Case update: Nurse succeeds on appeal after Court of Appeal (Scotland) find NMC panel failed to address registrant’s inadequate representation and wrongly accepted methodology put forward by NMC

D v Nursing and Midwifery Council Court of Session (Inner House, Extra Division), 4 November 2014.

Background

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D had instructed a solicitor, and 4 days prior to the hearing, her solicitor informed D that he could no longer represent her, and gave her large volumes of material in order to prepare for the hearing.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. 

The Appeal

When the Committee found that D’s fitness to practice had been impaired, D appealed this decision on two grounds:

1. The Appellant had not been able to defend herself properly by reason of a lack of legal representation; and
2. The methodology which had formed the basis of the claim against her was reliant on circumstantial evidence and was deeply flawed.

Ground 1: Legal representation

In considering this issue, Lord Drummond Young came to the following conclusions:

• The concept of a fair trial was as relevant during fitness to practise proceedings as it was in a criminal matter and likewise depends upon the accused being able to present his case in court.
• Where a Registrant’s representation is so deficient, a fitness to practise tribunal decision can be overturned on appeal when the registrant was not fairly represented leading to an “unsafe” decision (England and Wales) or “a miscarriage of justice” (Scotland). 
• See Anderson v HM Advocate, 1996 JC 29, where the  right to a fair trial has been compromised, in England and Wales, and  “unsafe” decisions in R (Aston) v Nursing & Midwifery Council, [2004] EWHC 2368 (Admin).
• The hearing was not a fair hearing because D’s lawyer neither prepared her for the hearing nor attended it. It is furthermore evident from D’s conduct during the trial that she did not have the requisite understanding or skill to put forward her case. The defective representation was exacerbated by the complex nature of the methodology employed by the NMC.

Ground 2: The Respondents’ methodology

The process of elimination which formed the basis of the NMC’s methodology was circumstantial in that:

• It relied on the assumption that only one member of staff could have been responsible for the disappearing pills when there was no evidence to demonstrate this;
• There was no consideration of the fact that the tablets were often removed without authorisation for quite legitimate reasons. For instance, staff often brought the pills with them on patient transfers without authorisation, in order to help patients suffering from travel sickness;
• The nature of shift-working meant that staff were often present in the periods before and after their shifts. This overlap will not have been accounted for in the paperwork relied upon by the NMC; and
• It was a fundamental flaw that the NMC’s case was based upon only those on duty during a limited number of shifts, as part of the elimination exercise that had taken place.  The committee did not robustly address this methodology, and that this methodology should not have been accepted by a disciplinary committee that directed itself properly on the law and assessed the evidence in a rational manner.

The appeal was allowed and the original decision was quashed.

Conclusion

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.