MS TODORKA GEORGIEVE (AP) AGAINST THE NURSING AND MIDWIFERY COUNCIL
SHERIFFDOM OF LOTHIAN & BORDERS AT EDINBURGH
[2017] SC EDIN 12
B1421/14
JUDGMENT OF SHERIFF T WELSH QC
In terms of Article 38 of the Nursing and Midwifery Order 2001
in the cause
MS TODORKA GEORGIEVA (AP)
Pursuer
Against
THE NURSING AND MIDWIFERY COUNCIL
Defenders
Pursuer: Gibson; MSM Solicitors Paisley
Defenders: Anderson (sol adv); The Nursing and Midwifery Council, Edinburgh
The Issue
[1] The pursuer was registered as a nurse in Scotland on 8 October 2007. On 27 April 2012 the defenders were notified of an allegation that the pursuer’s registration may have been fraudulently or incorrectly made, in that details contained in the Bulgarian nursing qualifications submitted in support of her registration, may have been untrue. The pursuer was charged by the defenders “That on or around 8 October 2007, [she] fraudulently and or incorrectly obtained entry onto [the defenders’] Register as a nurse, in the name of Tordorka Georgieva”. The defenders convened an Investigating Committee which sat on 3 and 4 April 2014 and 26 August 2014 to inquire into the allegation. By decision letter of 1 September 2014 the pursuer was informed that the Investigating Committee had concluded that the pursuer’s entry onto the nursing register was fraudulently obtained and the charge against her was proved. She was struck off the Register.
[2] However, during the proceedings of 3 April 2014 the defender’s case presenter [Ms L Hartley] tendered in evidence the decision of a Registrar’s Appeal Hearing which had been convened on 10 December 2012 and 7 January 2013 to consider an appeal by the pursuer from a decision of the defender’s Registrar to refuse her application to be registered as a midwife in Scotland. In its decision the Registrar’s Appeal Hearing concluded that the pursuer had deliberately provided false documents in support of her application to be registered as a midwife.
[3] In terms of article 38 of the Nursing and Midwifery Order 2001 (‘The Order’) the pursuer appeals against the decision of 1 September 2014 to remove her name from the nursing register. Before me, her counsel argued that the decision by the Investigating Committee on 3 April 2014 to admit the decision of the earlier Registrar’s Appeal Hearing was unlawful. He said it was irrelevant and unfairly admitted. As a consequence the decision to remove the pursuer from the nursing register was unlawful and the proceedings vitiated. I was invited to quash the decision of 1 September 2014 and remit the case back to the defenders to be properly decided before a differently constituted Investigating Committee.
The Statutory Scheme
[4] The defenders are the body corporate established by the Order which is under a statutory duty to maintain a public register of qualified nurses and midwives in the UK, Art 5(1) and Art 8 of the Order.
[5] The defenders are under a duty to monitor, maintain and review appropriate nursing standards. Art 21 provides:
“Council's functions in respect of fitness to practise, ethics and other matters
(1) The Council shall—
(a) establish and keep under review the standards of conduct, performance and ethics expected of registrants and prospective registrants and give them such guidance on these matters as it sees fit; and (b) establish and keep under review effective arrangements to protect the public from persons whose fitness to practise is impaired.”
[6] If an allegation is made to the defenders that an entry in the register relating to a registered nurse has been fraudulently procured or incorrectly made the defenders are obliged to refer that matter to the Investigating Committee, Art 22, which is authorised to investigate the matter. The registrant has a right to be informed of the nature of the allegation and be present and represented at any hearing fixed. The Investigating Committee is obliged to investigate the allegation. The defenders are obliged to make rules as to the procedure to be followed by the Investigating Committee in any investigation, Art 32. The registrant is entitled to written notification of the decision of the Committee, Art 26. If the allegation is made out Art 26(7) provides:
“In the case of an allegation of a kind mentioned in article 22(1)(b) [an entry in the register relating to him has been fraudulently procured or incorrectly made], if the Investigating Committee is satisfied that an entry in the register has been fraudulently procured or incorrectly made, it may make an order that the Registrar remove or amend the entry and shall notify the person concerned of his right of appeal under article 38.”
