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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 >> Ogbonna v Nursing & Midwifery Council  EWHC 272 (Admin) (18 February 2010)
Cite as:  Med LR 150,  EWHC 272 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| EUNICE OGBONNA
|- and -
|NURSING & MIDWIFERY COUNCIL
Ms Clare Strickland (instructed by Nursing & Midwifery Council) for the Respondent
Hearing dates: 9th February 2010
Crown Copyright ©
Mrs Justice Nicola Davies :
"Whilst employed as an F Grade midwife by Homerton University Hospital Trust you:
1) On 25 April 2005, left the Delivery Suite in order to watch a training DVD when you:a) Were involved in providing care to a client at the time of the training;b) Knew or ought to have known that the Delivery Suite was busy;c) Ignored the direction of Betty Ann Pilgrim, Team Leader, who told you not to leave the suite as the Ward was busy;d) Replied to Betty Ann Pilgrim words to the effect that you didn't care if the Ward was busy, you were still going to go.
2) On or about 26 April 2005, failed to provide an appropriate level of care to Patient A, in particular you:a) Inappropriately advised Patient A to consider an epidural when;i) Patient A did not wish to consider an epidural under normal circumstances;ii) Patient A was about to deliver.b) Failed to ensure that Patient A was made aware of and understood the nature of the invasive procedure to the pubic area which you carried out;c) Failed to respect Patient A's wish for her husband to remain with her during labour;d) Failed to communicate with Patient A in a polite and professional manner;e) Recorded that a Vaginal Examination was conducted at 8.35 in the notes but recorded only one such examination occurring at 8.50 on the "Vaginal Examination in Labour" form;f) Failed to attend to Patient A during the delivery of her daughter;g) Failed to respect Patient A's dignity when, after delivering the placenta, you showed it to Patient A in an inappropriate manner.
3) On 26 April 2005, failed to adequately hand over care of Patient A, in particular, you:a) Failed to explain to Patient A that you were leaving and her care would be taken over by another midwife;b) Failed to ensure that care was properly handed over to an oncoming midwife;c) Failed to document that you had ceased to care for Patient A, or any arrangement for her continued care.
And by reason of the above, your fitness to practice is impaired by reason of your misconduct."
i) To amend charge 2(b) from the charge as previously formulated;
ii) To allow the respondent to adduce evidence by written statement of a witness who did not attend the hearing, namely Ms Betty Ann Pilgrim;
iii) On the facts, all the charges were found proved;
iv) That the appellant's fitness to practice was impaired by reason of her misconduct;
v) That a sanction be imposed, namely a striking off order effective in 28 days;
vi) Further an immediate interim suspension order for a period of 18 months.
Grounds of appeal
i) Amendment to charge 2(b). The Panel misdirected itself as to the proposed amendment, its decision to amend the charge caused prejudice to the appellant;
ii) The Panel misdirected itself in allowing the evidence of Ms Pilgrim to be read in her absence. The admission of Ms Pilgrim's statement was unfair and prejudicial to the appellant;
iii) The Panel failed to have due regard to the fact that the appellant was unrepresented and disadvantaged in the presentation of her case;
iv) The Panel failed to take into account or give due weight to documents and evidence, in particular, the statement of Dr Maryam Parisaei, including the reference to the involvement of the consultant obstetrician, Mr Barnick;
v) The Panel failed to give appropriate weight to the appellant's evidence, given verbally by written statements and documents;
vi) In all the circumstances, the Panel's finding of fact were unjust;
vii) The Panel's finding of impairment was unjust;
viii) The Panel erred in striking the appellant off the register, in that it arrived at a determination that was wholly disproportionate, excessive, unfair and unjust on the evidence;
ix) The Panel misdirected itself when it determined that a 'conditions of practice' order was not workable;
x) The Panel misdirected itself when it determined that a lower end sanction or no sanction was inappropriate;
xi) The Panel misdirected itself by arriving at a conclusion that striking off was the only outcome;
xii) The Panel unnecessarily and/or disproportionately imposed an interim suspension order for 18 months, with inevitable consequences for the appellant.
"Failed to ensure that Patient A was made aware of and understood the nature of the care that she was receiving."
The proposed amendment read:
"Failed to ensure that Patient A was made aware of and understood the nature of the invasive procedure to the pubic area which you carried out;"
The Panel misdirected itself in allowing the evidence of Ms Pilgrim to be read in her absence. The admission of the statement was unfair and prejudicial to the appellant.
"31(1) Upon receiving the advice of the Legal Assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place)."
"The reason why I am applying under Rule 31 to admit her evidence in writing is because she does not live in this country anymore. There is an email to that effect which I can pass a copy of up to you now. It is dated 17 February 2009. It is addressed to Mr Styles, one of the Case Officers. She says:
"I am so sorry for not responding sooner, but I have only just had the time to check my email after three weeks. I am now residing in Trinidad and Tobago."
