Case No: CO/7869/2009
Neutral Citation Number: [2010] EWHC 272 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/02/2010

Before :

MRS JUSTICE NICOLA DAVIES
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Between :

	EUNICE OGBONNA	Appellant	
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	NURSING & MIDWIFERY COUNCIL	Respondent	

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 Ms Eunice Ogbonna (in person) 
Ms Clare Strickland (instructed by Nursing & Midwifery Council) for the Respondent

Hearing dates: 9th February 2010
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Judgment
Mrs Justice Nicola Davies : 
1.	The appellant, a registered midwife, appeals against the decisions of the Nursing & Midwifery Council, “the respondent”, made at a hearing of its Conduct and Competence Committee, “the Panel”.  On 24 June 2009, following findings of fact, a finding of misconduct and a finding of impairment of fitness to practise, the Panel imposed upon the registration of the appellant a striking off order and imposed an interim suspension order for a period of 18 months.  
2.	The appellant has worked as a midwife since 1986.  This was her first appearance before the respondents.  The charge alleged that the appellant’s fitness to practise was impaired by reason of her misconduct.  The charge contained fifteen factual allegations, all of which occurred on 25 or 26 April 2005, when the appellant was working as a registered midwife in a Delivery Suite at Homerton Hospital.  
3.	The charge as amended, read as follows:
“Whilst employed as an F Grade midwife by Homerton University Hospital Trust you:
1)	On 25 April 2005, left the Delivery Suite in order to watch a training DVD    when you:
a)	Were involved in providing care to a client at the time of the training;
b)	Knew or ought to have known that the Delivery Suite was busy;
c)	Ignored the direction of Betty Ann Pilgrim, Team Leader, who told you not to leave the suite as the Ward was busy;
d)	Replied to Betty Ann Pilgrim words to the effect that you didn’t care if the Ward was busy, you were still going to go.
2)	On or about 26 April 2005, failed to provide an appropriate level of care to Patient A, in particular you:
a)	Inappropriately advised Patient A to consider an epidural when;
i)	Patient A did not wish to consider an epidural under normal circumstances;
ii)	Patient A was about to deliver.
b)	Failed to ensure that Patient A was made aware of and understood the nature of the invasive procedure to the pubic area which you carried out;
c)	Failed to respect Patient A’s wish for her husband to remain with her during labour;
d)	Failed to communicate with Patient A in a polite and professional manner;
e)	Recorded that a Vaginal Examination was conducted at 8.35 in the notes but recorded only one such examination occurring at 8.50 on the “Vaginal Examination in Labour” form;
f)	Failed to attend to Patient A during the delivery of her daughter;
g)	Failed to respect Patient A’s dignity when, after delivering the placenta, you showed it to Patient A in an inappropriate manner.
3)	On 26 April 2005, failed to adequately hand over care of Patient A, in particular, you:
a)	Failed to explain to Patient A that you were leaving and her care would be taken over by another midwife;
b)	Failed to ensure that care was properly handed over to an oncoming midwife;
c)	Failed to document that you had ceased to care for Patient A, or any arrangement for her continued care.
And by reason of the above, your fitness to practice is impaired by reason of your misconduct.”
4.	The Panel made the following decisions:
i)	To amend charge 2(b) from the charge as previously formulated;
ii)	To allow the respondent to adduce evidence by written statement of a witness who did not attend the hearing, namely Ms Betty Ann Pilgrim;
iii)	On the facts, all the charges were found proved;
iv)	That the appellant’s fitness to practice was impaired by reason of her misconduct;
v)	That a sanction be imposed, namely a striking off order effective in 28 days;
vi)	Further an immediate interim suspension order for a period of 18 months.
