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Cite as: [2015] EWHC 1872 (Admin)

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Neutral Citation Number: [2015] EWHC 1872 (Admin)
Case No: CO/3292/2014

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
01/07/2015

B e f o r e :

THE HONOURABLE MR JUSTICE PICKEN
____________________

Between:
SUSAN OKAFOR

Appellant
- and -


NURSING AND MIDWIFERY COUNCIL



Respondent

____________________

The Appellant in person.
Miss Aja Hall (in-house counsel at the Respondent) for the Respondent
Hearing date: 17 June 2015

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    The Honourable Mr Justice Picken:

    Introduction

  1. This is an appeal by Susan Okafor ("Miss Okafor") under Article 38 of the Nursing and Midwifery Order 2001 against a decision of a panel of the Conduct and Competence Committee ("the Panel") of the Nursing and Midwifery Council (the "NMC") made on 18 July 2014 that Miss Okafor's fitness to practise was impaired, and that she should, as a result, be struck off the register pursuant to Article 29(5)(a) of the 2001 Order.
  2. The background facts

  3. The proceedings before the Panel entailed three broad allegations of misconduct and lack of competence:
  4. (1) The first related to an incident on 15 July 2009, whilst Miss Okafor was working on the Joseph Barnes Ward at the Chelsea and Westminster Hospital, and consisted of allegations that Miss Okafor failed properly to care for a patient, Patient A, who was in labour.

    (2) The second related to an incident on 25 March 2011, when Miss Okafor was working on the Labour Ward at the same hospital and entailed a complaint that Miss Okafor recorded in a document that she had completed an assessment of a patient on four occasions when, in fact, she had only done so on two occasions. This incident also involved the allegation that Miss Okafor had stated to her clinical mentor that "you're not God" or words to that effect.

    (3) The third set of allegations concerned the period between 20 April 2010 and 8 April 2011, whilst Miss Okafor was employed as a Band 6 midwife at the Chelsea and Westminster Hospital, and comprised various charges that she failed to demonstrate the standards of knowledge, skill and judgment required to practise without supervision as a Band 6 midwife.

    The allegations referred to in sub-paragraphs (1) and (2) above were misconduct allegations, whereas (3) concerned Miss Okafor's competence.

  5. The hearing before the Panel spanned 24 days and took place on various dates between 4 November 2013 and 18 July 2014. It was a hearing which Miss Okafor attended throughout, save for the impairment stage and save also on the last day when the Panel announced its sanction.
  6. Following the hearing, the NMC wrote to Miss Okafor on 23 July 2014. In this letter ("the Decision Letter"), which was 58 pages long, very detailed reasons were given for the Panel's decision, both in relation to fitness to practise and in relation to the decision to impose the sanction of striking-off.
  7. The Panel's conclusions are very usefully summarised by Miss Aja Hall, counsel for the NMC, in paragraphs 5 to 22 of her skeleton argument. I draw on that summary in what I set out below. I should make it clear, however, that I have studied the Decision Letter in considerable detail, and that I have not merely relied on Miss Hall's summary. I have also had regard to Miss Okafor's equally helpful (albeit undated) document described as "Rationale for points of resistance to document dated 4 June 2015" document (the "Rationale Document"). In that document, in a number of places, Miss Okafor explained why she disagrees with the Panel's factual findings, but she does not appear to disagree that Miss Hall's summary accurately sets out what the Panel decided.
  8. As I have previously mentioned, at the time of each of the allegations, Miss Okafor was working for the Chelsea and Westminster Hospital, more accurately for the Chelsea and Westminster Foundation Trust, as a Band 6 midwife on a rotational part-time contract.
  9. As to the first of the incidents, the incident which took place on 15 July 2009, the NMC's case, which was accepted by the Panel in the findings which were made, was as follows:
  10. (1) Patient A attended the Josephine Barnes Ward for an induction of labour. Miss Okafor recorded that Patient A was admitted to the ward at 10.30 am, the NMC's case being that Miss Okafor then became responsible for the care and treatment of this patient.

    (2) Ms Julie Hanley (described in the Decision Letter as "Ms 7") was the midwife in Charge of the Josephine Barnes Ward on that day. She took charge of A Bay and gave responsibility for B Bay to Miss Okafor.

    (3) At about 1.00 pm Ms Hanley looked into B Bay to check on Patient A, only to find that Miss Okafor was not in attendance and that Patient A was hyper-stimulating. Hyper stimulation is a possible side-effect of prostaglandin, a medicine which is used to induce labour.

    (4) Ms Hanley considered that Patient A was having too many contractions, looked quite distressed and was breathing heavily. Ms Hanley, accordingly, informed Miss Okafor, who was at the nurses' desk, that she needed to keep a close eye on Patient A. Ms Hanley also informed Miss Okafor that she needed to carry out a long trace on the cardio tachograph (or CTG) to assess foetal well being, specifically to see how the baby was coping with the hyper-stimulation.

    (5) It was then alleged that Ms Hanley returned to the nurses' station but was unable to find Miss Okafor. Ms Hanley, therefore, returned to B Bay, only to find Patient A sitting upright in her chair alone with the CTG still attached, but with contact with the foetal heart rate lost.

    (6) Ms Hanley checked the CTG monitor, discovering that it had not recorded a trace for at least 50 minutes. Ms Hanley ensured that Patient A returned to her bed, where a trace was picked up by the CTG monitor straight away. The foetal heart rate was found to be fine. Patient A was told that a doctor was being called to assess her and that she would be transferred to the Labour Ward.

    (7) Ms Hanley was unable to comment on foetal well being, owing to the loss of contact on the CTG. Ms Kidd, a Senior Midwife and Maternity Co-ordinator, was concerned about this and so asked Ms Hanley to inform Miss Okafor that she should stay with Patient A and monitor the foetal heart rate appropriately. Ms Kidd then called the consultant obstetrician on duty, so that Patient A could be reviewed.

    (8) Ms Kidd then went to discuss the transfer of Patient A with Ms Hanley. Instead of going straight to Patient A to transfer her to the Labour Ward, Miss Okafor followed Ms Kidd to the desk where Ms Hanley was and, so it was alleged by the NMC, refused to go to Patient A.

    (9) When asked why she was doing this, it was alleged that Miss Okafor responded by saying that she did not need to got to Patient A as she was being monitored.

    (10) Ms Kidd then requested that Miss Okafor take her to Patient A so that an introduction could be made. When they entered the room, they found Patient A sitting in a chair in distress and with no monitoring in place.

    (11) Miss Okafor was then asked to stay with Patient A for 10-15 minutes, in order to ensure appropriate monitoring was carried out whilst another midwife was found to take over the care of Patient A. It was alleged by the NMC that Miss Okafor refused to do this.

  11. In these circumstances, Charge 1 before the Panel was put in these terms:
  12. "1. On 15 July 2009 whilst working on the Josephine Barnes Ward, [you]:

