M had been found guilty of misconduct by a Panel of the the NMC's Conduct and Competence Committee ("CCC") and had been struck off the register following a Fitness to Practise hearing in February and
M had been found guilty of misconduct by a Panel of the the NMC's Conduct and Competence Committee ("CCC") and had been struck off the register following a Fitness to Practise hearing in February and March 2013 at which she was not present or represented. The allegations which the Panel found proved included breach of confidentiality, dishonesty, unprofessional and aggressive behaviour and the sending of aggressive and inappropriate correspondence to individuals.
M was originally unrepresented and appealed the decision on 23 separate grounds, but the general basis was that the allegations against her were false and were made as a result of a conspiracy by her managers against her because she had acted as a whistleblower. By the time the High Court heard her appeal (and her application for Judicial Review brought on the basis that the NMC did not give adequate reasons for referring M to the Independent Safeguarding Authority), M had obtained legal representation and refined her grounds of appeal to four main points, these being that:
The first two points were included in M's original grounds of appeal. However, the second two points were not. M also sought to rely on 'new evidence' at the appeal which had not been before the Panel.
Eder J did not consider that any fair minded and informed observer might conclude that there was a real possibility the Panel was biased.
In terms of proceeding in M's absence, in Eder J's view, the Panel had correctly and demonstrably made the decision to proceed in M's absence "with the utmost of care and caution" and was entitled to proceed as it did. Eder J also dismissed M's submission that in her absence, the Panel failed in its duty to put her case to the various witnesses who gave evidence at the hearing.
Eder J noted 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 if the defendant does not appear....if the panel does decide to proceed in the absence of the defendant, it seems to me vital that it performs its tasks properly and not merely as part of a rubber-stamping exercise". However, he further that the decision in R v Hayward EWHC Crim 168, on which he relied, did not place any duty on Panels to cross-examine witnesses in the way that a litigant in person or a legal representative may do. He considered it important that the Panel takes "reasonable steps" to expose weakness in the case of the opposing party, but that the scope of this will depend on the facts of a particular case.
In respect of the 12 findings which were said to be unsafe, Eder J held that re-examining these was not an exercise which can or should be embarked upon by the Court exercising an appellate function.
However, in terms of the admission of new evidence, Eder J held that there was no inflexible rule. He did not allow M to rely on a further detailed witness statement, but in relation to a letter from the Newham University Trust (which due to an apparent oversight had not been before the Panel), he considered that the fact that this letter was not before the Panel undermined its decision to find a particular charge proved, and "potentially infected its conclusions in relation to the other charges thereby vitiating the overall conclusion of the Panel" in striking M from the register.
For that reason alone, Eder J determined that the Panel’s decision must be quashed and the matter remitted to the CCC.
The application for Judicial Review was, however, rejected on the basis that although it was important to give reasons when making a referral to the ISA, it was unnecessary to determine this in the instant case as the NMC gave adequate reasons during the course of the instant hearing.
Read the case here.
M was originally unrepresented and appealed the decision on 23 separate grounds, but the general basis was that the allegations against her were false and were made as a result of a conspiracy by her managers against her because she had acted as a whistleblower. By the time the High Court heard her appeal (and her application for Judicial Review brought on the basis that the NMC did not give adequate reasons for referring M to the Independent Safeguarding Authority), M had obtained legal representation and refined her grounds of appeal to four main points, these being that:
- one member of the Panel ought properly to have recused himself as there was an appearance of bias;
- the Panel ought not to have proceeded without M being in attendance and M should now be granted a further hearing;
- the Panel failed to conduct the hearing fairly; and
- the 12 allegations against M which the Panel upheld could be explained, and without the benefit of M's explanation, the Panel's findings and decisions were unsafe and should be overturned.
The first two points were included in M's original grounds of appeal. However, the second two points were not. M also sought to rely on 'new evidence' at the appeal which had not been before the Panel.
Eder J did not consider that any fair minded and informed observer might conclude that there was a real possibility the Panel was biased.
In terms of proceeding in M's absence, in Eder J's view, the Panel had correctly and demonstrably made the decision to proceed in M's absence "with the utmost of care and caution" and was entitled to proceed as it did. Eder J also dismissed M's submission that in her absence, the Panel failed in its duty to put her case to the various witnesses who gave evidence at the hearing.
Eder J noted 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 if the defendant does not appear....if the panel does decide to proceed in the absence of the defendant, it seems to me vital that it performs its tasks properly and not merely as part of a rubber-stamping exercise". However, he further that the decision in R v Hayward EWHC Crim 168, on which he relied, did not place any duty on Panels to cross-examine witnesses in the way that a litigant in person or a legal representative may do. He considered it important that the Panel takes "reasonable steps" to expose weakness in the case of the opposing party, but that the scope of this will depend on the facts of a particular case.
In respect of the 12 findings which were said to be unsafe, Eder J held that re-examining these was not an exercise which can or should be embarked upon by the Court exercising an appellate function.
However, in terms of the admission of new evidence, Eder J held that there was no inflexible rule. He did not allow M to rely on a further detailed witness statement, but in relation to a letter from the Newham University Trust (which due to an apparent oversight had not been before the Panel), he considered that the fact that this letter was not before the Panel undermined its decision to find a particular charge proved, and "potentially infected its conclusions in relation to the other charges thereby vitiating the overall conclusion of the Panel" in striking M from the register.
For that reason alone, Eder J determined that the Panel’s decision must be quashed and the matter remitted to the CCC.
The application for Judicial Review was, however, rejected on the basis that although it was important to give reasons when making a referral to the ISA, it was unnecessary to determine this in the instant case as the NMC gave adequate reasons during the course of the instant hearing.
Read the case here.