Two bites of the apple- limitation in professional negligence cases
D v Nursing and Midwifery Council Court of Session (Inner House, Extra Division), 4 November 2014.
D was a registered nurse and the Nursing and Midwifery Council’s (NMC) case was that between 23 May and 6 October 2011, D had taken small to large amounts of the anti-nausea drug, ‘cyziline’ from hospital supplies without authorisation. The fitness to practise panel at the NMC found the allegations proved, and imposed a striking off order from the NMC’s register for serious misconduct involving dishonesty. D appealed against this decision.
The Conduct and Competence Hearing
D had instructed a solicitor, and 4 days prior to the hearing, her solicitor informed D that he could no longer represent her, and gave her large volumes of material in order to prepare for the hearing. It would also appear that her solicitor had not prepared the case adequately before the hearing. D therefore represented herself at the hearing, and the NMC were represented by a barrister and the committee was assisted by a legal assessor.
The methodology employed by the NMC focussed on cross-referencing the times when cyziline was reported to have been missing, with who was on duty during those corresponding times. Where an individual was not on duty at a time when cyziline disappeared from the supplies, that person was eliminated from the investigation. By a process of elimination, it was discovered that the D had consistently been on duty during the times when the drug vanished and accordingly this was how the NMC had built their case against D. There was however, no direct evidence against D. No one had seen D take any of the missing tablets, and the case against her was entirely circumstantial.
When the Committee found that D’s fitness to practice had been impaired, D appealed this decision on two grounds:
Ground 1: Legal representation
In considering this issue, Lord Drummond Young came to the following conclusions:
Ground 2: The Respondents’ methodology
The process of elimination which formed the basis of the NMC’s methodology was circumstantial in that:
The appeal was allowed and the original decision was quashed.
This case emphasises the need for caution to be applied by panels when allowing a case to proceed when the registrant has been poorly represented by their legal team, either before or during a case. This case demonstrates that the adequacy of the representation will be considered with regard to the skill and knowledge of the registrant and the complexity of the case. Therefore, where a registrant is contesting allegations and does not have sufficient representation, it may be advisable to adjourn the hearing until suitable representation can be found or safe-guarding measures can be put in place. Otherwise, there is a risk that the decision could be unsafe and lead to an appeal.
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