[7] The Investigating Committee has the power to review its own orders, Art 26(12), if new evidence relevant to the order becomes available after the order has been made and may revoke that order if it considers that it should not have been made.
[8] Article 38 of the Order provides:
“(1) An appeal from—
(a) …..
(b) [a decision of the Council mentioned in paragraph (1A)] or of the Investigating Committee under article 26(7) or (12) shall lie to a county court or, in Scotland, to a sheriff.
(2) In any appeal under this article the Council shall be the respondent.
(3) The Court or sheriff may—
(a) dismiss the appeal;
(b) allow the appeal and quash the decision appealed against; [or, in the case of an appeal under article 37(1)(f), direct that the alert be withdrawn or amended]
(c) substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; [...]
(ca) with respect to an appeal under paragraph (1)(h), enter any decision which could have been taken by the Council; or
(d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff,
and may make such order as to costs (or, in Scotland, expenses) as it, or he, as the case may be, thinks fit.”
The Procedural Rules
[9] The Nursing and Midwifery Council (Fitness to Practise) Rules 2004, [SI 2004/1761] provide for a detailed procedural code setting out inter alia how allegations, such as one that libels that an entry in the register relating to a registrant has been fraudulently procured or incorrectly made, are to be investigated, notified and heard by the Committee. These rules make provision for the defenders to be represented at any hearing by a case presenter. Rule 20 provides:
“(1) The presenter and the registrant shall be entitled to be heard by the Committee.
(2) The registrant may be represented by–
(a) solicitor or Counsel;
(b) a representative from her professional body or trade union; or
(c) subject to paragraph (4), any other person.
(3) Where the registrant is not represented, she may be accompanied and advised by any person, provided that such person shall not be entitled to address the Committee without its permission.
(4) A person who represents or accompanies the registrant shall not be called as a witness at the hearing.”
[10] The rules make extensive provision for the receipt of and hearing of evidence similar to those found in rules of court. For example Rules 22 and Rule 30 provide:
“22.— Witnesses
(1) Witnesses shall be required to take an oath, or to affirm, before giving evidence at any hearing.
(2) The Committee may, upon the application of the party calling the witness, direct that any details which may identify that witness should not be revealed in public.
(3) Witnesses–
(a) shall first be examined by the party calling them;
(b) subject to rule 23(4) and (5), may then be cross examined by the opposing party;
(c) may then be re-examined by the party calling them; and
(d) may then be questioned by the Committee.
(4) Any further questioning of the witnesses shall be at the discretion of the Committee.
(5) The Committee may of its own motion require a person to attend the hearing to give evidence, or to produce relevant documents.
(6) No witness as to fact may observe the proceedings until she has given evidence or been formally released by the Committee……
30. Burden of proof
Where facts relating to an allegation are in dispute, the burden of proving such facts shall rest on the Council.”
[11] The criterion which governs the admissibility of evidence is laid down in Rule 31 thus:
“31. Evidence
(1) Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate
Court in that part of the United Kingdom in which the hearing takes place).”
The Uncontested Facts
[12] Both counsel and Mr Anderson, at the hearing before me, agreed that oral evidence was unnecessary and the case could be decided on the basis of the pleadings and productions. From these and the skeleton argument of counsel I can set out the general background and the circumstances surrounding the issue of admissibility before the Investigating Committee. Over the years the pursuer has made a number of different applications for registration both as a nurse and as a midwife.
a) On around 9 October 2002 the pursuer submitted an application to the defenders to be registered as a midwife. The pursuer stated in the application form that she graduated with a midwifery degree from the Medical University Sofia, Medical College Vratsa on 16 February 1996. She submitted with it a number of professional qualifications in translation. On 27 May 2003 the pursuer’s application to be registered as a midwife was refused by the defenders on the basis she was not qualified.
b) On 20 September 2004 the pursuer applied to be registered as a Registered Nurse-Adult. On 12 January 2005 the defenders requested more information about the Pursuer’s training. It was noticed that documents submitted showed on examination a number of discrepancies in relation to dates, subjects, and hours spent on lectures and exercises. On 3 March 2005 more information was sought from the pursuer by the defenders when the defenders’ assessor noticed that the training seemed mainly to be a three year post-secondary nursing and midwifery course and the course was mainly comprised of general nursing modules but the transcript provided it was a nurse and midwife qualification. No information was given by the pursuer and the application was closed.