    (a) Did not stay with patient A in order to monitor the fetal heart rate despite being informed by Senior Midwife (Ms7) that:
    i. Patient A may have been hyper-stimulating;
    ii. Patient A needed a CTG trace;
    (b) Left the ward and/or went for a lunch break without:
    i. informing the senior midwife in charge, (Ms 7)
    ii. handing over the care of patient A to (Ms 7)
    (c) (i) Documented in Patient A's induction of labour proforma that you had handed over Patient A's care to (Ms 7) before going on your lunch break when you had not;
    (ii) Your conduct at (i) above was dishonest;
    (d) Refused to care for Patient A for 10 to 15 minutes after Patient A's transfer to the Labour ward to ensure appropriate assessment of fetal wellbeing;
    (e) Informed (Ms1) of the Trust that Patient A was being monitored when she was not".
  13. Miss Okafor did not accept that she had misconducted herself in any of the ways referred to above. She was insistent that all that was entailed in relation to the incident on 15 July 2009 was a "communication problem". She was adamant, before me as well as before the Panel, that she had done nothing wrong and that the incident was, as she repeatedly put it, only "minor".
  14. The Panel did not agree with Miss Okafor about this. The Panel, accordingly, found that the charges against Miss Okafor in respect of the incident on 15 July 2009 were all proved.
  15. The Panel then went on to consider the second and third sets of allegations, which were the subject of Charges 2 and 3 respectively and which stemmed from the investigation which was undertaken following the 15 July 2009 incident a supervisory investigation performed by a Ms Hancock, Supervisor of Midwives at the Chelsea and Westminster Hospital. This investigation included an interview between Ms Hancock and Miss Okafor on 9 September 2009.
  16. The investigation was completed by Ms Hancock three months later, on 9 December 2009. The investigation found that Miss Okafor had a number of deficiencies in her practice as a midwife, in particular that she had failed adequately to monitor the foetal heart rate and contractions during Patient A's labour. Ms Hancock also found the Miss Okafor had demonstrated a lack of insight in relation to the incident. Accordingly, Ms Hancock concluded that Miss Okafor should undertake a period of supervised practice.
  17. On 20 April 2010 a Supervised Practice Programme was commenced by the Local Supervisory Authority of London, with Ms Hancock responsible for arranging this programme and acting as an intermediary between the Local Supervisory Authority and Miss Okafor and her clinical mentor.
  18. The aim of the programme was to provide Miss Okafor with a formal process which developed and assessed her competency in order for her to return to working competently without direct supervision. As such, the programme required Miss Okafor to demonstrate the competence of a newly qualified midwife, scored at Level 3, in relation to various proficiencies, including effective communication, the use and interpretation of CTG and documentation/record keeping.
  19. On 12 August 2010, an End of Programme meeting was held, at which Miss Okafor was informed that she had not successfully completed the programme and did not meet the level of a newly qualified midwife in the proficiencies outlined. Miss Okafor was also informed that she had not successfully completed the theory aspect of the programme, which took the form of a reflective essay on the 15 July 2009 incident.
  20. Five days later, on 17 August 2010, a final meeting in respect of the programme was held, during which the Local Supervisory Authority Midwife Officer was informed, the NMC alleged for the first time, by Miss Okafor that she had been diagnosed with a health condition (as Miss Okafor explained to me, cancer) two to three months previously. In the circumstances, Miss Okafor's GP having confirmed that she was, indeed, suffering from cancer, the Local Supervisory Authority Midwife Officer recommended that an Extended Supervised Practice Programme should be undertaken by Miss Okafor once she was cleared as fit to return to work.
  21. On 31 January 2011, Miss Okafor commenced this Extended Supervised Practice Programme, during which she was allocated mentors and had the opportunity of working with colleagues, being supervised and supported by those colleagues. The learning objectives laid down for this programme included various aspects which I need not describe in detail, other than to note that they included the demonstration of good record keeping and documentation, as well as the demonstration of team working and collaborating with colleagues.
  22. On 28 February 2011, a halfway meeting was held to discuss Miss Okafor's progress. A number of concerns were raised with her at this meeting relating to her clinical practice.
  23. The following month, on 25 March 2011, whilst working on the Ward, a further incident involving a Senior Midwife and Labour Ward Co-ordinator at the Chelsea and Westminster Hospital and one of Miss Okafor's clinical mentors during the Extended Supervised Practice Programme. This, the NMC alleged before the Panel, arose out of a discussion between Miss Okafor and the Senior Midwife and Labour Ward Co-ordinator, concerning the fact that Miss Okafor had documented that she had completed an assessment of a patient, Patient D, on four occasions when, in fact, she had carried out the assessment on only two occasions. Miss Okafor was alleged to have told the Senior Midwife and Labour Ward Co-ordinator that "you're not God" or words to that effect.
  24. On 29 March 2011, Miss Okafor completed her final supervised shift. The next day, 30 March 2011, an End of Programme Meeting was held, at which Miss Okafor was informed that she had not successfully completed the clinical supervision aspect of the programme as neither of her two Clinical Mentors had passed her as competent in all four learning outcomes specified for that Programme.
  25. On 8 April 2011, a further meeting was held to discuss the academic side of Miss Okafor's programme. She had submitted a summative essay which had been marked as a fail. Accordingly, Miss Okafor was informed that she had failed the academic side of the programme also.
  26. Against this background, Miss Okafor was charged as follows:
  27. "2. On 25 March 2011 whilst working on the Labour Ward [you]:

    a. Documented that you had completed an assessment of a patient on four occasions when in fact you had only carried out the assessment on two occasions;
    b. Your conduct at (a) above was dishonest;
    c. Stated to your clinical mentor (Mrs 2) 'you're not God' or words to that effect;

    3 While employed as a Band 6 midwife by the Hospital [you] failed to demonstrate the standards of knowledge, skill and judgment required to practise without supervision as a Band 6 midwife on or between 20 April 2010 and 8 April 2011 more specifically [you]:

    (a) On or between 20 April 2010 and 12 August 2010 failed to successfully complete your supervised practice programme, in that you were unable to demonstrate that you were able to:
    (i) Effectively use the CTG;
    (ii) Effectively communicate;
    (iii) Maintain appropriate records;
    (b) Were unable to demonstrate timely and appropriate assistance when there was a deviation from the norm and/or in an emergency situation on the following occasions:
    i. 2 February 2011;
    ii. 8 February 2011;
    iii. 26 February 2011;
    iv. 7 March 2011;
    v. 11 March 2011;
    vi. 16 March 2011;
    vii. 25 March 2011;

    (c) Were unable to demonstrate appropriate skills as per NICE guidelines in the interpretation and documentation of the fetal heart rate in relation to the cardiotocograph ("CTG") on the following occasions:

    i. 8 February 2011;
    ii. 26 February 2011;
    iii. 7 March 2011;
    iv. 11 March 2011;
    v. 16 March 2011;
    vi. 25 March 2011;
    vii. 29 March 2011;

    (d) Were unable to demonstrate good record keeping and documentation on the following occasions:

    i. 6 February 2011;
    ii. 26 February 2011;
    iii. 7 March 2011;
    iv. 11 March 2011;
    v. 16 March 2011;
    vi. 18 March 2011;
    vii. 25 March 2011;
    viii. 29 March 2011;

    (e) Were unable to demonstrate team working and collaboration with colleagues to an appropriate standard on the following occasions:

    i. 2 February 2011;
    ii. 8 February 2011;
    iii. 26 February 2011;
    iv. 7 March 2011;

    (f) Were unable to meet the required standard in the academic component of the extended programme of supervised practice;

    And in light of (1)-(2) [a reference to Charge 1 as set out earlier and to Charge 2 as set out here] above, your fitness to practise is impaired by reason of your misconduct and/or in light of (3) above your fitness to practise is impaired by reason of your lack of competence."

  28. Miss Okafor did not accept that Charges 2 and 3 were justified. She insisted, in particular, that she should not have been put on the Supervised Practice Programme nor the Extended Supervised Practice Programme, but that she should have been made the subject of a development programme instead. She complained also that, in being placed under supervision, she was told by those in charge of the supervision in advance of her starting the programme that she was going to fail it. She went on to explain that the Extended Supervised Practice Programme was not properly documented and, further, that the reason why she failed the academic aspect of that programme was that her academic mentor was not properly qualified and did not, as a result, do what ought to have been done to ensure that she passed.
  29. Notwithstanding Miss Okafor's various objections, the Panel found that these further charges were proved, albeit as regards Charge 3 not in relation to all the dates set out in that charge. I need not set out all the details here. I should, however, highlight the fact that in relation to two of the charges found proved by the Panel, the Panel found that Miss Okafor had been dishonest. I refer here to Charge 1(c), namely that Miss Okafor had documented in Patient A's Induction of Labour Proforma that she had handed over Patient A's care to Miss Hanley before going on her lunch break, when she had not done so, and to Charge 2(a), namely that Miss Okafor had documented that she had completed an assessment of a patient on four occasions when, in fact, she had only carried out the assessment on two occasions. As set out above, Charge 1(c) related to the 15 July 2009 incident, whereas Charge 2 related to the 25 March 2011 incident.
  30. Having made these various findings, the Panel went on (as set out in the Decision Letter) to reach its decision on impairment. The Panel concluded as follows in relation to the two misconduct charges, namely Charges 1 and 2 (see pages 48 to 49 of the Decision Letter):
  31. "The panel considered the facts of charge 1. On 15 July 2009, Patient A was in Miss Okafor's care at a time when her condition gave rise to concerns that she was hyper-stimulating. [Miss Hanley], in her evidence, explained that, when a patient is hyper-stimulating, there is no break between the contractions which results in a reduced blood flow to the baby. It was essential, therefore, to continuously monitor the fetal heart rate to check if the baby was in distress. Miss Okafor, despite being aware of Patient A's unstable condition and the potential risk to Patient A and her baby, did not stay with her. Instead she left the ward to go on her lunch break without informing the senior midwife in charge. She did not hand over the care of Patient A and falsely documented that she had done so in Patient A's records. Not only was this poor and dishonest practice but exposed both Patient A and her baby to a risk of serious harm.

    A doctor assessed Patient A and recommended her immediate transfer to the Labour Ward to secure continuous monitoring of Patient A and her baby's condition. Whilst knowing this, Miss Okafor refused to accompany Patient A to the Labour Ward or to remain with her. This is despite the request being made by the senior midwife on the ward. The panel listened to Miss Okafor's explanation that she needed to ensure the care for her other patients. However, the panel was satisfied that this in no way excused her very argumentative response to her colleague and senior, particularly as this took place in the clinical area. This demonstrated an inability and unwillingness to cooperate with colleagues and a failure to uphold the standards of the professions.

