Two bites of the apple- limitation in professional negligence cases
We examine the role of the Legal Assessor in fitness to practise proceedings in light of two recent cases highlighting their responsibilities, in particular where Registrants are neither present, nor represented.
Put shortly, the Legal Assessor’s role is to ensure that proceedings are conducted in an appropriate manner. The steps that a Legal Assessor must take in order to achieve this are, of course, by no means formulaic and will depend on the particular circumstances of each case, as two recent High Court judgements by His Honour Judge Anthony Thornton QC illustrate.
Florence Musonza v Nursing and Midwifery Council  EWHC 1440
In this case Florence Musonza (FM), a Zimbabwean national, appealed against a decision by a panel of the Conduct and Competence Committee (CCC) of the Nursing and Midwifery Council (NMC) to strike her name from the NMC’s register. The allegation against FM was that her fitness to practise was impaired by reason of two convictions, the first in July 2009 and the second in November 2009. FM’s appeal was brought on the basis of procedural irregularity, evidential conclusiveness of the convictions, failure to consider her mitigation, errors in the decision and unduly harsh sanction.
FM came to England on a visitor’s visa in August 2001 and applied for a student visa shortly thereafter. When her visa was granted in November 2001, the Home Office failed to return her passport to her and her attempts to retrieve it were unsuccessful. Between 2001 and 2006, she made no attempt to obtain a duplicate passport from the Zimbabwean authorities due to the difficulties in doing so as a refugee and the fact that she had no intention of leaving England.
In September 2003, FM was accepted onto a three year diploma course in adult nursing, commencing February 2004. As part of her application for a student bursary, she was required to demonstrate that she had been ordinarily resident or otherwise to have had settled status in England throughout the three year period preceding the first day of her academic course. In order to do this, FM obtained a forged British passport and submitted a copy of the identity page in support of her application. Between March 2004 and March 2007, FM received bursary payments totalling £31,743.48.
In 2006, with her course nearing completion, FM decided to apply for leave to remain on the basis of her relationship with an English partner. She was required to submit her passport with her application but, due to the events of 2001, she was unable to. The Zimbabwean Embassy in London advised her that she would need to return to Harare to apply for a new passport. She was unable and unwilling to return to Zimbabwe and considered that she would be at great risk if she did so. With the assistance of her mother, FM contacted the relative of a family friend in Zimbabwe who worked in the relevant department of the Government there. Having sent off some details and money, FM received a duplicate passport a few weeks later, which she sent to the Home Office. In March 2007, FM qualified as a nurse and obtained a nursing job in the Emergency Department at St Thomas’ Hospital and in March 2009 her duplicate passport was returned to her stamped with the grant of indefinite leave to remain.
In early 2009, when FM made an application for a national insurance number, the duplicate Zimbabwean passport showing her indefinite leave to remain was found to have been manipulated and she was arrested. In July 2009, she pleaded guilty to a charge of being in possession of a false Zimbabwean passport which she knew to be false and was sentenced to 12 months custody. Whilst serving that sentence, she was interviewed for the offences relating to her student bursary from 2003 – 2007. In November 2009, she pleaded guilty to obtaining a money transfer by deception and was sentenced to 6 months’ custody.
In January 2010, FM was issued with a deportation notice and promptly lodged an appeal. In March 2010, she was notified that the NMC’s Investigating Committee was to consider an allegation against her. She submitted a brief response in April 2010, accepting full responsibility and expressing remorse. FM’s appeal to the First Tier Tribunal was considered in May 2010 and, after a full hearing, it was ruled that the decision to remove FM was disproportionate. By letter dated 9 December 2010, the NMC wrote to FM to advise her that the allegation had been referred to the CCC and invited her to consider whether she wished the allegation to be determined at a meeting or a hearing. There was a case management form for FM to fill in, which she returned on 15 December 2010, electing a meeting and indicating that she did not intend to attend a hearing or to be represented. On 31 January 2011, the CCC considered FM’s case management form with the allegations and hearing bundle at a procedural meeting, with a Legal Assessor present. The CCC decided to refer the case to a meeting.
FM was not advised of the contents of any legal advice given to the CCC or the reasons for its decision to refer the allegation to a meeting for determination.
It was held that the referral procedure had not been adequate to inform FM of the importance of obtaining legal advice and representation or to advise her of the necessity to seek and attend an oral hearing. The hearing bundle made it clear that FM’s case presented difficult issues in relation to the decision as to the appropriate sanction because, amongst other reasons, FM had extensive mitigation in relation to the circumstances of each offence and to her personal circumstances, and the extent of her dishonest behaviour was not clear cut. As such, it was held that although FM had waived the offer of an oral hearing, she had not done so on an informed basis. This, it was held, was procedurally unfair. Further, it was held to be “inexplicable” that the CCC decided to refer FM’s case to a meeting without giving reasons or without reference to any established procedural practice.
The meeting to consider the allegation took place in March 2011, again with a Legal Assessor present. The hearing bundle considered at the meeting included only a limited number of pages from the First Tier Tribunal’s lengthy decision, apparently due to a photocopying error. The contents of that decision formed a significant part of FM’s defence and mitigation, and this was held to be another example of procedural unfairness, which potentially presented a significant prejudice to FM.