c) In 2007 the pursuer submitted another application to be registered as a midwife. The pursuer then provided further documents on 12 April 2007. On 31 May 2007 the pursuer’s application was assessed by the defenders as being more suitable for registration as a general nurse rather than a midwife. The pursuer was informed she could not apply as a midwife.
d) After some return to practice training on a Return to Practice Programme run by the Western General Hospital between 11 June 2007 and 7 September 2007, the pursuer applied to be registered as an adult nurse. That application was accepted 24 September 2007 based on a letter from the Return to Practice Programme. The pursuer was registered as a nurse on 8 October 2007.
e) An application was made by the pursuer in May 2008 to be registered as a midwife but this was rejected on 11 July 2008.
f) The pursuer made an application on 1 June 2011 to be registered as a midwife. The discrepancies in the documentation submitted were not noticed immediately. They came to light during investigation. Discrepancies were noted between documents lodged by the pursuer. Investigations found that a 2002 document was accurate and a 2005 document was inaccurate. The pursuer’s application to be registered as a midwife from June 2011 was rejected on 27 March 2012
g) An appeal dated 23 April 2013 was submitted by the pursuer and was unsuccessful. During that appeal [the Registrar’s Appeal Hearing] a panel of the defenders’ Investigating Committee, differently constituted than the one which heard the proceedings which are the subject of the present appeal, formed the view, and expressed the view, that the pursuer had deliberately provided false documents in relation to the application which was the subject of the appeal. That panel of the defenders’ Investigating Committee heard the appeal in that case on 10 December 2012 and 7 January 2013. The pursuer was unrepresented. The panel of the defenders’ Investigating Committee which heard the pursuer’s appeal against the Registrar’s decision on 10 December 2012 and 7 January 2013 gave a written decision and reasons.
h) At the hearing which is the subject of the present appeal on 3 April 2014 the burden of proving the charges against the pursuer was on the defenders. The defenders led evidence first. The Committee heard oral testimony, led by the defenders’ case presenter, from Ms Klara Rehorova, one of the defenders’ International Assessment Officers (Ms 1 in the Committee’s written decision of 1 September 2014); and Ms Rosie Wilson, a paralegal from the defenders’ Investigation Team (Ms 2 in the Committee’s written decision). Evidence was led for the pursuer from the pursuer herself and Mr Neil Campbell of Gilmour Currie & Co Solicitors (Mr 5 in the Committee’s written decision). The witnesses were referred to various documents lodged as exhibits and gave evidence about them.
i) At the Hearing on 3 April 2014, after the defenders’ case presenter had led all the evidence she wished to lead through oral testimony of witnesses, she made an application to have admitted into evidence the decision of the Registrar’s Appeal Hearing which contained the conclusion that the pursuer had ‘deliberately provided false documents’ in support of her application of 1 June 2011 to be registered as a midwife. The application was opposed by the pursuer’s counsel. The Investigating Committee took legal advice from the legal assessor. The motivation of the defender’s case presenter in having the document received was to avoid the ‘uncomfortable’ potential of conflicting decisions by different Investigating Committees arising from the same facts. The Committee allowed the earlier decision of the Registrar’s Appeal Hearing to be admitted as evidence indicating that the members of the panel of the Committee would attach such weight to it as they considered “fair and appropriate”.
j) Once the decision was admitted the case presenter directed the Committee’s attention to a passage of the decision found at the penultimate paragraph of page 9 of the document where the panel concluded that the pursuer had, in their view, deliberately provided false documents in connection with her application to be registered as a midwife and was, in their view, not capable of effective practice. She invited the Committee “to read … [the decision] …carefully”. She submitted that the Committee was not bound by the decision of the Registrar’s Appeal Hearing.
k) No witness gave oral evidence in relation to the decision of the Registrar’s Appeal Hearing. The Investigating Committee’s reasons for admitting the earlier decision are set out in their letter of 1 September 2014 to the pursuer.
