APPEAL BY LK AGAINST A DECISION OF THE NURSING AND MIDWIFERY COUNCIL  ScotCS CSIH_40 (09 July 2020)
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk
OPINION OF THE COURT
 CSIH 40
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the Appeal
A Decision of the Nursing and Midwifery Council
Appellant: Party with PK lay Support
Respondent P Reid; Nursing and Midwifery Council
9 July 2020
 This a statutory appeal (in terms of section 60 of the Health Act 1999 and
articles 29(9) and 38 of The Nursing and Midwifery Order 2001) against a decision of the
Fitness to Practice Committee of the Nursing & Midwifery Council ("the committee"), dated
5 September 2019 and communicated to the appellant on 6 September 2019, to issue a
striking off order in terms of article 29(5)(a) of the Nursing and Midwifery Order 2001(“the
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2001 order”). [An interim suspension order is currently in place and remains until the
outcome of this appeal.]
 The order was issued following consideration of a total of 61 allegations grouped in
seven separate sections. The allegations in this case are wide-ranging and relate to
fundamental midwifery care including: inaccurate recording of and failure to undertake
observations, failures to follow correct procedures and policies, lack of knowledge and
falsification of records. Sections 1-4 alleged numerous instances of poor clinical practice and
conduct in respect of four patients (A, B, C and D) in 2016 at an NHS hospital, including
failure to provide an appropriate standard of midwifery care across a number of areas and
practice skills and in particular poor and/or inaccurate record keeping, patient observation,
and monitoring. Section 5 alleged that she had allowed her Cardiotocography (“CTG”)
training to lapse between 2 July 2016 and 11 September 2016. Section 6 asserted that her
failures in recording patient notes which were asserted at sections 1.2(g), 1.2(h), 2.1(f) and 3.4
had been dishonest. Section 7 asserted that, pending investigation of the other charges, and
whilst employed outwith the NHS, she had provided midwifery services without being
under the direct supervision of a registered midwife on one or more occasion(s) between 1
September 2017 and 4 January 2018 (contrary to the terms of an interim sanction order made
pending investigation of the other charges).
 The committee heard evidence and submissions over of the course of a 16 day
hearing which originally commenced on 12 February and concluded, following
adjournments, on 5 September 2019. The committee found 58 of the allegations proved on
the facts or by the appellant’s admission, and of these all but 8 amounted to misconduct. It
held that the appellant’s actions fell significantly short of the conduct and standards
expected of a registered midwife, including multiple breaches of The Code: Professional
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Standards of Practice and Behaviour for Nurses and Midwives (2015) ("the Code"); and was
satisfied that the appellant’s fitness to practice was currently impaired. It concluded that a
strike off sanction was appropriate to protect the public and for public safety considerations
given the seriousness of the misconduct found, which included findings of dishonesty
regarding patient note taking.
 In this appeal the appellant challenged the committee’s decision on grounds which
are specified more fully under the summary of the submissions. Broadly, the grounds were:
unreasonable delay in terms of article 6 of the European Convention on Human Rights;
application of the wrong standard of proof; inversion of the onus of proof; numerous alleged
procedural irregularities; errors as to the admissibility and assessment of evidence; and the
imposition of an excessive and disproportionate sanction.
 The appellant completed her training and qualified in 2008. She worked in other
NHS hospitals before transferring to the hospital in question in 2012. Prior to qualifying she
was a military field medic for 16 years. As at 2016 the appellant was employed as a part
time band 6 midwife at the hospital.
 The allegations were brought to the hospital’s attention via a number of means, and
subsequently investigated by them under their own internal procedures and employee
disciplinary policy, resulting in the appellant’s ultimate dismissal on 13 February 2017,
which was then challenged in various appeals. The allegations were referred to the
respondent on 17 February 2017.
 In early 2017 the appellant became employed with a supplier of private midwifery
services, circumstances pertaining to which led to charge 7.
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The regulatory regime
Standards of Practice and Behaviour
 In terms of article 3 of the 2001 Order the Nursing and Midwifery Council (“NMC”),
is required to set standards of education, training, conduct and performance and to put in
place arrangements to ensure that they are met and for the investigation of any alleged
 Of particular relevance is “The Code: Professional Standards of Practice and
Behaviour for Nurses and Midwives” (2015) which sets out common standards of conduct
and behaviour for those on the register. The respondent has also issued Guidance on the
Standards of Competency for Registered Midwives (2020), divided into four areas, namely:
• Effective midwifery practice.
• Professional and ethical practice.
• Developing the individual midwife and others.
• Achieving quality care through evaluation and research.
All midwives must demonstrate their knowledge and competence in all these areas to
register as a midwife.
 The Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (“the 2004
Rules”) sets out the procedure to be followed by the Fitness to Practise Committee when
considering any allegation and before making a sanction order under article 29(5), as
occurred in the present case.
 Rule 24 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 sets
out the approach to be taken by a Fitness to Practise Committee at an initial hearing.
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Following identification of the registrant, the charges and any objections and admissions the
key stages are:
1. Determination of the facts proved or admitted.
2. Assessment of whether the facts found proved amount to misconduct.
3. If so, whether fitness to practise is impaired as a consequence.
4. If so, what, if any, sanction should be imposed.
In terms of Rule 30, where facts relating to an allegation are in dispute the burden of proving
such facts rests on the respondent.
 Provision about the admission of evidence is contained in Rule 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 2001 Order also provides that the NMC may publish guidance as to matters of
practice and as to how the powers conferred by the Order or subsequent rules issued under
it are used. An example of such guidance is provided in “Making decisions on dishonesty
charges” (DMA-6, last updated 12 October 2018). A committee has to decide whether or not
the conduct took place, and if so, what was the individual’s state of mind at the time. It
must consider the background facts or circumstances, and what the nurse or midwife knew
or believed about what they were doing. Dishonesty was to be judged applying what it
understands the standards of ordinary, decent people to be. It was important to consider
whether there was another, innocent explanation for the conduct, pointing away from
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 Guidance on sanction is available in “Factors to consider before deciding on sanctions”
(SAN-1, last updated: 31/08/2018), under reference to proportionality, aggravating and
mitigating factors and other features which may impact on sanction. Various types of
mitigation are addressed.
