses from Team 3 as truthful).

[22]Ms Suddock said that when HCMS took over the running of the Home, they took away all the daily assessment charts which the carers were supposed to complete, and because this more lax regime meant they had less work to do, Team 3 failed to monitor or record any daily assessments of the patients, whereas the other care teams continued to do so. They also engaged in office duties as instructed by HCMS instead of looking after the patients. It was Ms Suddock’s taking them to task for this failure to meet appropriate standards that had led to the false accusations of bullying. A former member of Team 3, Ms 11, and one of the night carers, Ms 3, had initially supported Ms Suddock after her suspension, but then they had been “coerced” (she believed by their new employer, MRC) into making false allegations against her supporting what the others had said. [As a matter of fact, Ms 2, Ms 3 and Ms 11 were still working at the Home at the time when they gave their witness statements to the NMC.]

[23]Ms Suddock’s reasons as to why Team 3 had a grudge against her were not something she made up in the course of the disciplinary hearing. This is demonstrated by the statement given by one of the other members of staff, Ms 19 (who was not called as a witness before the panel) to the NMC as part of its investigation. That statement was signed and dated 13 December 2012 – long after Ms Suddock had gone from the Home, and when on the face of it there was no reason for Ms 19 to be particularly supportive of her. It was one of a number of statements disclosed by the NMC as part of the unused material in Registrant C’s case, and was in the bundle of documents before the panel. It included the following paragraph:

“13. The members of staff who complained about [Ms Suddock] did so because they never gave suppositories as they always moaned about putting patients on their left and having to wait for the registered nurse or the Head of Care to administer these and because of these, they tried to save time, they would transfer patients directly on to their chairs without giving them the right to use the toilet and this is the only reason for these particular staff from team 3 have made up lies which got out of hand. They were caught out in many poor practices which led them to say lies and it seems strange that the only staff who have made these allegations were from team 3. These three carers would get angry as they had to wait for the nurse or Head of Care to administer the suppositories who instructed the staff to put the patients on their left side. The carers never gave the suppositories. If we were delayed for some reason, then these staff were the guilty ones who would transfer the patients straight from their beds to their chairs without giving them the right to use the toilet and would not give adequate fluids or would write that they had given fluids when the patients had not even drunk this. They also wrote wrong amount of stools and would try to say their patients had been very well, when in fact, they had only been a small amount which was done on purpose to prevent the patients having prescribed suppositories the next day or would purposely get the patients up and pretend that they had forgot to put them on their left side.”

[24]As Ms Suddock’s former employer (the company in administration) had no funds with which to defend the proceedings for unfair dismissal, the Employment Tribunal only heard evidence from Ms Suddock, but she made a favourable impression on them. Her evidence was said in the judgment to have “the ring of truth” about it. They concluded, in a decision promulgated on 27 April 2012, that her initial suspension was linked to a protected disclosure and that the reason given for it (which ostensibly related to some offensive text messages passing between Ms Suddock and another member of the nursing staff, Ms 21, months earlier, in March 2011) was a pretext. The previous employer had already dealt with the matter of the text messages, as a matter of internal discipline, back in April 2011, as the person who owned the company in administration expressly informed HCMS in writing between her suspension and her dismissal.

[25]The Tribunal found that the proximity between the email sent by Ms Suddock on 17 August 2011 to the Regional Manager and her suspension was no coincidence: it was cause and effect. Ms Suddock’s dismissal, on different grounds, the alleged bullying of members of Team 3, following Ms 14’s investigation, was found to be not only procedurally but substantively unfair. The Employment Tribunal did not accept that there was any bullying. They held that the dismissal was “on the evidence of a chosen small group of people who would say what was required”. It appears from paragraph 11 of its decision that the Employment Tribunal was not impressed by Ms 14’s failure to interview and obtain evidence from over 40 other members of staff who made statements supporting Ms Suddock. It said “the overwhelming majority of the workforce had a very high regard for the claimant – earned over many years – and expressed it to her in written form subsequent to her dismissal when they can have had no ulterior motive for so doing.”

[26]The findings of the Employment Tribunal were not binding on the parties, as the NMC was not a party to those proceedings; nor were they binding on the panel, but they did form part of the evidence adduced before it. The weight to be attached to those findings was a matter for the panel, which had to bear in mind that, unlike the panel, the Employment Tribunal had only heard one side of the story. Yet the findings made by the Tribunal at least raised the possibility that HCMS was trying to find a pretext for getting rid of Ms Suddock. The allegations of bullying were raised for the very first time in that context, after other excuses for getting rid of her had been considered and found to be incapable of withstanding scrutiny.

[27]Therefore this was not a case in which the registrant was raising a wholly fanciful conspiracy theory. On the contrary, there may have been a motive for HCMS to encourage the making of such allegations, or the exaggeration of the conduct alleged. Alternatively, there may have been a reason for members of staff bearing a grudge against Ms Suddock to seize the opportunity of getting their own back by saying nasty things about her once she was out of the way to an interim “employer” who was only too eager to hear them. Of course, a desire on the part of an employer to get rid of an employee is not necessarily an indication that the employee is innocent of misconduct. Nor is procedural unfairness in the dismissal process itself. Another possibility, if the allegations were true, is that the staff concerned only felt sufficiently emboldened to speak out once Ms Suddock had been suspended. The point I am making is that this was not the only possibility.

[28]Despite her success, Ms Suddock was unable to recover the compensation awarded by the Employment Tribunal from her employer (because that company was by then undoubtedly insolvent) or from Ernst & Young, who were responsible for bringing in HCMS (because their role under the Insolvency Act only exposed them to qualified liability). She alleged that MRC were concerned that she might claim to recover the compensation against them under TUPE, and that this was why, after the initial referrals to the NMC and ISA did not result in her suspension from practise, her successor as Manager, Mr 13, was motivated to make a series of allegations against her to a wide range of other bodies, including the police and the Strategic Health Authority (“the SHA”), all of whom, after investigation, decided to take the matter no further.

[29]The NMC investigation was not completed until July 2014. It extended to approximately 10,000 pages of documents. At the fact-finding hearing, the NMC adduced no fewer than 16 witness statements, though as I have already mentioned, not all the witnesses were called to give their evidence orally. The admission of hearsay evidence of three witnesses, Ms 14; Ms 15, a Head of Care at the Home; and Ms 16, a Peripatetic Home Manager who was sent to the Home to assist in running it after her suspension, was not opposed by Ms Suddock. No complaint was made by her on the hearing of this appeal about the decision to admit that evidence; her complaint was more about the weight the panel placed on it and the lack of care with which they evaluated it.

[30]The legal assessor gave the panel the appropriate warnings about how to treat evidence that had not been tested in cross-examination, which on the face of it the panel appeared to take to heart: for example, it dismissed certain of the charges which depended solely on hearsay evidence. Ms Hirji very helpfully annexed to her skeleton argument a table setting out which of the charges the evidence of the three hearsay witnesses related to, whether it was the sole evidence, and what the panel decided in respect of those charges. Only one of the charges that the panel found proved, sub-charge 2.2.1, was solely dependent on the hearsay evidence of one of those three witnesses, Ms 15. Most of the charges that depended solely on her evidence were not proved. The panel explained why it felt able to find that charge proved on the basis of that evidence, and why it differed from the others.

[31]Before considering the specific criticisms made by Ms Suddock of the panel’s decisions on each of the charges (or sub-charges) that it found were proved, I must say a little about the appellate jurisdiction of the Court in a statutory appeal such as this, and how it must go about exercising that jurisdiction.

RELEVANT LEGAL PRINCIPLES

[32]This appeal is by way of re-hearing; however, that does not mean that it is a complete re-visitation of the merits. This Court will not interfere with any decision of the panel unless it is established by Ms Suddock to the civil standard that the decision was wrong or that it was unjust because of a serious procedural or other irregularity. In assessing whether a decision was “wrong” the Court is not confined to consideration of issues of law or restricted in the same way that it would be in a judicial review; it may, for example, examine whether the evidence supported particular fact-findings made by the panel, and whether the panel took into account all matters of relevance when reaching its decision.

[33]The leading case on the correct approach to appeals from disciplinary decisions of a statutory regulatory body such as the NMC is Raschid and Fatnani v GMC

[2007] EWCA Civ 46

[2007] 1 WLR 1460

. Any tensions between the approach advocated by the Court of Appeal in that case and the slightly earlier decision of the Court of Appeal in Meadow v GMC

[2006] EWCA Civ 1390

[2007] QB 462

can be reconciled in the manner suggested by Cranston J in Cheatle v GMC

[2009] EWHC 645 (Admin)

at [15]. As he rightly observed, in deciding the key issue, namely, whether the decision of the panel is wrong, the focus of the appellate court must be calibrated to the matters under consideration.

[34]Where matters of professional judgment or standards of practice and conduct are concerned, the Court will respect, and generally defer to, the expertise of the professional body and the specialist tribunal entrusted with maintaining the standards of the profession. In matters of case management or procedure, the Court must take care to remember that these are matters for the tribunal’s discretion; it is only if the decision taken fell outside the reasonable margin of appreciation afforded to the tribunal, or created an injustice, that the Court will interfere with it on appeal. The fact that the Court might have exercised the discretion differently would not be a sufficient justification for interference.

[35]Ms Virji drew my attention to the helpful guidance given by the Court of Appeal in Southall v General Medical Council

[2010] EWCA Civ 407

at [47] in respect of challenges to primary findings of fact or on the credibility of witnesses. This draws three interlinking principles from the earlier authorities: i) Findings of fact, particularly if founded on an assessment of the credibility of witnesses, are virtually unassailable. The court must be satisfied that they are plainly wrong before it will interfere; ii) The court should only reverse a finding on the facts if it can be shown that it was sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread. iii) Where issues of credibility and reliability are key to the decision under challenge, the first instance body has the considerable advantage of seeing and hearing the witnesses, and therefore is in a better position than the appellate body to judge their credibility and reliability. Its decision on such matters is more likely to be correct than any decision of a court which does not have that advantage. Given that the advantage is very significant, the appellate court should be slow to interfere with findings on credibility or reliability. On the other hand, there may be cases where the central issue, even if it is factual, is one which the appellate court is in as good a position as the specialist tribunal to determine. Everything depends on the facts and circumstances of the particular case.

[36]With those principles in mind I turn to consider the grounds of challenge to the panel’s decisions. THE MERITS OF THIS APPEAL A. Was there an unfair procedure/breach of

Article 6 ECHR

[37]To the extent that complaint is made that the procedure adopted by the panel was unfair to Ms Suddock or that there was any infringement of her Article 6 rights, there is no substance in it. The procedure adopted by the panel was conspicuously fair. Ms Suddock had every opportunity to put her case to the witnesses, and to make submissions to the panel. At every stage of the hearing she was given the opportunity to give or call evidence and address the panel. The panel received, and acted upon, the legal advice given by the legal assessor. Ms Suddock was given the opportunity to comment on it.

[38]Under the heading in her revised skeleton argument “Agenda of the NMC” Ms Suddock complained about the NMC investigation, and about matters such as its failure to provide her with documents that she considered to be favourable to her defence, the fact that she had to ask on several occasions for disclosure of documents, such as the original notes relating to the patients who were the subject of the charges against her, and that it took her five months or so to obtain them; the failure by the NMC to adduce evidence from other witnesses (which she described elsewhere as “cherry-picking”); and its changing stance regarding the witnesses that it did intend to call (reducing the original list of sixteen to seven and then going back to sixteen).

[39]The disciplinary process is an adversarial one. It was a matter for the NMC to decide what evidence it chose to rely upon to prove the charges and it was within its rights to rely primarily upon the evidence of witnesses. It was entitled to select the witnesses it intended to call. By doing so, it took the risk that it would be unable to prove the charges – and in some cases it failed to do so. If Ms Suddock wished to adduce evidence from other witnesses, or documentary evidence, to support her version of events there was nothing to stop her. If the documents in question were not available to her, but were within the NMC’s possession or control and were relevant, it was under an obligation to disclose them to her. If it failed to do so, her remedy was to seek an order from the panel compelling their production.

[40]At the hearing, Ms Suddock gave evidence on her own behalf, but called no other witnesses in her defence. She explained to the Court that she was unable to afford to pay their expenses of attendance, or compensate them for taking time off work, but said that in hindsight, she wished that she had asked the panel to admit statements of her witnesses as hearsay evidence. However, despite the fact that the NMC had successfully applied for three witness statements to be adduced in that manner, it did not occur to her at the time to make such an application herself. Whilst that is no doubt a matter of regret, it cannot be a legitimate ground for criticism of the panel’s decisions; the panel was only able to reach those decisions on the evidence that the parties chose to put before it.

[41]Although no application was made by Ms Suddock to adduce hearsay evidence, the documents before the panel did include a number of witness statements taken by the NMC in the course of its investigations from other staff at the Home, which had been disclosed by the NMC as part of the unused material. Ms Suddock wished those statements to be placed before the panel, together with the full statements of the witnesses who were called (even if they contained potentially prejudicial hearsay).

[42]The NMC cannot be blamed for failing to call witnesses who might have supported Ms Suddock. It was under no obligation to do so and its failure to do so did not make the disciplinary process unfair. Nor can it be blamed for Ms Suddock’s failure to ask the panel to admit hearsay evidence.

[43]I appreciate how frustrating the changes in the NMC’s witness list must have been for Ms Suddock. It could have caused a problem if Ms Suddock had been led to believe that fewer witnesses would be called and had prepared accordingly; but she did know who the NMC intended to call, in time for the hearing, and had sufficient time to prepare her cross-examination. She did not seek an adjournment. Thus there was no unfairness to her. Moreover, far from being unhappy about the number of witnesses, she had previously complained to the NMC’s lawyers about their intention to omit Ms1 and Ms 14.

