Who’d be a Whistle Blower?
Doris Enemuwe v Nursing and Midwifery Council (NMC)  EWHC 1881 (Admin)
Judgement Date 26 July 2016
The background to this case is set out in a previous blog by my colleague, Tessa Nejranowski. In brief, the Appellant was employed as an agency midwife at Guy’s and St Thomas’ NHS Foundation Trust (the Trust). On 14 September 2012, the Appellant was assisting with the birth of Patient A’s baby. Patient A was accompanied by her husband during the birth. All charges, with one exception, related to the Appellant’s behaviour or performance in relation to her role whilst assisting Patient A. The final charge related to the Appellant taking home sensitive and confidential medical records following an internal Trust investigation.
The First Panel
The Conduct and Competence Committee of the NMC (“the First Panel”) was held between 17 and 21 December 2014 and between 12 and 15 January 2015. The First Panel concluded that there was no case to answer in relation to three of the charges, and that a further four charges were not proven. The remaining charges were either admitted or found proven.
The First Appeal
The Appellant appealed the decision of the First Panel on three grounds; Mr Justice Holman allowed the appeal on 8 July 2015 on one ground alone. Mr Justice Holman allowed the appeal on the ground that, pursuant to CPR 52.11(3), “there was a serious procedural or other irregularity in the proceedings in the lower court,” which was the First Panel’s reliance on the Supervisor of Midwives (SOM) investigation (as it was referred to).
Although it was not clear how the First Panel became aware of the findings in the SOM report, they made reference to it in their decision.
Mr Justice Holman considered that there was a serious irregularity when the First Panel allowed the findings of the SOM investigation to influence their decision making. Mr Justice Holman considered that the First Panel should have declined “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).”
As a result of the above, the finding of the First Panel and the sanction imposed were quashed and the matter was remitted to the NMC.
The Second Panel
The matter came before another Panel (“the Second Panel”) from 25 January 2016 to 1 February 2016. The Second Panel found the same two charges proven as the First Panel; that the Appellant had been abrupt and rude in that she 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” and that the Appellant had used her mobile phone on one or more occasion during the time she was providing care to Patient A on 14 September 2012.
The Second Panel found that the Appellant’s fitness to practise was impaired by reason of misconduct and imposed a suspension order for three months.
The Second Appeal
The Appellant raised nine detailed grounds of appeal which were labelled by the Court as “issues”. The key issues are considered below: -
The Second Panel’s admission of and or reliance upon the evidence of the SOM was wrong and amounted to a serious irregularity
This had been a successful ground of appeal in the First Appeal. The Appellant’s position was that the Second Panel had repeated the error of the First Panel contrary to Mr Justice Holman allowing the appeal on the ground that the First Panel had erred by having regard to the outcome of the SOM investigation. The position of the Respondent was that the order of Mr Justice Holman related only to the findings of the SOM and not the statements obtained for the purposes of the SOM investigation.
Sir Stephen Silber opined that the evidence relating to the SOM investigation and conclusion should be distinguished from one another. The Second Panel had considered that the conclusion was “completely irrelevant and has excluded it from its consideration”. The writer of the SOM had given evidence during the Second Panel and was cross examined. Sir Stephen Silber considered that this evidence was admissible as it was relevant and did not fall within the category of evidence to which Mr Justice Holman objected as it was not “the outcome of the supervisory investigation”.
The Second Panel failed to give adequate weight to the inconsistencies between the witnesses in respect of charges 1(b) and 2
It was submitted, on behalf of the Appellant, that the Second Panel failed to take account of the inconsistencies in the evidence of the witnesses. The Appellant raised a number of specific inconsistencies in the evidence. Sir Stephen Silber concluded that the alleged inconsistencies either did not exist or could not be explained. Furthermore, Sir Stephen Silber did not consider that the decision of the Second Panel was plainly wrong on this basis; he remarked that the appeal court should be accordingly slow to interfere with the decisions of fact made by the first instant body as per Langstaff J in Bhatt v General Medical Council  EWHC 783 (Admin).
The Second Panel erred in finding Charges 1(b) and 2 proved
It was stated, on behalf of the Appellant, that “no reasonable panel properly directing itself on those inconsistencies and serious conflict of evidence could have reached the conclusion that both charges were found proven”.
Sir Stephen Silber remarked that he had limited ability in his role as he was required to show reasonable deference to the Second Panel which saw and heard the witnesses; and also had professional expertise. He confirmed that he would only interfere if the decision was “plainly wrong” as per the decision in Bhatt v General Medical Council.
Additionally, Sir Stephen Silber noted that in Meadows v GMC  QB 462  the appellate court must have in mind, and give appropriate weight to the over-all value judgement made by the first tier tribunal on primary and secondary facts. Auld LJ commented in the decision in Meadows v GMC that secondary facts “are akin to jury questions to which there may be reasonably different answers”. Sir Stephen Silber considered that the decisions of the Second Panel were akin to jury questions and considered that there was ample evidence on which the Second Panel’s conclusions were justified and were not “plainly wrong” or even “wrong”.
The Second Panel was wrong to conclude that the facts found proved amounted to serious misconduct
Sir Stephen Silber again quoted the decision of Auld LJ in Meadows v GMC in relation to this matter. Specifically, “the body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect”.
Part of the Appellant’s case, in this respect, was that the Panel was unable to make the finding of serious misconduct unless there was consistent evidence on the issue. Sir Stephen Silber disagreed and stated that a panel is able to accept evidence from one witness, even if it is inconsistent with his/her other evidence, as a mistaken witness does not mean that they are unreliable or alternatively lying.
Sir Stephen Silber referenced, once again, the specialist knowledge of the Second Panel which he considered enabled the Second Panel to conclude that the Appellant’s conduct “fell far short of what would be expected and required of registered midwife in the circumstances”.
Sir Stephen Silber was satisfied that the Second Panel was entitled to find that the Appellant was guilty of misconduct, that it was serious and that the decision was not plainly wrong.
Sir Stephen Silber did not allow the appeal on any of the grounds put forward by the Appellant. Primarily because he was loathe to interfere with findings of fact made by the Second Panel.
The additional learning point from this case is the way in which Sir Stephen Silber differentiated between the findings/conclusions of the SOM investigation and the documentary evidence gathered as part of the SOM investigation. He made clear that whilst the findings/conclusions of previous investigations should be disregarded by fitness to practise panels, the same does not apply in relation to the witness statements and other documentary evidence gathered during the course of an investigation.
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