● Evidence of the individual’s insight and understanding of the problem, and their
attempts to address it.
● Evidence of following the principles of good practice, which may include evidence of
keeping up to date with their area of practice, or previous good character or history.
● Personal mitigation, eg periods of stress or illness, personal and financial hardship,
level of experience at the relevant time, and level of support in the workplace.
Guidance on publication is given in [P]ublication of Fitness to Practise and Registration
Appeal Outcomes (effective from August 2017, Amended by Deputy Director of Fitness to
Practise: 30 January 2018).
Background to the charges
 The first group of allegations (Charges 1.1(a) to 1.4) related to the care given by the
appellant to Patient A over the 9-10 June 2016 at various points. Concerns regarding this
patient’s care were initially investigated by the hospital following a formal written
complaint and feedback document submitted by the patient and her husband on 26 August
2016. The complaint prompted a review of documentation and care of Patient A by the
hospital, conducted primarily by Ms 2, the Inpatient Manager for the Maternity Unit.
Within that role she was expected to answer complaints from women and their families and
would be asked to carry out investigations into them.
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 Patient B was admitted to the hospital on 6 September 2016 at 31+ weeks pregnant
and gave birth to a pre-term baby on 7 September. She had had a high risk pregnancy.
Concerns about the care provided by the appellant were brought to the hospital’s attention
following the submission of an internal incident report- called a “Datix” report- dated
7 September 2016, and completed by another midwife, Ms 5, raising concerns about the
approach of the appellant.
 On 10 September 2016, Patient C, a non-English speaking female, gave birth to a full
term stillborn baby. At that time all women who had a pregnancy that resulted in a stillbirth
at the hospital had a multidisciplinary risk management review of their care, primarily by
Ms 2. As a consequence of this review Ms 2 identified concerns regarding antenatal, labour,
and post labour care by the appellant.
 During the review of the care provided by the appellant to Patient B Ms 2 identified
further alleged failings to provide adequate care on 7 September 2016 to a fourth patient,
Patient D. On the advice of HR the concerns she identified were not investigated internally
owing to the volume of material already being investigated.
 Following completion of her investigation, Ms 2 produced a written report and
recommended that the concerns relating to the appellant’s care provision to patients A-C
should be referred to a disciplinary hearing. The disciplinary hearing was chaired by Ms 1,
the Clinical Services Manager for the Hospital. Ms 2 was the presenting officer. The
disciplinary hearing resulted in a decision to dismiss the appellant. Following an appeal
process that decision was upheld in November 2017.
Procedure prior to the FTPC hearing
Interim orders and additional charges
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 The respondent received a referral concerning the allegations relating to Patients A-C
on 17 February 2017. An interim conditions of practice order ("ICOPO") was imposed for a
period of 18 months. Interim orders are reviewed every 6 months unless there is a material
change of circumstances. An early review of the interim order was requested by the
respondent in June 2017 following an alleged breach of the ICOPO. By a decision dated 15
June 2017 the respondent varied the ICOPO to clarify a potential misunderstanding.
 A second review took place at a hearing on 4 January 2018, raising concerns that the
appellant had been acting unsupervised as a midwife to a private patient, in breach of
condition 3 of the ICOPO, which provided:
“At any time that you are employed or otherwise providing midwifery services,
either remotely or face to face, you must place yourself and remain under the direct
supervision of a registered midwife. Such supervision is to consist of working at all
times under the direct observation of a registered midwife. "
The appellant accepted that condition 3 of the ICOPO had not been fully complied with,
(and breached on 7 occasions) but maintained that the spirit and its objective had been. On
8 January 2018 the appellant’s ICOPO was replaced with an interim suspension order, this
being viewed as necessary for public protection pending the respondent’s investigation.
These admitted breaches led to the inclusion of charge 7 before the FTPC.
 The respondent led 4 witnesses, Ms 2; Ms 1; Ms 4; and Ms 3, the administrative
officer of the Private Midwifery service provider. The respondent also placed reliance on
the signed statement of the respondent’s investigation manager, Mr 6. No evidence was led
from or statements produced for Patients A-D. A signed statement from a senior charge
midwife, whom the appellant said she had asked to review her patient’s notes for Patient C,
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which had been given to Ms 2 during her investigation and which formed part of her
investigation report was produced.
 The appellant gave evidence and led the evidence of Ms 5, a midwife at the hospital
at the time of the allegations and who had completed the Datix report concerning Patient B.
The committee notified its factual findings on 15 August, and reconvened on 2 September to
address misconduct and impairment, having heard the live evidence of the appellant, read
her reflective piece and considered parties’ submissions.
 The committee was of the view that the appellant’s actions fell significantly short of
the standards expected of a registered midwife. She had breached multiple provisions of the
Code: Professional Standards of Practice and Behaviour for Nurses and Midwives (2015)
("the Code"), departed from various policies which her employers had in place, and
departed from the NMC's guidance on the standards of competency for registered
 The panel considered each of the charges individually in determining whether the
appellant’s actions were so serious so as to amount to misconduct in the circumstances. It
concluded that all but 8 of the charges found proven fell seriously short of the conduct and
standards expected of a registered midwife and amounted to misconduct.
 The finding in charge 6 that the appellant’s actions were dishonest in relation to
charges 1.2(i) and 3.4 was a serious attempt to create a misleading impression that she had
previously discussed breastfeeding with Patient A, and had formally discharged Patient C.
The panel noted that honesty, integrity and trustworthiness were the bedrock of the
midwifery profession, and that the appellant had breached a fundamental tenet of the
nursing profession in documenting information known to be incorrect.
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 The panel went on to consider whether, as a result of its findings on misconduct, the
appellant’s fitness to practise was currently impaired. It concluded that it was. The panel
noted that the concerns had related to both the appellant’s clinical midwifery practice, as
well as her behaviour.
 The committee considered that the appellant’s actions were serious, had exposed
patients to a significant risk of harm and had not demonstrated the care and compassion
necessary for midwifery practice. Allowing the appellant to maintain NMC registration
would put the public at a continued risk of harm, and would undermine public confidence
in the profession and in the NMC as a regulatory body. Considering all of these factors, the
appropriate and proportionate sanction was that of a striking-off order.