[44]It appears to me that the NMC’s tardiness in producing disclosure of documents that Ms Suddock had asked for caused her no, or no significant, procedural disadvantage. The five months’ delay of which she complains did not inhibit her from preparing her defence, and she was able to rely on those documents at the hearing. She did not ask the panel for an adjournment to give her more time to prepare. When she sought disclosure of documents during the hearing which she believed might help her defence, the NMC did its level best to obtain them, although in the case of some documents that would have been in the hands of third parties, they did not succeed. I have found no evidence of any failure by the NMC to abide by its duty of disclosure, and, as I have said, if there had been any such failure, the remedy would have been to ask the panel for an order compelling disclosure. It is too late to complain about it now; however, the panel was bound to take into consideration, where relevant, the absence of documentation that might have assisted Ms Suddock.

[45]In section 11 of her Replacement Skeleton Argument Ms Suddock suggests that there was a breach of

Article 6 ECHR

on two further grounds; first, there was an obligation to deal with the case expeditiously, but “this case has now exceeded four years” and secondly the fact that under the rules governing the disciplinary process, the NMC is under no obligation to provide funding for witnesses that the defendant wishes to call, which handicapped her defence.

[46]As to the first point, the disciplinary process was only initiated in 2014 and the hearing took place within a reasonable time thereafter and was completed in a reasonable timeframe. The NMC investigation was a precursor to, and separate from the disciplinary proceedings, and any failings in the former cannot impact upon the fairness of the latter unless the overall delay was serious enough to amount to an abuse of process. In this case it was not. The NMC had a great deal of information to consider, given that they were investigating Ms Suddock’s behaviour over a period of 17 years.

[47]Article 6 confers the right to a fair hearing within a reasonable time. A fair hearing was still possible and the time taken to bring the matter before the panel caused no prejudice to the defence. There is no evidence that the length of time taken by the NMC to investigate the matter before the charges were brought had any adverse effect on Ms Suddock’s ability to defend herself against them.

[48]As to the second point, it is a regrettable fact of life that nurses are not well paid and therefore registrants in Ms Suddock’s position often find themselves unable to afford to pay for legal representation or to pay the expenses of witnesses they would wish to call to give evidence. However those factors in and of themselves do not mean that the process infringes Article 6. Fair access to justice does not require the regulatory authority to finance the defence of the registrant as well as financing its own case (a cost which it is unable to recover from the registrant, and which is therefore met from the professional subscriptions of all registrants). Due allowance is always made, and was made in this case, for persons who, in practice, have no choice but to represent themselves.

[49]Finally on this aspect of the appeal, Ms Suddock complains that the panel failed to take into account “the following authorities, bodies, tribunals that has proved my innocence”. She lists the decision of the Employment Tribunal, (to which I have already referred) the decisions by the ISA and SHA to take no further action; the fact that the Police carried out an investigation, which Ms Suddock says was more detailed than the NMC’s and included interviews with patients, family members and doctors, and took no further action; the reports of the CQC (and its predecessor the CSCI) between 2004 and 2011 which (apart from 2007) had illustrated that the Home had achieved all standards required of it, with seven highly favourable inspections; the results of inspections and reports by the Trust commending the Home; and the fact that, (most unusually in a case of this nature) no interim orders were imposed on her by the NMC.

[50]The panel stated at page 8 of its decision that it considered all the oral and documentary evidence before it. I have to take that statement at face value unless there is something in its reasoning that plainly indicates that a relevant document was overlooked, or given no weight, or that the panel made an obvious mistake as to what the evidence was.

[51]The decision refers in terms to the fact that no further action had been taken by the police, or by the bodies responsible for safeguarding, such as the Protection of Vulnerable Adults (“POVA”) team within the Trust, the SHA or the ISA. However it does not follow from the fact that other bodies decided that there was insufficient evidence to take further action (particularly if criminal charges were under consideration) that there was insufficient evidence to make good the disciplinary charges or that Ms Suddock had been, as she put it, “proved innocent”. The question whether the evidence adduced by the NMC proved the charges was essentially a matter for the panel to evaluate; what other bodies thought about the information or evidence that they saw would be of limited relevance, and the weight to place on their decisions to take no further action was also a matter for the panel, provided that they did not ignore them completely in a context where they were relevant.

[52]The CSCI/CQC reports were plainly taken into account by the panel when evaluating certain of the charges. They were a significant factor in the dismissal of Charge 11 and Charge 12. I will come to their relevance in relation to other charges or sub-charges when I consider them in detail. The panel relied on the 2007 CSCI report in support of the evidence of Ms 9 (the CSCI inspector who compiled it) on Charge 13, although Ms Suddock explained that this was the one negative inspection report of its kind and related to a time when she had no deputy, and thus inadequate administrative support. Whilst that, and the positive reports in 2008 and 2011, would no doubt go towards mitigation, and also sanction, the fact remains that Charge 13 only required the NMC to prove that adequate references were not obtained for staff on at least one occasion.

[53]The fact that no interim orders were imposed on Ms Suddock is understandable in a case where the key charges so heavily depended on the credibility of the witnesses relied upon by the NMC. Unless and until that evidence was accepted, it might well have been extremely unfair to suspend Ms Suddock; indeed she might have complained that a decision to do so was tantamount to pre-judging the issues against her. However, the failure to impose interim orders was not a relevant consideration for the panel when it came to evaluate the evidence before it. B. Were the decisions contrary to the evidence or reached without an adequate consideration of the evidence?

[54]In many instances the panel has justified its decisions by reference to its findings on the credibility and/or reliability of the witnesses. In general it preferred the evidence of the witnesses called by the NMC to the evidence of Ms Suddock. The positive findings of credibility are particularly pertinent to those elements of Charge 1 (failure to ensure appropriate care) and Charge 2 (bullying and other inappropriate behaviour) which the panel found had been proved. Initially, on the face of it, these appeared to be decisions of a type with which this Court would not normally interfere on appeal. However, the more I examined the evidence, the more it became apparent that there was genuine cause for concern, and Ms Suddock’s feeling that she had not been fairly dealt with became understandable.

[55]I have reached the conclusion in respect of three of the Charges – all the elements of Charge 3, Charge 7.1 and all the elements of Charge 10, that I am satisfied that the decision of the panel to find the charges proved against Ms Suddock was clearly wrong. Additionally, as regards Charge 3, there is the clearest possible evidence, which the panel brushed aside, that someone was making a crude attempt to frame her. The implications of that were never considered by the panel, even though Ms Suddock drew it to their attention.

[56]Moreover, as regards Charge 7.1, the evidence of Ms 11, on which the NMC’s case stood or fell, was thoroughly unreliable. No reasonable tribunal which approached that evidence in the correct manner could have placed any weight on it, let alone found that a charge which depended solely on that evidence had been proved. Indeed, for reasons that I will go on to explain, I have found it impossible to explain away the failings in that evidence as the result of confusion or honest mistake, which begs the question why she was making it up, and whether someone else put her up to it.

[57]Those two extraordinary features of this case do not simply affect the decisions by the panel to find those specific charges proved. They are bound to affect all decisions to find other charges proved in which Ms 11’s evidence was either the only evidence, or supported the evidence of other witnesses. There is no way of knowing what the impact on the panel’s thinking might have been if they had concluded, as they should have done, that Ms 11 was not telling the truth. Whilst they might still have been able to justify at least some of their findings based on the credibility of Ms 2 and Ms 3 alone, once it became apparent that one of the witnesses was making up tales, and that witness was originally from Team 3, or closely associated with that team, they might have been more inclined to believe Ms Suddock.

[58]When one adds into the equation the attempt to frame Ms Suddock, it becomes obvious that justice dictates that none of the adverse decisions under challenge on this appeal that depended on assessments of credibility should be allowed to stand. That evidence wholly undermines their safety. It colours the way in which any court or tribunal would look at the evidence of any witness associated with HCMS or MRC, not just the witness who attested to the tainted evidence: and they were the key witnesses of fact.

[59]There are a number of reported cases in which warnings have been given about the dangers of a court or tribunal reaching decisions on the credibility of witnesses merely by reference to their demeanour. Experience has taught us that the way in which someone behaves while giving evidence is not a reliable indicator of whether he or she is telling the truth. Whilst demeanour is not an irrelevant factor for a court or tribunal to take into account, the way in which the witness’s evidence fits with any non-contentious evidence or agreed facts, and with contemporaneous documents, and the inherent probabilities and improbabilities of his or her account of events, as well as consistencies and inconsistencies (both internally, and with the evidence of others) are likely to be far more reliable indicators of where the truth lies. The decision-maker should therefore test the evidence against those yardsticks so far as is possible, before adding demeanour into the equation.

[60]Ms Suddock relied on a dictum of Lord Woolf that the “more serious the allegation, the less likely it is that the event occurred”. Sadly, in my judgment, the panel did not bear this sufficiently in mind when evaluating the evidence.

[61]The panel made its findings on credibility of each of the witnesses and gave its reasons for them at the very onset of its fact-finding determination. As regards many of the allegations, and particularly Charges 1 and 2, the key witnesses were the “Team 3” witnesses, namely, Ms 2, Ms 3, Ms 11 and Ms 15, although to a limited extent their evidence was supported by the hearsay statement of Ms 14, the HR manager who carried out the internal investigation leading to Ms Suddock’s dismissal, of which the Employment Tribunal was so critical, and the oral evidence of Ms 1 (who the panel found to be honest and reliable). There is no obvious reason to quarrel with that evaluation of Ms 1, but she is not a healthcare professional.

[62]In the case of Ms 3, it appears that the panel placed a very great deal of emphasis in the manner in which she gave her evidence, but it also said it relied upon the consistency of her account. As for Ms 2, the panel not only relied on her demeanour, but on the objective fact that her evidence involved admissions of wrongdoing on her own part (though she sought to justify it). The panel said Ms 11 was an “earnest” witness. It seemed to have regarded it as a point in her favour that she came back to give her evidence at a later date when it was discovered that there was insufficient time to complete it on the day she originally turned up. It found her to be honest, but less reliable, and less impressive than the other witnesses from the Home staff, among other matters because she muddled up some of the facts in her evidence and confused certain patients. Ms 15 was not called and therefore not cross-examined. The panel took this into account and generally treated Ms Suddock’s inability to cross-examine her as a point which weighed against the NMC in discharging the burden of proof that was upon it.

[63]The panel described Ms Suddock’s behaviour at the hearing as “assertive and challenging”, which was plainly not intended as a compliment. It said that in cross-examination she was aggressive towards witnesses, and at times dismissive and contemptuous of their responses, and that she was a somewhat arrogant witness. It considered her to be at times evasive, and unwilling to answer certain direct questions. Her inability to explain the bowel chart numbering system in a clear and cohesive manner “severely undermined” her credibility.

[64]It also criticized her for the manner in which she presented her defence, and said that she demonstrated very poor organisation of thoughts and was at times incoherent, which supported the evidence of the Home’s documentation being chaotic. Finally it said that the documentation she presented in support of her case exemplified the practices of the Home of re-writing reports to make them fit the particular events. The panel gave, as an example, the manner in which a particular incident was written up. The incident they referred to was the subject of Charge 5, the sending away of an ambulance, which the panel subsequently went on to find had not been proved. Ms Suddock contends that this was not a fair evaluation of the evidence, and that the original notes produced by the NMC were substantially the same as the document the panel found to have been altered: but for the purposes of this appeal that is something I do not need to resolve.

[65]One of the complaints made by Ms Suddock is that the evidence that the panel accepted as credible was inconsistent with the contemporaneous documents. If the contemporaneous documents came from independent sources outside the Home, (such as the CQC and CSCI reports) they could be a valuable source of evidence against which to test some of the allegations. However, the internal documentation is far less reliable as a yardstick. I have already mentioned that the panel felt that there was a practice at the Home of re-writing reports to make them fit the particular events. As the panel also noted in its decision, Ms Suddock and Registrant C complained about alleged “tampering” with documents. In addition (though the panel did not mention this) Ms 1 gave evidence that a number of important documents went missing a few weeks after she first went to the Home, and that she did not know who removed them. It cannot have been Ms Suddock, as she was suspended before Ms 1 arrived.

[66]Bearing in mind the absence of forensic evidence and the correct direction from the legal assessor that it should not speculate or carry out any forensic investigation of its own, the panel determined that “there is a considerable doubt over the veracity and reliability of the documents supplied in evidence and the weight to be attached to the documentation before it.” Thus the panel had to exercise caution over taking the documents, or at least some of them, at face value. I have borne this in mind and exercised similar caution, but I have not needed to rely upon documents that were queried (by either side) in order to reach my conclusions.

[67]It is the obligation of a disciplinary panel to give adequate reasons for the conclusions that it reaches. That is not the same thing as requiring it to deal in detail with each and every submission made to it or to refer to all the evidence relating to a particular charge in its decision. Thus the panel in this case was not obliged to set out each and every point made by Ms Suddock to undermine the credibility or reliability of the witnesses, and explain why it decided nevertheless to accept their evidence. It was nevertheless obliged to say enough to explain why it had reached the conclusion that the NMC had proved its case; in some instances, that reasoning is woefully deficient.

[68]For the reasons I have explained above, I shall postpone consideration of Charges 1 and 2 until after I have given the reasons for my findings on Charges 3 and 7.1.