The Legal Test
[13] Neither counsel nor Mr Anderson addressed me in any detail on the legal test for quashing a decision of the Investigating Committee and remitting the case back to the defenders with a direction the case should be re-heard before a differently constituted Investigating Committee. Counsel’s argument which is based on the plea-in-law stated in the summary application is that the Investigating Committee’s decision to admit the earlier decision of the Registrar’s Appeal Hearing was unlawful. The plea-in-law is in the following terms:
“The Defenders’ Investigating Committee’s decision made on 26 August 2014, being in the circumstances, unlawful, it ought to be quashed in terms of Article 38 (3) (b) of the Nursing and Midwifery Order 2001.”
The defender’s plea-in-law is in the following terms:
“The Committee decision not being unlawful the appeal should be refused.”
[14] As I understood counsel, his position was that if the decision to admit the document was unlawful then the Investigating Committee’s ultimate decision to remove the pursuer from the register was tainted and should consequently be quashed. He made a very full and careful submission narrating the complex background to the case. In essence his position was that the decision of the Registrar’s Appeal Hearing was irrelevant to the task of the Investigating Committee. For that reason alone it was inadmissible. However, it contained a prejudicial conclusion that the pursuer had deliberately provided false documents and that conclusion, counsel asserted, must have influenced or at least tainted the decision making process of the Investigating Committee. Even if it did not actually taint the process there was at least a risk that it might have. That he said was unfair. The Investigating Committee said it attached little weight to the Registrar’s Appeal Hearing decision but that meant it attached some weight to it, however small. That was illegitimate. Justice must be seen to be done and it was not seen to be done in this case. Counsel relied on the decisions in Enemuwe v Nursing and Midwifery Council 2015 WL 4938278 and Murphy v General Teaching Council for Scotland 1997 S.C. 172.
[15] On the other hand, Mr Anderson argued that the decision of the Registrar’s Appeal Hearing was relevant as part of the general background of the case and it ought not to have been excluded and further and in any event the admission of the document was not unfair having regard to the broad terms of Rule 31 of The Nursing and Midwifery Council (Fitness to Practise) Rules 2004. He also relied on General Medical Council v Spackman [1943] A.C. 627; R. (on the application of Squier) v GMC [2015] EWHC 299 (Admin) and Constantinides v Law Society [2006] EWHC 725 (Admin); (2006) 156 N.L.J. 680.
Discussion.
[16] Counsel argued the very narrow technical point that the decision of the Investigating Committee to admit the decision of the Registrar’s Appeal Hearing was so irrelevant and unfair that it vitiated the entire proceedings before the Investigating Committee. I am not persuaded that the narrow focus of counsel’s argument is sound and that I can determine the appeal to me on that basis. In MSM v Nursing and Midwifery Council [2016] CSIH 95 the court stated:
“[16] It is well settled that the court must afford respect to the decisions of specialist professional tribunals, whose primary concern is the public interest, not the individual circumstances of the person concerned, nor with notions of punishment. As was observed in Dad v General Dental Council [2010] CSIH 75: “The court should be slow to interfere with a decision of a professional conduct tribunal as to what is necessary for the protection of the reputation of the profession” (paragraph 13). The court will only act in cases of clear error, or where an order is excessive or disproportionate. It is sometimes said that the decision must be “plainly wrong”.
In my view this applies with equal force to an Investigating Committee. The ‘plainly wrong’ test is a reference to a decision of Collins J in Moody v General Osteopathic Council [2004] EWHC (Admin) 967, para 14, where he stated:
“As must be obvious, when it comes to questions of professional competence the committee’s views are to be accorded the very greatest of weight. When it comes to decisions which do not so much depend upon professional expertise, this court may be in a better position to be able to form a judgment for itself. But this court must never act unless it is plain that in the circumstances the decision was one which [was], as I would put it, clearly wrong.”
That test was approved by the Privy Council in Susie Macleod v The Royal College of Veterinary Surgeons [2006] UKPC 39; (2006) 150 S.J.L.B. 1023. Clearly a question of the admissibility of evidence is one which I can decide as well as the Investigating Committee save for the caveat that the scope for admitting evidence under Rule 31 is wider than in a typical civil cause, being subject, as it is, only to the requirements of relevance and fairness. However I note the test includes a bar on interfering with the decision, unless it is plainly wrong. That wider point of whether the ultimate decision of the Investigating Committee could be shown to be ‘plainly wrong’ was never addressed by counsel or Mr Anderson.