    In relation to charge 2 Miss Okafor did not conduct the assessments of the patient at the intervals required. Subsequently she falsely and dishonestly completed the patient's records indicating the assessments had been undertaken at the relevant time, whilst knowing this was not the case. During the hearing Miss Okafor, whilst admitting that she had falsified the records, did not demonstrate understanding or remorse as to the potential serious consequences for patients or colleagues of such action. Indeed, she became overly aggressive with her mentor when this was pointed out. It is the panel's opinion that the maintaining of accurate and contemporaneous records is crucial for the on-going safe treatment of patients.

    In the panel's view there were indications of attitudinal and behavioural issues on Miss Okafor's part. In particular, her dishonest conduct in tampering with patient records and in not ensuring contemporaneous records were made, had the potential to expose patients to risk of harm. Miss Okafor did not make the care of Patient A or Patient D her first concern, did not work co-operatively with her colleagues and acted dishonestly in a professional and clinical environment.

    The panel concluded that Miss Okafor's conduct as found proved in charges 1 and 2 involved serious breaches of the NMC Code and amounted to misconduct."

  32. In relation to Charge 3, concerning lack of competence, the Panel found as follows (page 50):
  33. "The panel considered that Miss Okafor lacked the capacity to listen, to learn and to achieve consistently in her practice the standards and skills required of a registered midwife, Band 5 or 6. The panel also formed the view that she lacked understanding of and insight into the deficiencies in her practice. The panel noted that her failings persisted despite extensive support from mentors and colleagues. Taking account of all these factors, together with the facts found proved, the panel was satisfied that Miss Okafor's failing amounted to a lack of competence."

  34. The Panel then went on, having found that "that the breaches of the Code was serious and amounted to misconduct and lack of competency", to consider the question of impairment. The Panel concluded as follows (pages 51 to 52):
  35. "The panel was satisfied that Miss Okafor's acts and omissions which characterised her misconduct, had put patients at unwarranted risk of harm, brought the professions into disrepute and breached fundamental tenets of the profession.

    The panel also found that her failure to demonstrate standards of knowledge, skill and judgment required to practise without supervision had brought the midwifery profession into disrepute. The public is entitled to expect midwives to deliver high standard of patient care at all times.

    The panel was satisfied that Miss Okafor had breached fundamental tenets of the nursing and midwifery professions by failing to make the care of people her first concern, failing to work with others to protect and promote the health and well-being of those in her care, failing to provide a high standards [sic] of practice and care at all time, and acting dishonestly.

    The panel concluded that Miss Okafor's dishonesty, which took place in the course of her practice as a registered midwife, undermined the trust which the public is entitled to expect of the nursing and midwifery professions.

    The panel went on to consider the question of whether Miss Okafor is likely to repeat similar conduct and clinical failings in the future. The panel has received no evidence of remediation or insight into her failings and inadequate practice. The panel has concluded that there is a significant risk of repetition.

    The two witnesses brought on behalf of Miss Okafor's case attested to her honesty and how she could be a very caring person. During the hearing, when not under pressure, Miss Okafor would be charming and engaging. However, throughout her evidence the panel found Miss Okafor to be inconsistent and incongruent to the point that it appeared to be misleading, fabricated and dishonest.

    The panel further considered that Miss Okafor's clinical failures and lack of competence were potentially capable of being remedied. However, her misconduct and dishonesty are much more difficult to remedy given the underlying attitudinal and behavioural problems. The panel had received no evidence that Miss Okafor has taken any steps to address her shortfalls. On the contrary, the panel noted that even during the hearing she attempted to rationalise her actions by shifting the blame onto others and criticising the supervised programmes that had been designed to support her. The panel considered that Miss Okafor rejected any accountability and responsibility for her clinical shortfalls. The panel could not be satisfied that Miss Okafor had developed a clear understanding of the consequences for patients or colleagues of her lack of competence or of her misconduct. The panel was not satisfied that she has developed insight or remedied her failings. The Panel has received no relevant evidence, including any professional references or testimonials, to reassure it that Miss Okafor is now safe to practise unrestricted.

    The panel concluded that Miss Okafor is likely to repeat clinical failures and to act contrary to the fundamental requirements of the professions in the future. The panel therefore concluded that there remains a high risk of repetition with consequential risk of harm to patients and further damage to the trust in which the professions are held.

    The panel was 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 a finding of impairment were not made in this case.

    The panel has, therefore, concluded that Miss Okafor's fitness to practise is currently impaired by reason of her misconduct and by reason of her lack of competence."

  36. The Panel then went on to consider the question of sanction, concluding that none of the alternative sanctions to a striking-off order (taking no action, a caution order, a conditions of practice order, or a suspension order), was appropriate and stating as follows (page 56):
  37. "The panel concluded that the proportionate sanction in this case is a striking-off order. Such an order is necessary to maintain standards within the profession and public confidence in the NMC as regulator. The seriousness of the matters found proved, in particular the identified risk of repetition and consequent risk of harm to patients which has not been addressed, in the panel's view is incompatible with ongoing registration. The panel has decided to make a striking-off order. ".

    Miss Okafor's grounds of appeal

  38. Miss Okafor's grounds of appeal were set out in an eight-page document dated 20 August 2014. They were supplemented by Miss Okafor's skeleton argument dated 21 May 2015, which ran to 16 pages, as well as by the Rationale Document, a document which was 13 pages long. At the hearing, I was also provided with a further, four-page, document which Miss Okafor used to assist her in her oral submissions. Those oral submissions lasted in the order of four hours.
  39. There can be no doubt that Miss Okafor had a full and complete opportunity to present her case. Indeed, Miss Okafor expressly acknowledged that this was the case in a further document which she submitted after receiving a copy of this judgment in draft. That document had thirteen pages and did not deal with typing errors or other obvious errors, as it should have done (in fact, there were no such errors identified at all), but instead quite impermissibly consisted entirely of yet more submissions mainly directed towards factual matters which were the subject of adverse findings by the Panel. Although I confirm that I have read the document, I did not find it helpful to receive submissions (largely repeated from what had gone before) after a hearing at which, I repeat, Miss Okafor had a full opportunity to state her case and after I had produced, in draft, and within just a few days of the hearing, a detailed and fully reasoned judgment in which I dealt with Miss Okafor's submissions at considerable length. The purpose of letting parties have judgments in draft is not to provoke post-hearing submissions from a party who disagrees with what is contained in the draft judgment. This applies as much to unrepresented parties as it does to those who are represented.
  40. A convenient summary of Miss Okafor's grounds of appeal was set out in paragraph 35 of Miss Hall's skeleton argument, with which Miss Okafor did not take issue. Indeed, admittedly at my prompting in order to ensure that nothing was missed, it was to this summary (as well as the document which Miss Okafor handed up at the hearing) that Miss Okafor's submissions were primarily objected. Paragraph 35 sets out the grounds of appeal in the following terms:
  41. "i) The delay between the referral and the final hearing resulted in a breach of Article 6.

    ii) The charges changed from the initial allegations.

    iii) The panel erred in proceeding in [Miss Okafor's] absence on the final day of the hearing.

    iv) The panel erred in applying the wrong test for dishonesty and the findings of dishonesty that followed were wrong.

    v) The panel erred in not giving the appropriate weight to Veronica Henry's evidence.

    vi) The panel was wrong to exclude evidence.

    vii) The panel discriminated against [Miss Okafor] on the grounds of disability.

    viii) The panel's finding on impairment was wrong.

    ix) The mentor allocated to the academic programme was not suitably qualified.

    x) The sanction imposed was unreasonable and disproportionate."

