John Barker examines McDAID V NURSING AND MIDWIFERY COUNCIL (2013) EWHC 586 (ADMIN); which gives guidance on the duties of Fitness to Practice Panel hearing in the absence of the practitioner.
John Barker has been in practice as a barrister for over thirty years and appears in all levels of Court in Criminal and Regulatory matters. John is a member of the Association of Regulatory and Disciplinary Lawyers and has been appointed to sit as a Legal Assessor to The Royal Pharmaceutical Society of Great Britain, The General Osteopathic Council, The Association of Accounting Technicians and The Market Research Society.
Case summary by John Barker
On 21st March 2013 Judgment was given in McDAID V NURSING AND MIDWIFERY COUNCIL (2013) EWHC 586 (ADMIN) by The Hon. Mr Justice Eder.
- The Panel of the Conduct Competence Committee (CCC) of the Nursing and Midwifery Council (NMC) is a Committee which was established by the Nursing and Midwifery Order 2001. The CCC is part of the Fitness to Practice Scheme governing the conduct of registered nurses and midwives. This case is an appeal against the decision of the CCC by Bernadette McDaid (BM), who was employed by the Newham University Hospital NHS Trust as a registered midwife. The allegations were varied but covered the period of December 2008 to July 2011 and were alleged to amount to misconduct.
The Appelant’s case in summary
- That all the allegations were false and that she was being targeted as a “whistleblower” in an attempt to remove her from working in midwifery in Newham.
- The process resulted in her being dismissed from Newham on 30th July 2009 and barred from practising as a midwife by an interim suspension on 3rd June 2010 and at the substantive hearing starting on 28th February 2012.
The substantive hearing
- This took place over two weeks at the end of February/beginning of March. It was agreed by both parties that BM was given due notice of that hearing. A week before the hearing was due to take place there was a preliminary meeting attended by the parties including the Appellant. This was to address management of the substantive hearing. The Appellant raised several issues at the preliminary meeting. One issue was that a member of the panel (Mr Heath) was inappropriate as a Panel member. BM confirmed she was aware of the substantive hearing and was planning to attend.
- BM did not attend the substantive hearing on the first or subsequent days. The Panel, after making some enquiries into her absence and taking advice from its legal advisor, decided to proceed with the substantive case in her absence.
The decision of the panel
- The Panel concluded that 12 out of 13 allegations were proved against BM. They found her fitness to practise was impaired by reason misconduct and that this was fundamentally incompatible with her continued registration as a midwife. The Panel concluded that the only appropriate and proportionate sanction was a striking-off order. This was made and BM’s name was removed from the register of nurses and midwives. The Panel also made an interim order in the form of an 18-month suspension until the final order came into effect in order to enable BM to pursue an appeal.
- Many of the original points of appeal in the notice of appeal were abandoned but four main points were advanced at the hearing:
- Mr Heath ought properly to have recused himself;
- The panel ought not to have proceeded without the BM’s attendance and ought to have the opportunity of a further hearing;
- The Panel failed to conduct the hearing fairly;
- The 12 allegations which the Panel upheld against BM could have been explained and without the explanation the finding of the Panel is unsafe and should be overturned. Decisions
- The point taken by BM was that Mr. Heath knew an individual who was relevant to her case. The Court did not find that he should have reclused himself for this reason and that the Panel had properly considered the issue and concluded there was no bias.
Proceeding in Absence of BM
- Rule 21 of the Nursing and Midwifery Council (Fitness to Practice) Rules 2004 deal with proceedings in the absence of the ‘Registrant’. The Court found that the rules were followed properly. The Panel had a discretion as to whether the hearing should take place in the absence of a registrant and/or his legal representative. The discretion must be exercised with great care and only in exceptional cases should it be exercised in favour of a substantive hearing taking place in the absence of a registrant, particularly if unrepresented. The Court felt that the Panel had proceeded with the “utmost care and caution” and that the Appellant had decided simply not to attend the hearing.
Whether the Panel conducted the hearing fairly
- The argument on behalf of BM was that as the Panel had decided to proceed in her absence, the Panel should have in effect put the Appellant’s case to the various witnesses who gave evidence during the ten day hearing. The case of R v Hayward (2001) EWCA Crim 168 was relied upon on behalf of BM to the effect that the Panel was under a duty during the course of evidence by the NMC’s witnesses to, in the words of Rose LJ “expose weaknesses in the prosecution case and to make such points on behalf of the Defendant as the evidence permits...” On behalf of the NMC it was submitted that this test did not apply in the circumstances of the present case. However, the legal advice (from the transcript of the hearing) given was that this was the duty of the Panel.
- The Court found that the test as formulated by Rose LJ did apply in the circumstances of the present case. It stated that any Panel appointed to consider and to determine charges as in the present case carries out an important independent role. The performance of such tasks is much more difficult in the defendant does not appear and that is perhaps one of the reasons why a Panel should only proceed in the absence of a defendant with great care and caution. The Court found that If the Panel decides so to proceed it is vital that it performs its tasks properly and not merely as a rubber-stamping exercise.
- The Court observed that the above test does not suggest that there is any duty on the Panel to cross-examine witnesses in the way it might be performed by a litigant in person or by any legal representative. “Reasonable steps” are required to be taken by the Panel and this would depend on the particular circumstances.
- In this case the Court found that there was sufficient questioning by the Panel and this aspect of the appeal was rejected.
Absence of registrant’s explanation
- It was argued that without the benefit of the explanations by the Appellant the finding of the Panel is unsafe and should be overturned. The court found this was an attack on the Panel’s substantive conclusions. The court would need to accept the Appellant’s version of events despite not giving evidence at the substantive hearing before the Panel and also to reject much of the evidence of the witnesses who gave evidence.
- The Court found that it could not embark on this exercise as it would exercising an appellate function.
- In fact this appeal was ultimately allowed on the basis of a failure to consider important evidence not placed before the committee. It is however instructive to note that an absence of effective cross examination of a Registrar’s witnesses or of robust assistance given to a registrant would not give rise to a point giving rise to a successful appeal.
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