Professional Standards Authority for Health And Social Health Care v Nursing And Midwifery Council & Anor [2019] EWHC 3326 (Admin)

Professional Standards Authority for Health And Social Health Care v Nursing and Midwifery Council & Anor [2019] EWHC 3326 (Admin) concerned conjoined appeals brought by the Professional Standards Authority for Health and Social Care under section 29 of the National Health Service Reform and Health Care Professions Act 2002, challenging decisions of the Fitness to Practise Committee of the Nursing and Midwifery Council that found Ms Khanyisile Lembethe and Ms Monica Zandile Mkhize not guilty of dishonesty in relation to a Basic Life Support training certificate; Mrs Justice Steyn allowed the appeals and remitted charge 4 in each case to be considered afresh.

Ms Lembethe had worked as a nurse for thirty-three years and had been employed at Fairlie House nursing home since 2006, latterly as deputy manager holding the post of Quality, Clinical and Governance Manager. Ms Mkhize began working at Fairlie House as a staff nurse on 14 February 2017. The charges alleged that Ms Lembethe dishonestly produced and signed a BLS certificate dated 25 January 2017 for Ms Mkhize, and that Ms Mkhize dishonestly submitted it to an employment agency, Nursing 2000, knowing that Ms Lembethe had not delivered the training and intending to mislead the agency that the certificate was genuine. The central issue was whether the certificate had been produced and submitted in January 2017, before Ms Mkhize began working at Fairlie House, or in July 2017 after she had completed the training. Both registrants were also charged with dishonesty in respect of a Moving and Handling certificate dated 15 February 2017, but the Panel found there was no case to answer on those charges and the Authority did not appeal those findings.

The Panel heard evidence from Mr Joe Netimah, a recruitment manager at Nursing 2000, who stated in his witness statement for Ms Mkhize that the BLS certificate was “sent” to Ms Nikita Grant on 27 January 2017 and date stamped the same day. In a second witness statement concerning Ms Lembethe, Mr Netimah said the BLS certificate was “received” by Ms Grant on 24 January 2017, was an “original document”, and was date stamped 27 January 2017. During examination-in-chief Mr Netimah said he believed the certificates were sent by email and that he had seen correspondence when the NMC investigation team approached him. Under cross-examination by counsel for Ms Lembethe, Mr Netimah accepted he had described the BLS certificate as an “original document” in his witness statement but then said it would appear the BLS certificate was given at a face to face registration whereas the Moving and Handling document was received by email. When asked about the emails he said he had seen, Mr Netimah said he had given all information regarding email correspondence to the NMC. It emerged that the email was not in the NMC’s possession. After a brief adjournment the NMC representative stated the email did not appear to be in their possession but said it was important and some time should be allowed to locate it if possible. Counsel for Ms Lembethe objected that producing documents at such a late stage inevitably caused prejudice to his client. Ms Mkhize, attending by telephone, said she believed the document with the email was of vital importance.

The Panel decided the NMC should have an opportunity to obtain the email. After a further adjournment Mr Netimah produced an email dated 27 January 2017 at 17:17 from an email address incorporating the name “monica mkhize” to Ms Grant with the subject “BLS certificate” and text reading “Hi there attached is the BLS certificate as discussed”, with the BLS certificate dated 25 January 2017 attached without an agency date stamp. The NMC applied to admit the email, submitting that the Panel was a panel of enquiry whose function was to obtain all the facts, the email would confirm when the BLS certificate was sent to Nursing 2000, there was ambivalence in the evidence as to the date, and the email would give a concrete date and time. The NMC acknowledged there would be some prejudice from late admission but submitted fairness in proceedings was not just fairness to the parties facing charges but also to the public as a whole, and allowing the email to go before the Panel would enable them to make the right decision. Counsel for Ms Lembethe strongly opposed admission, submitting the more important the evidence the more important it was to have time to scrutinise it, Ms Lembethe was prejudiced by the very late disclosure because there had been no opportunity to challenge it, it would be easy to edit an email when forwarding it and Ms Lembethe could have instructed a computer forensic expert to examine the metadata, but there had been no opportunity to do so. He said the public interest in admitting the evidence was outweighed by the prejudice and the public interest was in any event met because the charges remained to be determined by the Panel. He clarified that Ms Lembethe’s case was that the certificate was not sent until July and for some reason was date stamped with the wrong date. He submitted the email was central to the case on dishonesty and Ms Lembethe was not in a position to challenge its correctness or authenticity. Ms Mkhize expressed concern about not having received the email from the NMC but her response was otherwise difficult to understand. Counsel for Ms Lembethe added that Ms Mkhize was unrepresented and the prejudice was perhaps even greater for her.