    The Law: approach on appeal

  42. Before addressing the points made by Miss Okafor, and Miss Hall's various responses, it is convenient to set out certain relevant legal principles. Again I have been assisted in this respect by Miss Hall's skeleton argument, specifically paragraphs 24 to 34. I need, however, also to refer later on to an authority on which Miss Okafor placed heavy reliance, namely Okeke v Nursing and Midwifery Council [2013] EWHC 714 (Admin), a decision of Leggatt J.
  43. As to the various authorities cited by Miss Hall, it seems to me, in fact, that I can confine myself in this judgment to reference to just one case, namely Cheatle v GMC [2009] EWHC 645 (Admin), in which Cranston J reviewed certain authorities (including Meadow v GMC [2006] EWCA Civ 1390 and Fantnani and Raschid v GMC [2007] EWCA Civ 46, two of the cases cited by Miss Hall), before going on to say this at [15]:
  44. " The test on appeal is whether the decision of the Fitness to Practise Panel can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. In any event grave issues are at stake and it is not sufficient for intervention to turn or confined the grounds of public law review such as irrationality. However, in considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals, issues of professional judgment may be at the heart of the case. Raschid was an appeal on sanction and in my view professional judgment is especially important in that type of case. As to findings of fact, however, I cannot see any difference in the court's role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing. Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference would depend on circumstances. One factor may be the composition of the tribunal. In the present case the Panel had three lay members and two medical members. For what I know the decision the Panel reached might have been by majority, with the three lay members voting one way the two medical members the other. It may be that some at least of the lay members sit on Fitness to Practise Panels regularly and have imbibed professional standards. However, I agree with the submission for the appellant in this case that I cannot be completely blind to the current composition of Fitness to Practise Panels."

  45. To this I would add reference to a more recent decision, namely Bhatt v GMC [2011] EWHC 783 (Admin) in which at [9] Langstaff J said this in relation to the approach to be adopted by the Court on appeal:
  46. "(i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

    (ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;

    (iii) the court should accordingly be slow to interfere with the decisions of the matters of fact taken by the first instance bodies;

    (iv) findings of primary fact, particularly if founded upon assessment of the credibility of witnesses, close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;

    (v) but that where what it concerns is a matter of judgment and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be 'wrong' or procedurally unfair. ".

  47. I mention these authorities because much of what Miss Okafor had to say by way of submission (including in her post-hearing submissions after receiving a copy of this judgment in draft) entailed an invitation to me to disturb findings which the Panel was entitled to make based on the substantial body of evidence which it heard. It was apparent that Miss Okafor did not agree with the Panel's findings. What was rather less apparent was why Miss Okafor considered it legitimate or appropriate that I should depart from those findings. In truth, there is no basis for me doing so, and Miss Okafor's efforts to re-open the Panel's factual findings were wholly without merit.
  48. I will come on to deal with the Okeke case later when addressing ground (x) of Miss Okafor's grounds of appeal, a ground which is concerned with the appropriateness of the striking-off sanction ordered by the Panel in this case, at the same time dealing also with certain other authorities cited by Miss Hall in relation to that topic. Likewise, I shall deal with the authorities on dishonesty in the context of the fourth ground of appeal.
  49. The grounds of appeal

  50. I come on in a moment to address the specific points raised by Miss Okafor in support of her appeal. Before doing this, however, I should highlight the fact that there was a tendency on the part of Miss Okafor in her oral submissions to complain not about the Panel's decision but about actions taken either by her employers, the Chelsea and Westminster Hospital, in response to the incident on 15 July 2009 or during the periods when she was the subject of the two supervision programmes which followed that incident, or by the NMC in its investigation of the allegations which came to be the subject of the charges which were considered by the Panel. As accepted by Miss Okafor in her post-hearing submissions document, albeit that that document itself contained continued complaints about actions of the type to which I have referred above, these actions have nothing whatever to do with the Panel and, as such, provide no basis for Miss Okafor's appeal.
  51. Ground (i): delay between the referral and the final hearing allegedly resulting in a breach of Article 6

  52. It was not entirely clear from Miss Okafor's skeleton argument whether her complaint that there has been delay in her case related to the entirety of the period from referral to the NMC by the Local Supervisory Authority for London in April 2011, right up until the beginning of the hearings before the Panel, or whether the delay complained about related to only part of this period, or, indeed, whether the delay related to some other period.
  53. In the Rationale Document, however, Miss Okafor clarified that she does not complain about the fact that the NMC is under a statutory duty to provide registrants with 28 days' notice prior to a confirmed hearing date. Nor, she confirmed, does she complain that there was an adjournment of the hearing because of matters relating to Panel members having a conflict of interest.
  54. It emerged during Miss Okafor's oral submissions, and in the document which she handed up at the hearing, that Miss Okafor's primary complaint is, in fact, that her employers, the Chelsea and Westminster Hospital, had taken too long investigating the 15 July 2009 incident. Miss Okafor complains that the initial investigation by Ms Hancock took too long, lasting some six months. This, however, has nothing to do with the Panel and so I reject this criticism.
  55. Miss Okafor's point does, however, link with a more general objection which she makes, which is that the hearing before the Panel ought to have taken place sooner than it did. Miss Okafor pointed out that she was the subject of an Interim Suspension Order for a period of over three years by the time that the Panel's decision had been reached. All in all, the point which Miss Okafor made is that the delay in this case resulted in what she described as "a stale trial". In making this submission, Miss Okafor was inclined, at least initially, to overlook the fact that there was at one stage, in April 2013, an adjournment in order to allow her time within which to obtain legal representation.
  56. Be that as it may, even if there was delay in Miss Okafor's case, it is nonetheless quite clear that there were not the difficulties which Miss Okafor suggested before me. When I asked Miss Okafor why, more specifically, she maintained that the trial was stale, she asserted that "a lot of the witness statements had changed accounts of events", adding that had the hearing taken place earlier, "then the memory of witnesses would have been clearer". She then referred to certain witnesses, whom she did not identify, saying that they could not recall things clearly, before adding that she had spoken to some potential witnesses who could not assist because they could not remember relevant events.
  57. I do not regard this as a good ground of appeal. I agree with Miss Hall that it cannot be said in the present case that the matter was "stale" by the time that the Panel was considering it. There is no indication that witnesses were unable to recall incidents or that they struggled to give complete evidence in relation to the various charges faced by Miss Okafor, still less that any lack of recollection (if there was any) was caused by the delay about which Miss Okafor complains. Miss Okafor did not point me to any specific matter in this respect. This was despite my giving her the opportunity to be specific. Miss Okafor was vague in the extreme. Nor, I might add, can it be said in the present case that Miss Okafor herself was unable to recall maters. On the contrary, as demonstrated by the fulsome submissions made by Miss Okafor (including in the post-hearing document with which I was provided), she has a very clear recollection of relevant events. This is in contrast to the position in, for example, the Okeke case, on which Miss Okafor placed heavy reliance in her post-hearing document.
  58. I agree also with Miss Hall that a number of the allegations which the Panel had to consider involved documents and not exclusively witnesses having to trawl the depth of their memories.
  59. I might add that inasmuch as Miss Okafor's complaint is that she was exposed to a higher risk of being struck off because of the delay and because she was suspended pending the hearing taking place, a point made in Miss Okafor's post-hearing document, there is nothing to indicate that the Panel took the view that she should be struck off on this basis. This is a point which is linked with Miss Okafor's reliance on the Okeke case, to which I shall come on to refer when dealing with Miss Okafor's submission that the striking-off order made by the Panel was unreasonable and disproportionate (see in relation to ground (x) below).
  60. I am quite clear in the circumstances, that Miss Okafor suffered no prejudice because of any delay in relation to the proceedings before the Panel. It follows that I also consider that there is no question in the present case that Miss Okafor was deprived of her right to a fair hearing by virtue of delay, such that Article 6 of the European Convention on Human Rights is engaged. I, therefore, reject this ground of appeal.
  61. Ground (ii): the allegation that the charges changed from the initial allegations