Alleged delays once hearing commenced
 The appellant contends that a significant delay occurred between lodging of the
allegations in February 2017 and their determination in September 2019.
From the papers, transcripts and submissions before this court the following key steps in the
timeline for the purposes of this appeal have been identified:
● The allegations relating to patients A-C were referred to the respondent on
17 February 2017.
● The respondent’s initial investigation commenced and was concluded in January
2018. Following consideration by the Case Examiners, of inter alia potential breaches
of the ICOPO, discussed above, further investigations by an investigation panel were
recommended by the Case Examiner.
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● The case was referred to the Fitness to Practice Committee by September 2018 by
which time charge 7 was introduced (it appears that charges relating to Patient D
were also added during further investigation).
● The original FTPC hearing was set down for 7 days-12-15 and 18- 20 February 2019.
At the commencement of the hearing certain preliminary issues, in particular
regarding disclosure, arose. Discussions over these matters continued over the next
few days, during which the panel identified potential grounds for recusal of one its
members. On the 5th day the hearing re-convened with a new panel member, and
also a new Legal Assessor and legal secretary. Thereafter a motion was made for the
appellant to discharge the remaining 3 days available and assign a further 10 day
diet at which she would, for diary reasons, be represented by new counsel. This
motion was said to be on the appellant’s instruction and following advice given. The
motion was granted and a further diet commencing on 7 May including 7-10, 20-22
May was assigned.
● Evidence was heard on 7-10 and 20-22 May. The hearing reconvened on 12 August
at which oral submissions in support of written submissions already lodged were
made. The hearing was then adjourned until the afternoon of 15 August, on which
date the panel issued its findings on the facts. It was anticipated that additional
dates would be required to address impairment and on the appellant’s unopposed
application the hearing was continued to 2-5 September 2019 to allow time to
consider the factual findings and to address impairment and sanction aspects of the
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 Detailed written submissions were made by both parties and taken account of by the
court. A detailed table narrating the appellant’s challenges in respect of each charge proven
and the respondent’s response was also produced. What follows is a summary of the key
issues. The grounds advanced by the appellant tended to overlap, the same point being
advanced in respect of a number of grounds.
Submissions for the appellant
Ground of appeal 1-Breach of article 6 ECHR
 Two complaints were made: that the manner in which they were conducted rendered
the proceedings unfair and that the proceedings did not conclude within a reasonable time.
It was submitted that in subjecting the appellant to proceedings to determine whether she
had been dishonest, the NMC had failed to respect requirements 1 and 3 of article 6 of the
 By virtue of the use of regulatory proceedings, and the lack of primary evidence
relied upon by the respondent, the appellant had been deprived of the opportunity to have
witnesses against her examined. The application of civil standard of proof was unfair in
respect of allegations of dishonesty.
 There had been a breach of the “reasonable time” provision of article 6. The matter
was referred to the respondent in 2017 but a hearing did not take place until February 2019.
Delays were exacerbated by piecemeal disclosure of documents which the appellant’s
counsel objected to at the outset of the hearing. The unfairness was compounded by the
NMC’s request of its own witness, Ms 2, to search for and provide some of the non-disclosed
documents. Once commenced the hearing in itself had been delayed due to adjournments
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for further documentation, recusal, and witness availability amongst other reasons. It had
ultimately been heard over a period of 7 months with various breaks. The respondent
sought three extensions to interim orders.
 The appellant was deprived of the right of continuity in a public hearing, guaranteed
by section 6(1) of the Human Rights Act 1998. The membership of the committee had
changed during the course of the hearing on grounds of recusal. This was in addition to a
change of Legal Assessors and secretary in mid case. The new panel member had not been
present during the opening exchanges. There was no adequate public scrutiny afforded of
the advice given to the committee by the Legal Assessor. Changes in her legal
representation in the course of the hearing had also denied the appellant continuity. The
lack of continuity in the panel membership and in legal representation resulted in an
inability to deal with the hearsay nature of the evidence of Ms 2, and her apparent giving of
expert evidence which were challenged on the appellant’s behalf.
 By releasing a full list of charges to the press on 15 February 2019, with no statutory
requirement to do so, and by including reference to the serious allegations of dishonesty in
advance of the hearing, the respondent artificially created high public interest, and in so
doing breached the Nolan Principles (otherwise, The Seven Principles of Public Life; the
ethical standards expected of public office-holders).
Ground two – procedural unfairness
 Five specific complaints were made: (a) failure to obtain the primary evidence;
(b) admissibility of evidence given by Ms 2; (c) discrimination; (d) withholding of evidence;
and (e) assessment of expert evidence.
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 The NMC had a duty to investigate cases properly- Professional Standards Authority
Para 65. The primary evidence (the four patients, doctors and senior charge midwives
involved in their treatment) in support of the allegations was not led. The appellant was
accordingly prevented from cross-examining such witnesses. It was suggested that
witnesses B and C made no complaints, and the complaints of witness A would not have
withstood scrutiny. It was submitted that other than Ms 2’s speculation as to the import of
the absence of clinical notes, and in the absence of any corroborative evidence from any
other source, the NMC could not get a case off the ground other than in respect of
inadequate record keeping.
Challenges to the admissibility of hearsay and expert evidence given by Ms 2
 The transcript for 14 February records an exchange between the panel and the legal
assessor in which legal advice was given with regard to the admissibility of evidence. The
committee’s decision together with the Legal Assessor’s advice on how Ms 2’s evidence
should be treated was plainly wrong and did not accord with the approach specified in
El Karout v Nursing & Midwifery Council  EWHC 28 (at paragraphs 96-99 and 128) and
been offered the chance to cross-examine Patient A, nor indeed had any evidence been led
from her; and separately Ms 2’s evidence that there had been a complaint from Patient B
during a phone call was uncorroborated.
Discrimination during the application of Rule 31
 It was submitted that as a midwife in Scotland, she had been subjected to standards
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and processes different from those applied by and regulating the NMC’s obligation of
fairness and relevance in the assessment of admissibility and weight to be attached to
evidence under Rule 31 in England and Wales.
Withholding of documentation
 The NMC merely presented documents it deemed appropriate: complete patient
notes were not produced and certain documentation was missing. During the evidence of
Ms 2 she made reference to a notebook of the appellant’s of which the panel requested sight.
