38 Judges can't be wrong

Cathryn Watters
Oct 31, 2020
14 min read

Updated: Nov 5, 2020

We have discussed in previous blogs about the apparent lack of protection of the human rights of nurses and midwives undergoing Fitness to Practice investigation. The Nursing and Midwifery Council themselves have admitted their only remit is to protect the public and have no duty of care to the registrant. ( nurse, midwife or nursing associate ). However there are many examples of how the process does intrude on our basic human rights which seem to be discarded the moment we qualify as a nurse or midwife.

The IMMDS Baroness Cumberledge team appointed by HSC Minister Jeremy Hunt, presented data collated by Ms Vassanta Suddock in regards to the disparity between sanctions that doctors receive in comparison to nurses and midwives. The GMC confirmed that more nurses / midwives were impaired, sanctioned and struck off during FtP thank doctors, stating the reason as being due to nurses and midwives not being as litigious as doctors. This is a sad fact – are they saying that because a group is less able to advocate for themselves and more vulnerable they have to accept they will not be safeguarded?

Article 8 protects your right to respect for your private and family life. Our blog, Taking Liberties, explored the areas looked at in Article 8 in relation to the NMC FtP process in a wider context. Key aspects were advice given by the Human Rights charity Liberty who stated;

An ” analysis of the interplay of the NMC’s legislative powers with the ‘right to privacy’ under Article 8 of the European Convention on Human Rights (ECHR) should be considered
Some considerations should be thought of with this area in relation to data protection and disclosure of information in the name of “public interest”
there is no specific obligation to publish or disclose details of hearings in advance of the hearing conclusion.
potential breach of Article 8 of the ECHR protects the right to respect for the private life of individuals. The ECHR is given effect in the UK by the Human Rights Act 1998 (HRA). Section 6 of the HRA provides that public authorities must comply with ECHR rights.
Public bodies must always balance the competing rights to privacy and free expression between the public and the registrant.

So what does this mean or feel like to a nurse or midwife undergoing Fitness to Practice investigations with the Nursing and Midwifery Council?

Many of those under investigation find it difficult to secure employment even if they have no interim order, whilst investigation takes place. An investigation can take anything up to 15months which may leave the registrant financially compromised and professionally damaged. Many even struggle to gain work as support workers / healthcare assistants.
Many registrants at the end of their investigation receive a “no case to answer” and yet there is no recourse to claim back salaries lost. ( from those that responded to a survey of our members, 23% of those that recieved NCTA did not continue in the profession )
Registrants may have full details of the case against them published in local newspapers before they have had opportunity to defend, prove innocence or give explanation as to legitimate mistakes. These are often media hyped against a backlog of sensationalised headlines designed to sway the public interest against “killer nurse” or ” murdering midwife”. Whilst freedom of the press is not under the jurisdiction of the NMC more could be done to respect the privacy of the nurse or midwife.

“Requires improvement” ” Could do better” are too passive a response to a nurse who has had her personal and professional life thrown into the public arena, lost their ability to work and had their professional confidence and respect destroyed. We have found 37 cases that have involved the nurse or midwife appealing the sanction received at NMC hearing and overturning the decision successfully, since 2009. A handful of these have been self litigants, brave to step into the legal arena to prove their worth to remain on the register. In comparison to the numbers of cases at hearing, few decide to take this step – imagine if they did…