  62. Miss Okafor, in the Rationale Document, suggested that she "suffered prejudice as allegations were developed and new ones (dishonesty) allegation was added" [sic]. At the hearing it became apparent that the real focus of this ground of appeal is Charge 2 since this is a charge which, as Miss Okafor explained, was not mentioned in the body of a report prepared on 8 December 2012 by Morgan Cole LLP for the NMC's Investigating Committee. Miss Okafor suggested before me that this meant that Charge 2 had not been properly investigated and that she was prejudiced by this lack of investigation.
  63. I am quite clear that there is no justification in this complaint. I was informed by Miss Hall that the charges which were sent to Miss Okafor in the Notice of Hearing were not the subject of any amendment, whether before or during the course of the hearing before the Panel. That plainly is correct, and Miss Okafor did not suggest otherwise. As I say, her complaint was focused not on charges emerging during the course of the hearing before the Panel, but on an earlier stage, the Investigating Committee stage. However, even if (which I doubt) the inclusion of Charge 2 in the charges which were drawn up prior to the hearing is something about which Miss Okafor would be entitled to complain, I fail to see how that is something for which the Panel can have any responsibility.
  64. In any event, as Miss Hall was able to explain by reference to the documents, it is quite wrong for Miss Okafor to suggest that the allegations which came to be the subject of Charge 2 were allegations which had not previously been raised. On the contrary, whilst it is true that the report to the Investigating Committee did not refer to those allegations, accompanying the report were witness statements which included a witness statement from an Angela Cox, and that witness statement referred very clearly, in paragraphs 19 and 20, to the matters with which Charge 2 is concerned. Miss Okafor received this witness statement shortly after the report was compiled on 8 December 2012. She, therefore, would have seen what was stated in it.
  65. The suggestion, in such circumstances, that Charge 2 had not been properly investigated is, accordingly, unsustainable. The same applies to Miss Okafor's suggestion that she was somehow unable to deal with the issue before the Panel. She had more than ample notice of the case she had to meet, including in respect of Charge 2. It should also be borne in mind that it was Angela Cox's evidence that she had raised with Miss Okafor the fact that Miss Okafor had documented four assessments despite only carrying out two as soon as she discovered that this was the case and that Miss Okafor acknowledged that this is what she had done. Indeed, Angela Cox explained that it was when she raised the documentation issue with Mss Okafor that Miss Okafor told her that "you are not God". Miss Okafor, therefore, knew very well, from a very early stage, what was being alleged against her. It follows that she can have suffered no conceivable prejudice through the inclusion of Charge 2 in the charges levelled against her and, specifically, through the report prepared by Morgan Cole LLP not making reference to the material allegations in the body of their report to the Investigating Committee.
  66. In short, Miss Okafor was in no doubt about the case she had to meet before the Panel. It is one thing for allegations to be refined or developed during the course of a hearing, something which typically happens in hearings of many different sorts. It is quite another for new allegations to be made which were not foreshadowed in existing charges. In the present case it appears that neither of these things happened. Even if what had happened fell into the former category, however, there would still be nothing in Miss Okafor's objection. I am quite clear that Miss Okafor knew what case she had to meet and that there was no question of her being surprised as the hearing developed.
  67. This ground of appeal, accordingly, fails.
  68. Ground (iii): the allegation that the Panel erred in proceeding in Miss Okafor's absence on the final day of the hearing

  69. Miss Okafor has alleged that she wished to attend the final day of the hearing, when the Panel announced its decision on sanction, but that she could not do so because of an emergency involving a leak at her house.
  70. In the Rationale Document, Miss Okafor stated that she was informed that the Panel had made a decision to proceed in her absence and that this was "a matter I have no control over". She insisted that she "did not relinquish my right rather it was the decision of the Panel to proceed in my absence". In the document which Miss Okafor handed up at the hearing, and to which she spoke when making her oral submissions, she referred to the Panel making its decision to go ahead without her "despite my explicit wish to be present", alleging that this deprived her of her "right to make any final submission".
  71. I have looked at the transcript for the relevant day, Friday 18 July 2014 (day 25). It is very clear what happened because the Legal Assessor, James Holdsworth, explained matters to the Panel:
  72. " you have seen the progress of the matter this morning. In the last telephone call with the registrant very recently she informed the NMC that she was happy for the Panel to proceed in her absence and she stated that she would attend later to collect her determination. It would appear that she has voluntarily absented herself and she has waived her right to be here. It is always a matter for the Panel but my advice is that you can proceed."

  73. The Panel Chairman then, after a short adjournment, announced that "The Panel is satisfied that Miss Okafor has waived her right to attend and is content for the matter to proceed". Reasons for this decision were then given and appear on the next page of the transcript. Those reasons include the following description of events:
  74. "At the conclusion of the hearing on 17 July 2014, the Chair indicated to the parties which included Miss Okafor, that the decision of sanction would be delivered today (18 July 2014 at 11.30am)

    At 10.56am on 18 July 2014 the NMC Case Officer received a phone call from Miss Okafor indicating that she aimed to get to the hearing venue between 12.00pm and 12.30pm.

    In the circumstances the Panel decided to delay the announcement of its decision on sanction on the basis of Miss Okafor attending within that time frame.

    At 11.42am the NMC Case Officer received another telephone call from Miss Okafor indicating that she had a leak in her house and that she was waiting for someone to come to look at it. She asked if the NMC could keep her informed about the progress of the hearing.

    The NMC Case Officer subsequently contacted Miss Okafor via telephone to explain to her that the Panel would be handing down the decision on sanctions shortly. The Case Officer asked Miss Okafor if she was content for the Panel to proceed in her absence. Miss Okafor asked the Case Officer to pass her apologies to the Panel and stated that the Panel could proceed in her absence. Miss Okafor stated that she would attend later to collect the determination. The Case Officer informed her that, in any event, Miss Okafor would receive a written decision in the post within five working days. ."

  75. I see absolutely no reason to take the view that what the Panel was told by the Legal Officer was anything but the truth, and therefore that the Panel's decision was anything but the right one. Although Miss Okafor insisted before me that she had not told the case officer that she was content for the Panel to proceed to announce its decision on sanction, I am bound to note that not only is this inconsistent with what the Panel was told by the Legal Officer but it is also contradicted by the attendance note which is in the papers and which, because it is marked as an exhibit, was placed before the Panel. This attendance note, prepared by Patricia White (although confusingly the note names the case officer as Sarah Foster) on 18 July 2014 and so contemporaneously, states:
  76. "Called the registrant to explain that the panel will be handing down the decision on sanction shortly. I asked her if she is content for the panel to proceed in her absence. She explained that she has a leak in her house and has to wait for someone to attend her property to deal with it. She informed me to pass on her apologies to the panel and stated that the panel coould [sic] proceed in her absence. She stated that she will attend later to collect her determination. I did inform her that she will get a written decision in the post within 5 working days."

  77. It is clear to me that this attendance note is more reliable evidence of Miss Okafor's position on the last day of the hearing than Miss Okafor's recollection is. I have no hesitation, in the circumstances, in rejecting Miss Okafor's version of events. I am bound, in any event, to observe that by this stage, the hearing on 18 July 2014 being purely a hearing at which the Panel's decision on sanction was to be announced, there was no need for Miss Okafor to have attended. She had attended the day before and made submissions in relation to sanctions. Those submissions were taken into account by the Panel, as demonstrated by the fact that they were fully set out and addressed in the Decision Letter. I am clear, in the circumstances, that there was no unfairness in this respect.
  78. This ground of appeal must, therefore, fail.
  79. Ground (iv): the allegation that the Panel erred in applying the wrong test for dishonesty and the allegation that the Panel's findings on dishonesty were wrong

  80. As I have mentioned, the Panel found that Miss Okafor had been dishonest in relation to Charges 1(c) and 2(a).
  81. In relation to the first of these charges, the Panel said this (page 21 of the Decision Letter):
  82. "The Panel has carefully considered the two-stage test of dishonesty set out in the case of R v Ghosh [1982] QB 1053 and has followed the advice of the legal assessor. After identifying the alleged act of dishonesty as the act of documenting in Patients A's Induction of Labour Proforma that you had handed over Patient A's care to (Ms 7) before going on your break when you had not, and finding it proved as a matter of fact, the Panel considered whether that act would be regarded as dishonest according to the ordinary standards of reasonable and honest people. The Panel concluded that it would be regarded as dishonest by those standards.

    The Panel next considered whether you, yourself, must have realised that your conduct was dishonest by those standards. It took into account your admission in oral evidence that, if a midwife were to record that she had handed over the care of a patient to someone before going on their break, when she had in fact not done so, she would be acting dishonestly. The Panel was satisfied that you must have know that you were acting dishonestly by falsely recording that you had handed over the care of Patient A to (Ms 7) when you knew that this was untrue. The panel therefore found this charge proved."

  83. Similarly, in relation to Charge 2(b), the Panel found that the conduct was dishonest, stating as follows:
  84. "The panel has carefully considered the two-stage test of dishonesty set out in the case of Ghosh, and has followed the advice of the legal assessor. After identifying the alleged act of dishonesty as the act of documenting that you had completed the assessment of a patient on four occasions when, in fact, you had not carried two of the recorded assessments, the panel considered whether that act would be regarded as dishonest according to the ordinary standards of reasonable and honest people. The panel concluded that such an act would be regarded as dishonest by those standards.

    The panel next considered whether you, yourself, must have realised that your conduct was dishonest by those standards. The Panel concluded that when you falsified the patient's record to show that you had completed assessment when you knew you had not done so, you must have known that your conduct was dishonest by those standards. In reaching this conclusion, the panel noted in particular that your falsification of the patient's records included deliberately returning to the patient at a later stage and changing the timing of the last assessment in the patient's notes to ensure that it could be accommodated within the required time frame."