This was not produced by the respondent and the panel referred in their decision to the fact
that the appellant did not produce it thus reversing the burden of proof. It specifically
stated (at page 34 of the decision) that “The panel did not have a copy of your notebook, nor
did you produce it during evidence.” A subsequent FOIA request by the appellant
disclosed that the NHS Tayside Trust had destroyed the notebook.
Incorrect assessment of expert evidence
 In evaluating the opinion evidence given by Ms 2 the panel only considered the
weight to be attached to this evidence. The panel should have considered whether the
evidence met the test for admissibility of expert evidence. Had they done so the evidence
would not have met the test of impartiality. By presenting that evidence the respondent was
in breach of the duties imposed upon it by the Nolan Principles and the requirement of
Ground 3- Balance of Probability
 A number of complaints were made under this ground: (a) the assessment of Ms 2’s
evidence; (b) burden of proof; (c) expert evidence; (d) the legal assessor’s advice; and (e)
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approach to dishonesty. Some of these have been noted already in reference to other
 It was submitted that drawing from the content or lack thereof in patient records an
inference that certain care was not given was a leap which no reasonable committee
properly advised as to the law, and considering the facts, could reasonably have made. Ms 2
had no actual knowledge of the circumstances relating to the clinical care provided to the
patients, and had not spoken to patients A, C or D. Her evidence that she had spoken with
Patient B was not supported by documentation. There was no evidence she had spoken to
any of the doctors involved or had followed up with the Midwifery Team Leader or
midwives on duty at relevant times.
Legal assessor and finding of dishonesty
 The Legal Assessor incorrectly advised the committee of the process to be engaged in
assessing objectively the appellant’s conduct. He failed to consider Ivey v Genting
have been followed. It was submitted that given the appellant’s sub-standard noting and
record keeping the overwhelming probability relating to the respective notes underlying the
charges of dishonesty emanating from Charges 1.2.g and 3.4 was that she had been careless
in noting them, not that she had intended to mislead anyone reading the notes later to cover
up want of performance. The panel should have accepted that submission.
 The decision on sanction was wrong, unfair, excessive and disproportionate.
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 The panel failed to address current impairment, as it should have done, rather than
historical allegations of impairment as alleged by the NMC.
Disregard of mitigating factors
 The panel erred in dismissing mitigation regarding the appellant’s health condition,
recognised as a disability (Davies v Scottish Courts and Tribunal Service  UKET
4104575/2017), and acted in a discriminatory manner as outlined under The Equality Act
2010. It failed to recognise that the alleged incidents occurred over a period of 4-night shifts
and one single ante-natal visit in a career spanning 11 years. It failed to recognise that Ms 4
was incorrect in her evidence that she had not been provided with a copy of the ICOPO and
thus wrongly came to the conclusion that the appellant had intentionally breached it over a
four-month period. The panel failed to recognise that insight and remorse had been
demonstrated and erred in attaching insufficient weight to this.
 The panel failed to ensure that all other potential options of sanction were explored
before ordering strike off.
 The Legal Assessor’s advice made no reference to the important consideration of
mitigation at all sanction levels as outlined in Wisniewska v Nursing and Midwifery Council
Sanctions Guidance document, SAN-1 which failed to reflect Wisniewska.
Submissions for the respondent
 Counsel for the respondent submitted that the appeal should be refused.
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Length of proceedings
 The complaint was lacking in specification, and was in any event unfounded. The
overall length of proceedings gave rise to no concern over compliance with article 6. The
proceedings concluded on 5 September 2019. The overall period- a decision 7 months after
the initial listing and 31 months from receipt of the complaint- was reasonable, particularly
when regard was had to the complexity of the case, the conduct of the parties and what was
at stake for the appellant. The February and August adjournments were at the appellant’s
request. Each stage of the procedure was article 6 compliant. The initial investigation took
11 months, which was entirely reasonable in the circumstances. The procedure then went to
the case examiners who ordered further inquiry into the alleged breach of the interim order.
A period of 8 months for consideration and inquiry by case examiners was also reasonable
in the circumstances. It was acknowledged that there was a delay after the case returned
from the case examiners but not such as to constitute a breach of the reasonable time
requirement. During the 12 months between referral to the FTPC and the final
determination there were four callings of the case: the abortive hearing in February 2019; the
actual hearing in May 2019; oral submissions in August 2019; and the impairment and
sanctions hearing in September 2019. The February and August hearings were adjourned to
later dates at the appellant’s request.
Release of details of charges to the press
 On 14 February 2019 the charges had been read to the committee and were
accordingly in the public domain. In accordance with the respondent’s then guidance
(Publication Guidance, August 2017 (as amended) at para.20), details of the charges were
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provided following a request from a journalist. Given the FTPC proceedings were public, it
was submitted that it was entirely appropriate that details of the charges were provided.
Assessment of expert evidence
 Any opinion evidence given by Ms 2 was admissible. The committee took a careful
and discriminating approach to Ms 2’s evidence. It formed a favourable impression of Ms 2
contrary to the view it reached about the appellant. Weighing the evidence, and assessing
what conclusions to draw from it, is quintessentially the function of the committee (eg C v
Gordonstoun Schools Ltd 2016 SC 758 at para. 56). A careful, detailed and discriminating
decision was given, setting out conclusions which were open to the committee and giving
clear reasons for doing so. There was no basis on which this court could properly interfere
with the conclusions.
Failure to obtain the primary evidence
 In short, the fact that further witnesses, in particular the patients concerned, did not
give evidence caused no real prejudice to the appellant and did not render the proceedings
unfair. That Ms 2 did not directly observe the events with which the charges are concerned
was accepted by her in cross-examination (p284 of the Bundle). That did not mean that
there was a general insufficiency of evidence. There was no submission by the appellant
that the patients themselves be required to give evidence. Given that the vast majority of the
charges related to a failure to properly document events, and given the concessions made by
the appellant in her own evidence, it was submitted that the patients’ evidence would have
been of no assistance to the FTPC.
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 Professional Standards Authority for Health and Social Care v Nursing and Midwifery
principle was established by it and the facts, concerning when the NMC could properly offer
no evidence, were not analogous to the present case.