Sarkodei-Gyan [2009] strike off was overruled due to “procedural irregularities”. The committee had wrongly combined the fact-finding stage with the impairment stage. The court emphasised that in a health case it was still necessary for the committee to apply the three stage process of fact-finding, impairment, and, if appropriate, sanction.
Haywood, M (2009) assisted in a panorama program which under cover widespread neglect of elderly patients was struck off the nursing register. After Unite, her union, stepped in to assist. The NMC failed to acknowledge mistakes were made and the decision was too extreme but settled by mutual consent before the case went to court but the NMC failed to exonerate her completely adding a caution order to her record. This was one of the first cases of whistleblowing and the only referral source of the complaint to the NMC was the NHS trust that Ms Haywood raised concerns at. Her strike off order was reduced to a 1 year caution at appeal
Jatta, B (2009) overturned his sanction at appeal whereby the High Court judge described his case as “truly tragic” quoting his “exemplary working record” as context for more leniency
Ogbonna (2010) overturned her strike off by the NMC
Raheem ( 2010) The High Court quashed the Striking off Order and referred back to a new CCC panel.. The NMC notice of hearing had been returned unopened. However, the panel had undertaken a cursory assessment of whether to proceed in the absence of the practitioner, and such an approach was unlawful.
Sharp ( 2011 ) The judge in this appeal made interesting observations that the panel should not do “their own detective work” and in doing so made a “considerable error”. It served as a reminder that panels should not step outside the boundaries of the evidence presented to them.
BR (2012) the appeal was allowed as the NMC made an unlawful breach of the Claimant’s substantive legitimate expectation that she had no case to answer in relation to the allegations. The judge considered it disproportionate and unfair for the case to be re-examined
Duthie, J (2012) won her appeal at high court who stated that the NMC failed to give adequate rationale for their decision making.
Fabiyi ( 2012) The nurse was found guilty of dishonesty & struck off. The appeal judge ordered a retrial due to inadequate particulars being given in the charges and inappropriate legal directions being given to the adjudicating panel.
Fuyans (2012) the appeal was allowed and strike off order replaced with a one year suspension order
Musonza ( 2012) As a self litigant the nurse was successful in overturning a strike off order, made in her absence, at a private hearing. The court held that the NMC had not given sufficient warning that the nurse should take legal advice and be represented, because of the potential outcomes. Also, there was a failure to sufficiently take into account the nurses evidence as it related to one of the allegations
Perry (2012). the appeal was allowed and the interim suspension order replaced with a conditions of practice
"R" on behalf of "B" (2012)The registrant submitted that the IC’s action in overturning its earlier decision fell outside the very limited power of a professional regulatory body to correct its own mistakes. She argued in the alternative that by setting aside its previous decision, the NMC acted in breach of her procedural and substantive legitimate expectation that she could rely on the original decision.
Johnson and Maggs (2013), finally gained justice – following strike off in 2007. It was duly accepted by the NMC that the delays violated the rights of the Registrants under Article 6 of the European Convention for the Protection of Human Rights to a hearing within a reasonable time.
Okeke ( 2013) Justice Leggat questioned whether the NMC could ever make a striking-off order solely on the basis of a lack of competence. Quashed and remitted to new panel for rehearing
McDaid, B (2013) successfully won her appeal against strike off in the High Court. Accusations involved breaching confidentiality, dishonesty, unprofessional, aggressive behaviour and sending ‘aggressive and inappropriate correspondence to various individuals’. McDaid whistle blew against her trust.
Amao ( 2014) The nurse was struck off the register. It was held at high court that the information which emerged regarding the witnesses having given inaccurate evidence made it incumbent upon the Panel to tread carefully. This case acts as yet another warning to those involved in hearings where registrants are unrepresented. The Court allowed the appeal, quashed the decision to strike off and declined to remit the matter (which would involve a greater sanction than the period of suspension as had already undergone as a result of the interim suspension order).
Ellingham, L (2014) – the nursing press highlighted her problems with impact of undergoing FtP despite being cleared “A spokeswoman said the regulator also worked to encourage the media to follow through cases and report the outcome where nurses were found not guilty.” To date no article has been published in main stream press following an NMC outcome of no case to answer or of being overturned at High Court. There has neither been no statements released from the NMC on their comments on successful appeal cases.
“D ( 2014)” Was a self litigant and was able to prove to the High Court that the representation given at hearing was inadequate and thus the court quashed the strike off order
Isaghehi (2014). As a self litigant was able to persuade the court to quash the strike off order and replace it with a suspension order.
Lavis (2014) Justice Cobb found the panel lacked objectivity and did not place caution and had misapplied the GHOSH test. Conclusions were made about the midwife’s state of mind when writing contemporaneous notes which was misleading.