  85. Miss Okafor's submission was that, in referring to "the ordinary standards of reasonable and honest people" in the above two passages, the Panel erred because the proper focus ought not to have been "people" generally but, specifically, midwives (and possibly anaesthetists).
  86. Although Miss Okafor did not specifically refer to case law in this respect, Miss Hall helpfully cited Hussein v GMC [2014] EWCA Civ 2246 and also Kirschner v GDC [2015] EWHC 1377 (Admin). In the latter case, Mostyn J reviewed the applicable authorities, including importantly Twinsectra Ltd v Yardley [2002] UKHL 1, [2002] 2AC 164 and R v Ghosh [1982] QB 1053, together with Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476 , in which Lord Hoffman at [10] said this: "Although a dishonest state of mind is a subjective mental state, the standard by which the law determines it is dishonest is objective". Mostyn J then went on at [14]:
  87. "It appears, notwithstanding that one might think that the matter had been settled since 2006, that this test has not been applied in the species of civil proceedings that is a disciplinary or regulatory process. Rather, the Twinsectra/Ghosh test has continued to be invariably applied: see Uddin v GMC [2012] EWHC 2669, per Singh J; Mills v GDC [2014] EWHC 89 (Admin) per Patterson J; Lavis v Nursing and Midwifery Council [2014] EWHC 4083 (Admin) per Cobb J; Sharma v GMC [2014] EWHC 1471 (Admin) per HHJ Pelling QC; Hussein v GMC [2014] EWCA (Civ) 2246, per Longmore LJ. In none of these cases was the Twinsectra/Ghosh test questioned. In none of them was the modification to the test by the Privy Council in Barlow Clowes and its adoption by the Court of Appeal in Abou-Rahmah even mentioned. In Hussein the Twinsectra/Ghosh test was in fact slightly modified for disciplinary proceedings by Longmore LJ. He stated:

    ' this was a professional disciplinary hearing and it seems to me that in future it would be right and proper for the first part of the direction to be adapted to read that the panel should decide "whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest". There may be a not unimportant difference between the two as shown by the decision of the judge in this very case.'"
  88. In paragraph 56 of her skeleton argument, Miss Okafor adopted the position that what she described as the "modified Ghosh test" would have made "all the difference between dishonesty and inaccurate".
  89. It was not clear quite how, according to Miss Okafor, this would have been the case. However, the position became clearer at the hearing, when it emerged that the point which Miss Okafor wishes to make relates (and, as far as I understood it, only relates) to Charge 1(c). Miss Okafor explained that, in her witness statement, Ms Hanley ("Ms 7") had stated that writing up notes retrospectively (which Miss Okafor says is what she did on 15 July 2009) "can be correct procedure if you don't have a chance to do them at the time" (see paragraph 19 of Ms Hanley's witness statement). On that basis, Miss Okafor submitted, applying the so-called modified Ghosh test, as referred to in Kerschner by Longmore LJ, the Panel ought not to have determined that she had acted dishonestly in documenting that she had handed over the care of Patient A to Ms Hanley before going to lunch.
  90. The insuperable difficulty with this submission is that it is shooting at completely the wrong target. This is because the focus of Charge 1(c) is not on when Miss Okafor documented the fact that she had handed over Patient A's care to Ms Hanley but on whether Miss Okafor was justified in documenting a handover which, on the Panel's finding in relation to Charge 1(b)(ii), did not take place. It follows that nothing that Ms Hanley had to say about retrospective documenting assists Miss Okafor. The Panel was fully justified in finding Charge 1(c) proved, and it makes no difference at all whether the Ghosh test or a modified Ghosh test is applied.
  91. As for Charge 2(b), as I have mentioned, Miss Okafor's submissions took no account of the position in relation to this charge. She was unable to point to any evidence from a midwife (or, as identified by Miss Okafor as an alternative, an anaesthetist) to support the proposition that it is acceptable to do what is alleged in Charge 2(a). I am clear that the Panel was fully justified in reaching the conclusions which it did, as set out above.
  92. For these reasons, this ground of appeal has no merit.
  93. Ground (v): the allegation that the panel erred that in not giving appropriate weight to Veronica Henry's evidence

  94. Veronica Henry was a witness, described in the Decision Letter as "Ms 5", whom Miss Okafor called to give evidence over the telephone after she (Miss Okafor) had given her evidence before the Panel. The NMC having not objected to this course of action, the Panel allowed the evidence to be given.
  95. It is apparent, however, from the Decision Letter, that the Panel felt unable to place significant weight on the evidence given by Veronica Henry. The Panel stated as follows at page 12:
  96. "As regards to the evidence of (Ms 5) and (Ms 4)[another witness] whom you called on your behalf, the panel found these witnesses to be honest and credible how they gave evidence. However, the panel bore in mind that these witnesses had not seen the charges and it considered that this influenced the weight that could be attached to their evidence."

  97. This seems to me to be entirely unexceptional. As Miss Hall submitted in paragraph 52 of her skeleton argument, Veronica Henry was in essence a character witness rather than a witness of fact. Indeed, as noted at page 21 of the Decision Letter, Miss Okafor had not "discussed the charges" she faced with Veronica Henry. There was accordingly little (if anything) that Veronica Henry could say in relation to the matters which the Panel was having to determine.
  98. In the circumstances, this is another ground of appeal which seems to me to be without any merit at all.
  99. Ground (vi): the allegation that the Panel was wrong to exclude evidence

  100. It was not altogether clear from the various documents submitted by Miss Okafor for the purposes of her appeal what evidence Miss Okafor had in mind in relation to this ground of appeal. Nowhere in the grounds of appeal document itself or in Miss Okafor's skeleton argument or in the Rationale Document was there any elucidation to be found.
  101. In the circumstances, and bearing in mind that the Panel considered the matter for in excess of 20 days, without, so far as I can tell, Miss Okafor suggesting that there was evidence which she wished to adduce but which the Panel would not permit to be adduced, this ground of appeal seemed rather less than promising.
  102. At the hearing, it became apparent that Miss Okafor's complaint is, perhaps, not so much that the Panel refused to allow evidence to be admitted as that the Panel attributed less weight to evidence which Miss Okafor relied on (and was allowed to put before the Panel) than Miss Okafor says should have been afforded to that evidence. Asked what evidence Miss Okafor had in mind in this regard, she referred to various matters, including the fact that the Extended Supervised Practice Programme was not properly documented, the fact that (as she alleged) she had been told at the outset of her supervision that she would fail, the fact that she was suffering from cancer, and the fact (again as alleged by Miss Okafor) that she was the victim of bullying and harassment. In her post-hearing document, Miss Okafor referred to certain other matters also, but again her complaint appears to be concerned with the weight attributed to evidence which was admitted, rather than any decision on the part of the Panel to exclude evidence.
  103. These were all matters which Miss Okafor acknowledged had been raised before the Panel. Accordingly, I fail to see how there is anything in Miss Okafor's criticism, especially in view of the approach which the authorities to which I have previously referred demonstrate ought to be taken in relation to a panel's findings of fact when considering an unsuccessful party's appeal against those findings.
  104. It was not necessary for the Panel to address every issue in the Decision Letter. However, taking the criticism concerning the Extended Supervised Practice Programme, one of the matters heavily relied on by Miss Okafor both before me and before the Panel, it is worth noting that the Panel dealt with this point expressly at page 13 of the Decision Letter. The Panel said this:
  105. "The panel noted that the Second Programme did not have all of the standards to be met clearly identified as was the case in the First Programme. The panel heard that the Second Programme had been re-designed to focus on four key Learning Outcomes. This programme was simplified, with a broad banner headline for each Learning Outcome. This was designed to enable the mentors, who were qualified assessors, to actively engage with you at the conclusion of each supervised shift to provide feedback to you on your areas of positive clinical practice and areas where you needed to further develop. You also had the opportunity to complete your reflective journal at the conclusion of each shift to contribute to the discussion. The panel heard from your mentors that you did not provide your reflective journals to them. You maintained that you had completed the reflective journals, but you have not provided copies of them to the panel. The feedback provided was connected to the Learning Outcomes. The panel heard that a new system of assessment was developed in this way to make it much more user-friendly and to enable more of a discourse on your practice.

    The panel concluded that the new system of assessment was more user-friendly, but carried some risk that the mentors might apply more subjective and less transparent standards and judgements, which you have raised as a concern in your defence."

