Case Update: High Court confirms that disciplinary panels should not refer to findings of fact from previous investigations which could taint the panel’s findings in relation to a registrant’s fitness to practise

30 July 2015

Doris Enemuwe v Nursing and Midwifery Council (NMC) [2015] EWHC 2081 (Admin)

Judgement Date 8 July 2015


The appellant was employed as an agency midwife, and on 14 September 2012, the appellant was working at St Thomas’ Hospital when she was assisting with the birth of Patient A’s baby, who was accompanied by her husband during the birth.  All charges, with one exception, related to the appellant’s behaviour or performance in relation to the 14 September 2012 date, when she was assisting with patient A’s birth.  The final charge related to the appellant taking home confidential medical records following the internal Trust investigation, which were sensitive and confidential and should not have been stored at the appellant’s home.  The charges before the conduct and competency committee were as below:

Being a registered midwife, you:

1. On 14 September 2012 whilst providing care to Patient A:

a) Were abrupt and rude in that you:

(i) Failed to introduce yourself as a midwife;
(ii) Said to Patient A and/or Patient A's husband words to the effect of "you don't know what you're talking about" and/or "what do you want now";
(iii Rolled your eyes when Patient A asked you for advice.

b) Were unnecessarily rough with Patient A in that you:

(i) Pressed her stomach on one or more occasions whilst she was having contractions;
(ii) Roughly adjusted the TOCO transducer;
(iii) Pulled away the placenta with force.

c) Used your mobile phone on one or more occasion(s).
d) Cut the umbilical cord without consulting Patient A and/or Patient A's husband when they had requested the option.
e) Failed to gain consent from Patient A before administering a Syntometrine injection.
f) Piled blood soaked cotton swabs on Patient A's stomach and/or chest.
g) Failed to effectively communicate and/or escalate Patient A's postpartum haemorrhage in a timely manner...

2. Between approximately 17 December 2012 and 7 February 2013 you stored copies of Patient A's records in your own home.

The NMC hearing

The panel heard live evidence from 6 witnesses plus the appellant. One of the key witnesses that the panel heard evidence from, was the supervisor of midwives who had been appointed by the London Local Supervising Authority, and who provided the supervisors of midwives investigation report when the Trust received the complaint by Patient A and her husband. The report was dated 26 April 2013, and extended to 31 pages. This was referred to as the ‘SOM report’ during the appeal. 

The panel found that there was no case to answer in relation to charges (1)(b)(i), (ii) and (iii), 1 (d) and (1)(g). The panel found charges (1)(a)(i), (1(a)(iii) and (1)(e) and (1)(f) were not proven.

The appellant had admitted charge 2, and this was found proven. The panel found charges (1)(a)(ii) that the appellant had been rude and abrupt and used words to the effect of "you don't know what you're talking about" and/or "what do you want now."  The panel also found (1) (c) proved, that the appellant had used her mobile phone on one or more occasions when assisting with patient A’s birth.  The panel found that the appellant’s fitness to practise was impaired and imposed a caution order for 12 months.

The appeal

The appellant appealed the NMC’s original decision on three grounds, however Mr Justice Holman allowed the appeal on one ground alone, without the need to hear the other grounds of the appeal.  Therefore the appellant’s fitness to practise finding and the sanction imposed were quashed and the matter was remitted to the NMC.

The rationale

The appeal was allowed pursuant to CPR 52.11(3) in view of the finding that “there was a serious procedural or other irregularity in the proceedings in the lower court,” this being the panel’s reliance on the SOM investigation.  It is not clear how the panel became aware of the findings in the SOM report, as it does not feature on the transcript, and the advocate acting on behalf of the appellant during those proceedings refers to the fact that “the findings [of the SOM report] are not put before this particular panel.”  Within the judgment of the panel, it is clear that the panel did have knowledge or access to the SOM report and placed reliance upon the findings. The panel, in their reasoning when confirming their decision at the substantive hearing say that: “the outcome of the SOM investigation was that all the allegations against you were upheld…”  The panel therefore make it clear that they had access to the SOM report and the findings made within the report.

Mr Justice Holman confirms that although the panel clearly took care when deciding upon whether a charge was proved or not, there was a serious irregularity when they allowed the findings of the SOM investigation to influence their decision making:

“…in the language of CPR 52.11(3)(b) there has been a serious irregularity in this case.  Although the Committee clearly conducted this whole hearing with the utmost care, and although they clearly demonstrated a capacity to discriminate between the various charges, some of which were found proved and others not proved, there must be a risk here that in some way they allowed themselves to be influenced, even if only peripherally, by their knowledge that all the allegations had earlier been upheld by Ms 2. What they should in fact have done was decline to admit any evidence by any means of the outcome of the supervisory investigation, and they should have treated the findings and decision of Ms 2 as completely irrelevant and excluded from their consideration by operation of rule 31(1).”

Regulators are to take care when relying upon previous panel’s documentation. Mr Justice Holman makes it clear in his judgment that professional panels may know of the existence of disciplinary investigations, however they should not know of a panel’s previous findings on the very issues that they themselves need to decide: “normally the findings of fact made at some earlier investigation by another panel or another person are not admissible in proceedings before this committee.” 

This demonstrates the need for a regulator to take care when relying upon documents from a previous disciplinary hearing in fitness to practise proceedings.  If these are to be used, they should be redacted so that no previous findings of fact are contained within the documents in order to prevent the potential for panels to be tainted by a previous panel’s findings on the same issues that they are to determine.  This also emphasises the need to agree with the other side the documentation and redactions within a panel’s bundle prior to the hearing, to avoid panels receiving documentation that they should not be privy to. 

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