Thorneycroft (2014) the judged helped to clarify the position as to when it is appropriate to proceed in the absence of the Registrant and what considerations it will be necessary for a Panel to bear in mind when admitting the statements of absent witnesses. The case served as a reminder that in Fitness to Practise proceedings the Panel is the arbiter of both fact and law and as such it is not appropriate for questions as to the relevance and admissibility of evidence to be taken by Legal Assessors or Care Presenters on their behalf.
White (2014) this case came about during the Francis inquiry, key aspects in relation to submission and acceptance of anonymous hearsay evidence and the impact for whistleblowers
Suddock, V (2015), managed to win her appeal against numerous charges which struck her off the nursing register. She was reinstated but has been unable to secure employement since due to the impact the process has had and the reputatable harm. She attempted to take the NMC to court over defamation of character as a result but sadly lost as the NMC are protected against prosecution of this type by leglislation which dates back to William of Orange – she is campaigning to change the Absolute Priveledge Law. Absolute Priveledge is described as being a law which; ” Absolute privilege is one that immunizes an actor from suit, no matter how wrongful the action might be, and even though it is done with an improper motive. This privilege protects its holder from all harms arising from any action or inaction.” Until this law is changed it is unlikely that wrongful pursuit of cases changes
Daly, J(2015) successfully self litigated in the Court of Session, Scotland and overturned the NMC’s decision to suspend her.
Enemuwe, Doris ( 2015). Mr Justice Holman quashed the Committee’s finding that Ms Enemuwe’s fitness to practise was impaired, as well as the sanction of a twelve-month caution order
Amanda Jenkinson (2009 – 2019) had to wait 10 years after her criminal conviction was overturned in 2009 to get her strike off order from the NMC revoked. `Unison who represented her described it as a landmark case. Despite having no intension of working again this nurse was determined to clear her name
Wisniewska (2016). Striking off order replaced with 12 month suspension. This decision highlights that the primary function of a sanction is not punitive, but is intended to protect the public and wider public interest. Additionally, the court’s decision makes clear that mitigation must be considered at the relevant stages; a failure to do so may amount to a serious irregularity. Further, the court noted that although offences of dishonesty are undoubtedly serious, the return to practice of a highly skilled nurse may also be in the public interest.
Hindmarch(2016) won at appeal also with the judge criticising the provenience placed on previous investigations and the importance of contextual factors. The NMC were ordered to pay considerable costs
Kamberova (2016) the impact of a long suspension period must be taken into account when deciding on proportionate sanctions. Interim orders must be taken into account for the full length and type of sanction. Justice Dingemans set aside the sanction imposed by the Committee and remitted the issue of sanction back to the Committee. In doing so, Mr Justice Dingemans stated that the Committee when re-determining the issue of sanction should have regard both to the period of interim suspension before the Committee’s determination in December 2015, and the period of suspension pending the appeal. The case also highlights issues with the wording of the sanction guidance
“LM” (2016) The High Court allowed the appeal against a striking off order imposed at a review hearing and expresses concern about the content of the Notice of Review hearing letter. The case was remitted to a different panel for review
Annon, P ( 2017 ) The appeal judge felt that the Committee had been unjustly harsh in their approach to the Registrant’s evidence.
Watters, C (2017) won her appeal in part in the High Court as a self litigant, opening up critique of the NMC’ s sanction guidance and that it needed to be more tailored to individual cases
Lusinga in 2017 also won the appeal in the High Court with the high court judge being highly critical of the decision making and sanction guidance used by the NMC
Daly ( 2018). As a self litigant this nurse proved to the court that the sanction of strike off was overtly harsh. The court allowed the appeal; quashed the order, and substituted it with a conditions of practice order that she should undertake a recognised “Return to Practice Nursing Course.
El Karout, K (2019 ) won her appeal in the High Court as a self litigant and quashed the strike off order in full. The judge was highly critical of both the local investigation and the admissibility of hearsay evidence by the NMC, as well as they way the NMC communicated with the trust investigated to build a case. Three charges have been referred back to a new panel to hear, with strong guidance from Justice Spencer that quashing of these would be favourable. The judge also raised that an “enhanced standard of proof” should have been sought because of the criminal acquittal and not just reliance on the same evidence. The case is due to be reheard in December 2019 – 4 1/2 years after the original allegations.
In February 2019 – the high court overturned the Interim Suspension orders of 7 nurses, out of 19 suspended from the trust in total. The judge ruled that the trust had failed to provide the NMC with enough evidence to support the allegations
El Karout, K (2020) - Kat returned to the high court to challenge the 6 months suspension imposed after a SOR committee reviewed the findings of Justice Spencer from 2019. The judge here replaced the suspension with a shorter term of 4 months. Kat still is attempting to secure her PIN back from the NMC despite this now lapsing - nearly 6 years after the original incident.