  106. I set this passage out in order to demonstrate that the Panel did consider the point which Miss Okafor made, as well as to demonstrate how balanced the Panel's consideration of this matter, and matters generally, was. There is no basis for concluding that the Panel adopted a wrong approach.
  107. This ground of appeal fails.
  108. Ground (vii): the allegation that the Panel discriminated against Miss Okafor on the grounds of disability

  109. In paragraph 56 of the Rationale Document, Miss Okafor referred to the fact that the 5th Shipman Report was taken into account by the Panel in considering the issue of impairment (see pages 50 to 51 of the Decision Letter). She suggested that the Panel made "comparisons with my case" and "cited this report as a rationale for excluding me from register". She went on in the next paragraph of the same document to highlight the reference in the 5th Shipman Report to "adverse health", suggesting that because the Panel included this reference the Panel should be taken as having discriminated against her because she was a cancer sufferer. She suggested that this discrimination was in contravention of the Equality Act 2010.
  110. There is absolutely nothing in this ground of appeal. It is quite clear that the Panel's reference to the 5th Shipman Report merely entailed reference to a passage which contained guidance on how to consider current impairment. The passage from the report quoted by the Panel is this:
  111. "76. [] Do our findings of fact in respect of the [registrant's] misconduct, deficient professional performance, adverse health, conviction, caution or determination show that [his/her] fitness to practise is impaired in the sense that [he/she]:

    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 [nursing/midwifery] 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 [nursing/midwifery] profession; and/or
    d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."
  112. This is followed by the following statement by the Panel:
  113. "The panel found that Miss Okafor's misconduct and lack of competence fall within paragraphs a, b, c and d of these criteria."

    Nothing is stated about Miss Okafor's cancer condition in this context. Instead, the focus is on her "misconduct and lack of competence". These, then, are the aspects of the opening sentence of paragraph 76 of the 5th Shipman Report which the Panel took into account. The Panel did not take into account her "adverse health". It follows that there is quite simply no justification at all for a conclusion that merely because the Panel made reference to this paragraph there was discrimination of the kind alleged by Miss Okafor.

  114. Nor, I might add, is there anything in a further point which was made by Miss Okafor during the course of her oral submissions, which was that the Panel was wrong to take account of its own findings in relation to Charges 1, 2 and 3 when considering, in line with the guidance given in the 5th Shipman Report, Miss Okafor's actions "in the past". I am quite clear that the Panel was entitled to take account of the actions which it had found were taken by Miss Okafor. Those were actions which were necessarily in the past. As such, they clearly come within the ambit of the words used in paragraph 76. It cannot be right that a panel can only take account of findings made by an earlier panel, and must ignore the findings which it itself has made. That would make no sense at all.
  115. This leaves one other matter relied on by Miss Okafor. This concerns what Miss Okafor alleges was stated by a lawyer acting for the NMC at an initial interim hearing which took place in September 2011, namely (as alleged by Miss Okafor) that Miss Okafor's diagnosis with cancer put her at "high risk of relapse" and "reoffending". Even if this was what was said, and I am told by Miss Hall that since a registrant's health is a matter which needs to be taken into account at the interim suspension stage and so that is probably why reference was made, there is, in any event, no indication that the Panel hearing the substantive case against Miss Okafor would have been aware that what is claimed by Miss Okafor to have been said was actually said.
  116. In the circumstances, there is nothing in this ground of appeal.
  117. Ground (viii): the suggestion that the Panel's finding on impairment was wrong

  118. I have previously set out, at some length, extracts from the Decision Letter, which demonstrate the approach adopted by the Panel on the impairment issue. I do not repeat those extracts. However, it is quite apparent that the Panel took into account matters which it was entitled to take into account, and furthermore that the Panel did not fail to take into account matters which it should have taken into account when considering the impairment issue.
  119. It is equally clear that the Panel had regard to the correct authority, namely Roylance v GMC (No 2) [2000] 1 AC 311, as well as also the relevant requirements and standards of the NMC Code: Standards of Conduct, Performance and Ethics for Nurses and Midwives (2008 edition) and the NMC Record Keeping Guidance.
  120. Indeed, when I asked Miss Okafor whether she was maintaining this ground of appeal as an independent ground of appeal, it was telling that even she was minded to acknowledge, without abandoning her objection, that "if the findings actually happened, then perhaps the Panel has the duty to come to the conclusion that ability to practise was impaired". This was very close to a recognition that this ground of appeal, pursued as an independent criticism of the Panel's decision, is not sustainable. I am clear, speaking for myself, that this ground of appeal is just that: unsustainable.
  121. Ground (ix): the suggestion that the mentor allocated to the academic programme was not suitably qualified

  122. This ground of appeal concerns the Extended Supervised Practice Programme which Miss Okafor commenced on 31 January 2011, specifically the academic aspect of that programme. As such, the ground of appeal relates to charge 3(f), namely the allegation that Miss Okafor was "unable to meet the required standard in the academic component of the extended programme of supervised practice".
  123. During the hearing, on day five (at page 22 of the transcript) Miss Claire Capito, the academic mentor concerned, accepted that she did not have a teaching qualification, the case presenter for the NMC having the previous day (at page 32 of the transcript) accepted that Miss Capito did not hold a teaching qualification, whilst pointing out that she was attached to King's College, London in her capacity as an academic mentor.
  124. Miss Hall pointed out, in paragraph 65 of her skeleton argument, that, although Miss Capito does not hold a teaching qualification, she is a freelance supervisor of midwives and also works for the London Local Supervising Authority as a support midwife, having been a registered midwife since October 1989. Her submission was that Miss Capito was more than sufficiently qualified to be allocated as Miss Okafor's academic mentor. It follows, I agree, that Miss Okafor's assertion that Miss Capito "has no academic or a degree in nursing or midwifery education" cannot be right, certainly insofar as the suggestion is that she has no relevant qualification at all. It does not follow, however, that Miss Capito has a teaching qualification, which is Miss Okafor's complaint, because it is apparent, and was accepted, that she does not.
  125. At the hearing Miss Okafor explained in more detail what her case in this respect really entails. It is, she clarified, not merely that Miss Capito did not have the teaching qualification which an academic mentor is required to have (a requirement set out in a document relied on by Miss Okafor and entitled "The role of those involved in this supervised practice programme"), but that Miss Capito did not provide her with "formative and summative feedback on the work throughout the programme" (as required by the document). That was the reason, Miss Okafor asserted, why she failed the academic part of the extended programme.
  126. This is another ground of appeal which is not sustainable. The Panel took account of the points made by Miss Okafor, including those set out above. In doing so, the Panel noted how Miss Okafor had cancelled a number of meetings with Miss Capito and that Miss Okafor had not taken the opportunity to be mentored by Miss Capito (Decision Letter, pages 41 and 42). In these circumstances, it seems to me that the Panel was entirely justified in rejecting the point made by Miss Okafor and repeated before me. Similarly, the Panel was entitled to take account of the fact that the essay which Miss Okafor produced was also marked, a second time, by Ms Anne Lincoln, a Senior Lecturer at King's College, who also failed the essay. In doing so, the Panel also made the finding that Ms Lincoln's marking was "in accordance with King's College writing criteria" (page 43), and so I see nothing in a further point made by Miss Okafor before me, which was that the essay had been marked on some other impermissible basis.
  127. This ground of appeal must, therefore, fail.
  128. Ground (x): the case that the sanction imposed by the Panel was unreasonable and disproportionate

  129. Miss Okafor's case is that "excess weight was given to the public interest element and insufficient weight given to the mitigating circumstances" in the Panel arriving at the decision to impose the sanction of striking-off (see paragraph 74 of the Rationale Document). Miss Okafor also submitted that the Panel was wrong to infer that she showed no remorse (see paragraph 75).
  130. At page 54 of the Decision Letter, the following was stated:
  131. "The panel in reaching its decision on sanction applied the following key principles. It had regard to both the public interest and your own interests. Public interest includes protection of members of the public, the maintenance of public confidence in the profession and the NMC, and the declaring and upholding of proper standards of conduct and performance. The panel was conscious that any sanction must demonstrate a considered and proportionate balance between the interests of the public and yourself, taking into account any mitigating and aggravating factors. The Panel was aware that a sanction is not meant to be punitive, but it is also conscious that a sanction may have that effect. In carrying out its functions the Panel at all times exercised its own independent judgment."

  132. The Panel continued on the same page by considering the aggravating and mitigating factors in Miss Okafor's case. Specifically, the following was stated:
  133. "As a mitigating feature the panel took into account your health condition and the anxiety this generated for you. However, the condition only became relevant during your first period of supervised practice which was after the events referred to in charge 1. You had worked as a midwife for about nine years prior to these incidents. During this period, no matters were brought to the attention of the NMC. The panel also considered the oral evidence and written testimonials presented on your behalf. However, it could not attach significant weight to them, because of its findings on your incongruent and inconsistent attitudes demonstrated during this hearing and also due to its finding of dishonesty.

    As aggravating features the panel considered that your lack of competence and misconduct had the potential to put patients at risk of harm. There was no evidence before the panel that you have developed insight or demonstrated remorse for your failings. Because of your lack of insight and understanding of the potential consequences of your acts and omissions, the panel had identified a significant risk of you repeating similar failings in the future. The panel considered that the facts found proved were serious and involved dishonesty in a clinical setting. Your lack of competence was also a matter of significant concern."