Charge 3

[69]This charge related to the alleged failure to ensure that medication was stored safely. The first three sub-charges, or particulars of the generic charge were:(1) that Ms Suddock failed to dispose of medication after a resident had died or left the Home,

(2) that she failed to dispose of out of date medication, and

(3) that the medication referred to in 1 and 2 was kept in unlocked locations. The charge was personal to Ms Suddock; it was not a charge of failing to have a system in place to ensure that such medication was disposed of, or failure to supervise the person who was responsible for such disposals.

[70]The charge, as a whole, was largely dependent on the hearsay evidence of Ms 16, and to a lesser extent on the oral evidence of Ms 1. However, the evidence of Mr 13, who took over as full-time Home Manager for MRC on 15 November 2011, 28 days after Ms Suddock was dismissed, was also relevant. Ms 16 first went to the Home as acting peripatetic manager towards the end of August 2011, after Ms Suddock’s suspension. She is not a qualified nurse, but has an NVQ Level 4 in Management and had previously managed care homes (though not nursing homes). Ms 1 was engaged by HCMS as a Regional Manager. She first went to the Home on 4 September 2011 and thereafter spent on average three days a week there. She was responsible for overseeing general compliance and supporting Ms 16 in making day to day decisions. She left on 16 November 2011, after MRC took over the Home.

[71]It was Ms 1’s evidence that she and Ms 16 together “clamped down” on the use of suppositories and laxatives that were being used on the patients, and ensured that they were only being given by nurses. She said this resulted in a great deal of such medication becoming surplus to requirements by the end of September 2011. In cross-examination she denied taking a decision to cease any resident’s prescribed medication if that patient had been prescribed suppositories and/or laxatives. She left the question of when and how frequently to administer such medication to the nursing staff.

[72]Ms 1 described the care plans that she reviewed after her arrival as being “very detailed in most regards” and said that she found no immediate or obvious causes for concern, although she also said that it seemed that Ms Suddock had failed to put systems in place to ensure that the care plans would be updated by the staff in her absence. Ms 1 said that after Ms Suddock left, she worked with Ms 16 to support the nurses and empower them to complete documents and make decisions for themselves. She reviewed several clinical records relating to residents and found that the documents “were in a state of chaos” – it later became apparent that this was a reference to their not being properly filed or archived.

[73]Ms 1 stated, very fairly, that it could not be said that the residents had not been cared for, and described much of what Ms Suddock did as “sensible”. Her criticism was largely confined to Ms Suddock’s thinking on bowel health and the alleged over-use of laxatives and suppositories.

[74]Ms 14’s witness statement generally supported Ms 1’s evidence about the care plans, which Ms 14 stated had been completed in a lot of detail. She said that initially she felt a “lot of effort had gone into these documents” and that they looked “brilliant” but added that on reflection she began to think that too much effort had been made, and that she felt uncomfortable about the amount of detail, though she also said she could not explain why she felt uncomfortable. She wondered whether the significant volume of documentation she found at the Home was normal, and she asked the Divisional Director for HCMS “because of my inexperience in this particular area”. She did not state what answer the Divisional Director gave to her query.

[75]This was a witness who informed the NMC at the last minute that she was no longer willing to attend the hearing; however she was a witness of less importance than the two other hearsay witnesses. It was her internal investigation, leading to Ms Suddock’s dismissal, that the Employment Tribunal had found so unimpressive because she did not interview other members of staff who supported Ms Suddock. However, despite the misgivings she later alleged, for which she put forward no reason, her evidence as to the nature and detail of the care plans that were found at the Home is generally consistent with that of Ms 1.

[76]Ms 16, by contrast with Ms 1 and Ms 14, said in paragraph 6 of her statement that the care plans had “not been completed in an appropriate manner” although she was unable to state why. It is possible to reconcile her evidence on this point with that of Ms 1 and Ms 14 if the alleged failure to complete the care plans properly was something that only began after Ms Suddock’s suspension. Ms 16’s evidence in general is not balanced in the same way as that of Ms 1, but appears to go out of its way to criticise what she found at the Home. Yet the time that she and Ms 1 were there in a management role substantially overlapped.

[77]Counsel for the NMC at the hearing (Mr Vallance) told the panel (transcript 7 April p2) that Ms 16 knew that she was due to attend the hearing on 24 March 2015 but failed to do so. Counsel confirmed that Ms 16 was still employed by HCMS as a Home Manager, and that she had failed to respond to messages left on her mobile phone and her work email by the NMC asking her to get in touch. This was not a case, therefore, of a witness who failed to attend for good reason. That, in and of itself, ought to have caused the panel to approach her hearsay evidence with a degree of caution, and to be very slow to find a charge proved on the strength of that evidence unless it was corroborated. That was the general approach that the panel adopted in the case of Ms 15.

[78]Ms 1 gave evidence (transcript 24 March 2015 pp 18-19) that when she (personally) cleared a filing cabinet in Ms Suddock’s former office she found a number of different medications and creams that belonged to residents who she said were both current and former residents in the bottom of a drawer. She did not say when this clear-out occurred, though logically it must have happened after her arrival in September 2011. There was no evidence from Ms 1 as to when the “former residents” concerned had left the Home (it was the NMC’s case that their medication should have been forwarded to their new residence within seven days). Indeed, there was no evidence as to which of the medicines Ms 1 found in the filing cabinet had been prescribed to current residents, and which related to those who had moved elsewhere. Ms 1’s evidence does not address medication prescribed to deceased residents.

[79]Ms 1 did not say in her statement or in her oral evidence that the filing cabinet in which she found the medication was unlocked. It was put to her in cross-examination by Ms Suddock that it was a locked filing cabinet at the back of the office, and that a nurse, Ms 21, was responsible for disposing of that medication. Ms 1 accepted that the cabinet was at the back of the office and said nothing to contradict the other two points. Ms Suddock’s own evidence was that the cabinet was locked and that Ms 21 had the keys to it, but Ms Suddock did not have those keys. Ms 21, who also apparently worked consistently on Team 3, did not give evidence. The panel failed to address the question whether the cabinet was locked or not. Had they done so, regardless of whether they accepted Ms Suddock’s evidence, they would have had to find that there was no evidence that it was unlocked.

[80]Ms 1 took photographs of the medication she found, and they were adduced in evidence before the panel. They show a pack of dressings, a small quantity of boxes of paracetamol, one box each of some antiseptic cream and ointment, another box of chewable tablets, and a small plastic bottle of an oral suspension of a drug called Trimethoprim. In her oral evidence Ms 1 volunteered that she “did not see the large amounts of medication that she had heard were around” as alleged by Ms 16 (transcript 24 March, p.19C).

[81]Ms 1 initially said in her statement that she disposed of the medication that she found after taking the photos of it, but in cross-examination she readily accepted that she was mistaken about that. She said “I think maybe that actually we handed it over to them when they took over the home”. She confirmed that the medication that she found was the same medication which Mr 13 alleged was found by an administrative assistant, Ms S, in a desk drawer in Ms Suddock’s former office at some point at the end of April or beginning of May 2012, during a tidying session, together with a small quantity of additional medication. Mr 13 said that he told Ms S “please photograph that and we will send that to the NMC”. He exhibited to his witness statement the photographs that he said Ms S took of the medication that she found, and he said in cross-examination that he was present when she found it, though he now could not now remember what she found.

[82]The fact that most of the medication photographed in 2012 is identical to what Ms 1 says she found in a different drawer in 2011 is quite easy to demonstrate from comparing the two sets of photographs, as the labels bear the names of the same patients and the same dates, and even the same initials of the dispensing pharmacist. However the photographs are not duplicates of each other; in the 2012 set, the contents of the boxes have been photographed as well as the boxes themselves, and the pack of dressings was photographed at a different angle.

[83]Pausing there, Ms 1’s evidence by itself fell well short of establishing, on the balance of probabilities, any of charges 3.1 to 3.3. Her contemporaneous photographs corroborated her evidence as to what she found and when, but took matters no further. Even if some of the medication belonged to residents who had moved from the Home, as Ms 1 said it did, there was no evidence from Ms 1 as to when they left. There was no evidence that any of the medication was out of date. I appreciate that the medically qualified members of the panel could have had the requisite knowledge to evaluate this, but they made no specific findings of fact about it. The shelf life of paracetamol, for example, is generally more than a few months. There was no evidence that the cabinet was unlocked.

[84]Moreover, there was no evidence that Ms Suddock knew the medication was in that drawer. Ms Suddock’s evidence was that Ms 21 was in charge of disposing of medication, and this was recorded in the disposal book in the medication room. She said she (Ms Suddock) never stored medication for patients in her office. There was no direct evidence that Ms Suddock was aware that Ms 21 had failed to dispose of the medication which was discovered by Ms 1, let alone that she (Ms Suddock) had put it in the place where it was discovered. It is only if Ms 16’s hearsay evidence were accepted, that the panel could legitimately draw the inference that Ms Suddock must have been aware that medication was not being disposed of properly and that she have been personally responsible for bringing about that state of affairs.

[85]Ms 16’s evidence goes a lot further than Ms 1’s. She alleged that she spent an entire weekend sorting out excess medications that she found in stock in the Home’s medication cupboard, and that amongst that medication she found and destroyed some medication belonging to former patients, many of whom were deceased, (but none of whom she identified). She said she also found another cupboard full of different creams, many of which were prescription only, and which should have been destroyed after a patient had died.

[86]Ms 16 alleged that after being told “by some of the carers” that excess medication would be moved outside before a CQC inspection, she found more medication in an unlocked outbuilding. The majority of this medication related to patients who were now deceased, and most of the medication was out of date. She also stated that she found “large quantities” of unlabelled medication, (mainly paracetamol and suppositories) in the drawers of the desk which had previously been used by Ms Suddock, and elsewhere in her office, including prescribed paracetamol and antibiotics in a corner of the room near the photocopier.

[87]The panel mistakenly stated in its decision (page 25) that Ms 16’s evidence was that the weekend sorting out session was carried out together with Ms 1. She did not say that in her statement, and Ms 1 did not give evidence on which the panel would have been entitled to make that finding either. It is a clear mistake. The panel also seemingly failed to take into account Ms 1’s evidence that she never saw the large quantities of medication spoken of. Indeed there was no evidence that Ms 1 saw anything other than what she found in the filing cabinet. It is improbable that Ms 16 would not have shown Ms 1 what she found, if Ms 1 was the responsible Regional Manager when she found it. Therefore if Ms 16’s evidence were reliable, it would mean that she had already disposed of all the out of date or surplus medication she found before Ms 1 arrived at the Home, but she failed to find what Ms 1 found in the drawer of the filing cabinet.

[88]Ms 16 said she took photographs of all the medication that she discovered before she disposed of it. She did not retain copies of the photographs, but she emailed them to another HCMS Regional Manager (the same man to whom Ms Suddock sent the protected disclosure email on the day of her suspension) and she believed that he had passed them on to Ms 1. Those photographs were not produced in evidence by the NMC. This was acknowledged by the panel in its own questioning of Ms Suddock (transcript 9April, page 40C). The man to whom Ms 16 said she sent the photos was not called as a witness. Ms 1 did not say that she saw any photos of other medication that had been found.

[89]Ms Suddock pointed out that, apart from one reference to loose medication being found on a CSCI inspection by Ms 9 in 2007, the CQC/CSCI reports (including the one carried out in May 2011) confirmed that medication at the Home was properly disposed of and kept in locked locations. She also contended that photographs taken by HCMS on or around the first week of August 2011 (by the male Regional Manager to whom Ms 16 allegedly emailed her photographs) for the purposes of evaluating the physical state of the Home inside and outside, proved that there was no storage of large quantities of medication in her office or in the outbuildings.

[90]Although those photographs do not show any medication lying around, none of them appears to depict the interior of the outbuildings. However, if Ms Suddock had caused quantities of out of date prescribed medication to be put in an outhouse, for whatever reason, and the whole site was going to be inspected and photographed in early August by the administrators in order to evaluate the maintenance work (the hiatus in which was the subject of Ms Suddock’s initial complaint) then it is highly unlikely that she would not have taken steps to get rid of it from those locations before someone from HCMS, armed with a camera, went round the buildings and stumbled across it.

[91]It is inherently unlikely that out of date medication would be stashed away in an outhouse to avoid being spotted on a CQC check, and even if someone was foolish enough to put it there for that reason, it is even less likely that it would be left there for three months after the CQC inspector had completed the latest inspection. Moreover, the idea that Ms Suddock would countenance or positively encourage the stockpiling of out of date prescription medication is inconsistent with Ms 1’s impression of her generally sensible behaviour. The real mischief in that allegation is the inference that the medication was being deliberately kept for use on patients for whom it had not been prescribed.

[92]It is a matter of some concern that the panel does not appear to have applied a reality check to Ms 16’s evidence. If the Home was virtually awash with surplus medication when she arrived, much of which was out of date and related to deceased residents, or residents who had moved out, why was it that nobody else called by the NMC to give evidence, including the care workers, attested to seeing it, or to the positively dangerous practice of keeping it in the outhouse?

[93]I would also have expected allegations of this very serious nature to have been put to Ms Suddock when she was disciplined by HCMS prior to her dismissal, if the information had surfaced by then, as it must have done if Ms 16 had found the medication, photographed it, sent those photos to the Regional Manager, and disposed of the medication before Ms 1 arrived in early September. In the event, all Ms Suddock was asked about was a single denture pot containing unidentified cream, allegedly found in a drawer in her desk, which she denied ever seeing before. That was the subject of Charge 3.5, which the panel dismissed. She was not asked about the small amount of medication that Ms 1 found, but that is perhaps explicable if that medication was at the bottom of a locked cabinet and not lying loose in her desk drawer, and largely consisted of boxes of paracetamol and a pack of dressings. What defies comprehension is that she was not asked any questions about the much greater quantities of out of date/surplus medication supposedly discovered in the outhouse and in her desk drawer (or even in the medicine cupboard) by Ms 16. It is also odd that Ms 16’s photographs have not been retained.