Admissibility of hearsay and expert evidence of Ms 2
 Having regard to the Civil Evidence (Scotland) Act 1988, s2 and Rule 31(1), hearsay
evidence was admissible in proceedings before the committee. Although at the outset of
proceedings an objection to the admissibility of any evidence by Ms 2 that was properly
characterised as expert (that is, opinion) evidence, no such objection was in fact taken during
her evidence. Despite this the matter was returned to in submission under reference to
Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59. It was accepted that Ms 2 had skilled
evidence that would assist the FTPC and that it was based on a reliable body of knowledge
or experience. The objection was that she lacked knowledge and understanding of the day
to day demands on a practising midwife. Her understanding “may be out of date“ since she
accepted, for example, that it had been some time since she herself had delivered a baby. It
was accepted that she was a Registered Midwife. Given her evidence about a continuing
involvement in the provision of care (see, for example, p238 of the Bundle) and her role as
the line manager for the senior charge midwives (p287 of the Bundle), the committee was
entitled to conclude that she was qualified to comment on the expectations of a midwife in
the position of the appellant.
 Counsel for the appellant had attacked Ms 2’s impartiality, on the basis that:
“[she] pursued an investigative and prosecutorial role against the [appellant]. This
was her role through the NHS Tayside Disciplinary process. She had come to a
concluded view before the current procedure was begun. She is entirely partial as a
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result .., and any opinions she provides are necessarily biased and stem from an
Investigatory process I say was flawed.”
It was submitted that the committee did not accept that characterisation of Ms 2’s evidence,
a view that it was entitled to reach. Accordingly Ms 2 was both qualified and sufficiently
independent to provide opinion evidence.
Discrimination during the application of Rule 31
 The basis for the assertion that the appellant was somehow treated differently
because she practised in Scotland has not been clearly articulated.
Withholding of Evidence
 The appropriate approach for a person in the position of the appellant to take was
require the regulator to make records available and if it does not do so, seek a direction from
the committee. In the present case, the records were sought and produced and an
adjournment allowed a period for them to be considered. In relation to the notebook, it was
not clear what prejudice the appellant suggested this caused. Whatever its import, the
availability or otherwise of a notebook (prepared by the appellant and which was not
available to the NMC) would not justify the allowance of the appeal.
Burden of Proof
 Read fairly and as a whole it was clear that the committee properly directed itself
upon, and applied, the burden of proof. There was no reversal of the burden of proof.
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 To the extent that the appellant sought to rely upon discrepancies or inconsistencies
in Ms 2’s evidence, it was for her counsel to deal with such points in cross-examination. In
any event, the points identified by the appellant were not material to the overall conclusion
of the committee.
 There was no dispute about the approach to be taken to dishonesty between the
parties. The appellant’s counsel concurred in the approach set out by the NMC’s Presenting
Officer. The Legal Assessor’s advice on the point was a short but appropriate summary of
Ivey. It is clear from the terms of the decision that the committee considered and applied
 No error in law having been identified in the approach of the committee and there
being a clear and comprehensible explanation of their decision for which there was a basis in
the evidence, the court should not interfere with the conclusion.
Ground Four: sanction
 In all the circumstances, but in particular in light of the findings of dishonesty and
working in breach of conditions that had been imposed by the respondent, the sanction of
striking off was within the range of possible sanctions that the committee could reasonably
impose. There was no proper basis on which this court should interfere with that
 The committee adopted the proper approach to identifying the correct sanction,
namely, it started with the lightest sanction and worked up; and properly explained why all
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sanctions short of striking off were insufficient and why the sanction of striking off was
necessary to maintain public confidence in the profession.
Analysis and decision
 As counsel for the respondent submitted, where a breach of the reasonable time
guarantee is asserted, the first question for the court is whether the period of time that has
elapsed is prima facie sufficient to give rise to a real concern as to whether article 6 has been
complied with. This is a matter which must be judged according to the individual
circumstances of the case, looking to the length of the proceedings as a whole. Factors
which will be relevant even at the stage of a examination of the period which has elapsed
will include the nature and complexity of the proceedings, the conduct of parties, and what
is at stake. If the circumstances appear to raise a prima facie case, these factors will of course
require more detailed assessment. Looking at them in the round for the moment, the overall
period from the making of the complaint to the respondent to decision by the committee
was 31 months, a period which the court does not consider raises a prima facie concern of
unreasonableness. Even if we had reached the opposite conclusion, a closer examination of
the relevant factors would have shown that the time period could not be described as
unreasonable. The matter was one involving a degree of complexity, requiring investigation
and decision making as to procedure, and formulation of appropriate charges. During the
proceedings two hearing dates were adjourned at the request of the appellant. The panel
considered it would be in the interests of fairness to the appellant to grant those
adjournments, even in the face of opposition, having regard to what was at stake for her. It
is true that a few days were lost at the outset of the original proceedings because of
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disclosure issues, but this made a small contribution to the lapse of time in all the
circumstances. Accordingly we do not consider that there is any merit in this point.
 Associated with this point the appellant sought to argue that she had been
prejudiced by (a) substitution of a panel member and (b) a change in her legal advisers
leading to a lack of continuity. There is no merit in either of these points. Both arose during
the first few days of the original hearing in February 2019 when disclosure issues were being
addressed. It was on perusing the full papers at that stage that a recusal issue arose in
respect of one panel member and a new member was introduced on day 5. However no
substantive proceedings had yet taken place. Counsel for the appellant was invited to make
submissions, declined to do so and stated himself content with the substitution. As to the
change of representation this is a matter for the appellant herself, and those she instructed.
It is true that the first week was lost to disclosure issues but it is not apparent why these had
not been raised in advance of the hearing. It was said to be as a result of this that counsel
then asked for the case to be adjourned for a new counsel to start the case, since the
remaining time would not be sufficient to conclude matters and it was proving difficult to
find a further space in counsel’s diary. Leaving aside how it can be that dates for the
continuation of proceedings in which counsel had already participated should not take
priority over cases in which he was yet to appear, this is again a matter for the appellant and
her advisers. It is apparent that the original 10 days allocated would never have been
sufficient to conclude the proceedings and the appellant’s advisers share responsibility for
 Several further matters might usefully be disposed of at this point. First, the
argument was advanced that the advice of the legal assessor lacked scrutiny, yet without
pointing to any alleged detriment to the appellant (the issue of whether the correct legal
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principles were followed by the panel will be dealt with separately). The fact is that the
advice was tendered openly and recorded, and both parties were asked whether they had
any submissions to make in respect of this, and neither did.