[17] In those circumstances the first question which arises is what is the responsibility of the Investigating Committee in a case such as the present? That question was addressed in Spackman to which Mr Anderson referred me. Lord Wright in quoting earlier authorities about the duty of administrative tribunals and quasi-judicial bodies, in cases appealed to or calling before them, stated:
"When the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice.…….. the substantial elements of natural justice must be found to have been present at the inquiry. There must be due inquiry. The accused person must have notice of what he is accused. He must have an opportunity of being heard, and the decision must be honestly arrived at after he has had a full opportunity of being heard.”
These obiter dicta, in my view, state no more than the canons of natural justice.
[18] Secondly, in what way, therefore, is it said the pursuer in the present application was denied natural justice and a fair hearing on the allegation against her? The contention before me was that the admission into evidence of the earlier Registrar’s Appeal Hearing decision letter was so irrelevant and unfair it was said to invalidate the decision of the Investigating Committee of 1 September 2014. At this juncture I remind myself that it is not for me to determine who should be admitted to or removed from the register of nurses in the UK. That responsibility rests entirely with the defenders. I could interfere with the decision of the defenders, in my opinion, only if it was established before me that there had been a denial of natural justice and or the decision by the panel of the Investigating Committee was plainly wrong. To determine those questions, in my view, it is necessary to look at what the panel decided and importantly how it reached its conclusion.
[19] The decision letter of 1 September 2014 sets out in considerable detail, which it is unnecessary for me to repeat in the context of this judgment, the complicated history of the pursuer’s various applications to be registered as a midwife and a nurse. It is sufficient to state only that these applications were supported by professional qualifications which were translated from the original Bulgarian. During the course of investigation into the pursuer’s applications, certain significant discrepancies relating to the detail, provenance and authenticity of these various documents came to light. The anonymised decision letter of 1 September 2014 sets out inter alia a number of facts along with the legal reasoning of the Committee. Some of the pertinent facts, and the operative part of the decision [iv to viii below], are:
i. “The pursuer was represented by counsel at the hearing on 3-4 April and 26 August 2014.”
ii. “The pursuer had been informed of the charge against her, which was amended (unopposed) was “That you on or around 8 October 2007, fraudulently and/or incorrectly obtained entry onto the Nursing and Midwifery Council's Register as a nurse, in the name of Tordorka Georgieva PIN 07J0045C”
iii. “The panel heard an application made by Ms Hartley under Rule 31 of the Nursing and Midwifery (Fitness to Practise) Rules Order of Council 2004 (the Rules) to allow the decision of the Registrar's Appeal hearing held on 10 December 2012 and 7 January 2013 into evidence. Ms Hartley submitted that it would be both fair and relevant to admit the decision into evidence. Mr Hay, on your behalf submitted that it would be unfair to allow the decision into evidence at this late stage. He did not challenge its relevance. In the alternative, he requested an adjournment to allow him to take instructions on the document. The panel heard and accepted the legal assessor’s advice on the issues it should take into consideration in respect of this application. This included that Rule 31 provides that so far as it is 'fair and relevant' a panel may accept evidence in a range of forms. In these circumstances the panel came to the view that it would accept into evidence the decision of the Registrar's Appeal hearing and that it would to it (sic) what weight it considered appropriate once the panel had heard and evaluated all the evidence before it. Ms Hartley would be invited to make her submissions about the document before the hearing adjourned at the end of the first day, allowing Mr Hay the opportunity to take instructions before presenting your case on the second day.”
iv. “The panel considered the evidence, given under oath, of Ms 1, Ms 2, yourself and Mr 5, all of whom were subject to cross examination and panel questioning. The panel placed little weight on the findings of the registrations appeal as it was not clear what information that panel had before it. In reaching its decision on whether to make an order that the Registrar remove and/or amend your entry in the register, the panel has considered all of the documentation placed before it. It took into account the submissions made by Ms Hartley on behalf of the NMC, and those made by Mr Hay, on your behalf. The panel received and accepted the advice of the legal assessor .”