[94]Therefore Ms 16’s evidence is wholly uncorroborated, and contrary to the inherent probabilities. Even in the absence of the evidence of the planting of medication in Ms Suddock’s desk, which I shall address separately, no reasonable tribunal could have found these charges proved on the balance of probabilities on the strength of Ms 16’s untested and manifestly unreliable account. The panel was entitled to accept Ms 1’s evidence, but that evidence was insufficient to prove these charges. The photographs she took do not support these charges, though the panel said they did; at most they corroborate Ms 1’s evidence of what she found and when she found it.

[95]The panel has not grappled with the inherent improbabilities of what was being alleged by Ms 16, or with the inconsistencies between her evidence generally and the far more balanced evidence of Ms 1. The panel mistakenly thought that Ms 16’s evidence was that Ms 1 was present when she found some of the medication and (given its view of Ms 1’s credibility) that may have influenced its decision to accept what Ms 16 said at face value notwithstanding that it had not been tested in cross-examination. Not only did Ms 16 not allege that Ms 1 was present, Ms 1 expressly stated that she did not see the large quantities of medication alleged.

[96]This Court is in as good a position as the panel was to decide whether these charges were proved. In my judgment, even on the basis that its findings on the credibility and reliability of Ms 1 must be respected, the panel was plainly wrong to find that they were proved on the balance of probabilities. This is a case in which the Court can confidently substitute its own findings, as the evidence of the NMC is not going to improve. I will allow the appeal in respect of Charges 3.1 to 3.3 inclusive and substitute my own findings that those charges are disproved. It follows that the panel was not entitled to make the fact finding that “when the Home was taken over by HCMS, a large number of suppositories and other medications were found in an out-building and in your desk drawer.”

[97]I now turn to the most serious facet of the evidence on these charges. It is quite clear from its observations about Mr 13, (who gave his oral evidence by telephone) that the panel took on board Ms Suddock’s criticisms of his evidence. The panel said on page 11 of its decision that it had “reservations regarding the credibility of his evidence”, that he was unable to provide straightforward answers, and that his evidence was of little value to the panel. It is nowhere relied on in respect of the panel’s findings in relation to Charge 3. Unfortunately, however, the panel failed to follow through the implications of the fact that two sets of photographs of the same medication were produced, and that same medication was supposedly found in two different locations within Ms Suddock’s former office, several months apart.

[98]The panel said in its decision that it did not consider it material to the charge as to whether the same medication had been pictured twice; “the mischief of the charge is that you failed to dispose of medication for residents that had died or left the Home, or medication that was out of date.” Whilst that is true as far as it goes, with great respect to the panel, they either completely missed the point or chose to ignore its implications for Ms Suddock’s defence, and not just her defence to Charge 3.

[99]If Ms 1’s evidence is accepted (as the panel did), then she cannot have destroyed what she found, and she cannot have left it where she found it. There was no reason for her to have put it back in an unlocked drawer in Ms Suddock’s desk, and she herself said she must have handed it over to the new owners on takeover (presumably with a view to their disposing of it). On any view that medication was not destroyed, as it should have been. That person, or someone else to whom they gave it, must have put it back in Ms Suddock’s office, this time in a different drawer, one in her own desk, together with a small amount of other prescription medication which neither Ms 1 nor Ms 16 had found previously.

[100]It is difficult to envisage an innocent explanation for the medication finding its way back into a drawer in Ms Suddock’s former office, let alone a different drawer from the one in which Ms 1 found it initially, or for additional medication being added to it. The obvious inference is that someone at the Home (though not necessarily Mr 13 or someone acting on behalf of MRC) was trying to frame Ms Suddock. That begs the question why. They would not need to go to those lengths in respect of such a small amount of medication if Ms 16 had found and photographed large quantities of different out of date medication. However there might be a reason to pretend that the medication found by Ms 1 in 2011 was found in 2012 if it was perceived that there was a danger that she, as an HCMS employee, might not be called to give evidence against Ms Suddock in the future; or if it was perceived that Ms Suddock might escape censure if the medication had previously been found somewhere where she would not necessarily have been aware that it was there, or in a drawer which was locked.

[101]The timing of the 2012 “discovery” of the medication is interesting: it was at least five months after the handover to MRC and at least three months after Ms S was said to have started to work at the Home. The decision of the Employment Tribunal to award Ms Suddock compensation was sent out to the parties on 29 April 2012. I do not know when MRC got to find out about it, and whether it was before 1 May, when Ms S made a statement about finding the medicine in the drawer. The timing may be pure coincidence. However the planting of the medication does raise a valid query as to whether MRC’s and Mr 13’s agenda in involving the CQC, the POVA team in the Trust, the police, and the SHA, after the ISA had decided to take no further action on HCMS’s reports and the NMC had failed to obtain an interim suspension order, was quite so altruistic as the panel believed it to be.

[102]Another possibility is that Ms 1 or someone from MRC gave the medication to a member of staff at the Home, who was one of those bearing a grudge against Ms Suddock, to dispose of it safely, and that person, who may not have been very intelligent, and who may not have known that Ms 1 had already photographed it, decided to plant it in Ms Suddock’s desk drawer.

[103]Whatever the reason for it and whoever was behind it, this unsavoury behaviour demonstrates one thing beyond doubt: in 2012, someone wanted Ms Suddock to get into serious trouble, and was prepared to go to quite extreme lengths to see to it that she did. She is not suffering from paranoia. Therefore it was incumbent on the panel to be extra vigilant when examining the evidence of anyone who was still working at the Home when the medication was planted and who might have a motive for getting Ms Suddock into trouble. Ms 2, Ms 3, Ms 15 and Ms 11 were all still working there.

[104]Charge 3.4 was that Ms Suddock “on one or more occasions failed to undertake a monthly drug audit”. It is clear from its reasoning that the panel’s decision that this charge was proved was heavily reliant upon its decision to accept the hearsay evidence of Ms 16 on Charges 3.1 to 3.3. It said in its decision “had regular monthly drug audits been undertaken, the excess medication would have been disposed of.” That presumes that there was excess medication, and also that the excess in question did not result from the “clamp down” instigated by Ms 1 and Ms 16 jointly in or around September 2011 which, according to Ms 1, led to a great deal of stock of laxatives and suppositories becoming surplus to requirements.

[105]The NMC’s failure to prove Charges 3.1 to 3.3 and the unreliability of Ms 16’s evidence is enough, in my judgment, to fatally undermine the panel’s findings on this charge also. I bear in mind that the panel also said it relied upon evidence given by Ms 9 that during her 2007 CSCI inspection she found evidence of “loose and unlabelled medicines in both the medication trolleys and in the storage cupboards.” Whilst that was a legitimate point of criticism at the time, it is not the same thing as a failure to carry out a stock audit. Ms Suddock was not facing a charge in relation to loose and unlabelled medicines in 2007. Ms 9 also said that she recorded that for many medicines the stock levels were “high” and indicated a “lack of stock control,” but that evidence is extremely vague, and Ms 9, quite understandably, was unable to provide further detail without sight of her contemporaneous notes. Ms 9 did not record the names of the medicines which she said she found in large quantities. Moreover her report relates to a period four years before the “over-stocking” was allegedly discovered by Ms 16.

[106]No consideration appears to have been given by the panel to what, if anything, was done to address the concerns that Ms 9’s 2007 report would have brought to Ms Suddock’s attention, although that was a highly material factor in determining whether it was proved by the NMC on the balance of probabilities that monthly stock audits were not being carried out. The panel did not mention the findings made by the CSCI or CQC in more recent inspections, including the one in May 2011, which found that outcome 9, “management of medicines”, was complied with. None of the inspections after 2007 recorded any concerns about such matters. The 2008 report, the year after Ms 9’s inspection, indicated that prescription medication was kept in two locked cupboards in the medication room. It stated:

“The controlled drugs record was checked against the stock for one person and found to be correct. Two other entries in the book identified when medication had been destroyed. The nurse in charge of the shift advised that the ordering system for medication was linked to the medication record sheets and one of the night registered nurses takes responsibility for ordering and disposal of unwanted medication.”

[107]The Home’s written medication policy, to which Ms Suddock testified it adhered, was extremely detailed. Amongst other matters, it required witnessed records to be kept of all disposals of medication. Thus whenever the nurse who had the job of disposing of medication, Ms 21, did so, someone had to countersign the documentation. If she was not doing her job properly, other members of staff were bound to have noticed.

[108]Ms Suddock gave evidence that she and other nursing staff at the Home had put in place a new medication ordering system that was designed to prevent over-stocking, and involved a checking of stock against the patients’ MAR sheets which recorded their prescribed medication. She adduced in evidence a letter sent out to all GPs, practice managers and receptionists explaining the new system. That letter explained why the Home had experienced problems with ordering repeat prescriptions; there was insufficient room on the old slips for the GP to indicate how often the medication was to be administered and vague expressions such as “as required” should not be used. Moreover, it had been identified that some of the dressings and creams were being ordered and then wasted.

[109]In the letter, Ms Suddock asked the GPs to delete any “repeat prescribed” items that had not been requested that month, to eliminate the danger of their being accidentally re-ordered in future. Ms Suddock gave evidence that there was a monthly stock-taking of all prescribed items that remained on the prescription, and if any were found to be in stock, they would write on the repeat prescription “in stock, 0 needed this month”. The letter to GPs about the new system suggests that she was taking the question of over-stocking or over-ordering of medication extremely seriously and trying to implement a system which would overcome it. So far as I can tell there was no challenge to the authenticity of that document.

[110]The cross-examination of Ms Suddock by the NMC’s counsel on this point was cursory; it was not put to her in terms that she did not keep monthly audits (at any time, whether in 2007 or subsequently) or that her audit-taking was sloppy. She was simply asked about the findings of the loose medication in Ms 9’s 2007 Report, and she accepted that Ms 9’s report said what it did. Ms Suddock’s evidence in answer to the panel’s questions was that the audits (checking stock of prescribed medication against the MAR charts) were carried out for the purposes of ensuring that all medication was given as prescribed by the GPs and that there was not an over stock or under stock in that regard.

[111]Despite this, the panel said it was “unimpressed” by Ms Suddock’s evidence regarding audits and that it was not satisfied that she had an understanding of what a monthly drug audit would constitute. I simply do not understand how the panel came to that conclusion on the evidence before it. In any event, however unimpressed it was with Ms Suddock’s evidence, the burden did not rest on her to prove that monthly audits were carried out; it lay on the NMC to prove that they were not. If it had been the NMC’s intention to establish a specific case that the audits should have been carried out in a particular way, (for example, a system which would pick up whether Ms 21 was disposing of surplus medication) in fairness it could and should have been put to Ms Suddock in cross-examination. However that was not the charge; the charge was one of failing to carry out a monthly drug audit “on one or more” occasions.

[112]If one discounts as unreliable Ms 16’s evidence about the surplus medication she found, (as in my judgment the panel was bound to do for the reasons already adumbrated) there is insufficient evidence that would satisfy a tribunal or this Court that Charge 3.4 was proved on the balance of probabilities. It seems clear to me that Ms 16’s untested and uncorroborated evidence was crucial to the panel’s finding that it was. Although she found to be credible and reliable, Ms 9’s evidence was insufficient by itself to prove on the balance of probabilities that there was a failure to carry out one or more monthly audits even in 2007, and it related to a period too far back in time to corroborate Ms 16’s hearsay evidence.

[113]Again, I am in as good a position as the panel to determine whether, putting its case at its highest, the NMC discharged the burden of proof. The appeal will be allowed in respect of Charge 3.4 also. I substitute a finding that the charge has not been proved.

Charge 7

[114]This relates to an allegation that Ms Suddock permitted or instructed Registrant C to administer a nasogastric (NG) tube without the recommendation of medical staff to two patients, Patient 1 (male) and Patient 2 (female). The panel found the charge proved in respect of Patient 1 but not Patient 2. According to the panel’s decision, the evidence on which it relied in respect of Patient 1 came from Ms 11 who said the NG tube was not prescribed and that she saw it being inserted. Ms 15 gave hearsay evidence in her statement that Ms 3 had told her that Patient 1 had an NG tube inserted, but she did not see this herself. There was similar hearsay evidence from Ms 3, who identified the person who told her as Ms 21. The panel was right to afford no weight to the hearsay evidence in Ms Suddock’s case; it should have taken the same approach in respect of the charge against Registrant C.

[115]Ms 16 said in her hearsay statement that before she left the Home she was told by some of the carers that Registrant C had given a dehydrated patient fluids via an NG tube. She was not told about this happening to more than one patient. It appears that the patient in question was not patient 1, because she said the patient was female. Yet the panel did not accept evidence from Ms 15, Ms 11 and Ms 2 in relation to patient 2, not least because there was compelling evidence that Registrant C was on annual leave at the time when she is alleged to have inserted the NG tube into that patient.

[116]The panel found Ms 11 to be a muddled witness who confused patients, specifically patients 2 and 12. It considered her to be honest but less impressive than the other witnesses from the Home. Her evidence in respect of other charges was not accepted, including charges 6, 7.2, 16 and 17. Yet it was prepared to find this very serious charge proved not only against Ms Suddock but against Registrant C on the strength of her alleged eyewitness account. It did not explain why.

