Terence Paul Golden v The Nursing and Midwifery Council

An appeal from a professional disciplinary decision is a rehearing, not a de novo trial and not a supervisory review. The court may reconsider law, fact, procedure and sanction, while giving appropriate weight to a specialist tribunal’s expertise and witness assessments.

Where a registrant deliberately fails to engage with the regulatory process, the tribunal may proceed in the registrant’s absence if reasonable efforts have been made to give notice. Fairness to the registrant remains paramount, but fairness to the regulator and protection of the public are also relevant. A tribunal need not reconstruct a defence from historic, unindexed material which the registrant has not identified for the final hearing.

Uninsured and unregistered midwifery practice, together with serious failures of care, records, handover and integrity, justified erasure.

The appellant, a nurse and midwife, appealed against the Nursing and Midwifery Council Fitness to Practise Panel’s decision to find misconduct and impairment of fitness to practise and to erase him from the register.

The allegations arose from private midwifery services provided in France, including inadequate risk assessment and records, failures concerning care after the due date, insecure storage of oxytocin, failure to hand over care, delegation to a non-professional, and practice in France without local registration or appropriate insurance. The appellant had not engaged with the preparation or final hearing and the Panel proceeded in his absence.

The central issues were whether the Panel’s factual and procedural decisions were wrong or unjust because of serious irregularity, whether it was entitled to proceed in the appellant’s absence and admit hearsay evidence, and whether erasure was proportionate.

1. Appeal and appellate approach. The appeal was allowed only in relation to charge 2a, concerning an alleged report of ruptured membranes and the associated failure to record it. That charge was substituted as not proven. The appeal was otherwise dismissed.

   Under article 38 of the Nursing and Midwifery Order 2001 and CPR r. 52.21, the appeal is a rehearing. It is broader than judicial review but is not a de novo hearing. The court may exercise its own judgment on whether the evidence supports findings, while recognising that credibility assessments primarily belong to the tribunal which saw and heard the witnesses. Greater respect is due to professional judgments concerning standards of practice and conduct.

2. Absence and procedural fairness. The Panel lawfully proceeded under rule 21 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004. The appellant had repeated notice, had previously participated in interlocutory hearings, and deliberately failed to provide a case management form, witness list, bundle or witness statement, or to attend the final hearing. Fairness to him was of prime importance, but the Panel was also entitled to consider fairness to the NMC, the public interest in resolving regulatory allegations, and the registrant’s duty to engage with the regulatory process.

3. The Panel was not required to sift historic correspondence and documents to construct a defence which the appellant had not identified or prepared for the final hearing. The approach in Thorneycroft did not require that exercise where the practitioner had failed to engage and had not identified the material on which he relied.

4. The Panel was entitled to admit hearsay evidence under rule 31. Its decision to admit the statement of an absent witness was justified by the surrounding evidence and the appellant’s failure to respond when informed that the witness would not attend.

5. The findings on the remaining charges, impairment and sanction were supported by the evidence. The appellant’s practice in France without registration and appropriate insurance was inherently risky and contrary to the public-protection objective in article 3 of the Nursing and Midwifery Order 2001. Article 12A made appropriate indemnity arrangements a condition of practice, and breach could lead to removal or referral for misconduct. Erasure was appropriate and, on the facts, inevitable.

6. The application to admit most fresh evidence was refused under Ladd v Marshall. The documents lacked a proper explanation for their late production and were irrelevant. Some witness statements and documents were admitted exceptionally, but they did not establish that the Panel’s remaining decisions were wrong.

The respondent was invited to draw up the order. The appellant was ordered to pay the respondent’s costs on the standard basis, subject to assessment if not agreed.

• High Court (Administrative Court): the appeal against the NMC Fitness to Practise Panel was allowed only in relation to charge 2a and dismissed on all other grounds. The erasure sanction remained in force.