  134. Later, on page 56, the Panel concluded as follows:
  135. "The panel concluded that the proportionate sanction in this case is a striking-off order. Such an order is necessary to maintain standards within the profession and public confidence in the NMC as regulator. The seriousness of the matters found proved, in particular the identified risk of repetition and consequent risk of harm to patients which has not been addressed, in the panel's view is incompatible with ongoing registration. The panel has decided to make a striking-off order. Your name will be removed from the NMC register. You may not apply for restoration until five years after the date that this decision takes effect."

  136. Miss Hall highlighted the fact that, since a professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. As Sir Thomas Bingham MR put it in Bolton v The Law Society [1993] EWCA Civ 32 at [16]:
  137. "Because orders made by the Tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking-off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking-off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All theses matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain in among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. ."

  138. I was also referred by Miss Hall to the NMC's Indicative Sanctions Guidance, the introduction to which states as follows:
  139. "Role and status of the Indicative Sanctions Guidance

    1 This guidance has been developed by the Nursing and Midwifery Council (NMC) for use by Conduct and Competence Committee (CCC) and Health Committee (HC) when considering what sanction to impose following a finding that a nurse or midwife's fitness to practise is impaired. This guidance is also to be used when a panel is reviewing a previously imposed order.
    2 This guidance is an authoritative statement to the NMC's approach to sanctions. It is not an alternative source of legal advice. When appropriate, the legal assessor will advise the panel on questions of law, including questions about the use of this guidance and the approach it should take. Panels must always have in mind that each case is different and should be decided on its unique facts and merits."
  140. Later, under the heading "Proportionality", the following is stated:
  141. "19 In determining what sanction, if any, should be imposed, panels must act proportionately, which will involve balancing the interests of the public against those of the registrant.

    23 Whilst there may be a public interest in enabling a nurse or midwife's return to safe practice, panels should bear in mind that the protection of patients and the public interest (i.e. maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour) is the NMC's main objective. It is the task of the panel to find the sanction that achieves that objective while causing the least interference possible with the rights of the nurse or midwife concerned."

  142. It is also clear that the attitude of the nurse or midwife to the events giving rise to the allegations against him or her is something which should be taken into account. This was made clear by Mitting J in Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin) at [19]:
  143. "In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and the stage of determining what sanctions should be imposed upon him."

  144. Mitting J made essentially the same point in a subsequent case, Parkinson v NMC [2010] EWHC 1898 (Admin) at [18]:
  145. " A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure. Unhappily as Mr Parkinson acknowledges, he did not take that course. Had he done so, it is possible, I say no more than that, that he might have persuaded the panel to exercise leniency in his favour."

  146. Lastly, subject to Miss Okafor's reliance on the Okeke case, it is worth having in mind the following guidance given by Cranston J in Cheatle v GMC [2009] EWHC 645 (Admin) at [33], after reference to Bolton v The Law Society [1994] 1 WLR 512:
  147. " it would require a very strong case to interfere with the sentence imposed by a disciplinary committee, which is best placed for weighing the seriousness of professional misconduct. That a sanction might seem harsh, but nonetheless be appropriate, could be explained by the primary objects of sanctions imposed by disciplinary committees. One object was to ensure that the offender did not repeat the offence; the other, indeed, the fundamental, objective is to maintain the standing of the profession."

  148. In the light of these authorities and the approach adopted by the Panel in the present case, as reflected in the passages from the Decision Letter to which I have referred, it seems to me that it is very difficult to reach a conclusion that the Panel's decision to strike Miss Okafor off was wrong.
  149. Miss Okafor pointed out, in paragraph 73 of her Rationale Document, that the Parkinson case is merely "a guide", adding that she did show "remorse for error or oversight" and that she also attended the hearing for 24 days, so showing that she engaged with the proceedings brought against her. In the circumstances, Miss Okafor's submission is that the striking-off order was "harsh given the circumstances of this case". Miss Okafor further submitted that "excess weight" was given to the "public interest element and insufficient weight given to the mitigating circumstances" (see paragraph 74). She also apologised if her conduct was "misconstrued as not showing remorse" (see paragraph 75). Miss Okafor also reminded me that she had not previously been the subject of adverse panel findings, explaining that, in view of this and in view of the serious illness which she had had to endure, the sanction imposed by the Panel was, in her case, too harsh.
  150. It seems to me, however, that the Panel was fully entitled to form the view which it did. Having regard to the approach which the authorities explain should be adopted, this is not a case in which it would be appropriate to interfere with the sanction imposed by the Panel.
  151. I take account, in particular, of the Panel's views concerning Miss Okafor's lack of insight and failure to demonstrate remorse for her failings. It needs to be borne in mind in this context that, as Miss Hall pointed out, there was a period of over a month and a half between the impairment findings made by the Panel and submissions being made on sanction. Accordingly, Miss Okafor had every opportunity to reflect on her position and at the hearing when submissions were made concerning sanction to demonstrate to the Panel that she did, indeed, have insight and remorse. It is clear that the Panel detected neither of these things. It is not for this Court to arrive at a different conclusion. In fact, I am bound to observe that even now, on this appeal, having listened to Miss Okafor for several hours, it is not clear to me that Miss Okafor has any real insight into, or remorse for, her failings as found proved by the Panel. Her constant refrain before me was that the allegations made against her were essentially minor, and indeed this was the point on which she ended her reply submissions, when that quite clearly was not the case.
  152. In the circumstances, given the manner in which the Panel so carefully considered the sanction question, I am perfectly clear that I ought not to disturb the conclusion which the Panel reached. This is nowhere near the "very strong case" which would be required were the Court to interfere with a panel's decision.
  153. I need, lastly, to address Miss Okafor's reliance on the Okeke case. That was a case in which the only findings made by the panel were that the appellant demonstrated a lack of competence. There was no misconduct finding made by the panel. Notwithstanding this, the panel made a striking-off order, and the issue for Leggatt J, on appeal, was whether this was a sanction which it was open to the panel to impose in view of the fact that Article 29(6) of the 2001 Order is in the following terms:
  154. "A striking-off order may not be made in respect of an allegation of the kind mentioned in Article 22(1)(a)(ii) or (iv) unless the person concerned has been continuously suspended or subject to a conditions of practice order for a period of no less than 2 years immediately preceding the date of the decision of the committee ."

  155. The appellant argued that, since she had merely been the subject of an interim suspension order, Article 29(6) did not apply in her case. Leggatt J held as follows at [19]:
  156. " It would in my view be surprising if the availability of a sanction were determined, not by what sanctions had previously been imposed on the basis of allegations held to be well-founded, but by what order has been made on an interim basis. It is true that the purpose either of an interim order or of a sanction is in each case to protect the public, but I do not expect that the two kinds of order should be viewed in the same way. It is one thing to take account of whether a sanction has previously been imposed in deciding what sanction is appropriate in the particular case and quite another to take into account an order imposed, not as a sanction for any proven lack of competence, but simply to hold the position until the truth or otherwise of allegations can be determined. I find it hard to see how it could in principle be correct or appropriate to treat the imposition of an interim order made without any finding that an allegation has been proved as a proper reason to justify a more stringent sanction."

  157. I respectfully agree with this. However, Miss Okafor is not assisted by the Okeke case. This is for the simple reason that the Panel made it abundantly clear in Miss Okafor's case that the striking-off order which it was making was made not because of the findings reached in relation to the lack of competence charge, Charge 3, but because of the findings in relation to Charges 1 and 2, namely the misconduct findings. This is clear from page 53 of the Decision Letter, where it is stated as follows:
  158. " Upon questioning from the legal assessor, Miss Benlamkadem, clarified that, on the basis of current case law, the panel has no power to impose a striking-off order on the basis of its finding regarding your lack of competence and that sanction would only be an option available to the panel in relation to its findings of misconduct."

    The same point is reflected at page 56 of the Decision Letter, when considering whether to make a suspension order:

    "In view of the nature of your misconduct, looked at independently from issues of competence, the panel was not satisfied that a suspension order would be the appropriate sanction in this case. The misconduct together with the dishonesty (as opposed to the lack of competence) in this case is wholly incompatible with you remaining on the register ".

  159. It is, therefore, perfectly clear that the Panel's decision to strike off was a decision which was made in relation not to Miss Okafor's lack of competence but in relation to her misconduct and, indeed, dishonesty. In these circumstances, Article 29(6) of the 2001 Order does not assist Miss Okafor, and nor does the Okeke case.
  160. Conclusion

  161. For all these reasons, Miss Okafor's appeal must be dismissed.


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1872.html