[117]Although the panel is curiously silent on this topic, there were numerous material discrepancies between Ms 11’s evidence in respect of charge 7.1 and statements she had made to the police and to MRC in late November 2011 (served by the NMC as part of the unused material), when of course she was bound to have had a better recollection of events than in early 2013, when her witness statement in the disciplinary proceedings was taken by the NMC.

[118]In the statement taken from Ms 11 by the police on 28 November 2011 (and in a similar statement made to MRC, which was put to Mr 13 in cross-examination) she said she could not recall the day when the tube was inserted, but it was in the morning, and she was not present; in the statement she made two years later, adopted in her oral evidence, she said it was at 4pm on a Sunday afternoon and she saw it being inserted. It is impossible to reconcile those two accounts, which are diametrically opposed, even before one takes stock of the various embellishments she added to the later one. In questioning by the legal assessor she confirmed that she had not seen her police statement again after it was made, and that it was likely to be an accurate reflection of what she had said to the policeman. No explanation for these inconsistencies was put forward by Ms 11 or anyone else.

[119]In the earlier statement (the relevant part of which is set out on page 39 of the transcript for 1 April) she said that she went downstairs for her morning break and when she came back to his room the patient had an NG tube in situ. She also said that there were probably two other carers who saw this, but she could not recall who those people were. She said that Registrant C told her that if she saw any doctors or family members she should call her (Registrant C) to get the tube removed. Some 600ml of different fluids, starting with ensure, (a thick supplement drink), which would not go through the tube, followed by lemonade, tea and water, was pushed through the tube before she went off shift, but Ms 11 did not document this anywhere. However she did document the fluids that had been administered to the patient orally before the NG tube was fitted. She did not explain why she did not document the use of the NG tube or the quantity and nature of the fluids that were pushed or attempted to be pushed through it.

[120]In her 2013 statement, repeated in her oral evidence to the panel, she said that she had been upstairs with patient 1 and another care assistant for most of her shift and that from around 8am to 3pm they had persuaded him to take around 500ml of fluid. She stated that at around 4pm Registrant C entered the room and inserted the NG tube (in her oral evidence she confirmed that she was “one hundred per cent sure” that she witnessed this). In re-examination, when asked by Counsel to clarify whether it was patient 2 or patient 1 that she witnessed being fitted with the tube, she said it was patient 1.

[121]She said in her 2013 statement for the first time that she heard Registrant C talking to someone on the phone before she inserted the NG tube, and mentioning Patient 1’s name. She did not know who she was talking to. Ms 11 said that she knew the NG tube was not prescribed to him and that “I did not think it was necessary anyway because he had taken fluids all day. I always thought the NG tube had to be prescribed because each person needs different size tubes”. She also said that she saw Registrant C take a piece of paper and put it into the tube to see if it went a different colour. She said that Registrant C had told her that if the patient’s doctor or family arrived, she (Ms 11) would have to remove the tube, and she had responded that she did not know how to do so. This statement omitted the suggestion that Registrant C had asked Ms 11 to push the fluids through the tube. It also implied that the “ensure” went through the tube successfully.

[122]When asked by Counsel for the NMC who was in the room when the tube was inserted, she said that she was, and she thought another girl, but she was not a hundred per cent certain. When asked why she was there, she said “because he was poorly, we had been trying to get fluids down him all day.” Thus even before she was cross-examined she contradicted the evidence in her statement, which she had just read into the record, that he had taken fluids all day and that because of this, she did not think that an NG tube was necessary. Asked how she knew that patient 1 had not been prescribed an NG tube, she said that “the man was quite well beforehand”, and she then volunteered that there was a cupboard in which things were stored after previous patients had left (though that was not an answer to Counsel’s question). When asked what was in the cupboard she said “everything from catheters to NG tubes” (1 April transcript pp 20-21).

[123]I find it slightly surprising that the medical experts on the panel, at least, did not explore that evidence with her. It is inherently unlikely that a nurse would attempt to carry out the delicate and potentially dangerous procedure of fitting an NG tube into a patient, which had not been prescribed for that patient, in a nursing home, still less without a doctor being present to ensure that the procedure had been successfully carried out. The witness even volunteered that each patient needs different sized tubes. The suggestion that spare, used, NG tubes would be lying around in a store cupboard on the off-chance that they might come in useful for someone else, assuming of course that they happened to be the correct size, is also inherently implausible.

[124]If, as Ms 11 initially suggested, there was “nothing wrong” with the patient’s fluid intake earlier in the day, there would be no reason to fit a NG tube to him. If that version of her evidence were accepted, the allegation is dependent upon a nurse taking it upon herself to fit an NG tube for no good reason to a patient for whom it had not been prescribed. That is one possible explanation of why Ms 11 said precisely the opposite when she was asked further questions by Counsel before she was cross-examined. However, she continued to contradict herself.

[125]The only cross-examination on this topic was carried out by Registrant C, and was hampered by announcements over the public address system about power cuts in the building where the hearing was taking place. Registrant C asked Ms 11 (1 April transcript page 37) about her statement that she and the other HCA had persuaded the patient to take 500ml of fluids. Registrant C asked “if he was drinking so well why would I need to put an NG tube? He had good fluid intake?” The response was that “500 ml for him wasn’t a good intake”. When it was pointed out that he could have had another 500ml of fluids in the afternoon, so what would be the rationale for fitting the tube, she answered “you put the NG tube in so you tell me”. She obviously could not think of one.

[126]Registrant C put to Ms 11 the most serious of the inconsistencies between her 2011 statement to the police and her 2013 statement. Ms 11 failed to give an explanation of why she had changed her story. Registrant C also asked about the piece of paper that she had said Registrant C put down the tube – that evidence does not appear in the 28 November 2011 statement. Ms 11 then changed her evidence again. She said “no you didn’t put it down the tube - that was obviously a misprint. You actually put some liquid on the paper to see if it changed colour.” Ms 11 had read out her statement to the panel a short time earlier, and adopted it as her evidence. She had not corrected the “obvious misprint”.

[127]Registrant C subsequently showed her a document (part of the original patient notes for Patient 1, recently disclosed by the NMC) which said that on 7 March 2011 Registrant C had contacted the doctor because the patient was not swallowing well, and also contacted the patient’s daughter. She put it to Ms 11 that she would have had no reason to have had a conversation with Ms 11 about removing the NG tube if they turned up unexpectedly, because she knew that the daughter was coming.

[128]I should add that the police report into this matter in 2011, which was in the documents before the panel, confirmed that the GP records as well as records at the Home showed that the GP did have telephone contact with Registrant C on that date and that he told her “just push fluids and use a thickener if it will help”. The doctor confirmed to the investigating police officer that a thickener would not have been inappropriate because the patient had swallowing problems. However it is inherently unlikely that a nurse would try to administer a thickener to a patient via an NG tube, especially if the tube was being inserted to direct the fluid directly to his stomach, thereby avoiding the necessity for him to make the effort of swallowing. Registrant C made this point as well; one would use water with an NG tube, not the concoction of various fluids described by Ms 11.

[129]Registrant C also asked Ms 11 (at page 59 of the transcript) why there was no mention of an NG tube in the handwritten daily report (Index D1) that Ms 11 made on 7 March 2011, which recorded that “regular fluids were given every 15 minutes” (and thus was consistent with Registrant C’s evidence). Ms 11 initially said that if this was her writing and this was the same man, then in the morning he didn’t have his NG tube in, because Registrant C inserted it in the afternoon. When asked why she had not put a reference to the NG tube in her report in the afternoon, she said “I can’t answer that one”.

[130]Ms 11 was asked questions about her evidence by the panel at pages 48-49. They related to the size of the syringe that was used to push the fluids through the tube (she said it was quite a small one) and the way in which the fluid had been tested by Registrant C with the paper (she said she was not close enough to observe the colour, she just saw the piece of paper that she would test it on, it came out of a little book). I presume that these questions were asked in order to ascertain whether Ms 11 had really observed this procedure at any time. Ms 11 said that she had never seen an NG tube passed on any other occasion.

[131]Registrant C herself gave evidence about the matter (transcript 10 April pages 9 and following). She said that neither she nor Ms 11 worked on Sundays. She had last seen patient 1 on the Monday before he died, which was 7 March, and the patient notes showed that she had contacted his doctor on that date because he was not swallowing well. The doctor said that he had been deteriorating over the last few months and there was nothing they could do. She said that she followed the doctor’s advice to push fluids into him. When the Panel asked her questions about this, she repeated that an NG tube was never used by her on Patient 1 and that they pushed fluids into Patient 1 as his doctor had advised, but using a spoon, not through a tube (transcript, same date, pages 54-55).

[132]Registrant C’s evidence was that, contrary to Ms 11’s evidence that she had never seen another patient with an NG tube, Ms 11 had seen her working with two other patients in the home (one male and one female) who had been prescribed and fitted with NG tubes; Patient 10 (female) had an NG tube for several months and Patient 19 (male) had a tube for a month to six weeks (page 32 of the transcript). [There was a letter in evidence from a speech therapist that provided independent corroboration that Patient 10 was already fitted with an NG tube on her admission to the Home in 2009, and the signed statement of Ms 19, taken in December 2012, to which I have already referred, confirmed that Patient 19 was fitted with an NG tube which he kept pulling out, so the HCAs had to check on him on a half hourly basis.] Registrant C made the point (at page 34 of the transcript) that when these two patients left the Home, their NG tubes went with them, as might be expected; there were no spare NG tubes lying around in a store cupboard. Ms 19’s 2012 witness statement confirmed that each NG tube has to be specifically measured, meaning that it can only be used on the person to whom it has been prescribed, and that Patient 19 only had one spare tube at a time which was locked in the drug room.

[133]Registrant C asked Mr 13 in cross-examination why it was that she was never asked any questions about this serious incident after the allegation had been made by Ms 11 to MRC in November 2011, as Registrant C was still working at the Home at the time. He was unable to provide any explanation.

[134]I find it extremely surprising that in its decision on Charge 7.1 there is no evaluation by the panel of the likelihood of this incident taking place. The panel does not address the evidence that sheds doubt on Ms 11’s account, particularly the documentary evidence, or lack of it, even briefly. The decision says nothing about the patient notes relating to Patient 1 (the originals of which were produced by NMC and, according to the police investigation, were corroborated by the GP records). It is silent about the absence of any reference in Ms 11’s own handwritten notes for the day in question to the insertion of the NG tube, although the notes do record the administration of fluids. Nor does it address the flat contradiction between what Ms 11 told the police and her new employers in November 2011, and what she told the NMC in 2013, for which no explanation was put forward, leaving aside all the other inconsistencies and discrepancies in Ms 11’s evidence relating to this matter.

[135]Although the panel found that Ms 11 muddled up other patients, it did not even address the most benign explanation for the inconsistencies, namely, that in this case, Ms 11 was mistakenly referring to a different patient who had been prescribed an NG tube. It did not address the implications on her reliability as a witness of its rejection of her evidence in respect of other charges; particularly in respect of the NG tube allegedly administered without prescription to Patient 2 by Registrant C (though not in her presence) at a time when the panel accepted that there was cogent evidence that Registrant C was off duty. The panel found that Ms 11 had mixed up Patient 2 and Patient 12. There is also a striking similarity between Ms 11’s original evidence that Registrant C told her to let her know if the patient’s family or doctor came in because she (Registrant C) would have to remove the NG tube, and Ms 2’s evidence in her witness statement that Registrant C said exactly the same thing to her in relation to Patient 2. All of this should have set alarm bells ringing, but apparently it did not.

[136]On the face of the decision pertaining to Ms Suddock, there is no consideration of Registrant C’s contrary evidence, and no attempt to explain why Ms 11’s version of events was preferred to it. There was no weighing up of whose version of events was inherently more plausible, or more consistent either with earlier statements or with the contemporaneous documents. The panel did not address the question of where the NG tube came from, or consider the plausibility of Ms 11’s suggestion that something like that may have been kept in a stock cupboard, and if it had, that it would just happen to have been of a size that fitted this particular patient. It did not consider the inherent plausibility or implausibility of the evidence about all the different types of fluids that were said to have been inserted into the tube, or the likelihood that a nurse would decide of her own volition to fit an NG tube to a patient if he had taken 500ml of fluids from a spoon earlier that day, let alone that she would take it upon herself to do so after having spoken to his GP and received instructions which did not involve the fitting of an NG tube.

[137]I note that the same fundamental errors have affected the way in which the panel dealt with the same charge in respect of Registrant C herself, albeit that in that decision, they were compounded by the panel’s apparent reliance on the hearsay evidence from Ms 3 that she had been told by Ms 21 (not called as a witness) after Patient 1 died that he had had an NG tube fitted by Registrant C. Ms 3 was understandably very distressed by Patient 1’s death, which happened in her presence during the night of 7 March 2011, shortly after she began her shift and only a few hours after the time when, on the NMC’s case, the NG tube was fitted. However Ms 3 came on shift in the evening and her evidence was that she never saw an NG tube; Ms 11’s evidence was that the tube was still in place when she came off shift at the end of that afternoon. That was a further piece of evidence undermining Ms 11’s credibility.

[138]Had the panel assessed the evidence properly, it should have reached a different and far more critical view about Ms 11 than it did, at least so far as this charge and the related charge against Registrant C were concerned. There was no allegation that the original patient notes, produced by the NMC quite late in the day, had been tampered with; in any event the police found that the relevant entries in those notes tallied with the GP’s own records. Ms 11’s own contemporaneous handwritten notes made no mention of the insertion of an NG tube on the date in question, which one would expect, especially if the procedure was an unfamiliar one. She did not allege that she was asked to suppress that information, though she was quite prepared to make very serious allegations against Registrant C implying that she knew that she was doing something wrong and wanted to keep it from the doctor and the patient’s family. The flat contradictions between her November 2011 statements and her evidence to the panel, not to mention the contradictions between her written and oral evidence at the hearing itself could not be simply glossed over or treated as “muddle”. Her evidence was inherently unreliable.

