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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mulholland v Conduct and Competence Committee of the Nursing and Midwifery Council  EWHC 952 (Admin) (28 April 2016)
Cite as:  EWHC 952 (Admin)
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QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
1, Oxford Row
Leeds LS1 3BG
B e f o r e :
(Sitting as a High Court Judge)
| MAIREAD SIOBHAN BERNADETTE MULHOLLAND
CONDUCT AND COMPETENCE COMMITTEE OF THE NURSING AND MIDWIFERY COUNCIL
Penny Maudsley instructed by Lester Morrill, Solicitors, appeared for the Appellant
Matthew Kewley appeared for the Respondent
Hearing dates: 21 March 2016
Hand down Judgment: 28 April 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Judge Roger Kaye QC:
"That you, whilst employed by the Priory Group as a Registered Nurse at Jubilee Gardens Nursing Home ("the Home") between 14 November 2011 to 22 December 2011:
1. On 18 November 2011, inappropriately dealt with an incident when Resident A was suffering from a loose bowel motion in that you;
1.1. Inappropriately assessed that Resident A was suffering from Clostridium Difficile ("C Diff").
1.2. Unnecessarily closed, or attempted to close, the unit on which Resident A was being cared for.
1.3. Shouted in the presence of Resident A.
1.4. Did not take advice from a GP and/or other nurses at the Home regarding Resident A's condition.
1.5. Did not otherwise approach the incident in a calm and professional manner.
2. On 20 November 2011, inappropriately handled Resident B in that you:
2.1. Pulled Resident B by his wrists;
2.2. In so acting as set out at charge 2.1 above, caused a mark or marks and/or bruising to Resident B on one or more of his wrists.
3. Behaved inappropriately towards residents and/or colleagues by shouting and/or using inappropriate language, including but not limited to the following:
3.1. On 22 December 2011, behaved in an aggressive manner towards, Home Manager D, in that you;
3.1.1. Said "I remember people used to call you the battleaxe then", or words to that effect;
3.1.2. Said "I will sort out all the liars that work here", or words to that effect;
3.1.3. Displayed threatening and/or aggressive body language.
3.2. On an unknown date said to Resident C
3.2.1. "you know what you are doing, so stop what you are doing" or words to that effect;
3.2.2. " you are a grown woman, so stop what you are doing" or words to that effect;
3.3. On an unknown date shouted at Senior Healthcare Assistant E and/or acted in an intimidating manner towards her in the presence of other members of staff and/or residents at the Home;
AND, in light of the above, your fitness to practise is impaired by reason of your misconduct."
"The decisions in Ghosh and Preiss are a reminder of the scope of the jurisdiction of this Board in appeals from professional conduct or practices committees. They do indeed emphasise that the Board's role is truly appellate, but they also draw attention to the obvious fact that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well-known passage in Thomas v Thomas  AC 484, 487–488."
"First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd  AC 370)"
"54. Sir Mark Potter P [in Phipps v GMC  EWCA Civ 397] endorsed the observations of Wall LJ concerning the inter-relation of  of Gupta and the principles in English v Emery Reimbold and went on (at ):"The latter case made clear that the so-called "duty to give reasons", is essentially a duty which rests upon judicial and quasi-judicial tribunals to state their decisions in a form which is sufficient to make clear to the losing party why it is that he has lost. This requirement will be satisfied if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision. I do not think that there is any real difference or substantial inconsistency, other than one of emphasis, between that principle and what was stated in Gupta, namely that there is no general duty on the PCC of the GMC to give reasons for its decisions on matters of fact, in particular where the essential issue is one of credibility or reliability of the evidence in the case, whilst at the same time recognising that there are cases where the principle of fairness requires reasons to be given "even on matters of fact": see paragraph 14 of Gupta. It seems to me that such cases are those where, without such reasons, it will not be clear to the losing party why he has lost. It is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious."
"55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter.
"56. When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex. First, underlying the case for Dr Southall was the acceptance that Mrs M might perfectly justifiably have perceived herself as accused of murder with the result that the analysis of contemporaneous material some eight years later is of real importance: that the evidence which touched upon this conversation took over five days is testament to that complexity. Furthermore it cannot be said that the contemporaneous material was all one way: Dr Corfield's note (and, indeed, her evidence) supported the case that it was (or at least could have been) Mrs M's perception alone. Ms Salem's note (accepted by Mrs M as 100% accurate so far as it went) did not support the accusation and her evidence was that if those words had been said, she would have recorded them. I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the panel."
Note 1 Day 3, p. 39, line 32. [Back]
Note 1 Day 3, p. 39, line 32. [Back]