She gives her permanent address, which is in Trinidad. She said that she moved to the Caribbean in September 2007."
"Dear Ms Pilgrim,
As you know, the above case is listed to start this Wednesday. Mrs Ogbonna is objecting to us applying to read your statement. Our application to read your statement on the grounds of you living in the Caribbean will be strengthened if we have the following information:
1a) When did you move to the Caribbean? and Where are you living – I need the exact address.
2a) Is this your permanent residence and how long have you been here for?
In her email, by way of response, part of which was read to the Committee, Ms Pilgrim states:
"I hope this clarifies any confusion. I can be contacted on….. we are five hours behind UK."
In that document Ms Pilgrim provided a telephone number.
"Betty Ann was actually the Co-ordinator of the midwife on the very day this incident happened, which was 26 April and she knows about this case. The NMC did not make any plan for her to attend if there was a case to answer. If she is not present, her statement should not be given any attention because she should be here. I have the right to ask some different questions of her, so it will not be prejudiced against me to act on her statement because I have not had an opportunity to get feedback from her."
"As Eunice continued shouting, we then had an exchange of words, where I said 'Eunice…you are so disgusting, I am sick and fed up of your attitude. You are so disgusting! So many people want to say this to you but are afraid! But I am not afraid of you!!"
"I told the patient I was leaving to write up my notes. It was during this time that I saw Betty Ann Pilgrim and she made rude comments to me, which she refers to in her statement. She told me I was stupid and everyone hated me. This was the final straw which led to my collapse at the hospital."
"We have considered the submissions of both parties and the advice of the Legal Assessor. Our task is to decide whether to permit the NMC to adduce the witness statement of Ms Pilgrim. We have seen an email dated February 2009 which explains that she is unable to attend this hearing because she no longer lives in the United Kingdom."
The point is taken by the appellant that the email did not in fact state that Ms P was unable to attend the hearing. The point is well made. When it became known that Ms P was in Trinidad and Tobago, no request to attend was made of her by the respondent to attend the hearing.
i) The respondents failed to make any effort to secure the attendance of a critical witness, Ms Pilgrim, once it learnt that she was living in Trinidad and Tobago;
ii) The panel misdirected itself in finding that the witness was unable to attend. It wholly failed to address the point raised by the appellant that the respondent had made no plan for the attendance of Ms Pilgrim;
iii) The appellant was disadvantaged in her response to this application by reason of being unrepresented;
iv) The admission of the statement was unfair.
The Panel failed to take into account or give due weight to documents and evidence, in particular, the statement of Dr Maryam Parisaei including the reference to the involvement of the consultant obstetrician, Mr Barnick.
"This was my last involvement with Patient A. I cannot recall anything being said by her, other than is written in the medical notes, however, I would have written if the patient had any particular concerns with regard to the treatment she had received or any staff member she had encountered."
"The patient had sustained a second degree tear and I informed her that the doctor would come and suture it. Naturally it was an extended second degree tear and midwives are allowed to suture only second degree tear. Once it is more than that, it has to be sutured by the doctor, and that is why she was sutured by the doctor. I only left the room when I was satisfied that the bleeding had stopped. At 09.30am, Dr Maryam Parisaei attended to the patient, after I had requested a doctor to attend to the vaginal tear…"
The Panel failed to give appropriate weight to the appellant's evidence, given verbally by written statements and documents.
"We conclude that fitness to practice is impaired. Our reasons for that conclusion are:
Although the events only involve two days, there are serious, numerous and wide ranging breaches of the code of conduct. We consider that the conduct falls far short of what one would expect of an average registrant….."
The first of the two days can only be a reference to Head of Charge 1.
i) This relates to the unrepresented status of the appellant. It is clear from the reasoning of the Panel that they placed little weight on the testimonials provided by the appellant. In doing this, they failed to give proper account to the fact that the appellant was unrepresented and did not have the advantage of a legal representative who would know what to obtain and how, for the purpose of adducing testimonial evidence;
ii) In approaching the issue of sanction, in particular, the possibility of a condition of practice order, the Panel appears to have applied its mind only to the appellant's work as an agency nurse and failed to give any consideration to her work within the wider hospital environment. Given that the appellant had practised since 1986 without previous complaint and in hospital settings, this would be a matter of concern to the court;
iii) These events occurred on two consecutive days following which the appellant went on sick leave. No real effort was made by the Panel to explore the isolated nature of these incidents and the ill health of the appellant. It is another example of a failure to have due regard to the fact that the appellant was unrepresented and disadvantaged in the presentation of her case.
Interim suspension order