 Second, the appellant complains of the disclosure to the press of details of the
charges at a point where the hearing had not progressed beyond the reading of the charges,
and where no press or public were present. Again the appellant does not point to any
alleged detriment. In any event, the issuing of this information was in accordance with the
panel’s published guidance on the issue of publication which states (para 20) that “Once the
charges have been confirmed to the panel on the day of the hearing, these will be available
upon request”. The charges were read and confirmed on 14 February and the statement
was issued the following day.
 Third, the Nolan Principles have no bearing on the issue here: what is at issue is the
fairness of the proceedings.
 Fourth, the appellant’s arguments relating to the Disability Act are misguided: the
issue is whether the panel gave due consideration to the fact that the appellant was suffering
from a medical condition when assessing her conduct; and again when considering
 Fifth, although there seems to have been a disclosure issue at the outset of the first
hearing, the missing papers were supplied and counsel appeared satisfied that disclosure
had been made and the case could proceed. The appellant has not pointed to any problems
caused by missing documentation other than her comments in relation to a notebook. The
appellant raised an issue in relation to a personal notebook of hers in which she had
previously stated that she had made certain relevant entries relating to patients, citing two
Page 26 ⇓
points, (i) a general unspecified unfairness and (ii) an assertion that the panel’s treatment of
this issue showed that they inverted the onus of proof.
(i) Counsel for the appellant had been unaware of the existence of the notebook until it was
referred to in passing during the proceedings, which would seem to be odd if the appellant
considered it to be of value in her case. In any event, steps were taken to try to locate it by
both sides. The appellant apparently contacted those who had acted for her in the earlier
proceedings in which the book had been produced asking for a copy, but it seems that this
was not forthcoming. Counsel thereafter stated “I entirely accept that the NMC have
investigated the appropriate avenues and it may be that within the timescale of this hearing
the notebook is simply not going to turn up”. No further submission was made.
Furthermore, during the discussion which had taken place, counsel noted that the notebook
was relevant only to the care of patient C. In the course of the appellant’s evidence she was
asked about the notebook and whether she used it for any of her patients and she said “no”.
She said it mostly contained passwords and the like. However she then said it contained
one blood pressure reading but could not say whether it was for one of the patients whose
care the panel was addressing. Thus it appears that the notebook was of no relevance to the
case, and even if the patient in question was one of those to whom the case related patient
details are meant to be recorded in medical records not private notebooks. There were in
any event inconsistencies in the appellant’s position about this, she having said elsewhere in
her evidence that she used individual bits of paper to record some entries, and specifically in
relation to patient C. No issue of unfairness in our view arose from the fact that the
notebook could not be located.
(ii) The appellant asserts that the panel inverted the burden of proof, citing in support of
this the one reference to the notebook in the panel’s findings, as follows:
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“In a meeting with NHS […] on 15 November 2016 you stated that you documented
notes regarding Patient C in your own notebook, rather than Patient C's maternal
records. The panel did not have a copy of your notebook, nor did you produce it
It is impossible to view this as a general indication that the panel inverted the onus of proof,
especially when they specifically recognised in terms at page 31 that the onus lay on the
NMC, and impliedly recognised this throughout in the way they approached whether or not
individual charges had been established.
 Sixth, the appellant complains that the panel applied the standard of proof on a
balance of probabilities rather than beyond reasonable doubt. It is quite clear that the
former is the appropriate standard and the panel did not fall into error in this.
 Seventh, the appellant asserts that the advice of the legal adviser as to dishonesty
whilst referring to the test in Ivey v Genting,  UKSC 67 failed to acknowledge the root
of that test in Royal Brunei Airlines Sbd v Tan  2 AC 378, with the result that the panel
failed to apply Ivey as they should have done, and assess dishonesty on an objective basis. It
was a little difficult to follow this submission, since the passage from Ivey quoted by the
assessor comes from a paragraph in which the test in Royal Brunei is referred to. In the latter
Lord Nicholls, pointed out that
“The only answer to these questions lies in keeping in mind that honesty is an
objective standard. The individual is expected to attain the standard which would be
observed by an honest person placed in those circumstances. It is impossible to be
 The assessor, making reference to Ivey read a passage which identified the
importance of asking whether the conduct would be considered dishonest according to the
standards of ordinary decent people, which is the benchmark against which the panel
proceeded to assess the issue. We see no error in the advice given or the approach taken by
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 Eighth, the appellant made a submission that she was discriminated against in the
application of Rule 31 of the 2011 Rules, arising from the fact that the issue of admissibility
of the evidence of Ms 2, a matter to which we are about to turn, could not have been
determined in advance of the proceedings at an interim hearing, as can be done in England
and Wales or in Scottish proceedings which involve judicial case management. However,
the argument misunderstands the point. The point is not that a decision on admissibility
would not be open to a panel in Scotland, the only issue is as to the stage at which this can
be done. There is accordingly no merit in this argument.
 We turn to the remaining arguments which relate essentially to questions of the
nature and admissibility of evidence led before the panel. One of these issues related to the
fact that the NMC did not call the patients in question or the medical or nursing staff who
had been involved in their care, thus depriving the appellant of the opportunity to examine
these witnesses. This argument was also addressed under reference to Professional Standards
basis that the failure to call these witnesses was a breach of the duty to investigate cases
properly. There is a broader point about the nature of the evidence led, relating to the most
substantive point addressed in the appeal, relating to the evidence of Ms 2, and we deal with
it in that context. So far as these discrete points are concerned, however, it was a matter for
the NMC to decide what evidence to call in support of its case. If the appellant or her
advisers thought that there would be benefit to her in calling other witnesses she could have
done that herself. There were several ways in which the evidence from these witnesses
could have been secured. She could have arranged for signed statements to be taken by her
agents; she could have asked the NMC to arrange this with a view to seeing whether the
evidence might be agreed; she could have called the witnesses herself. As to the second
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point, that case involved an appeal by the professional body against a decision of the
committee of the NMC that there was no case for her to answer against X in respect of an
allegation that her fitness to practise as a nurse had been impaired by reason of misconduct,
in respect of possible non accidental injuries to a baby in her care. The issue was that the
decision not to proceed had been taken without proper inquiry; that no evidence had been
placed before the panel at all; and that the committee wrongly concluded that it could
uphold a submission of no case to answer at the instigation of the NMC without having
heard any evidence. It is difficult to see an analogy with those circumstances and those of
the appellant, and far less so with the obiter remarks in para 65 of the case, which were
referred to by the appellant. The appellant in the course of making the submission about the
failure to call the patients or other witnesses made reference to article 6(3) ECHR which of
course has no application in the present circumstances.