The NMC representative responded that if there was prejudice because the registrants had not had an opportunity to have the email examined by an expert, the remedy would be to adjourn the case to allow them to conduct that investigation, and date stamps were subject to human error whereas the email with its metadata would be able to confirm when the document was sent. Counsel for Ms Lembethe opposed any adjournment submitting it would add to the prejudice and costs, noting the hearing had already been adjourned once, and the right approach was to exclude the email. The legal assessor advised that the rules required consideration of relevance and fairness in that order, relevance was potentially established, fairness was the crucial element, and there were options of allowing the evidence, excluding it or adjourning. She emphasised that charges of dishonesty were serious and had the potential to affect careers significantly, so great care was needed. She noted there was a duty on the NMC to disclose relevant matters, they sought to do so but were in the middle of hearing a witness. She advised the Panel needed to be satisfied they were acting with fairness taking into account all submissions, and it was fairness to the registrants that needed to take particular weight in the decision because they were subject to dishonesty charges. She also noted the Panel was a panel of enquiry more proactive in seeking information but that was one of many considerations. The chairman invited comments on the legal advice and there were none.

After deliberating overnight the Panel refused to admit the email. They accepted the legal assessor’s advice, were satisfied the information was relevant to both cases but were concerned that no previous attempts were made by the NMC to obtain this information or secure a witness statement from Ms Grant. The Panel considered it would be very difficult for the registrants to challenge the new information which undermined their position. The Panel noted the NMC had a duty to disclose material in advance to enable registrants to attend and defend their case with the expectation they were challenging evidence they had ample opportunity to review and scrutinise. They considered that allowing such information which bolstered the NMC’s case at this late stage would go against this principle and be wholly unfair. The Panel also noted that if not for Mr Netimah’s answer during cross-examination the NMC would not have sought the information, and Ms Grant who received the email had not produced a witness statement nor was in attendance to be cross-examined about the veracity of the information. Taking all this into account the Panel determined it would be unfair to admit the information and rejected the application.

The Panel then heard the rest of Mr Netimah’s evidence, in which he described Ms Grant as not very good at date stamping in a timely manner and referred to issues regarding her efficiency, and evidence from Ms Valerie McGlinchey, the Senior Human Resources Manager at Fairlie House. Ms McGlinchey’s evidence confirmed that the Moving and Handling certificate had been produced by Ms Lembethe with the help of office staff on Fairlie House’s computer system on 11 July 2017. As the BLS certificate was produced using a blank in-house certificate there was no comparable computer evidence of the date it was produced. Ms Lembethe gave evidence that she had completed both certificates at Ms Mkhize’s request on the same day in July 2017, it was proper to date the certificate from the date of training not the date of signing as such certificates expire after one year from the date of training, she had looked up Ms Mkhize’s training on the computer before producing the Moving and Handling certificate but had not realised Ms Mkhize was also asking for the BLS certificate, when Ms Mkhize reminded her the same day she did not consider it necessary to return to check the training record as she had already seen Ms Mkhize had completed BLS training (called CPR but with no material difference), and she misremembered the date of the BLS training and for that reason wrongly dated the certificate 25 January 2017. The Panel found Ms Lembethe to be a credible witness who provided clear and consistent answers, whose version of events remained the same throughout the investigation and oral evidence, and who was able to explain the cultural connection shared with Ms Mkhize. The Panel noted Ms Lembethe took responsibility for the admissions she made at the outset and asserted she had learnt from them, which went towards her credibility.