Grounds of appeal
5.	The appellant’s grounds of appeal can be summarised thus:
i)	Amendment to charge 2(b).  The Panel misdirected itself as to the proposed amendment, its decision to amend the charge caused prejudice to the appellant;
ii)	The Panel misdirected itself in allowing the evidence of Ms Pilgrim to be read in her absence.  The admission of Ms Pilgrim’s statement was unfair and prejudicial to the appellant;
iii)	The Panel failed to have due regard to the fact that the appellant was unrepresented and disadvantaged in the presentation of her case;
iv)	The Panel failed to take into account or give due weight to documents and evidence, in particular, the statement of Dr Maryam Parisaei, including the reference to the involvement of the consultant obstetrician, Mr Barnick;
v)	The Panel failed to give appropriate weight to the appellant’s evidence, given verbally by written statements and documents;
vi)	In all the circumstances, the Panel’s finding of fact were unjust;
vii)	The Panel’s finding of impairment was unjust;
viii)	The Panel erred in striking the appellant off the register, in that it arrived at a determination that was wholly disproportionate, excessive, unfair and unjust on the evidence;
ix)	The Panel misdirected itself when it determined that a ‘conditions of practice’ order was not workable;
x)	The Panel misdirected itself when it determined that a lower end sanction or no sanction was inappropriate;
xi)	The Panel misdirected itself by arriving at a conclusion that striking off was the only outcome;
xii)	The Panel unnecessarily and/or disproportionately imposed an interim suspension order for 18 months, with inevitable consequences for the appellant.
The hearing
6.	The Panel comprised three Panellists, two of whom were lay members.  The respondents were represented by a member of their in-house legal team.  The appellant was unrepresented, being unable to afford legal representation.  On the first day she was accompanied by her sister.  A Legal Assessor, a barrister, was present.  The hearing lasted three days.
7.	The hearing began with an application by the respondent’s representative to amend head of charge 2(b).  The original charge read:
“Failed to ensure that Patient A was made aware of and understood the nature of the care that she was receiving.”
 	The proposed amendment read:
“Failed to ensure that Patient A was made aware of and understood the nature of the invasive procedure to the pubic area which you carried out;”
8.	The purpose of the amendment was to clarify the nature of the charge, as to the precise circumstances and what it was alleged the appellant should have explained to the patient.  By a letter dated 6 February 2009, the appellant was notified of the proposed amendment.  No additional material was relied upon in support of the amendment.  The appellant opposed the amendment because it was her contention that it did not reflect the patient’s original complaint in that there was no specific mention of this in her first complaint.
9.	In essence, the issue was this: in her original statement, the patient stated that she believed a procedure might have been carried out upon her by the applicant.  The patient is not medically qualified and could not give details of the nature of the precise procedure.  What was proposed by way of amendment was the identification of the procedure alleged.  I accept that the purpose of the amendment was to clarify the allegation.  In my view, it was an appropriate and fair amendment and one which could only assist the appellant.  There is no substance in this ground of appeal.
The Panel misdirected itself in allowing the evidence of Ms Pilgrim to be read in her absence.  The admission of the statement was unfair and prejudicial to the appellant.
10.	At the conclusion of its oral evidence, an application was made on behalf of the respondent to read the statement of Ms Betty Ann Pilgrim.  The application was made pursuant to Rule 31 of the Nursing & Midwifery Council (Fitness to Practice) Rules Order of Council 2004, as amended.
“31(1) Upon receiving the advice of the Legal Assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place).”
11.	In making this application to the Panel, Ms Dirmikis, on behalf of the respondent, said this:
“The reason why I am applying under Rule 31 to admit her evidence in writing is because she does not live in this country anymore.  There is an email to that effect which I can pass a copy of up to you now.  It is dated 17 February 2009.  It is addressed to Mr Styles, one of the Case Officers.  She says:
“I am so sorry for not responding sooner, but I have only just had the time to check my email after three weeks.  I am now residing in Trinidad and Tobago.”
She gives her permanent address, which is in Trinidad.  She said that she moved to the Caribbean in September 2007.” 
