Acting to stop harm: the FCA and Appointed Representatives
High Court dismisses appeal of nurse in connection with Panel’s failure to adjourn professional conduct hearing on the grounds of health.
Judgment Date: 6 November 2013
Ms Gatawa (“G”) appealed against a decision of the Conduct and Competency Committee of the Nursing and Midwifery Council (“NMC”), which had found her guilty of misconduct and her fitness to practise to be impaired.
One week before the hearing (which was due to commence on 20 November 2012), S, representing G, wrote to the NMC indicating that he had been helping G for approximately 6 months, and that G was suffering from anxiety and depression. S made it clear that he was a layman with no medical expertise but indicated that a medical report could be obtained by the time of the upcoming hearing. The NMC did not consent to an adjournment at that stage.
One day before the hearing was due to start, S wrote again to the NMC, attaching a letter from G’s doctor indicating that G had been diagnosed with depression and anxiety in June 2011, stating that unfortunately G had not been taking her medication, and that in his (the GP’s) view, “her current mental state…would affect her ability to produce coherent statements during proceedings”.
On the first day of the hearing, S requested an adjournment on behalf of G, producing the above-mentioned medical evidence and asking for an adjournment for 6 months. S asked the Panel to be mindful of the Mental Capacity Act and Equalities Act.
The Panel refused the application, in part on the grounds that G understood the proceedings and was able to instruct S to speak on her behalf. The hearing proceeded, but no witnesses were called on that first day.
The case was found against G, who appealed on two grounds; firstly, that the Panel should have acceded to her application, on the first day of the hearing, for an adjournment on the grounds of her health; and secondly, that S had had insufficient time to prepare for the hearing.
S represented G at the instant hearing. As for the first ground of appeal, S pointed out that G’s health had been dealt with sensitively by a previous Panel at an interim orders hearing (which had taken place in January 2012). On that occasion, reference was made to G’s depressive illness, an adjournment was granted, and the Panel had said it would keep G’s mental state under review. S argued that the Panel at the substantive hearing should have treated the matter of G’s health in a similarly sympathetic way.
Andrews J referred to the “high hurdle” which G had to overcome for the court to interfere with the Panel’s decision, distinguishing the current case from that of Brabaz and Derek v the UK Central Council for Nursing, Midwifery and Health Visiting  HRLR 6, in which the decision of a panel to refuse an application to adjourn was overturned in the Divisional Court (the registrant had not attended that hearing, but had submitted a doctor’s letter). In that case, it was held that “save in very exceptional cases… it must be wrong for a committee…to go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process”.
The learned judge opined that the instant case was different, in that although G’s doctor’s letter was unchallenged, it (1) did not indicate that G was unfit to instruct someone to represent her (2) did not indicate that G was going to be medically unfit to attend a hearing, and (3) did not say that G lacked mental capacity.
Although G’s doctor had expressed concerns about G’s “ability to produce coherent statements”, as there was no further medical evidence, and as G had someone (S) “holding himself out as competent to represent her”, Andrews J was unable to criticise the Panel’s decision.
As to the second ground of appeal, G argued that S had only received the bundle of documentation to be relied on by the NMC, containing witness statements and at 277 pages in length, the day before the hearing. On the day itself, G and S were then presented with a bundle which had been redacted by the NMC, a copy of which had already been provided to the Panel.
The above course of events, Andrews J pointed out, was “quite often the case” at the NMC. However, she noted that it meant that S “did not have a chance to make a qualitative assessment of the redacted material to see if there was anything in it which he might want to rely on and in particular, whether there might be something in the redacted material that would be food for cross-examination”.
In considering whether there was procedural unfairness to G in denying S further time to prepare, however, the learned judge noted a conversation between the Panel and S which had taken place on the second day of the hearing, in which S had explained to the Panel that he had been working on G’s witness statement and “getting ready for the questioning this morning”.
The learned judge highlighted that when pressed by the Legal Assessor on several occasions as to whether S had instructions from G to cross-examine the NMC witnesses, and was able to do so, S confirmed (1) that he was indeed in a position to question the witnesses and (2) that he was content for the hearing to continue. The first witness was called and, Andrews J said, S “did a good job” of cross-examining them.
Given the above, Andrews J said that “S was given a number of opportunities at which he could have said ‘I cannot continue to represent G’… ‘I need an adjournment to allow me to properly prepare’ … ‘I would like more time’, and he did not do that”.
Andrews J noted that the onus was on G to show that it was procedurally unfair (to S) for G not to have been given more time. As “the legal assessor and panel…bent over backwards to ask the representative if he…wants more time”, and S had declined their offer, she held that it was “impossible to prove that there has been procedural unfairness”.
Further, although G was a vulnerable person represented by a lay representative, and the circumstances “were less than ideal” in terms of the hearing bundle, Andrews J said that the Panel did not err by failing to adjourn to allow S more time to prepare. S had indicated he was happy to proceed and the Panel had satisfied itself of the same.
The appeal was therefore dismissed, but not without the “sympathy and regret” of the learned judge.
This case may serve to act as a salutary lesson to those regulators whose practice involves serving bundles at the very last moment; whilst the facts of this case did not merit an adjournment, if a registrant or representative (especially a lay one) expresses that they have had insufficient time to peruse the documentation in similar circumstances, the outcome may well be different.
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