v. “The panel considered that there had been a translation error in the Diploma, which stated your specialisation as "nurse and midwife". This error was replicated in the Academic Check Up 27/24.01.2005 which was a document the Bulgarian Ministry of Health stated was not genuine. They had also stated that the NMC Transcript was not genuine. The panel considered that it was highly unlikely that the discrepancies in all three documents, from different sources, are all simply errors. Each of these errors were in your favour in that they assisted you in obtaining entry onto the NMC register. Your evidence was that the Diploma translation and the 2005 Academic Check Up were sent directly to the NMC by Mr 3, and that the NMC Transcript was sent directly to the NMC by the University. Your evidence is that these various forms were all sent directly to the NMC, either by Mr 3 or by the University and therefore you did not see them and were unable to check their accuracy. Your evidence was that you only received copies of the Diploma and 2005 Academic Check Up from Mr 3 some three months later. You stated that when you received them you did not check them and were therefore not aware of the errors.
The panel did not consider this to be a plausible explanation and that on the balance of probabilities it is unlikely that you were not aware of the content of these documents either because they were in fact sent to you first or because you had a role in their content. The panel considered the following aspects of your evidence to be both inherently implausible and unsupported by other evidence; a) that the same translator who had twice correctly translated your qualification as "midwife" should incorrectly translate the same, single Bulgarian word as "nurse and midwife"; b) that, having asked the translator to confirm that he had the original documents, you did not think to ask him to provide copies of his earlier, correct translations; c) that you should have sent the NMC Transcript to the University with no covering letter with instructions as to what the document was (it was in English) and what the University was supposed to do with it; d) that the 2005 Academic Check Up originated in English, a language not recognised by the University for official documents, and which does not appear to have a Bulgarian original version; e) that you were only sent copies of the incorrect translations sometime after the translator sent them to the NMC; f) that you failed to check and therefore notice the errors; g) that you asked the translator to obtain certification from the University at Vratsa, though he was based at Vidin, unchallenged 77 miles distant; h) that you have no direct knowledge of how the admittedly incorrect translations and the documents which are not genuinely signed came into being.”
vi. “Whilst taken in isolation, some of your explanations might, perhaps be considered to be credible, the panel was of the view that the multiple nature of the errors and lack of satisfactory explanation regarding all of these errors, was not sufficient to counter the NMC's case which the panel accepted on the balance of probabilities to be more credible.”
vii. “The panel accepted that the absence of an explanation by you does not, of itself, prove the NMC's case. However, the panel has inferred from the number and variety of false documents for which you did not give plausible explanations, that you must have known that incorrect information was going to the NMC on your behalf and to have understood this to be a dishonest course of action. The panel concludes that, given that the information had been specifically requested by the NMC, you must have intended this dishonest action to materially assist your entry onto the register as a nurse and that, in fact, it did so.”
viii. “The panel therefore concluded that your entry onto the NMC register as a nurse had been fraudulently obtained and that the charge was proved.”
ix. Advice in respect of appeal is then given by the letter.
[20] Clearly, the Investigating Committee admitted the decision of the Registrar’s Appeal Hearing into evidence but stated it placed little weight on its findings as it was not clear what information that panel had before it. Counsel for the pursuer argued the decision to allow this document into evidence was unlawful. I disagree. In my opinion it was relevant to the general background of the case. It would, however, have been unlawful if the Investigating Committee had abrogated its responsibility to make due inquiry and investigate the complaint. But that is not what happened. Had the panel made no inquiry at all and simply adopted and incorporated the Registrar’s Appeal Hearing decision into its own decision without due process, then that would have been unlawful because the Investigating Committee was charged with the duty to investigate. Had the Investigating Committee used the Registrar’s Appeal Hearing decision as a material building block in the construction of its own decision that too would have been unlawful. But as is obvious from the excerpts of the decision letter quoted above, the Investigating Committee did neither of these things. It conducted its own inquiry and performed its own autonomous, analytical and rational exercise to fulfil its duty, hear the evidence relating to the complaint and decide if there had been a fraudulent entry onto the register arising from alleged discrepancies in the various documents. This was done in the immediate presence of the pursuer who was legally represented which was fair and conform to due process regulating the conduct of such inquiries by the defenders. The Committee acknowledged the onus was on the defenders to prove its case. Evidence was led from witnesses. The Committee identified and specified the facts which it accepted and relied upon to support its conclusions and gave cogent and balanced reasons for so doing. The Committee took into account the evidence of the pursuer including her explanations, which it rejected, as it was entitled so to do. But importantly, even having rejected her evidence in explanation the Committee, recognising where the onus of proof lay, went on to consider the defender’s case on its own merits to the correct legal standard and, having concluded it was more compelling, decided against the pursuer. The pursuer was advised of her right to appeal. In my opinion the procedural right of the pursuer to a fair hearing were honoured in all respects.
