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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 >> Moseka v Nursing and Midwifery Council  EWHC 846 (Admin) (26 March 2014)
Cite as:  EWHC 846 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Rose Moseka
|- and -
|Nursing and Midwifery Council
Ian Brown (instructed by The Nursing and Midwifery Council) for the Respondent
Hearing dates: 19th February 2014
Crown Copyright ©
Mr Justice Green :
A. The issue
B. The facts
(i) The Parties
"The main objective of the Council in exercising its functions shall be to safeguard the health and well-being of persons using or needing the services of registrants".
(ii) The charges against the Appellant
1. On an unknown date in August 2009, completed and submitted an application for employment for the position of Staff Nurse Critical Care at Ealing Hospital NHS Trust ("the Trust") stating that you were not the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK, when you were
2. On 28 May 2010, you refused to perform a respiratory function test when asked to do so by Senior Staff Nurse Ms 3
3. On 22 June 2010 you did not keep adequate records in respect to Patient A, in that you:
a. Did not record patient A's overall fluid balance at the following times:
i) 16:00 hours
ii) 17:00 hours
iii) 18:00 hours
iv) 19:00 hours
b. Did not record patient A's respiratory status
c. Did not record any detail in respect to patient A's neurological status
4. On 22 June 2010, did not remove patient A's lignocaine patch that was due to be removed at 12:00 hours until 18:30 hours
5. On 29 June 2010:
a. Obtained 5% concentration of Dextrose fluid when asked to obtain 50% concentration of Dextrose fluid by Senior Staff Nurse Ms 6
b. Could not explain the difference between 50% and 5% concentration of Dextrose fluid
6. On 30 June 2010, removed a Kaltostat dressing when told not to do so by Senior Staff Nurse Ms 6
7. On 29 July 2010, you incorrectly recorded patient B's overall balance at 08:00 as -198ml when it was -1769ml
8. On 30 July 2010, you incorrectly recorded patient B's overall fluid balance as +2945ml when it was +1762ml
9. Your actions as set out in Charge 1 above were dishonest
And in light of the above, your fitness to practise is impaired by reason of your misconduct.
Decision to amend the charges
Before reading the charges, Ms Eales, on behalf of the NMC, made an application to amend charges 7 and 8. Ms Eales applied to amend the date contained in charge 7 from "29 July 2010" to "1 July 2010". She also applied to amend the date contained in charge 8 from "30 July 2010" to "30 June 2010".
Ms Eales submitted that these amendments would cause no injustice to you and are consistent with the evidence. Ms Eales referred the panel to Rule 28 of the Nursing and Midwifery (Fitness to Practise) Rules 2004.
Ms Maudsley, on your behalf, did not oppose this application".
(iii) The disciplinary proceedings/the application to amend the charges
"…having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice".
It is quite clear that the point in time when the application to amend was before that when findings of fact were made and, accordingly, the NMC had the power to amend the charges subject to any issue of injustice arising. As to the exercise of that power the CCC considered that the proposed amendments did not have any impact upon the "nature" of the charges against the Appellant and that she was not thereby disadvantaged in her ability to defend herself. The fact that counsel for the Appellant did not oppose the application was also taken into consideration. The CCC concluded that the proposed amendments would not cause any injustice to the Appellant and the amendments were thereby permitted. I refer to this because the grounds of appeal allege that some unfairness arose out of the lateness of the proposed amendments in question.
(iv) Findings in relation to charge 5b
"The panel found the evidence of Ms 6 to be clear and consistent. She was very balanced in her responses. She conceded that it was possible to pick up the wrong bag. She was clear however that she had questioned your understanding of the difference in the concentration levels. She maintained that she was so concerned that you were not able to explain the difference between the two levels of concentration that she raised this with you. The panel found her to be a credible witness in this regard.
By contrast, the panel found your evidence to be vague in regard to who identified that it was the wrong bag. At times you indicated that you realised your own mistake, later that Ms 6 might have pointed it out and finally that you both realised it at the same moment. The panel has therefore concluded that it is more likely that you were prompted to change the bag and that that gave rise to Ms 6 raising with you the difference between 50% and 5% concentration levels.
The panel therefore preferred the evidence of Ms 6 and concluded that you were prompted, the extent of your knowledge was questioned and you failed to explain the difference in concentrations. On the balance of probabilities, charge 5b is proved".
(v) Findings on charge 6
"The panel found Ms 6's evidence to be consistent, clear, balanced and credible. The panel were satisfied on the balance of probabilities that charge 6 had been made out. Accordingly it found charge 6 proved".
(vi) Findings on charge 9
"The panel found your evidence to be neither credible nor consistent. It found it unlikely that you would have delegated the completion of a document of this importance, requiring detailed responses to specific questions, to your young daughter, without there being significant input from you into its completion. Further your reluctance to complete the form on-line is inconsistent with your expressed competence in the use of computers as indicated in the application form. The panel does not accept your explanation for the omission from your application of your employment at St George's which may have given rise to questions about NMC proceedings. Your explanation to the Trust and the letter dated June 2010 indicates that you completed the form. It makes no mention of the involvement of your daughter.
The panel were satisfied that your account could not support your suggestion of carelessness and/or the negligent mistake on your part.