 That leads us to the remaining issue, relating to the evidence of Ms 2. It is worth
setting out some detail of the background to this submission. At the start of the original
hearing in February 2018 counsel for the appellant indicated that he had a matter he wished
to raise about the admissibility of the evidence of Ms 2, that might be appropriate to address
as a “preliminary submission” before she gave evidence. He did not state what that
submission would be, even in summary, and no notice of it had been given. The panel
decided not to hear the submission on the basis that it could be heard at a later stage (p158).
 It is worth noting at this stage that prior to the hearing a Case Management Form
dated 23 November 2018 was returned on behalf of the appellant. The form asks that the
registrant “Please set out below the details of any points of law or legal arguments you
intend to raise in respect of your case and any of the Nursing & Midwifery Council's
evidence which you say is inadmissible in these proceedings, with reasons”. This section of
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the form was left blank. There is a question which stated “Are you intending to rely on any
expert evidence?” The response on the form was “No”. At the outset of the first hearing
counsel indicated that part of the basis for a request to adjourn was that it was intended to
obtain an expert witness, but that was departed from on the same day when it was
explained that there was no intention to lead any expert evidence. The terms of NMC
guidance on the use of expert witnesses is also relevant. The Guidance states that the NMC
will usually instruct an expert if we need “specialised knowledge or expertise that we
cannot obtain locally”.
 It was against this background that the evidence of Ms 2 was led before the panel.
During the hearing, and prior to the evidence of Ms 2, an indication was made that there
was to be an objection on the basis of her experience and the suggestion that she was not an
expert. However, it was agreed between the parties that the panel should hear her evidence
to decide her level of expertise and specialisms before deciding on the application itself. No
indication was given of the general nature of the objection relating to her expertise; and
there was no suggestion that her evidence was being objected to on the basis of alleged
partiality arising from her involvement in the internal disciplinary investigation.
 The objection which was eventually made related to the “admissibility of [Ms 2’s]
evidence in so far as it contains expert evidence”. It was acknowledged that her evidence as
to the investigation which she conducted, the statements taken, interviews conducted for the
disciplinary hearing at which she was presenting officer, and the entries in the various
medical records were all admissible as factual evidence (appendix p1444). However, any
aspects of her evidence which did not address matters of fact, and strayed into opinion
failed to satisfy the test for admissible expert evidence as set out in Kennedy v Cordia, para 44
of which set out a four part test. It was accepted that parts i and iv were met: the evidence
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would assist the tribunal and there was a reliable body of evidence to underpin the expert
evidence. However counsel invited the panel “to consider carefully whether [Ms 2’s]
evidence in these areas meets the Kennedy criteria in respect of part ii, whether the witness
herself had the relevant expertise, and part iii whether she was impartial. As to the first of
these it was acknowledged that she possessed a detailed knowledge of policy and
procedure, but had not been involved in day to day midwifery since September 2016. As to
the second matter, the witness pursued an investigative and prosecutorial role against the
appellant through the internal disciplinary process, and had reached a concluded view
before the current procedure began. She was a partial witness and her opinion evidence
stemmed “from a flawed disciplinary process”. The nature of any defects in the process was
not specified. From the nature of the cross examination of the witness it appears to be based
on (i) the mere fact of her involvement in the internal investigation; (ii) the assertion that
others may also have been at fault but were not charged; and (iii) issues over whether she
had misinterpreted certain of the medical records, which is, if not a matter of fact, a matter
of fact and inference.
 The presenting officer submitted that the witness gave evidence as to fact as well as
some opinion evidence. As to the latter she clearly had the necessary qualifications. It was
unfounded to call the witness partial and there was no evidence of "a flawed investigatory
process". There is no evidence of her exaggerating or fabricating things to make out the
trust's case. She based any opinions offered, using her knowledge and experience, on her
assessment of the notes and also what was said to her by the appellant.
 The advice given by the legal assessor was that, the evidence having been admitted,
the matter was essentially one of weight. There was no method by which the admissibility
of the evidence could have been addressed in advance. The witness was competent to give
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evidence of fact. It was for the panel to determine whether the witness demonstrated
sufficient evidence that she was skilled in respect of the questions that were asked of her. In
such circumstances it was for the panel to determine whether or not it would be satisfactory
to find matters proven on the basis of that evidence. No comment was made on this advice.
 The panel accepted that the issue was essentially one of weight to be given to the
evidence. It was submitted that it was wrong to do so, under reference to para 51 of Kennedy
v Cordia that “the requirement of independence and impartiality is in our view one of
admissibility rather than merely the weight of the evidence”. We accept, of course, that the
question of partiality raises a question of admissibility of evidence, and that circumstances
may arise, even in proceedings such as these, where the matter arises very sharply as a point
of admissibility. A partial witness is not a witness who can give opinion evidence. It would
be reasonable to conclude, from the way the assessor referred to the inability to address the
admissibility of the evidence in advance and the fact that the evidence had already been led,
that the assessor was looking at the issue of admissibility in a somewhat narrow, technical
way, but that the advice to consider whether it would be satisfactory to find matters proven
on the basis of that evidence would encompass an assessment of whether the witness had
demonstrated a partiality such that her evidence could not be taken into account. It seems
clear to us that the panel, in accepting that advice, was not suggesting that, even if they
found partiality to be established, they would feel able to rely on the opinion evidence of the
witness and simply place her partiality in the balance when assessing the weight to be given
to her evidence. The panel assessed Ms 2 and found her:
“to be a credible and reliable witness. Her evidence was balanced, fair and
consistent, even under cross-examination. She demonstrated a high level of
professionalism, appeared very familiar with the documentation in use at the
Hospital, was an experienced midwife, and gave evidence regarding the Hospital's
midwifery standards and practices. Although Ms 2 worked in an operational
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management role at the time, she is a registered midwife and continued to support
the team clinically when necessary. The panel was therefore of the view that Ms 2
was well placed to give evidence regarding your conduct and the standards of care
expected from a midwife at the Hospital. The panel did not accept all of her
evidence. For example, it considered that to expect the recording of consent for the
examination of the perineum in the intrapartum period was perhaps a ‘platinum’
standard of recording and the panel was aware of current midwifery practice in
today's busy NHS.”