[21] The mere fact that the Investigating Committee reached the same conclusion as the Registrar’s Appeal Hearing, on broadly similar evidence, does not, in my opinion, vitiate or invalidate the Investigating Committee’s decision and make it plainly wrong, even if the Committee has had sight of the earlier Registrar’s Appeal Hearing decision. Nor does it mean that there has been a denial of justice. Mr Anderson relied on the case of R. (on the application of Squier) v GMC [2015] EWHC 299 which concerned the question of the extent to which a professional medical disciplinary body could have regard to criticisms made by judges of a doctor, in the context of the evidence she gave as an expert, in criminal proceedings. Ouseley J said:
“The crucial point about the role of the disciplinary tribunal is that it should be the decision maker on the issues and evidence before it; it should not adopt the decision of another body, even of several judges, as a substitute for reaching its own decision on the evidence before it, on the different issues before it. None of that precludes the GMC under its Fitness to Practice Rules considering the judgments in a case in which evidence later at issue before the GMC was given. But they are not relevant for the purposes of substituting one judgment for the other, because it is the FTPP’s statutory duty to decide the issues before it.”
I consider this passage to be highly persuasive. It is clear that what is prohibited is adoption and substitution of a collateral decision by a disciplinary body charged with the duty of investigation into disciplinary allegations. In the context of the present case I am not persuaded the Investigating Committee fell foul of this prohibition.
[22] Counsel relied heavily on the decision in Enemuwe v Nursing and Midwifery Council 2015 WL 4938278. In that case a Conduct and Competence Committee of the NMC, investigating complaints against a midwife, had relied on an earlier investigation by a supervisor of midwives (SOM) in reaching conclusions about certain contested allegations. Mr Justice Holman quashed the decision of the Committee. In so doing he said:
“77. I perfectly appreciate that the background to many, if not all, investigations, and ultimately hearings, by Conduct and Competence Committees of the NMC is likely to include some complaint or allegation and some disciplinary or other investigation at the local level. Often a registrant may have been suspended or dismissed, and the Committee will need to be informed, and will be informed, of that fact.
78. But there is a world of difference between their knowing that there has been some investigation, and their actually paying regard to the factual outcome of the investigation in reaching their own findings and conclusions on disputed issues of fact.”
In my opinion Enemuwe can be distinguished from the present case as it is obvious to me that the Investigating Committee did not use the Registrar’s Appeal Hearing decision to reach its own findings and conclusions. Instead it conducted its own forensic investigation and reached the same conclusion through an autonomous process of inquiry and reasoning. That is materially different from what happened in Enemuwe where the Committee according to the judge had ‘…. clearly chosen to make twice repeated reference to the outcome of the SOM investigation when giving their reasons for finding the charges in question proved. It seems to me, therefore, that……there has been a serious irregularity in this case.” It can also be said in the present case that the Investigating Committee discounted the decision of the Registrar’s Appeal Hearing and specifically stated it attached little weight to it.
[23] However, Mr Justice Holman goes on to say, and this too was heavily relied upon by counsel:
“82. Although the Committee clearly conducted this whole hearing with the utmost care, and although they clearly demonstrated a capacity to discriminate between the various charges, some of which were found proved and others not proved, there must be a risk here that in some way they allowed themselves to be influenced, even if only peripherally, by their knowledge that all the allegations had earlier been upheld by Ms 2 [the SOM].”