The panel was, therefore, satisfied that you had completed the application and had omitted to disclose that you were subject to a Fitness to Practise investigation or proceedings so that this information would not be discovered which was dishonest. Accordingly the panel found charge 9 proved".
(vii) Findings on misconduct and impairment/sanction
"There is nothing before the panel to reassure it that you are currently safe to practice unrestricted. Moreover it cannot be satisfied that such misconduct would not be repeated. Your misconduct was so serious that the panel has concluded that your Fitness to Practise is currently impaired. The panel is satisfied that the need to protect the public, to uphold proper professional standards and public confidence in the professions and in the NMC as the regulator would be undermined if finding of impairment were not made in this case. The panel has therefore concluded that your Fitness to Practise is currently impaired by reason of your misconduct".
"The panel concluded that you breached the requirements of honesty and trustworthiness which are the bedrock of the nursing profession, compounded by serious clinical failures. In the light of the serious nature of the misconduct and the real risk of repetition, given your previous dishonest conduct and lack of insight, the panel found your conduct to be fundamentally incompatible with continuing to be a registered nurse. It concluded that a suspension order would be neither appropriate nor sufficient as a sanction.
In reaching its decision the panel has weighed your interests including any financial impact that an order may have on you, against the interests of the public. It has determined that the only proportionate and sufficient sanction is a striking-off order. The serious nature of the matters proved is incompatible with continuing registration. Public confidence in the profession and the NMC could not be maintained if your name were not removed from the register".
C. The Law
(i) Nature of appeal
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court".
i) The appellate body has full jurisdiction on the appeal but this does not mean that it will, necessarily, not pay some deference to the fact finding function of the lower court or body (e.g. Priess paragraph );
ii) It will be unusual for the appellate body to hear oral evidence (e.g. Priess paragraph );
iii) In assessing the findings of fact of the lower court or tribunal the appellate court will have regard to the fact that the lower body is a specialist tribunal whose membership is selected for its experience in the subject matter of the matters before it (Meadow paragraph  per Auld LJ);
iv) The appellate tribunal will recognise that the lower court or tribunal has had the benefit of hearing and seeing the witnesses and is therefore in a better position to judge their credibility and reliability than is the appellate court. In Gupta Lord Rodger stated:"…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 the matters of fact taken by the first instant 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 in such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position". (ibid paragraph [10C]).
v) The same degree of judicial deference will not arise where the decision of the court or tribunal below is not based upon an assessment of the credibility or reliability of witnesses. For example where the appellate body is in materially the same position as the lower court or tribunal then it will be more inclined to form its own view on the facts or matters in issue.
vi) Accordingly to succeed upon an appeal the appellant will normally be required to demonstrate a procedural error before the NMC or in its decision.
"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act dishonestly in the future".
D. Grounds of appeal
E. Conclusions on the grounds of appeal
(i) Charges 1 and 9 (dishonesty)
(ii) Charge 5b
(iii) Charge 6 and 7
(iv) Remedies/striking off
(v) Supplemental points
i. Charge 2: She challenged charge 2 upon the basis that the error arose because she was not properly being supervised at the time. This is an admission of the error and, in effect, a plea in mitigation. The CCC heard the evidence and mitigation, including as to this argument. They were entitled and right to arrive at the decision that they did.
ii. Charges 3 and 4: She also challenged charges 3 and 4 upon the basis that the reason she failed to keep adequate records (charge 3) or remove the patch (charge 4) was because she had been sent elsewhere at the time to "cover an emergency job for another patient". This argument, which was merely asserted and unsupported by any corroborating material, is, moreover, inconsistent with the evidence tendered before the CCC. For example the hearing transcript relating to the charge 4 incident records Ms Moseka as saying that she could not recall the reasons for her omission. She said noting about being called away on an emergency. The CCC was perfectly entitled to treat her evidence before them as her valid evidence. I am not prepared to accept a subsequent and inconsistent asserted explanation.
iii. Charge 6: She challenged Charge 6 (the Kaltostat dressing) upon the basis that as recorded in the Decision the incident the subject of the charge is said to have occurred on 30 June 2012, which is well over a year after she had left the hospital. However, the actual charge sheet (which is correctly recorded in the transcript of day 1) clearly identifies the date for the alleged event as being 30th June 2010. That was the charge that Ms Moseka was required to meet and did address. She was not misled. The date in the Decision is merely a typographical error. It is an irrelevance to the merits of the case.
iv. Charge 7: Ms Moseka added a point in relation to charge 7 which was that the charge sheet referred to a failure on 1st July 2010. Ms Moseka stated that her shift had finished at 07.30am and that therefore she did not record the patient's overall balance at 08.00am. This was a charge that Ms Moseka had admitted during the hearing. The point she made on appeal was, with respect, wholly unclear and in any event inconsistent with her earlier admission. There is no basis upon which I can properly disturb the CCC's reliance upon that admission.
v. Charge 8: In relation to charge 8 (which she had also hitherto admitted) she now says that it could not have been her who recorded the erroneous figures because she had studied Intravenous Drug Administration previously and it is not the sort of mistake she could have made. Whether her explanation about the courses she had studied are true or not it does not affect the CCC's findings which was based upon an admission. The new argument is mere assertion which is unsupported by any evidence. Nor does it actually demonstrate that no error was made. It would not be proper from me to depart from the CCC's acceptance of the admissions made to it.