[139]Moreover, and leaving aside the evidence of Ms 11 that the panel accepted in the teeth of its many implausibilities and contradictions, there was no evidence that Ms Suddock instructed Registrant C to insert an NG tube, or that she was aware that had been done (to either of the patients alleged) and permitted it to happen. She was not even asked any questions about that in cross-examination by counsel or by the panel itself. All she was asked (by the panel) was about the accuracy or otherwise of the records pertaining to when she was off-duty; that related to charge 7.2, as she had testified that she was not on duty on 29 April 2011 (transcript 9 April pages 45-46). In answering those questions, Ms Suddock also made what on the face of it appears to be a valid point that no-one would risk putting in an NG tube without it being measured.

[140]Unlike the panel, I have considered whether Ms 11’s evidence on this matter is inherently plausible or consistent with the documents and the uncontroversial facts. It is inherently implausible. It is unlikely that Registrant C would take it upon herself to insert an NG tube without receiving specific instruction to do so from the patient’s GP and without making a record of it, or waiting for him to arrive; and there was no plausible explanation of how she would have managed to obtain an appropriately sized NG tube or why she would have decided to take that step if the patient was taking in fluids from a spoon. It is inconsistent with the contemporaneous records, including the one Ms 11 wrote herself. If Ms 11 had actually witnessed the NG tube being inserted she would have recorded it in her daily written record of events and she would have told the police in 2011 that she was present when it was inserted.

[141]This is one of those rare situations in which, despite the advantages that the panel had of seeing and hearing the witnesses, I can safely conclude that it was both plainly wrong and unfair to find the charge proved against Ms Suddock (and, although her case is not before me, it should not have found the related charge proved against Registrant C either). There is no proper explanation in the decision under appeal as to why the panel found charge 7.1 proved. Whilst there is no duty on a panel to give anything more than adequate reasons for its decision, here there were no reasons given at all, and that is unfair. However this is not simply a case of inadequate reasoning; for all the reasons I have set out, the finding is not supported by the evidence. Not to put too fine a point on it, it is perverse.

[142]Again, there is sufficient material before the court to enable it to substitute its own conclusions on the evidence relied on by the NMC, taken at its highest, without sending the matter back to a fresh panel. In order to allow the appeal on Charge 7.1 itself it is unnecessary for me to make a finding that Ms 11 was deliberately making up a story. It is sufficient for that purpose to find that her evidence was and is far too unreliable for this particular charge, which was wholly dependent upon her evidence, to have been found proved on the balance of probabilities. I therefore allow the appeal against this finding and substitute a finding that the charge is not proved.

The impact of these findings on Charges 1 and 2

[143]However, and in fairness to Ms Suddock, and indeed Registrant C, for whom there is a great deal at stake, matters cannot be allowed simply to rest there. Ms 11’s evidence was not confined to this charge. Some of the charges under Charge 1 and 2 which the panel found proved, depended exclusively upon her evidence and upon the panel’s assessment of her credibility, which appears to have been largely dependent on her “earnest” demeanour, her apparent fright when being cross-examined by Ms Suddock, and her willingness to come back on a different day to give her evidence when it became apparent that she would be unable to do so on the day she first turned up. Some of the remaining charges depended both on her evidence and on the evidence of other witnesses, such as Ms 2 and Ms 3, and sometimes also the hearsay evidence of Ms 15. The question arises whether the findings of the panel on either or both those groups of charge can now be regarded as safe.

[144]Ms 11 was certainly muddled, but try as I may, even allowing for the considerable advantage that they had of seeing and hearing her, I find it impossible to agree with the panel’s assessment that she was honest. An honest mistake would mean that she was referring to an incident involving a completely different patient who already had an NG tube prescribed. That would at least be consistent with her evidence to the police in 2011 that the NG tube was already in place when she came into the room, but that still means that her confusion over the identity of the patient would have existed even back then. She might well have confused a Sunday with a Monday, and a morning shift with an afternoon shift. However, none of that explains her insistence that she saw Registrant C insert that tube, or the lengths to which she went to give evidence that was so damning of Registrant C.

[145]I am driven to the conclusion that Ms 11 was making up a story. That puts an entirely different complexion on her being “muddled” in her evidence and on the demeanour whilst giving evidence that the panel attributed to being frightened of Ms Suddock. It is just as likely that she was frightened of being found out.

[146]Ms 11 sent Ms Suddock supportive text messages in the immediate aftermath of her suspension. One, sent on 17 August 2011, read “If u need me I am there ok xx”. Another, sent on 28 August, read “Oooh I miss u come back soon xx”. She told Counsel (transcript 1 April page 13) that she got on quite well with Ms Suddock while she (Ms 11) worked at the home and that their relationship only changed after Ms Suddock left. This was corroborated by the text messages, which indicated that Ms 11 was trying to find out in December 2011 why Ms Suddock was no longer speaking to her. She said that in her final year of working together with Ms Suddock their relationship was “ok, fine, we got on great”. She also accepted that she told Ms Suddock what was going on at the Home after Ms Suddock left.

[147]Ms 11’s November 2011 statements to the police and MRC were also made around a month after Ms 11 had made a handwritten statement, dated 23 October 2011, supporting Ms Suddock’s claim before the employment tribunal which was nothing but supportive. The handwritten statement was put to her in cross-examination (1 April transcript page 30). When asked why she would have given such a statement she said “because you probably instigated me to do it. To help you out.” The panel sought to explore with her why there had been such a change in her attitude towards Ms Suddock in the intervening period, but got no coherent answer. She did accept, however, that she was worried at the time about whether she was going to keep her job.

[148]Ms 11 accepted in cross-examination that after Ms Suddock left, she sent text messages to her, and went to visit her in her home, she said twice. For the reasons set out in its decision, the panel was understandably not prepared to accept that Ms Suddock wrote a false witness statement for her and tried to get her to sign it, which was the crux of charges 16 and 17. What the panel may not have spotted in the wealth of material was that Ms 14 said in her witness statement that it was Ms 11 who first told her that some residents had been given unprescribed suppositories, many of which had been bought in bulk from local chemists. She told Ms 14 that Ms Suddock would instruct the staff to give these to patients even if they were not constipated. If that is right, Ms 11 was saying things to HCMS that did not show Ms Suddock in a good light even before Ms Suddock was dismissed. That begs the question why.

[149]In dealing with the inherent contradictions between Ms 11’s outward behaviour towards Ms Suddock at the time and her allegations of bullying, the panel said (in the context of Charge 2, at page 23) “the panel accepted the evidence of the witnesses that they were simply trying to stay on good terms with you because they were scared of you. Essentially, it was to avoid being shouted at at work.” First, that was not Ms 11’s explanation. Secondly, the handwritten witness statement was provided after Ms Suddock had been sacked, at a time when Ms 11 was still on sufficiently good terms with her to go and visit her in her home. Even if Ms Suddock had asked her to provide it to help her out, which seems plausible, Ms 11 had no reason to agree if she really did not support Ms Suddock’s position.

[150]The evidence is indicative of someone, or something, having prompted Ms 11 to change her attitude towards Ms Suddock. She continued working at the Home after Ms Suddock left, and was still working there for MRC when she made her statement in 2013. Whilst there is no evidence that it was MRC who did so, her behaviour is consistent with someone putting her up to making these very serious allegations or, at the very least, with her saying what she believed someone else wanted to hear. Either that, or Ms 11 is a fantasist.

[151]It is sometimes possible for a court or tribunal to find that a witness is thoroughly unreliable in his or her evidence with regard to one matter but nevertheless to accept it as reliable with regard to another. That is not so in a case like this. Ms 11’s evidence was thoroughly discredited, she was not telling the truth about the NG tube, and the panel should therefore have treated the rest of her evidence with the utmost caution unless it was corroborated by reliable evidence. Charges 2.1.2 (the alleged bullying of Ms 11 herself) and 2.2.2 and 2.2.3 (the alleged use of unprofessional language when speaking to Ms 11) were not corroborated by other witnesses who saw or heard what Ms 11 described.

[152]The panel found Ms 11’s evidence on the latter two charges to be consistent with its observations of Ms Suddock’s own behaviour. It found that it was apparent that Ms Suddock considered herself to be more knowledgeable about bowel care than any of the witnesses the panel heard from, and it relied on her admission that she would occasionally swear. Given Ms Suddock’s professional qualifications she might well have been entitled to regard herself as more knowledgeable about bowel care than the carers were.

[153]In a normal case the Court would not interfere with an assessment of this kind. However, it rested on an acceptance that Ms 11 was honest. What would the panel have done had it appreciated that the charge depended on the word of a witness who had made up a story about very serious wrongdoing, versus that of Ms Suddock, in respect of whom the panel had been given a good character direction? The witness has been thoroughly discredited and however “consistent” the charge may have been with what the panel observed of Ms Suddock’s own behaviour and manner, that would not necessarily be enough to satisfy the civil burden of proof. The panel had to be satisfied that it was more likely than not that these remarks were made by Ms Suddock as Ms 11 alleged, not simply that they were remarks of a nature that she was likely to have made because, rightly or wrongly, she regarded herself as more knowledgeable than the HCAs. If Ms 11 were making up a story, of course she would use expressions that would appear plausible. The same is true so far as the bullying of Ms 11 is concerned. It was plainly unsafe to rely on Ms 11’s uncorroborated evidence about what was said or done to her, especially something of which she had never complained until after her job was potentially put on the line.

[154]A further point is that the panel found Ms Suddock’s behaviour at the hearing to be “assertive and challenging” and treated this as negative. However, it may have looked at her behaviour in a very different light if it had appreciated that there was clear evidence that someone was trying to frame her, and that one of the witnesses against her was demonstrably untruthful, not just muddled. An innocent person facing that situation might well have presented as assertive and challenging, especially if she was trying to represent herself. A decision based substantially on Ms Suddock’s attitude and behaviour, taken in the absence of an appreciation that there might have been justification for it, cannot fairly be allowed to stand.

[155]I have come to the conclusion that the appropriate course of action in respect of charges 2.1.2, 2.2.2 and 2.2.3 is to take the same course as I have taken in respect of Charge 7.1, namely, to quash the panel’s decision on those charges and substitute a finding in each case that the charge is not proved.

[156]So far as charge 2.2.1 is concerned, this depended solely on the hearsay evidence of Ms 15. The panel felt that it was unnecessary to observe the witness’s demeanour in order to determine where the truth lay in respect of this charge. Its approach and its reasoning are both flawed – whilst demeanour may not have been an essential part of the evaluation, credibility and consistency was. The panel found the charge proved on the balance of probabilities merely on the basis of Ms Suddock’s assertive and challenging behaviour at the hearing and a finding that in general she would swear and be aggressive towards the HCAs. That finding was based on Ms Suddock’s own admission that she would swear. However when that evidence is actually examined, it was given in the context of a question about the language used in the Home not just by her, but by others. She said (Transcript 9 April, page 38) that swearing was not commonplace, it was used as an emphasis of things, but not on a regular daily basis, they were not all perfect, they were human, and it was not used in the way that the witnesses tried to portray it. When asked whether the F-word would be used from time to time she said “but not regularly, it would be more the S-word, you know”.

[157]In any event, this charge was directed to a specific allegation about something that Ms Suddock was alleged to have said during a particular staff meeting in the presence of Ms 15. None of the other witnesses gave evidence about it. The fact that Ms Suddock admitted that she would swear from time to time meant that the charge did not fall at the first hurdle because it was inherently implausible; but plausibility is something different from proof on the balance of probabilities. That depended, once again, on the untested evidence of Ms 15 and on an assessment of her credibility, not just the credibility of the allegation that Ms Suddock might use that type of language.

[158]Ms 15, like Ms 11, made an earlier statement which in many material respects is inconsistent with the evidence in her hearsay statement. Just by way of example, in her statement given to HCMS on 23 August and 5 September 2011 (presumably taken down by Ms 14) she said “I don’t know of any mix of laxatives being given to any residents but I remember being given a few sachets of laxatives but I can’t remember who for.” In her later statement used at the hearing she said “when either [of the two Heads of Care] were on duty they would tell the HCAs to give eight sachets of Movicol, a laxative, to one patient in their jug of water… it was normal practise for Senna, a laxative, to be put in the patients’ porridge in the morning.” In her earlier statement she spoke in general terms of “verbal abuse” from Ms Suddock, but did not descend to any specifics about the alleged incident that was made the subject of this charge. She merely referred to text messages sent to one of the Heads of Care. There is also no mention in her earlier witness statement of the graphic description of a manual evacuation she alleged in her later statement witnessing Ms 19 carrying out on Patient 4. Instead, she said that she sat with the patient for some time because she “thought we were going to lose her. I think she was given [an] enema and a suppository. Ewa (Polish) was there and patient 4 passed out.”

[159]When subjected to a proper evaluation, Ms 15’s evidence is, in general, as unreliable as Ms 11’s. Much of the evidence from her upon which the panel relied was either directly contrary to her earlier statement or was not mentioned in it. In the absence of an explanation, no safe reliance could be placed upon it. Had the panel assessed her credibility in the appropriate manner, instead of concentrating on whether her demeanour was an essential part of its assessment of who was telling the truth, it would have reached a very different conclusion about this charge. I have decided that Charge 2.2.1 should be quashed and substituted with a finding that it has not been proved.