12.	As a matter of fact, two emails existed.  The first, dated 16 February 2009, was from Mr Styles to Ms Pilgrim.  The email reads:
“Dear Ms Pilgrim, 
As you know, the above case is listed to start this Wednesday.  Mrs Ogbonna is objecting to us applying to read your statement. Our application to read your statement on the grounds of you living in the Caribbean will be strengthened if we have the following information:
1a) When did you move to the Caribbean? and Where are you living – I need the exact address.
2a) Is this your permanent residence and how long have you been here for?
Kind regards,
Michael”
In her email, by way of response, part of which was read to the Committee, Ms Pilgrim states:
“I hope this clarifies any confusion.  I can be contacted on….. we are five hours behind UK.”
In that document Ms Pilgrim provided a telephone number.
13.	It was in January 2009 that the appellant was notified by the respondent of its intention to rely upon the written statement of Ms Pilgrim.  By a letter dated 10 February 2009, the appellant objected to the admissibility of the evidence.  It is clear this was the prompt for the email of 16 February 2009.
14.	Ms Pilgrim is a qualified midwife and in April 2005 was a Team Leader and the Co-ordinator of the Delivery Suite at Homerton Hospital.  She was the respondent’s sole witness of fact in respect of Head of Charge 1 and gave some evidence in respect of Head of Charge 3.  Ms Pilgrim was an important witness.  When asked to respond to the application to admit the written statement, the appellant said this:
“Betty Ann was actually the Co-ordinator of the midwife on the very day this incident happened, which was 26 April and she knows about this case.  The NMC did not make any plan for her to attend if there was a case to answer.  If she is not present, her statement should not be given any attention because she should be here.  I have the right to ask some different questions of her, so it will not be prejudiced against me to act on her statement because I have not had an opportunity to get feedback from her.”
15.	The point raised by the appellant, namely that the respondent had made no plan to secure the attendance of Ms Pilgrim, was not rebutted at the hearing by the respondent’s legal representative.  At the hearing before this court, it became clear that no efforts had been made by the respondents to secure the attendance of Ms Pilgrim at the hearing, either in person or by way of video link.  The court was informed that video link facilities were not available and were not used at the respondent hearings. A surprising statement in 2010.  As to why no efforts were made to secure the attendance of Ms Pilgrim, the court was informed that a “pragmatic” decision had been made: Head of Charge 1 was not the “important” charge; a “risk” was taken in seeking to adduce Ms Pilgrim’s evidence in written form; the view was taken that if the application failed, the respondents would be “content” to rely on Head of Charge 2.
16.	Ms P, being the sole witness of fact as to Head of Charge 1 was a critical witness.  A reading of the papers in this case makes clear, as was accepted by the respondents at this hearing, that as between Ms Pilgrim and the appellant, there was a difficult working relationship.  This is demonstrated by the following extracts from the statements of Ms Pilgrim and the appellant, describing events on 26 April 2005.
17.	Ms Pilgrim:
“As Eunice continued shouting, we then had an exchange of words, where I said ‘Eunice…you are so disgusting, I am sick and fed up of your attitude.  You are so disgusting!  So many people want to say this to you but are afraid!  But I am not afraid of you!!”
The appellant:

“I told the patient I was leaving to write up my notes.  It was during this time that I saw Betty Ann Pilgrim and she made rude comments to me, which she refers to in her statement.  She told me I was stupid and everyone hated me.  This was the final straw which led to my collapse at the hospital.”
18.	The determination given by the panel, in respect of this application, began as follows:
“We have considered the submissions of both parties and the advice of the Legal Assessor.  Our task is to decide whether to permit the NMC to adduce the witness statement of Ms Pilgrim.  We have seen an email dated February 2009 which explains that she is unable to attend this hearing because she no longer lives in the United Kingdom.”
The point is taken by the appellant that the email did not in fact state that Ms P was unable to attend the hearing.  The point is well made.  When it became known that Ms P was in Trinidad and Tobago, no request to attend was made of her by the respondent to attend the hearing.
