The importance of first instance tribunals for healthcare professionals

Case report: Mulholland v Conduct and Competence Committee of The Nursing and Midwifery Council [2016] EWHC 952 (Admin)

The appellant sought to challenge the decision of the Conduct and Competence Committee of the Nursing and Midwifery Council, which made a finding on 5 August 2015 that the appellant’s fitness to practise was impaired and that she should be removed from the register. The appeal was brought before Judge Roger Kaye QC who gave judgement on 28 April 2016.

Background

In brief, the appellant had been employed by the Priory Group on 14 November 2011. She was suspended on 23 November 2011, after just 10 days into her employment, and subsequently dismissed on 22 December 2011. The charges related to:

  • Making an inappropriate diagnosis of Clostridium Difficile and attempting to close the unit on which the relevant resident was being cared for.
  • Inaccurately advising that the blood pressure of a resident was low and that the resident was not going to make it, when the blood pressure was in fact strong and regular.
  • Allegedly grabbing a resident by the wrists and pulling him out of his chair, despite him being reluctant to move, leaving red marks on his wrists.
  • Making inappropriate remarks to an elderly resident suffering with dementia.
  • Making inappropriate and confrontational remarks to the Care Home Manager during a probationary review meeting to discuss the allegations which had been made.

The appeal

In considering the appeal, Judge Kaye QC was sympathetic to the appellant’s 20 year career as a registered nurse. However, he was clear that the appeal court will only intervene in circumstances where the decision of the panel was wrong or unjust or because of some serious procedural or other irregularity in the proceedings.

Judge Kay QC emphasised that in all such cases the first instance body has an advantage to judge the credibility and reliability of evidence given by witnesses. Appeals are conducted on the basis of the transcript of the hearing and that unless exceptional circumstances apply, witnesses are not recalled. Judge Kay QC quoted Levenson LJ in Southall v GMC [2010] EWCA Civ 407:

“First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1995] AC 370).”

In dismissing the appeal Judge Kay QC commented:

“At the end of the day the panel, in my judgement, discharged their duty with care and consideration… They saw and heard a large number of witnesses including the appellant. They plainly preferred the evidence of other witnesses where their evidence contrasted with that of the appellant’s in important areas. Indeed, they were not, it is not unfair to say, overly impressed with the appellant…”

The appellant sought to submit that the evidence was flawed and not sufficiently analysed but this was dismissed as being a matter for the panel. Judge Kaye QC considered that the panel were entitled to reach the conclusion that they did and in doing so dismissed the appeal.

Comments

Healthcare professionals must be acutely aware that the courts have shown a consistent reluctance to interfere with the factual findings made at first instance decision-maker such as the Conduct and Competence Committee in this case. The courts show great deference to the views formed by first instance tribunals where those tribunals have had the benefit of seeing and hearing witness evidence and forming a view in relation to witness credibility. This case serves to illustrate the importance of the first instance hearing and the constraints of the appeal process.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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