[160]The demeanour of the other two Team 3 witnesses, Ms 2 and Ms 3, on which such heavy reliance was placed, is also capable of a different explanation from the one that the panel gave it. It is impossible to tell whether a panel would have been so ready to accept the evidence of Ms 2, in particular, and Ms 3 as reliable, had it decided that Ms 11 was not telling the truth and Ms 15 was (to put it at its lowest) inconsistent in her recollection. If one of the key witnesses of fact was lying, or at the very least was so confused that no weight could be placed on her evidence, and another was not available for cross-examination, but demonstrably contradicted herself in two statements taken two years apart, and embellished her evidence in the later statement by adding more serious allegations against Ms Suddock, the evidence of the other two and their motives for saying what they did might well come more closely under the microscope. I would expect a panel, in those circumstances, to have gone about its evaluation of their evidence somewhat differently.

[161]It is apparent from the transcripts of Ms 3’s evidence, for example, that her recollection was very poor, and that much of her evidence was not based on what she herself did and saw, but a repetition of what she had been told by other people and an opinion that she had formed based on that. It was also extremely vague. Just by way of example, when questioned by the panel about paragraph 9 of her statement (transcript 26 March page 52) she initially said that everyone was asked to give suppositories to the patients but when she was asked to give a specific example of being asked by Ms Suddock to give suppositories to a patient she said “I can’t remember exactly who when but it would have happened at some stage” and then “I think for [Patient] maybe someone else, I can’t remember, I’m sorry…. It’s a long time.” When another member of the panel tried to get more specific evidence from her (page 53) and asked whether it was to Ms Suddock that she had refused to give suppositories, she said “I may have done, yes. It’s a long, long time back. Sometimes we would all do it, I admit it, we would all lie and say we’d given them and we hadn’t done because we think someone is going to come along and give more afterwards.”

[162]When cross-examined by Ms Suddock about paragraph 15 of her witness statement in which she said: “Most of the time that [Ms Suddock] was on duty she did not leave her office rather than going to see patients for herself. She would ask carers to describe things to her” and it was put to her that she worked twice a week overnight and that Ms Suddock never really saw her, she initially said “you’d hear maybe [Ms 18], maybe … one of the girls saying, you know…” then when pressed she said “I know it may not be relevant but this was relating frustration by other people. It’s not just me, Vasanta. A minority of people. People would say “Why does she never go and see anyone?” (Transcript day 4 pages 39-40).

[163]It is genuinely difficult for me to ascertain how much of Ms 3’s evidence is actually evidence of what she herself experienced and how much of it is a repetition of what she was told by others, and, if it is repetition, whether it was something said at the time when events actually occurred, or in hindsight after Ms Suddock left. It also appears from Ms 3’s own evidence that she changed her attitude towards Ms Suddock because she had been led to believe by others that Ms Suddock was responsible for the death of Patient 1 (presumably because she had directed or condoned the alleged use of the NG tube by Registrant C). Ms 11 appears to have played a significant role in fostering that impression. So too does Ms 21, the nurse who was not called to give evidence and who had the responsibility for disposing of unwanted medication. It appears from Ms 3’s evidence that Ms 21 was also on duty on the night when the patient died.

[164]Ms 3 is a less important witness in many respects than Ms 2. The fact that Ms 2 owned up to past wrongdoing was indeed a point in favour of her telling the truth; but if the wrongdoing was clear from the documents, then she may have had little choice but to try and give an explanation for it which exonerated her from responsibility and put Ms Suddock in a bad light.

[165]Of course, even taking into account the attempted framing and the thoroughly discredited evidence of Ms 11, the doubts about Ms 15, and Ms 3’s poor recollection, the end result might have been the same in respect of at least some of the remaining charges; but what matters for the purposes of this appeal is the fact that it could have been different. Ms 14’s hearsay evidence, on which it appears the panel heavily relied (see page 22 of the determination) takes the matter no further. It was not direct corroboration of the truth of anything said by Ms 2, 3, 11 or 15; she was merely reporting what was said to her in the course of her internal investigation and the manner in which it was said. The reluctance of the interviewed staff to sign statements is capable of more than one interpretation. The panel did not evaluate that evidence in the light of what the Employment Tribunal had found, or in the light of the fact that most of the staff, who Ms 14 neglected to interview at the time, had been supportive of Ms Suddock. Likewise Ms 1’s and Dr 10’s evidence establishes no more than what they were told by staff at different times, which might be relevant in terms of assessing the consistency of a particular witness’s account, but otherwise takes matters no further. Whether Ms 1 and Dr 10 believed what was said to them or not, it was for the panel to make its own decision as to whether the members of staff who were making these allegations were credible and reliable.

[166]Ms Suddock made a number of detailed points designed to show that the evidence of the witnesses on Charges 1 and 2 was unreliable or untruthful. I do not intend to burden this already lengthy judgment by going through each and every one of them, because that is unnecessary. Whilst some of the points were well made, there was nothing of quite the same calibre as the evidence that undermined Ms 11’s credibility so comprehensively, and Ms 15’s evidence sufficiently to make it unreliable in the absence of independent corroboration. I shall merely note my concern that the panel, in its decision, repeated a great deal of hearsay evidence in respect of Charges 1.2 and 1.3 from witnesses who were not in a position to prove those charges from their own knowledge, including Mr 13 (whose evidence was found to be unreliable by the panel itself) and Dr 10 who was merely giving evidence as to what she noted in her report after speaking to various members of staff who were either not identified or not called to give evidence, including Ms 20 who was Ms Suddock’s predecessor as Matron.

[167]The panel failed to make it clear that it was not relying on that evidence as evidence of the truth of what the witnesses were told, but merely as evidence that staff at the Home had made similar or consistent allegations to their employer or to independent parties in the past. Nevertheless, it did also rely on the oral evidence of Ms 2, and to a lesser extent, Ms 3, as well as that of Ms 11 and Ms 15. It was possible for the NMC to have proved the charges if the evidence of Ms 2 and/or Ms 3 was accepted as credible and reliable regardless of the unreliability of Ms 11 and Ms 15.

[168]Regardless of whether this Court would have felt able to overturn the decisions made by the panel in respect of credibility in the absence of the matters that fatally undermine its findings on Charges 3 and 7.1, those matters are enough by themselves to make it unfair to allow those decisions to stand. The unfairness was caused not by a procedural irregularity but by another irregularity, namely, the failure by the panel to take into account highly material considerations impacting on the strength of the defence and the credibility of the key witnesses.

[169]I must therefore allow this appeal in respect of all the remaining elements of Charge 1 and Charge 2 that were found by the panel to be proved on the balance of probabilities, and quash those decisions. In consequence, the sanction of striking off imposed by the panel cannot stand. I will consider at the end of this judgment what course I should take in respect of those charges, bearing in mind the fact that a fresh panel is going to have to consider the question of sanction come what may. First, however, I shall consider the appeal in respect of the remaining charges.

Charge 10

[170]The charge against Ms Suddock is that she failed to have safe systems in place to ensure that Safeguarding Alerts were raised in respect of various residents, in that she failed to alert the safeguarding authority on 16 specified occasions between 2009 and 2011 – including one concern raised by a family member after her suspension, about the treatment of his elderly father over a period which included a time when she was still in charge of the Home, but which appears to have largely related to some admittedly very disturbing incidents that occurred after she left. It stands to reason that Ms Suddock could not have alerted the safeguarding authority in respect of any incident that arose after her suspension. Any failures thereafter would be the responsibility of HCMS or MRC. It is only if it could be proved that there was something regarding that patient’s treatment that should have triggered an alert before she left that there might be a legitimate ground for criticism.

[171]The charge depended entirely on the evidence of Mr 12, the Safeguarding Adults Operational Lead for Torbay and Southern Devon Health and Care NHS Trust (“the Trust”) which is the lead agency for safeguarding adults on behalf of the Torbay local authority. Mr 12 had gone through the safeguarding records held by the Trust from December 2006 to the end of August 2011. Mr 12 identified a number of safeguarding concerns relating to patients at the Home which had not been raised by Ms Suddock or by staff at the Home but by others, mainly healthcare professionals, 16 of which he said were sufficiently serious to warrant a referral being made to the Safeguarding authority even though the vast majority turned out to be without substance.

[172]The panel had no concerns over Mr 12’s credibility but expressed surprise at the time it took for the Trust to take action following the number of safeguarding concerns raised. Ms Suddock asked Mr 12 in cross-examination why she was not told by the Trust in the majority of these examples that such alerts had been raised. She pointed out that any concern raised outside of the Home to Safeguarding should have prompted Mr 12 or his team to inform her under the National Framework for Safeguarding with the Department of Health and Social Care Commission. Mr 12 gave no satisfactory explanation other than to say that Safeguarding were more robust and proactive now than they had been in the past. It can be inferred from the fact that the Safeguarding authority within the Trust failed to carry out its obligations to take these matters up with the Home that those who were responsible for safeguarding did not regard them as being as serious as, years later, Mr 12 was suggesting they were.

[173]The 16 concerns identified by Mr 12 included 7 matters raised by one individual in one single contact with the Trust in April 2011. Ms Suddock’s evidence was that the individual in question was someone who had been reported by her to safeguarding for serious misconduct, and who was making malicious and unsubstantiated allegations in retaliation. Mr 12 accepted in cross-examination that none of these seven matters was found to have any substance. Indeed, Mr 12 admitted that the vast majority of the matters raised were found to be unsubstantiated. However, he made the valid point that the question whether the concern was or was not found to have been substantiated was immaterial to the question whether it was sufficiently serious to warrant a referral in the first place, so that it could be investigated.

[174]That is true so far as it goes; however the issue for the panel in respect of each of the sub-charges under Charge 10 was whether a failure by the Home to report that particular matter demonstrated that its system for such reporting was inadequate (i.e. that the Home failed to pick up the ground for concern when it should have done). If the “concern” was pure fiction, then the system could not possibly have picked it up. Ms Hirji confirmed in written submissions (requested by me) sent after the hearing that the NMC’s case depended upon the submission that because Ms Suddock was unaware of these various concerns, it necessarily followed that there were no, or no sufficient safeguarding systems in place. The logical fallacy in that submission is obvious, and in my judgment it ought to have been obvious to the panel (or at the very least, to its legal assessor).

[175]There was no evidence from Mr 12 that any of the individuals who raised the concerns with the Trust had raised them with the Home or with the staff, let alone with Ms Suddock, nor was there any evidence that the individuals concerned did not know how to raise their concerns with the Home if they wished to do so. Nor was there any evidence that the staff had been aware of any of the matters of which complaint was made, or that they should have noticed them and reported them to Ms Suddock or to safeguarding. No fact findings were made by the panel that the staff were aware of the concerns or should have raised these concerns with Ms Suddock. Mr 12 was not in a position to give such evidence from his own knowledge, and none of the complainants was called to give evidence.

[176]One of the individual sub-charges related specifically to a failure to report the alleged incident forming the basis of charge 5, the turning away of an ambulance which came to collect a patient, which the panel found was not proved. Ms Suddock made the point to Mr 12 that the allegations by the doctor concerned (Dr 5), which depended on what the doctor had been told by the ambulance driver, contradicted the safeguarding team’s own notes about the incident. If a healthcare professional honestly but mistakenly accuses the Matron of a nursing home of countermanding his direction that an ambulance be sent to take a patient to hospital, (when, it seems, the Matron was not even on duty on the day in question) I find it difficult to see how the Home’s system for reporting such allegations can be faulted in the absence of evidence that anyone, at the time, could reasonably have anticipated that the Matron would be blamed instead of the out-of-hours doctor who was actually found by the safeguarding authority to have been responsible. If those staff who were present at the time knew that it was the out of hours doctor who turned away the ambulance, then they could not possibly have thought it was a safeguarding issue relating to the care that the patient was receiving in the Home.

[177]If there had been evidence that these various matters were the subject of reports to staff or to Ms Suddock, and the Home had not followed the matter up by making a referral to the CQC or the Trust, or that attempts had been made by the complainants to raise them with the Home, or that the complainants were unaware that they could raise them with the Home, or even that the complaints were of such a nature that the staff should have appreciated there was a real danger to the health and safety of the patients and raised them themselves, then there might have been something from which the panel could infer that there was an inadequate safeguarding system in place. However there was no such evidence. Such evidence as there was pointed firmly towards there being adequate safeguarding systems in place.

[178]The Care Quality National Minimum Standard Regulations under the Health and Social Care Act 2003 and 2008 place a responsibility on residential and nursing homes to keep people safe from abuse and to have systems and processes in place to enable staff to raise concerns if they have concerns about residents. It was Ms Suddock’s evidence that there were proper safeguarding systems in place and that there were internal documents and records to prove it. The NMC did not manage to obtain these documents, which Ms Suddock asked for more than once. These included specific records from the Home, referred to in the CSCI and CQC reports, that she said would evidence the safeguarding concerns that were raised by the Home itself with the Trust during her period as Matron. Mr 12 was unable to speak to the concerns that had been raised by the Home without going back and checking the records again. His task had only been to identify those concerns regarding patients that the Home had apparently not reported.

[179]Among the documents in evidence, however, were the CSCI reports for 2007, 2008 and the CQC report for May 2011. All these reports indicated that in the view of those entities the Home did meet the requisite standards on Safeguarding. Even Ms 9’s report for 2007, which was critical on other matters, gave the Home a clean bill of health on this particular topic. It stated that the complaints procedure was now “robust”, and that there was evidence in the staff files that showed that all staff had received protection of vulnerable adult training. This was supported by discussions by the inspector with two staff who “understood their responsibilities in relation to reporting issues of concern and protecting vulnerable people.”