 It is apparent from the finding that the witness was balanced, fair, and consistent and
demonstrating a high degree of professionalism, that the panel rejected the submission that
the witness was biased. In our view they were right to do so. There was no basis in the
evidence to consider that she was partial. The fact that the appellant did not agree with
Ms 2’s interpretation of certain medical records, or the inferences she drew from them, does
not make her a partial witness. The fact that she might have been mistaken about these does
not make her a partial witness. The fact that she had been directly involved in the internal
investigation equally does not make her a partial witness. She had not been involved
previously with the appellant and was not her line manager. She was an independent senior
employee asked to conduct an internal inquiry and having the relevant expertise to do so.
The fact that she reached conclusions about that inquiry does not make her a partial witness,
so long as it appears that those conclusions represent the bringing to bear of her expertise,
objectively, to a particular set of facts. The reaching of conclusions does not make a witness
an advocate for one side or the other or render her partial.
 As to her experience, she had been a registered midwife since 2000. At the time of
giving evidence she had recently taken on the role as a senior midwife of practice
development in the hospital and medical school concerned, having previously been in an
operational management role in maternity services working in collaboration with a
multidisciplinary team to issue a safe delivery of person centred midwifery care. During
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that period she had been involved in clinical practice, and when not directly delivering care,
was writing guidelines, and writing protocols. Prior to that she had been seconded to a
national programme of work, Leading Better Care, designed to enable teams and leaders to
manage care safely. Prior to that she held a consultant midwife post and had held several
research midwifery posts. She had also been seconded at one point as a university lecturer
involved in the training of midwives.
 It is clear that she was well qualified to tender opinion evidence. It must be borne in
mind also that she was not giving evidence to a lay body. She was giving evidence to a
specialist tribunal who could and did bring their own expertise to bear on the issue. The
matters at issue were not complex, factually or otherwise. It should also be noted that of the
61 counts against her, the appellant admitted 14 of them; and the panel found another 12 to
be established largely on the basis of admissions which she herself had made in evidence. A
further 31 were established, and in the vast majority of these the basis for this was to be
found in the medical notes and the rejection of evidence given by the appellant. In only
about 12 instances is the evidence of Ms 2 specifically referred to, and only seldom in respect
of her opinion. It occasionally rejected Ms 2’s evidence as proposing an unduly high
standard. The panel therefore approached the issues in a discriminating manner as one
would expect from a speciality tribunal. When the panel went on to consider misconduct
and impairment it did so separately and sequentially, relying on its own professional
judgment, the Code, and relevant authorities.
 The panel heard and accepted the advice of the legal assessor and bore in mind that
any sanction imposed by it must be appropriate and proportionate and, although not
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intended to be punitive in its effect, may have such consequences. It had careful regard to
the Sanctions Guidance ("SG") published by the NMC; and identified a number of
aggravating and mitigating factors. The mitigating factors were identified and discussed.
On the issue of the appellant’s health, it noted that there was some evidence that the
appellant had displayed symptoms of the health condition averred by her around the time
of the events, but concluded, as they were entitled to do on the evidence, that there was
nothing to suggest that this would have impacted on her ability to practise safely and
effectively as a midwife. The respondent’s own guidance on sanctions notes that personal
mitigation, such as a matter of health, may be less relevant than within the criminal justice
system since sanctions in regulatory proceedings are to protect the public and not to punish
the individual. The panel highlighted both the aggravating and mitigating factors at the
outset of its consideration on sanction and it is in our view a reasonable assumption that it
had these in mind at every step of the process it then embarked upon.
 The submission that the panel failed to ensure that all other potential options of
sanction were explored before ordering strike off is simply incorrect. It considered each of
the options open to it in order of increasing severity. In view of the seriousness of the case,
it decided that it would be neither proportionate nor in the public interest to take no further
action. The appellant’s misconduct was not at the lower end of the spectrum, in view of the
seriousness of the case it would be neither proportionate nor in the public interest to impose
a caution order.
 With regard to the imposition of conditions the committee was of the view that there
are no practical or workable conditions that could be formulated, given the nature of the
misconduct in the case given there were multiple, serious and wide-ranging concerns in
respect of clinical midwifery practice, as well as serious concerns regarding attitude and
Page 36 ⇓
conduct. The appellant had failed to satisfy the committee that the conduct would not be
repeated. The committee had found the appellant to have been dishonest on two occasions,
and to have also tailored her evidence before it, in attempt to disguise the true nature of
events. It also took account of its finding that the ICOPO had been breached, which it
considered to be of the utmost seriousness. The committee determined that placing a
conditions of practice order would not adequately address the seriousness of this case, the
severity of the conduct and the appellant’s limited level of insight, nor would it sufficiently
protect the public, or satisfy the public interest considerations.
 The committee was of the view that the findings in this particular case demonstrated
that the appellant’s actions were serious as the misconduct involved four patients, two
instances of dishonesty, and working in breach of an ICOPO. The appellant had exposed
patients in her care to a significant risk of harm and had not demonstrated the care and
compassion necessary for midwifery practice. The committee considered that allowing the
appellant to maintain NMC registration would put the public at a continued risk of harm,
and would undermine public confidence in the profession and in the NMC as a regulatory
body. Considering all of these factors, the appropriate and proportionate sanction was that
of a striking-off order. We do not consider that the appellant has identified a basis upon
which we would be entitled to interfere with the decision on sanction. In all the