Recently we attended an appeal hearing of a midwife, who was taking to the High Court the decision of the NMC to strike him off the Nursing and Midwifery Register. It is a harsh read and a shame to see that some of the comments made by Justice Ritchie during the hearing were not included in the judgement.
Justice Ritchie, as an observer, was a strict but fair judge. Once again as we have seen in other appeals, we have supported the incredible ability to review hundreds of documents in such a short space of time, pick out from them the minute detail and then cross-reference to case law within seconds is a real humbling pleasure to observe. I liken it to watching a scene from the Matrix movie, standing in front of a virtual library, using your hands to scroll through the masses of literature in front of you to pluck out the exact one that is relevant and then construct a summary statement all before the rest of us have finished scrabbling through paper bundles trying desperately to keep up!!
Unlike the NMC process, the appeal process is very simple.
You design your grounds of appeal based on the hearing notes, bundles and transcripts and then back that up with key evidence to support your arguments.
But the High Court is equally not to be messed with – no matter how good your argument or particular points are that you want to raise not included in your grounds – if it ain’t in there you can’t win!
Occasionally the judge will step in, if he feels there are key points of law that you have missed or need direction on. In the case of El Karout V NMC ( 2018) Justice Spencer paused proceedings to get the appellant to go away and research a particular point that may help her case. She took this opportunity well with all of us assisting her to gather the information that may be what Justice Spencer was indicating and put it together in a logical manner that showed her recognition and respect for the process that was before her. On returning to court, she may not have presented it as eloquently as a barrister, and she may have missed some nuanced aspects of the case law relevance, but she showed the respect that she had at least tried and had applied it where she thought she should. This in turn meant that the judge could continue to assist by concluding the legal relevance of all she had presented.
The registrant had experienced the High Court the year before when he challenged the NMC’s application to extend the Interim Order Notice period whilst they continued their investigation. Extension applications have become a normal part of process whilst the NMC sift through the backlog of cases. The courts are mostly impotent in being able to change this, although in recent times they have been cutting back on the time given. Previously the NMC would apply for another 12 months, we have witnessed many judges now give as little as 4 months when the nurse or midwife opposes the application, which is positive. The mere fact that the NMC have a large workload or, if uncharitable, is not skilled in getting timely evidence and assessing the quality of that evidence in order to determine if a case should continue, should not negate the harm that process causes to the individual. Also, if cases where potential harm is at the centre, no patient safety issues are resolved by cases taking longer than 18 months to assess and move to the Fitness to Practice Hearing stage. At the extension hearing for Mr Golden’s case, he succeeded in gaining some useful comments back from Judge Philip Mott who stated:
“I have been sitting in this job long enough to see innumerable additional requests by the NMC to ask for extra time. It happens far too often in my view … there’s major interference with someone’s life and I would expect a decision to be made certainly within the next six months or earlier.”
This showed again the ultimate fairness the courts will demonstrate to both sides when the case is put to show detriment. The wider issues explored in this aspect are further discussed here.
Having your appeal case accepted by the court does not automatically mean that it has succeeded. Whilst you will feel you have succeeded just to get through the door, there is still an awful long way to go. To enter the grand building with all its history is not something to be taken lightly, the court will expect respect for both its time and its knowledge and will not appreciate being told that either is being played with.
However, the court, unlike the regulatory process you have experienced up to that date, is all about fairness. The judge will be fair to both you and the NMC, assisting where he feels either side is lacking, and directing on how to improve. Equally, the judge will question you strictly on what you are proposing and expect you to be able to go to your evidence and show him where it is and how it supports what you are saying. The comical thing we observed, and have observed in all the other appeals we have supported, is that the judge is way ahead of you and just wants to know that you know what he already knows! Sometimes, although highly unlikely, the judge may flounder or make a mistake, but that is usually more likely to be due to him or her struggling with navigating through your methodology rather than a lack of ability. But, if you can politely direct him, and get him back on track, respect will be appreciated without bias or judgement – it is, after all, always about the evidence.
The judge will question you as strictly as he will the NMC and, equally if the NMC is not able to give a good explanation for their behaviour or process, he will not hold back in directing them that they “must do better”. We observed this in one aspect of this case. The midwife was able to show that the NMC had not put vital evidence in front of the panel until they had already decided on both the facts and the misconduct.
Once the panel had decided this, the NMC gave them the remaining evidence which they did consider in due course but which could not influence their decision-making – the decision was made – now they could only decide on the sanction.
Had the midwife put as part of his Grounds of Appeal that the NMC had failed on this part of the process, then the outcome of the appeal may have been different. However, despite in open court, the judge making it extremely clear that this behaviour of the NMC was highly irregular and there had been “certain mischief”, his job on that day was to assess the merits of the case based on the presentation of the case by this litigant in person. The judge could not step outside this in his determination because, basically, he had not been asked to.