It was identified that, before the CCC retired to consider its decision in private, the Legal Assessor did not give any advice on how rule 31 of the Nursing and Midwifery (Fitness to Practise) Order 2004, which deals with the evidential status of a certificate of conviction, should apply to the facts of FM’s case. Further the Legal Assessor did not give the CCC any guidance as to the mitigation put forward by FM or of any relevant matters that could be considered as pointing to suspension rather strike off. It was held that, since FM was not there, the Legal Assessor needed to advise the CCC as to what they should and should not consider in relation to sanction to ensure that FM obtained a fair consideration of her case.
It was held that the CCC, both in deciding not to hold an oral hearing and when considering the hearing bundle, laboured under an error of law. FM’s case management form made it clear that she wanted to explain and reduce the effect of dishonesty in relation to the replacement passport obtained from Zimbabwe. Since the extent and nature of the dishonesty involved was not identified by the certificate of conviction in FM’s case, it was held that the entirety of FM’s evidence and all the facts capable of being extracted from the three transcripts concerning the convictions or FM’s state of mind were relevant. The weight to be placed on that evidence and the conclusions to be drawn were matters for the CCC.
The appeal was allowed and the case was remitted back to the CCC for redetermination.
Fabiyi v Nursing and Midwifery Council  EWHC 1441 (Admin)
Eunice Fabiyi (EF) appealed the decision of a Panel of the NMC’s CCC to strike her off both the midwifery and nursing parts of the NMC register. Her appeal was brought on the grounds that the CCC should have directed an adjournment of the hearing at the outset, procedural unfairness in the CCC reaching its conclusion in reliance on evidence that had not been properly particularised and without considering EF’s defence, erroneous application of the law of dishonesty and disproportionate findings.
The allegation against EF was that her fitness to practise was impaired by reason of her misconduct. EF qualified as a midwife in 1977 and, from 2007, worked on the labour ward at University College London Hospital (UCLH) as a midwife coordinator. In August 2007, for financial reasons, EF registered with two nursing agencies to enable her to undertake shift work outside the UCLH, of which her supervisor was aware. From April 2008, several concerns about EF’s clinical practice came to light and EF was placed on an initial three-month period of supervised practice by UCLH from 2 June 2008. EF was forbidden to work unsupervised or as a co-ordinator of midwives on the ward whilst undertaking supervised practice. The factual particulars of the NMC’s allegation were that EF had dishonestly worked on seven occasions as a midwife in spite of the terms of her supervised practice.
When it came to light that EF had been undertaking external agency shifts an investigation commenced. EF explained that she had understood the restrictions on her practice applied only to her work within the Trust and that she remained free to undertake external agency shifts. There was evidence before the CCC that EF had been advised that she could not undertake agency work whilst on supervised practice, but there was no clear written evidence that EF had had it spelt out to her that she was not to undertake external agency work. It was clear that the rules relating to supervised practice, which was relatively new, had not been adequately disseminated, properly understood or fully implemented by and within UCLH in general and had not been understood by EF.
EF neither attended nor was represented at the hearing. On the morning of the hearing, a non-lawyer representative from Thompsons Solicitors had attended the NMC and handed in copies of a witness statement on behalf of EF. The representative said that EF would not be attending the hearing and asked for the witness statement to be placed before the CCC. At her appeal, EF expressed her understanding that someone would be representing her at the hearing; she had only learned that they had not upon receiving the transcript.
With regard to the first ground of appeal, the High Court found that the CCC did not – and were not advised to – take account of a number of highly relevant matters which pointed towards an adjournment. Firstly, the allegation of dishonesty was inadequately particularised and the evidence relied on had not been summarised and was not set out in the hearing bundle in a readily intelligible order. Secondly, EF appeared to have an arguable defence which the NMC’s two principle witnesses had previously accepted. Thirdly, the CCC could not fairly reach any conclusion as to why EF was not present or as to whether that non-appearance and her non-representation had arisen on the basis of her informed consent. If anything, the evidence available to the CCC pointed to EF not appreciating the seriousness of the allegation she had to face, which was not entirely her fault given the lack of particularity and the unstructured way that the extensive documentary evidence being relied on was being presented.
It was held that the Legal Assessor was wrong to advise the CCC that there had been attendance that morning by a solicitor representing EF, as the person who attended could be said to have been acting in any other capacity than that of a messenger. The correct position was that the CCC had not been provided with any information by either EF or her solicitor as to whether they would be attending, such that no conclusion was justified concerning their non-attendance or as to EF's state of mind about the allegation of dishonesty. It was held that the Legal Assessor ought to have advised the CCC, in considering whether to proceed in EF’s absence, of the need to satisfy itself that EF's decisions not to be represented and not to appear had been taken on the basis of her informed consent. Further, it was held that the Legal Assessor should clearly have pointed out to the CCC that EF, in her recently delivered witness statement, was contesting the dishonesty allegation. The Legal Assessor was wrong to suggest there was an inference that EF wanted the hearing to proceed in her absence.