Accordingly, counsel argued that justice must be seen to be done and it was unfair to rely on the Registrar’s Appeal Hearing decision to any extent as that could possibly be seen to taint the decision of the Investigating Committee. In support of this limb of his argument counsel additionally prayed in aid the decision in Murphy v General Teaching Council for Scotland 1997 S.C. 172; 1997 S.L.T. 1152; 1997 S.C.L.R. 362 in which case a disciplinary committee ordered that a teacher's name be removed from the register of teachers. The teacher had been convicted of a sexual offence. The disciplinary committee had sight of an extract from a minute of the investigating committee which referred to a historical police caution against the teacher relating to street prostitution which could not be libelled as a previous conviction and which could not constitute a ground of referral to the disciplinary committee. The court held:
“However it is axiomatic that, in proceedings of this nature, justice must not merely be done, but must be seen to be done. In our opinion, even though the disciplinary committee may have applied the correct test, justice was not seen to be done because the members of the disciplinary committee had before them material which was irrelevant and which was prejudicial to the appellant.”
In my view the earlier caution in Murphy was manifestly irrelevant and prejudicial. It indicated on one view that the teacher had a history of sexual misbehaviour. The circumstances of the present case are materially different. The Registrar’s Appeal Hearing decision was not a material factor which the Investigating Committee relied on in reaching its conclusion.
[24] I agree justice must not only be done but be seen to be done. However, I am not persuaded the admission of the earlier decision in the present case occasioned an injustice or that on any view such a conclusion could be justified. I prefer the approach adopted in Constantinides v Law Society [2006] EWHC 725 (Admin); (2006) 156 N.L.J. 680 referred to and relied upon by Mr Anderson. In that case the court considered an appeal from The Solicitors Disciplinary Tribunal which had struck off a solicitor for dishonesty. The court held the Tribunal had been entitled to read a decision of a High Court judge which made a finding of dishonesty against a solicitor and rely on the judgment as admissible to prove background facts in the context of the misconduct alleged. The court held the disciplinary tribunal was a skilled and expert body well able to reach its own conclusions, and its finding that the solicitor had acted dishonestly was justified. In my view the same can be said of the present case. The Investigating Committee was a skilled and expert body that reached its own conclusions in my opinion.
[25] For completeness I only add that recently the Inner House has made some observations, in Hood v Council of the Law Society of Scotland [2017] CSIH 21, about the status of a disciplinary tribunal’s decision and the circumstances in which an appeal court may interfere with such a decision. The court stated:
“Cases where the Court may interfere occur in three main situations. The first is where the Tribunal’s or sub-committee’s reasoning discloses an error of law, which may be an error of general law or an error in the application of the law to the facts. The second is where the Tribunal or sub-committee has made a finding for which there is no evidence, or which is contradictory of the evidence. The third is where the Tribunal or sub-committee has made a fundamental error in its approach to the case, as by asking the wrong question, or taking account of manifestly irrelevant considerations, or arriving at a decision that no reasonable Tribunal or sub-committee could properly reach.”
Even using Hood as a guide I am not persuaded the Investigating Committee in the present case made a fundamental error in its approach because I do not consider the decision of the Registrar’s Appeal Hearing was manifestly irrelevant, as opposed to being part of the general background to the case or that it was used to any material or determinative extent in the autonomous decision making process of the Investigating Committee.
Conclusion
[26] In my opinion the approach of counsel is too technical and narrow when considered in the context of the relevant test which justifies interfering with a decision of a professional disciplinary body, the investigation conducted, the process followed, the limited reliance placed upon the earlier decision and the full and cogent reasons given by the Investigating Committee for its decision. For all the reasons stated above I shall refuse the appeal.
Expenses
Counsel moved for the expenses of the appeal and sought sanction for the instruction of junior counsel. Mr Anderson did not address me on expenses. By e mail both sides have now intimated they request a hearing on expenses before a final interlocutor is pronounced. Accordingly, I shall put the case out for a hearing if parties cannot agree expenses in the light of this decision. I can give an indication that, unless persuaded to the contrary, I am inclined to sanction junior counsel and would either award expenses against the pursuer modified to nil, as she has legal aid, or make an award of no expenses due to or by either party, if that assists parties to agree a position and helps avoid the need for a hearing on expenses. If the position is more complicated the clerk will allocate a hearing.