Suddock v The Nursing and Midwifery Council

Factual and Procedural Background

This is an appeal pursuant to Articles 29(9) and 38 of the Nursing and Midwifery Order 2001 by the Appellant, a registered nurse, against decisions made by a panel of the Conduct and Competence Committee of the regulatory body ("the NMC") in disciplinary proceedings. The disciplinary hearing was conducted over eighteen days, split between March-April 2015 for fact-finding and July 2015 for decisions on impairment and sanctions.

The charges related to the Appellant's conduct as Home Manager and Matron at a nursing home ("the Home") in The City between February 1994 and October 2011, caring for elderly and frail residents with complex needs. The majority of residents were referred by a local NHS Trust.

The Appellant faced 17 charges of professional misconduct, some subdivided into multiple sub-charges. She denied all charges and denied impairment of fitness to practice, representing herself throughout.

Following a suspension in August 2011 by the management consultancy administering the Home during insolvency, investigations were undertaken by the NMC and other bodies, culminating in these disciplinary proceedings. The Appellant was dismissed in October 2011 and successfully claimed unfair dismissal at an Employment Tribunal, which found her suspension was linked to protected disclosures and that the dismissal was substantively unfair.

The disciplinary panel found some charges proved and others not proved, concluding that the Appellant's fitness to practice was impaired and imposing a striking off order. The Appellant appeals primarily on grounds of procedural unfairness and that findings were against the weight of evidence or based on unreliable evidence.

Legal Issues Presented

1. Whether the Appellant was afforded a fair hearing in accordance with procedural fairness and Article 6 ECHR.
2. Whether the panel's findings of professional misconduct were supported by the evidence and not against the weight of evidence.
3. Whether the panel properly assessed witness credibility and reliability, particularly in light of alleged attempts to frame the Appellant.
4. Whether the panel failed to take into account significant evidence supporting the Appellant’s defence, resulting in unsafe findings.
5. The appropriate disposition of charges found proved or disproved on appeal, including whether some charges should be remitted for rehearing.

Arguments of the Parties

Appellant's Arguments

• Alleged breach of fair hearing rights under Article 6 ECHR, including delays and lack of funding for witnesses.
• Charges disproved by weight of evidence, ignoring contemporaneous documents and relying on unreliable or untruthful witness evidence.
• Assertion that some witnesses, particularly those from a certain staff team, bore grudges and fabricated evidence to damage her reputation.
• Claim of an orchestrated attempt to frame her, including planting of medication to support false allegations.
• Failure of the panel to properly evaluate evidence and credibility, resulting in unsafe findings.

Respondent's Arguments (NMC)

• Disciplinary process was fair and adversarial; the NMC was entitled to select witnesses and evidence to prove charges.
• Panel properly assessed credibility and reliability and gave adequate reasons for findings.
• Delay in investigation and hearing was justified by complexity and volume of evidence; no procedural unfairness.
• Reliance on hearsay evidence was appropriately cautioned and weighed by the panel.
• Findings on charges were supported by evidence and the panel’s expertise and discretion should be respected.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Raschid and Fatnani v GMC [2007] EWCA Civ 46	Approach to appeals from disciplinary decisions of statutory regulatory bodies; appellate court may examine factual findings and relevance of evidence.	Guided the court’s approach to appellate review, emphasizing deference to specialist tribunal expertise but allowing interference if decision was wrong or unjust.
Meadow v GMC [2006] EWCA Civ 1390	Earlier appellate approach to disciplinary appeals, reconciled with Raschid by later authorities.	Referenced in reconciling appellate standards and emphasizing calibrated approach depending on issues under consideration.
Cheatle v GMC [2009] EWHC 645 (Admin)	Clarification on appellate review focus and calibration depending on matters considered.	Supported the court’s calibrated approach to reviewing disciplinary panel decisions.
Southall v General Medical Council [2010] EWCA Civ 407	Guidance on challenges to primary findings of fact and witness credibility; high threshold for appellate interference.	Informed principles that findings of credibility are virtually unassailable unless plainly wrong, but appellate court may intervene in exceptional cases.

Court's Reasoning and Analysis

The Court conducted a detailed re-hearing of the appeal, scrutinizing the evidence and the panel’s findings. It emphasized that appellate interference is limited and that deference is owed to the specialist tribunal’s expertise, particularly on professional judgment and credibility assessments.

The Court found no procedural unfairness or breach of Article 6 ECHR. The Appellant had ample opportunity to present her case, cross-examine witnesses, and was given legal advice. Delays were justified by the complexity and volume of evidence. The NMC’s discretion in selecting evidence and witnesses was proper, and the Appellant’s failure to call witnesses or seek admission of hearsay evidence was not a ground for unfairness.

However, the Court identified serious flaws in the panel’s approach to assessing credibility and reliability of key witnesses, especially those from a particular staff team ("Team 3"). The Court found that one key witness (Ms 11) was thoroughly unreliable and likely fabricating evidence, and another (Ms 15) was inconsistent and insufficiently corroborated. The panel failed to consider an attempt to frame the Appellant, including planting of medication, which critically undermined the safety of the panel’s adverse findings based on those witnesses.

The Court also found the panel’s acceptance of hearsay evidence from certain witnesses was problematic, particularly where uncorroborated and where the panel misunderstood or overstated the evidence (e.g., evidence from Ms 16 about medication storage and disposal). The panel failed to apply appropriate reality checks and did not adequately consider contemporaneous documentary evidence, including inspection reports and patient records.

Regarding specific charges, the Court allowed the appeal and substituted findings of not proved for Charges 3 (medication storage and disposal), 7.1 (unauthorized NG tube administration), 10 (failure to raise safeguarding alerts), and several sub-charges of Charges 1 and 2 that depended heavily on the discredited witnesses. Charges 4, 13, 14, and 15 were upheld as proved.

The Court emphasized that the panel’s failure to properly evaluate the evidence and credibility, combined with the evidence of an attempt to frame the Appellant, rendered the adverse findings unsafe and unjust.

As to the remaining charges found proved by the panel but now quashed, the Court directed that they be remitted to a fresh panel for reconsideration of fact and sanction, given the passage of time and the need for a fair hearing before a new panel. The Court imposed directions to ensure a timely rehearing with appropriate disclosure and witness availability, including transcripts and statements of key witnesses. The Court acknowledged the difficulties posed by the Appellant’s self-representation and encouraged her to seek representation.

Holding and Implications

The Court’s final ruling is as follows:

ALLOW the appeal in part.

The Court quashes the panel’s findings on Charges 2.1.2, 2.2.1, 2.2.2, 2.2.3, 3, 7.1, and 10, substituting findings that these charges are not proved. The findings on Charges 4, 13, 14, and 15 are upheld. The appeal against certain sub-charges of Charges 1 and 2 is allowed, but those charges are remitted to a fresh Conduct and Competence Committee panel for rehearing and reconsideration of sanction.

The striking off order imposed by the panel is quashed as unsafe given the overturning of multiple serious charges. The Court directs a fresh hearing within five months with a directions hearing within one month to manage case progression. The NMC is expected to review the evidence carefully and may withdraw charges or offer no evidence if appropriate.

No new precedent is established by this decision; rather, it underscores the importance of rigorous evaluation of evidence, proper assessment of witness credibility, and vigilance for potential unfairness arising from unrepresented parties and possible attempts to manipulate evidence in disciplinary proceedings.