With regard to the second ground of appeal, it was held that there had been an unfair widening of the dishonesty allegation. It was necessary at the charging stage, and it remained necessary throughout the hearing and decision-making stages, for the CCC to keep in mind the nature of the dishonesty with which EF had been charged and the evidence that EF had been notified was the evidence the NMC was relying on in support. The dishonesty allegation was confined to the mere fact that EF worked the agency shifts having taken a conscious decision to flout instructions given to her; however the CCC decided that the dishonesty charge related or extended to EF deliberately misleading hospitals by falsely representing to them that she was able to work there in an unsupervised capacity. Potentially significant observations as to EF’s state of mind, made by EF’s supervisor who was called as an NMC witness, were not explored, notwithstanding that they were good evidence that EF had formed a mistaken view and belief regarding the restrictions to her practice.
With regard to the third ground of appeal, it was held that the Ghosh direction given by the Legal Assessor to the CCC was majorly deficient in that it did not provide the CCC with a direction as to the nature of the dishonesty that was alleged and as to the relevant oral and documentary evidence that could be considered in reaching a decision about dishonesty. The CCC needed to be instructed that their consideration of EF’s conduct had to be confined to whether or not the instructions she had been given clearly precluded her from external agency working and whether she deliberately and consciously ignored those instructions when undertaking that working regime. They were not entitled to take account of other possible dishonest acts. It was held that the Legal Assessor’s directions were also gravely deficient in not reminding the CCC that they had carefully to consider EF's defence, in not explaining what that defence was in the context of this case and, in particular, in not explaining how it was possible to admit the charges of wrongful unsupervised working but, in doing so, not to be dishonest.
With regard to the fourth ground, given that the findings of the CCC as to misconduct and impairment were largely based on an erroneous finding of dishonesty, it was held that those findings should be set aside, and the matter remitted back to the CCC to reconsider in the absence of dishonesty.
The judgements in these cases identify several examples of deficiencies during the course of a fitness to practise hearing or meeting. To that end, they provide a helpful refresher of what may be required of a Legal Assessor in certain instances to ensure that proceedings are conducted in an appropriate manner, and to avoid the types of criticisms which these cases attracted.
Pertinent to both cases is the role of the Legal Assessor where a Registrant does not attend. Needless to say, Registrants do not always engage in fitness to practise proceedings and, although they have a right to attend, they are not obliged to. These judgements highlight the particular need for the Legal Assessor to remind the panel to scrutinise whether a Registrant’s decision not to attend has been made on an informed basis. Has the allegation been insufficiently particularised, such that the Registrant cannot be said to understand the case against her? Does the Registrant have an arguable defence? Was the information provided to the Registrant insufficient to advise her of the importance of attending an oral hearing? Factors such as these are relevant to the question of informed consent and so should be brought to the attention of the panel by the Legal Assessor. The discretion to proceed in the absence of a Registrant is one which must be exercised with a great deal of caution, and a Legal Assessor should be slow to suggest that a Registrant has waived her right to attend or to invite the panel to draw a conclusion concerning the Registrant’s non-attendance in the absence of specific information directly from the Registrant or her representative. Wherever a panel decides to proceed in the absence of a Registrant, either at a hearing or through referring to a meeting, clear reasons for the decision must be given.
As both judgements illustrate, the Legal Assessor should intervene if any potential or actual procedural unfairness arises during the course of proceedings. If pages from a document within the bundle are missing, this should be flagged up in order that the error can be rectified, particularly where the missing pages are of real significance to the mitigation of a non-attending Registrant. Where a charge has been inadequately particularised, the Legal Assessor must instruct the panel to confine its deliberations to those matters which have been particularised. Clearly, the onus is on those bringing the allegation to ensure that it is properly particularised and that the documentation relied upon is properly copied, but the Legal Assessor must intervene if any shortfalls are identified, particularly where the Registrant is not able to do this.
Of real importance in any case where the Registrant does not attend, as both judgements make clear, is the necessity for the Legal Assessor to summarise for the panel the parts of the oral and documentary evidence that the Registrant or her representative could have relied on had they been present at the hearing, to ensure that the Registrant’s case is fairly and fully considered by the panel; this relates both to evidence relevant to a Registrant’s defence, and evidence relevant to sanction. This does not, of course, require the Legal Assessor to postulate defences which a Registrant who has never given an account of her actions may have advanced had she attended.
Finally, both judgements feature an instance where the Panel misapplied the law; in FM’s case with regard to the status of the certificate of conviction and in EF’s case with regard to the sequential test to be applied where dishonesty is alleged. A central part of the Legal Assessor’s role, in ensuring that proceedings are conducted in an appropriate manner, is to ensure that panels, whose members are not legally qualified, are properly directed on matters of law. Needless to say, appropriate care should be taken by the Legal Assessor in advising panels on matters of law. If a Legal Assessor’s direction or advice is considered to be incomplete, deficient or just plain wrong, the Presenting Officer or Registrant’s representative if present should intervene. After all, the endeavour to ensure that hearings are conducted in an appropriate and fair manner should be collective amongst all those who participate in proceedings of this kind.
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