[180]In 2008 the key outcomes for standards 16-18 were defined by the CSCI as follows:

“16. Service users and their relatives and friends are confident that their complaints will be listened to, taken seriously and acted upon. 17. Service users’ legal rights are protected. 18. Service users are protected from abuse.”

Quality in this outcome area was reported to be “good”.

[181]The CSCI report for 2008 stated that people who live at the Home “can have confidence that any concerns they have will be dealt with in a sensitive way by the staff team who care for them. Staff have received training in the protection of vulnerable adults and have an understanding of how to ensure people are protected. This judgment has been made using available evidence including a visit to this service.” It goes on to state that the home manager, that is, Ms Suddock “has ensured that a robust complaints procedure was easily available for people living in the home and their representatives. The complaints procedure contains information about how to contact the [CSCI]. The manager keeps a record of concerns and complaints raised by the people living at the Home…the record of complaints and concerns was available for inspection.”

[182]Likewise in May 2011 the CQC reported that the Home has a formal complaints procedure which is on display by the front door, and near to a suggestion box where people are encouraged to share any ideas that they may have for improving the service. The manager told the inspector that people living at [the Home] or the person acting on their behalf are fully informed about the complaints procedure. This has been documented in the homes service user guide, a copy of which is placed in each person’s room and is also available in the entrance to the home (my emphasis). The home also maintains a complaints folder which is in date and numerical order with a reference number. No matter how small the complaint is, all are documented and have a time-scale to rectify it and the actions that were taken to do so. The home also maintains a Record of Events folder that does not fit into any of the categories of complaints. This includes documented evidence about… meetings with other health care professionals, any emergency procedures that [are] needed to take place to ensure health, welfare and safety of people living at the home and various other information that does not constitute an action due to a complaint.

[183]The panel made no mention of this evidence or of Ms Suddock’s inability, through no fault of her own, to produce the internal documents referred to in the CQC Report. Its decision implied (at page 32) that the only rebuttal evidence was a copy of the sample complaint form produced by Ms Suddock that she said was kept in each resident’s room.

[184]I am satisfied that Charge 10 depended on a logical fallacy that should have been spotted sooner. Ms Hirji acknowledged that the panel’s reasons were shorter in relation to this charge than others. However she submitted that its findings were based on witness credibility, namely, the credibility of Mr 12, and therefore there was no duty to give more substantial reasons. I cannot accept that submission. Even if Mr 12’s evidence as to what he found was accepted in its entirety, it did not follow that it was more likely than not that the Home failed to have adequate systems in place to ensure that safeguard alerts were raised in respect of its residents. The panel’s reasoning is entirely deficient and that is because there is no basis on which it could have found these charges, or any of them, proved. This is one series of charges in which there was actually no case to answer.

[185]I allow the appeal in respect of each element of Charge 10, quash the decisions of the panel, and substitute a finding that this Charge, in its entirety, has not been proved.

Charges 13,14 and 15

[186]The finding that these charges were proved depended upon the poor CSCI report of Ms 9 following her inspection of the Home in May 2007. The panel had already found that there was insufficient evidence to support charges 11 and 12 which related to alleged failures to ensure that CRB checks or risk assessments were carried out on staff. However, it considered in respect of Charge 13 that there was sufficient evidence in respect of the checks carried out on three personnel files examined by Ms 9 in 2007 that written references were not obtained (for those three people). In my judgment the panel was entitled to make that finding for the reasons that it gave, and there was no inconsistency with its rejection of charges 11 and 12. As the panel explained, unlike Ms 1, Ms 9 was specifically looking for the references.

[187]Charges 14 and 15 also related to Ms 9’s 2007 report and the finding in it that there were no records showing one to one supervisions and no analysis of individual training requirements. Ms Suddock pointed out that the evidence before the panel indicated that all the CSCI reports from 2004-2007 and after Ms 9’s report were good; and that the Trust had been sent training records for the staff which showed that they did receive proper training. She also referred to the evidence of Ms 3 as to the mandatory training that she had received, supported, to a lesser extent, by Ms 11 and even Ms 15. Again, those points may have been excellent mitigation, but they do not negate what Ms 9 found at the time of her report. There may also have been very good reasons why standards slipped when Ms Suddock had no deputy to assist her. The panel was entitled to find the charges proved for the reasons it gave. However, and importantly from the point of view of any sanction, Charges 13, 14 and 15 were only found proved in respect of a period in 2007 and not any later period.

CONCLUSION

[188]Where it has been possible for me to conclude that on the NMC’s case, taken at its highest, the burden of proof has not been discharged, I have allowed the appeal, quashed the panel’s decision and substituted a finding that the charge is not proved. Where it is apparent that the decision is not wrong or unjust by reason of any procedural or other irregularity I have left the decision undisturbed. In consequence of this, I find that Charges 2.1.2, 2.2.1, 2.2.2, 2.2.3, 3, 7.1 and 10 are disproved and the panel’s findings on Charges 13, 14 and 15 are undisturbed. The findings on Charge 4 are also preserved, since the challenge to them was not pursued.

[189]For the reasons I have already given, I will also allow the appeal and quash the panel’s decisions in respect of Charges 1.1-1.3, 1.5, 1.10, 2.1.1 and 2.1.4. However, and despite my extreme disquiet about some of the evidence that was relied on by the panel, plus its flawed approach to examination of the credibility of the witnesses, I cannot substitute my own decisions for the panel’s. I therefore have to decide whether to direct that some or all of these Charges be remitted. If the Charges are to be remitted, they would have to be heard by a different panel of the CCC. I cannot send them back for reconsideration by this panel because(a) however scrupulous its members might be about trying to put out of their minds the unfavourable impression they formed of Ms Suddock and the favourable impression they formed of the other witnesses it would be asking the impossible of them to do so, and

(b) the reasonable observer would not believe that justice was being seen to be done unless the case against Ms Suddock was looked at through completely fresh eyes.

[190]This was by no means an easy decision, and for that reason I invited further written submissions from the parties about it at the time when I distributed this judgment to them in draft. I have carefully considered the helpful further submissions from Ms Helen Flack of Counsel for the NMC and from Ms Suddock herself. The fact that Charges 4, 13, 14 and 15 will have to be remitted for reconsideration of sanction is not sufficient in and of itself to warrant remitting the rest for a fresh hearing. Given the limited ambit and nature of those charges and the substantial mitigation, Ms Suddock’s registration should not be in jeopardy by reason of those matters alone.

[191]The five charges grouped under Charge 1 are undoubtedly serious; without those charges being proved it is highly unlikely that the matter would have been regarded as serious enough to warrant striking off or even suspending Ms Suddock. Indeed, not every charge amongst the five is of the same level of seriousness. Whilst the two surviving allegations of bullying are not of the same order and seriousness as the Charge 1 matters, their gravamen is that, if such behaviour were established, it could have led to a situation in which members of staff were afraid to challenge instructions such as those alleged to have been given in Charge 1. As Ms Flack has pointed out, they are intrinsically linked to any proper consideration of misconduct, impairment and ultimately sanction. Importantly from the perspective of Ms Suddock’s defence, they are also intrinsically linked to a proper evaluation of the credibility of Ms 2 and Ms 3.

[192]Unlike the other charges, I have not allowed the appeal against the decisions on these charges on the basis that the panel could not have reached the conclusions that it did, but on the basis that it might have taken a very different view of them had it approached the case in the light of the findings it should have made about the evidence of Ms 11 and Ms 15, and about the attempt by a person or persons unknown to frame Ms Suddock. It is clear, for example, that Ms 15’s unreliable evidence that she witnessed a manual evacuation of patient 4 by Ms 19 was accepted by the panel and played a significant part in the panel’s decision that charge 1.1 was proved. However the panel also accepted evidence from Ms 2 that she had personally witnessed a manual evacuation of a different patient by a different member of staff, Ms 18. In theory it could have decided that Ms 15 was unreliable but still found that Ms 2 was telling the truth.

[193]Ms Suddock has already been through the terrible experience of being falsely accused of serious wrongdoing in a number of respects, and threatened with losing her livelihood in consequence. The question is whether it would really be in the interests of justice and in the public interest to subject her to a second hearing of charges that she maintains are equally false. Ms Suddock submits that it would not. None of the specialist bodies charged with looking after the interests of vulnerable patients has seen fit to take any action against her; including the SHA following a Serious Case Report in the wake of Dr 10’s preliminary inquiries. That point is a powerful counterbalance to Ms Flack’s submission about the NMC’s statutory duties of public protection and upholding the public interest.

[194]Ms Flack concentrated on Charge 1.1 as an exemplar and submitted that the instruction to carry out such distressing procedures would be considered by members of the public and profession to be deplorable. She submitted that, so long as there is a realistic possibility that such charges could be fairly proved against Ms Suddock the correct course of action is to remit these charges for fresh consideration. The key question for me to decide, therefore, is whether the charges could now be fairly proved.

[195]The fact is that more than four years have elapsed since Ms Suddock was suspended, and the alleged incidents occurred before then. Ms 3’s recollection was already seriously impaired when she gave her evidence earlier this year; it is plainly not going to improve: but with a proper direction from the legal assessor, that may favour Ms Suddock. There is a further and more serious problem, in that if I were to send the matter back to a fresh panel in circumstances where Ms 11 was no longer to give evidence, I would possibly be putting Ms Suddock in a worse position than she was before the first panel, because the least credible of the oral witnesses would no longer be present to have a potential impact on the panel’s assessment of the credibility of the others. Whilst the transcripts of the original hearing could be put before the panel, they are unlikely to have the same force.

[196]Ms Flack submitted that the need to act fairly in respect of Ms Suddock can be satisfied by the NMC applying, if necessary, for a witness summons to secure Ms 11’s attendance at the hearing if Ms Suddock wishes, or alternatively, if Ms Suddock does not wish for her attendance or if she should fail to comply with a witness summons, the following material can be placed in front of the panel: i) Transcripts of her previous evidence ii) All witness statements provided by Ms 11 to the NMC, police and employer iii) The relevant parts of the finalised judgment in this appeal. iv) The pre-agreed redaction of all references to such of those charges as have not been proved either at first instance or on appeal, unless Ms Suddock would wish the panel to be aware of these in order to properly present her defence as it relates to framing.

[197]Ms Flack also suggested that the Court can direct that a preliminary hearing be held within one month to agree a timetable and other matters of case management and also direct that the re-hearing be held within a specified period from the date of final disposal of this appeal. She suggested a period of five months as realistic and reasonable.

[198]Having given careful consideration to the submissions by both parties, I have concluded that it is just about possible to have a fair hearing despite the length of time that has elapsed, provided that a number of safeguards are put in place. Subject always to the ability of the NMC to decide to withdraw those charges, or offer no evidence, I shall direct that Charges 1.1-1.3, 1.5, 1.10, 2.1.1 and 2.1.4 be remitted for consideration by a fresh panel of the CCC, and any found to be proved shall be considered in relation to misconduct, impairment and, if necessary, sanction, alongside charges 4, 13, 14 and 15. However this will be on condition that the following directions are observed. First, the hearing is to take place within five months of the date on which this judgment is handed down and secondly, there will be a directions hearing within one month. If those directions are not adhered to, the charges will be automatically struck out. I make it clear that I would expect the NMC, as a responsible prosecutor, to carry out a thorough review of the evidence it would wish to call on these charges before the directions hearing, and make a decision as to whether it intends to go ahead despite the concerns I have expressed in this judgment. My direction that the Charges be remitted is not to be taken as precluding the NMC from deciding to withdraw some or all of the charges or offer no evidence on them, but if that is the path it takes the sooner Ms Suddock is informed of its decision, the better.

[199]Apart from any other directions that are given at the directions hearing, I shall direct that the new panel shall have available to it the following: i) A full unredacted copy of this judgment; ii) All the transcripts of the evidence given at the first hearing given by any witness that the NMC seeks to call or whose evidence is sought to be put in under Rule 31 at the fresh hearing, and of Ms 11 and Ms 15 (irrespective of whether they are called or not). iii) Copies of any witness statements provided by Ms 2, Ms 3, Ms 11, and Ms 15 to the NMC, police, and employer; iv) Copies of the witness statements taken by the NMC from Ms 18 and Ms 19, and from any other person who was a member of staff at the Home at the time and who was specifically asked about the matters which are the subject of what remains of Charges 1 and 2. v) The original patient notes relating to any patient who is the subject of any of the charges in Charge 1.

[200]It will be a matter for Ms Suddock to decide whether she wants Ms 11 to be called at the hearing for cross-examination: plainly in the light of my judgment the NMC can no longer rely on her evidence in support of the charges. I will accept the undertaking offered by Ms Fleck on behalf of the NMC as to the taking of reasonable steps to secure her attendance. In the event that Ms Suddock wishes to call evidence from a witness in her defence and that witness is unable or unwilling to come, then I would expect the NMC either to take the same steps to secure that person’s attendance or to agree to that witness’s signed witness statement being adduced in evidence, subject to all the usual caveats in respect of hearsay. Finally, I would hope that Ms Suddock would be able to secure representation at the next hearing. It may be that if she approaches the National Pro Bono Centre with a copy of this judgment, someone may be willing to assist her.

Suddock v The Nursing and Midwifery Council [2015] EWHC 3612 (Admin)

Introduction

BACKGROUND

RELEVANT LEGAL PRINCIPLES

Charge 3

Charge 7

The impact of these findings on Charges 1 and 2

Charge 10

Charges 13,14 and 15

CONCLUSION

Cited in 5 later judgments