As supporters our job was not to make a decision about the merits of the appeal, that was the job of Justice Ritchie but to be there next to the registrant for moral support. We were allowed to take notes for him so as to be able to remind him of key aspects the judge was focussing on and we could help him find evidence from his bundle. It was fascinating watching the process and we were encouraged when the Judge picked up on some key failings by the NMC in following due process. One aspect was that the NMC made the unusual but not uncommon decision to leave key evidence until the panel had decided on the facts and the misconduct stages of the case. Mr Golden argued that this was detrimental to the decision making where they concluded once facts were proven, and misconduct determined from those facts that no other option was left to them but to strike him off the register. It is unknown if Mr Golden had included this in his grounds of appeal, whether the outcome of the appeal hearing would have been different, but showed to us the importance of ensuring Grounds demonstrate what can be proven rather than what you feel should be. The Judge asked the NMC barrister why on earth they would not put ALL the evidence to the panel for them to decide, he was unable to give an answer to this other than he was instructed to do so. Sadly, this was not in the judgement handed down but we hope that the NMC barrister will have fed this back to his teams as we understood he had been instructed to do so by Justice Ritchie.
In the end.
Ultimately the appeal was lost and, as a result, the midwife has been asked to comment on the application for costs that the NMC have now asked for. This is always a risk when undertaking any appeal and, as a litigant in person, can often put many people off even doing the first steps to apply to the court for this issue. There have now been a number of cases where the judge has not awarded costs to either party. In Watters V NMC (2017) Justice Cheema Grubb reduced the strike-off order to a 2 months suspension which was eventually revoked by the NMC giving the registrant her registration back. As, in effect, the appeal had only been won in part (and lost in part), as a matter of fairness the judge had to explore costs. This meant that the NMC could apply for part costs against the nurse and, in effect, the registrant could apply for costs in part against the NMC. The nurse bowed to the court’s experience but stated the severe financial difficulty that had been caused by the whole process. Justice Cheema Grubb’s direction can be seen in the court transcripts:
MRS JUSTICE CHEEMA-GRUBB: Is there anything you want to say about costs?
Normally what happens is that if somebody loses an appeal then they usually pay the costs of the other side. What has happened in this case is that you have lost your appeal on the factual findings, but you have effectively won your appeal on the penalty. So I would not be granting the entirety of the Council’s costs in any event. Have you been given the figure that the Council is seeking?
THE CLAIMANT: Yes, I have.
MRS JUSTICE CHEEMA-GRUBB: Is there anything you want to say about it?
THE CLAIMANT: I will leave it entirely up to your judgment. I knew it was always a risk of not accepting the offer from the beginning, but I needed your support with that. All I would say is that I have had five months out of work and there is no guarantee that I will be able to get back into work immediately, and we have incurred an enormous amount of debt during this five months, so it will be difficult.
MRS JUSTICE CHEEMA-GRUBB: All right. Well, in the same way as a number of other cases where appeals have been brought by registrants, the Council seeks its costs.
The position is, as I have made clear to the parties, this is a situation in which I have allowed the appeal in part. The registrant is an individual. She is somebody who has had to remain out of work as a result of the Panel’s decision and it is not clear how much longer she will be out of work.
It seems to me that the appropriate order is one of no order as to costs, because of the findings I have made in respect of sanctions. Although I accept that, had the Panel imposed a suspension it would have meant that the appellant would have not been able to work, and she may still have sought to appeal the factual findings which I have found against her, it seems to me that in fairness it is appropriate to make no order for costs. Clearly the Council was right to contest the appeal and the appellant has lost it, but as a single individual in justice it seems to me I will make no order in this case.
THE CLAIMANT: Thank you, my Lady.
MRS JUSTICE CHEEMA-GRUBB: Ms Hartley, I am sure that the observations of Kerr J will be taken back and, for what it is worth, please underline to those instructing you that I echo those. It seems to me that the time has come for some greater clarity on the guidance for Panels where dishonesty is in issue. Thank you very much both of you.
Since 2009 there have been 30 successful challenges through the High Court against sanctions made by the Nursing and Midwifery Council. Although some may state that the case has been lost, the narrative contained in those appeals, especially by the Judges themselves, is powerful. Ultimately, as discussed at the Whistle-blowers UK APPG conference this week, regulators do not have any accountability to change. High Court judges can give recommendations, and they can change decision outcomes at appeal, but the NMC like other regulators has the last word and does not have to agree with the judge’s decision. Here lies the quasi-judicial nature of regulation. Even when you have a High Court judge making damming comments about local trust investigations and regulatory investigations there is little point if they do not have the power to make ACTUAL change.
The Office for the Whistle-blower may go some way into resolving this, thus taking the individual out of the dispute and leaving the office to resolve directly with the employer rather than directly between employer and employee.
Despite this midwife not being successful at this appeal we feel the experience was positive not only for NMCWatch to be able to support someone through this stressful time, but also to learn from the process itself about what is expected of a registrant at appeal and how the court will deal with this.
Our message to anyone considering appeal:
- Get legal advice if you are able to via either a trained barrister or via the Legal Advice centre available at the Royal Courts of Justice
- Review the transcripts of your hearing
- Ensure a clear Grounds of Appeal is written to address the points of law or NMC guidance that have not been followed during your case
- Ensure your Skeleton Argument addresses each individual Ground with supporting evidence from the transcripts and wider evidence from your bundle
- Have people there to support you on the day
- Expect the unexpected