It seems when the High Courts can intervene the esteemed Judges make similar findings with key themes shared between cases. For many registrants this is the first offer of fair and proportionate process and those we have spoken to who have not been successful at appeal have said they still valued being listened to and felt it was a positive experience. Although high court judges are reluctant to criticise the NMC decision making process they will offer a clear over sight of the law that is relevant and when process has erred.

So far this year 184 nurses/midwives have been subject to Interim Suspension Orders and 242 have had Interim Conditions of Practice implemented whilst their case is investigated. Many of these may conclude their case – a minimum of 15months later – as no case to answer. However during this time they may not have been able to work in any remit, suffering financial and psychological distress as well as damage to their professional status.

A further 194 have been struck off the register with 110 suspended from practice. The reality is that few pursue their case to appeal in the High court but if they were to pursue some would no doubt have their outcomes reversed.

In this years annual Fitness to Practice report successful appeals are discussed briefly.

The public have the Professional Standards Authority who will appeal a case if they feel the outcome has been too lenient in its outcome. However, currently there is no organisation that will offer the same support for nurses and midwives who maintain their innocence. Unions offer some support, to those that are members, but few support to appeal. This leaves a nurses or midwife to either pursue her own case as a self litigant or find finances to hire private lawyers – neither option is realistic to many.

When reading in the media of rogue nurses and midwives the story you are reading is never the whole story. Often the public do not get to hear the back story or key pieces of evidence which may prove the allegations as unfounded. How can we be sure that the current process is safeguarding the public and proportioning the correct sanctions to the correct cases? There is still wide variance between panel’s decision making processes and as these panels are independant there seems to be an absence of clear and transparent assessment criteria to determine fact from fiction. The High Court offers the first taste of fairness for many registrants, however those that are willing to take the plunge and pursue justice in this way are few.

Whilst the conduct of hearings by the NMC continues to be about which legal presentation is strongest rather than getting to the route cause of the issues in discussion and assessing whether the nurse or midwife can continue to practice, there will continue to be many lost to the profession who should have been retained. The nurse or midwife faces a legal process for the first time and is ill equipped to present themselves in a positive manner, as they are highly stressed, no longer the person they were prior to the allegations and facing strong attack on many aspects of their professional persona which are hard to assess in a cold hearing room away from the clinical environment. They stand to lose everything and the case presenters attacking on behalf of the NMC have nothing to lose, the power is always in the hands of the prosecutor. Time and time again case presenters withhold key evidence which may support the registrant’s case tipping the balance again back into the hands of power to the NMC. The panel are given the impression that all evidence presented to them has been agreed by both sides, but this is rarely the case as often when presented in the hearing room is the first time the registrant or their legal representation has seen or heard it, and can only respond somewhat on the back foot. At a recent Interim Order hearing we witnessed being told that his was “unusual” for witnesses to be brought to speak on behalf of the registrant and yet this forum is supposed to be a risk assessment based on the allegations and the potential risk to the public and not on the case which has yet to be investigated. When the referrer has provided all the evidence and the registrant has provided none, how can the panel take a balanced view of this risk if all the information is coming from only one side and a side that may be biased towards proving the allegations?

The phrase “It is better that ten guilty persons escape than that one innocent suffer” is often referred to as Blackstone’s ratio, and attributed to the great jurist William Blackstone in his Commentaries. This dates from the 1760s.

The original phrase was that it was better that four guilty men go free than one innocent man be hanged (King Alfred: n Guilty Men).

More recently it has been said that it is better that a hundred guilty men go free than one guilty man be convicted (Ben Franklin: A Dictionary of Quotations. 1989).

Whichever you were to read it could be argued that the opposite is indeed true in the current Fitness to Practice process. Many who have been through it, regardless of the outcome would state that they were treated as guilty until proven innocent from the outset of investigation and that those involved in the process were working on the basis of their guilt and not of their innocence. The overarching rule for the NMC is to protect the public and yet this seems to have been lost in translation with no recognition that “the public” are the nurses, midwives, nursing associates, their friends, family and loved ones who witness the damage done and for them there is no protection. The current heavy handed approach of removing registrants from the workplace rather than enabling them to remain and improve does nothing to enhance patient safety but instead has the reverse effect of increasing risk.

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