19.	The admissibility of evidence pursuant to Rule 31 is governed by two principles: relevance and fairness.  Relevance is made out. The evidence of the sole witness of fact was critical.  That fact together with the evidence of bad feeling between the two women meant that every effort should have been made to secure Ms Pilgrim’s attendance.  Fairness required that the appellant was entitled to test the evidence of Ms Pilgrim by way of cross-examination unless good and cogent reasons could be given for non-attendance.  It is difficult to see what those reasons could be, given that her attendance had never been sought.
20.	The “pragmatic” approach adopted by the respondents included little by way of consideration of fairness to the appellant.  If the charge was not regarded as sufficiently important to warrant the attendance of the sole witness of fact, the fair course was not to proceed with that charge.  This is particularly so given the clear evidence of ill feeling which existed between Ms Pilgrim and the appellant.
21.	I accept the point made in the appeal that in stating that Ms Pilgrim was “unable to attend this hearing”, the panel misdirected itself.  It did so having been told by the applicant that the NMC did not make any plan for Ms Pilgrim to attend, a point it failed to address.  This one example illustrates the difficulty of the unrepresented practitioner.  The appellant had never before been involved in proceedings of this sort.  She was reliant upon those bringing the case for proper disclosure, in particular, the trail of letters or emails which would have demonstrated the inactivity on the part of the respondent.
22.	A further aspect relating to the lack of representation of the appellant, which concerns the court, is the fact that in paragraphs 5 and 6 of the statement of Ms Pilgrim, which was read to the Panel, are details of other incidents alleged by her against the appellant.  They were irrelevant to the Heads of Charge and are prejudicial to the appellant.  It is the opinion of the court that those who conducted this case or even the Legal Assessor should have sought the redaction of the irrelevant and prejudicial paragraphs from the statement before it was read to the Panel.  That the respondent’s representative was alive to the process of redaction is borne out by the fact that at her request paragraphs were redacted from the appellant’s statement.
23.	I make the following findings:
i)	The respondents failed to make any effort to secure the attendance of a critical witness, Ms Pilgrim, once it learnt that she was living in Trinidad and Tobago;
ii)	The panel misdirected itself in finding that the witness was unable to attend.  It wholly failed to address the point raised by the appellant that the respondent had made no plan for the attendance of Ms Pilgrim;
iii)	The appellant was disadvantaged in her response to this application by reason of being unrepresented;
iv)	The admission of the statement was unfair.
24.	I allow this ground of appeal.
The Panel failed to take into account or give due weight to documents and evidence, in particular, the statement of Dr Maryam Parisaei including the reference to the involvement of the consultant obstetrician, Mr Barnick.
25.	The gravamen of this ground of appeal is the alleged failure by the Panel to take proper account of the statement of Dr Parisaei, in particular a failure to refer to this evidence in their reasoning and determination.  In April 2005, Dr Parisaei was working as an obstetric research registrar at Homerton Hospital.  The respondents obtained a statement from Dr Parisaei as part of their preparation of the case.  The statement was disclosed to the appellant, it was not the intention of those acting on behalf of the respondents to call the witness at the hearing.  The statement is unsigned.  It was subsequently agreed that it could be adduced as evidence, following a request by the appellant.
26.	The statement refers to Dr Parisaei’s involvement with Patient A on 26 and 28 April 2005.  It states, inter alia, that Dr Parisaei saw Patient A on 26 April 2005 with her consultant, Mr Barnick at 09.05am.  At that point, Patient A was in spontaneous labour, there was no cause for concern.  Dr Parisaei reviewed the patient again at 09.30am, at the midwife’s request, to examine her perennial tear.  Dr Parisaei repaired a second degree tear. She again reviewed the patient on 28 April 2005.  Of that occasion, she says:
“This was my last involvement with Patient A.  I cannot recall anything being said by her, other than is written in the medical notes, however, I would have written if the patient had any particular concerns with regard to the treatment she had received or any staff member she had encountered.”
27.	In the appellant’s written statement, which she was permitted to read to the Committee, the appellant said:
“The patient had sustained a second degree tear and I informed her that the doctor would come and suture it.  Naturally it was an extended second degree tear and midwives are allowed to suture only second degree tear.  Once it is more than that, it has to be sutured by the doctor, and that is why she was sutured by the doctor.  I only left the room when I was satisfied that the bleeding had stopped.  At 09.30am, Dr Maryam Parisaei attended to the patient, after I had requested a doctor to attend to the vaginal tear…”
28.	In Dr Parisaei’s statement, she clearly states that she would have written if the patient had any particular concerns with regard to the treatment she had received.
29.	The statement of Dr Parisaei, being unsigned, would carry limited evidential weight.  I do not regard the fact that the Panel failed to refer to the statement of Dr Parisaei as being of itself a fact which would base a ground of appeal.  Taking the evidence of Dr Parisaei at its highest, it is of limited evidential value to the case of the appellant.  Of an allegation that there was a failure to take account or give due weight to the evidence, I do not find this ground of appeal substantiated.
The Panel failed to give appropriate weight to the appellant’s evidence, given verbally by written statements and documents.
30.	The Panel permitted the appellant to read out a prepared statement addressing the various allegations at the commencement of her evidence.  They were prepared to allow this because the appellant was unrepresented.  Two paragraphs were redacted from the appellant’s statement at the request of the respondent’s representatives.  The appellant agreed to the request.  There was nothing unfair in this course.  The appellant was asked questions in cross-examination and questioned by the Committee.  The allegation that the Panel failed to give appropriate weight to her evidence amounts to the fact the Panel preferred the evidence of Patient A and her husband, to that of the appellant.  They were entitled to do so.  In their reasons, the Panel identify particular matters where they found the evidence of Patient A and her husband to be convincing.  There is nothing in the reasoning of the Panel which provides any ground of appeal under this head.  
Conclusion
31.	The ground of appeal relating to the admission of the statement of Ms Pilgrim is allowed.  This represents the entirety of Head of Charge 1.  Ms Pilgrim’s statement also includes evidence relating to Head of Charge 3(b) but in their determination the Panel do not appear to rely on her evidence.
Misconduct
32.	In arriving at a finding of misconduct, the Panel took account of and relied upon their findings of fact in respect of Head of Charge 1.  They identified the findings as breaches of paragraph 1.2, the obligation to protect individual patients and paragraph 4.2, the obligation to work cooperatively within a team.  
Impairment
33.	In respect of impairment, the Panel said this:
“We conclude that fitness to practice is impaired.  Our reasons for that conclusion are:
Although the events only involve two days, there are serious, numerous and wide ranging breaches of the code of conduct.  We consider that the conduct falls far short of what one would expect of an average registrant…..”
The first of the two days can only be a reference to Head of Charge 1.  
34.	The findings of misconduct and impairment are clearly tainted by Head of Charge 1 and cannot stand.
Sanction
35.	Sanction does not fall to be determined by the court, given the findings made but there are three matters which concern the court:  
i)	This relates to the unrepresented status of the appellant.  It is clear from the reasoning of the Panel that they placed little weight on the testimonials provided by the appellant.  In doing this, they failed to give proper account to the fact that the appellant was unrepresented and did not have the advantage of a legal representative who would know what to obtain and how, for the purpose of adducing testimonial evidence;   
ii)	In approaching the issue of sanction, in particular, the possibility of a condition of practice order, the Panel appears to have applied its mind only to the appellant’s work as an agency nurse and failed to give any consideration to her work within the wider hospital environment.  Given that the appellant had practised since 1986 without previous complaint and in hospital settings, this would be a matter of concern to the court;  
iii)	These events occurred on two consecutive days following which the appellant went on sick leave.  No real effort was made by the Panel to explore the isolated nature of these incidents and the ill health of the appellant.  It is another example of a failure to have due regard to the fact that the appellant was unrepresented and disadvantaged in the presentation of her case.
Interim suspension order
36.	This cannot stand by reason of my earlier findings.  The views I have expressed in paragraph 35 above would apply equally to this sanction.