The Panel decided the fundamental question as to whether the registrants were dishonest centred upon when the BLS certificate was received by the agency. The NMC case was that if it was received in January 2017 before Ms Mkhize commenced employment at the home there would be clear evidence of dishonesty. The Panel noted Mr Netimah told them Ms Grant date stamped the certificate as 27 January 2017 but he also gave evidence it was received on 24 January 2017 although that email was not before the Panel, and a further BLS certificate date stamped 25 January 2017 was also in evidence. The Panel took into account that Ms Grant who received the certificate and date stamped the two copies was not called to give evidence and Mr Netimah was not involved in receiving these documents. His evidence was that Ms Grant was not very good at date stamping in a timely manner and referred to issues regarding her efficiency, although his evidence was that the certificate was received in January 2017. The Panel considered his evidence carefully but was of the view it was not reliable due to its inherent inconsistency. The Panel considered the NMC had not proved its case to the requisite standard and could not be satisfied on the balance of probabilities that the agency received the certificate in January 2017 due to the inconsistency of the evidence adduced by the NMC. The Panel placed greater weight on the inconsistency of the date than the fact they were all dated within January 2017. The Panel found charge 4 not proved against each registrant.

The Authority’s grounds of appeal were that the Panel erred in refusing to admit the email, the Panel’s finding that the registrants were not dishonest was wrong, and the way in which the case was charged or prosecuted meant important aspects of the registrants’ conduct were not considered adequately or at all. The NMC conceded the appeals and made no submissions. Ms Lembethe was represented pro bono but Ms Mkhize did not respond to the appeal and did not attend the hearing, having been in court briefly in the morning but not returning after lunch. Mrs Justice Steyn was satisfied it was fair to proceed in Ms Mkhize’s absence given she had not applied to adjourn, she had not been represented before the Panel and had asked the Panel to excuse her absence, and there would be substantial prejudice to the other parties who were present and ready to proceed.

On Ground 1, Mrs Justice Steyn held that the Panel’s decision not to admit the email was wrong. The email was not merely relevant but crucial and potentially conclusive evidence on the central question whether the BLS certificate was submitted to the agency in January 2017. It would have been unfair to admit the email without giving the registrants time to consider and address it including by obtaining expert evidence if they wished, but if the Panel had admitted the email and adjourned the hearing there would be no prejudice to the registrants’ ability to challenge it. Adjourning the hearing would have given rise to a different type of prejudice, namely the costs and inconvenience of attending a further hearing and ongoing stress, but this prejudice had to be weighed against the public interest in very important evidence of dishonesty being considered by the Panel. In the judge’s judgment the public interest in the Panel considering this crucial piece of evidence substantially outweighed any prejudice to the registrants that would have flowed from adjourning. In advising the Panel that the crucial issue was fairness, the legal assessor did not draw any distinction between the prejudice if the email was admitted and the hearing continued immediately or if the email was admitted and the hearing was adjourned to give the registrants time to address it. There was no indication in the Panel’s decision that they recognised the prejudice would be quite different depending on whether they adjourned. The Panel concluded it would be unfair to admit the email because late disclosure meant the registrants had been unable to take steps such as obtaining expert evidence to challenge its authenticity, but their conclusion failed to address the fact that this unfairness would not arise if they adjourned to give the registrants time to consider and address the email. The Panel did not address the NMC’s application to adjourn if necessary at all. The legal assessor advised the Panel should give particular weight to fairness to the registrants but did not mention that first and foremost the function of the rules is to protect, promote and maintain the health and safety of the public, nor did she advise of the need to balance fairness to the registrants against the important public interest in the Panel reaching a correct determination on charges of dishonesty. The Panel failed to give due weight to the public interest or to balance it against such prejudice as would have arisen if the email had been admitted and the registrants given time to address it.

On Ground 2, Mrs Justice Steyn rejected the Authority’s submission that she should admit the email on appeal and find the Panel’s conclusion wrong. She held it would be unfair to take into account the email on appeal as the registrants must first be given a proper opportunity to challenge it including by admission of expert evidence. She also rejected the submission that taking no account of the email the Panel was wrong to conclude charge 4 was not proven. The Panel was plainly entitled to reach its conclusion for various reasons: Ms Lembethe gave evidence she completed both certificates on the same day in July 2017, Ms McGlinchey’s evidence confirmed the Moving and Handling certificate was produced on 11 July 2017, it was proper to date certificates from the date of training not the date of signing as they expire after one year, Ms Lembethe’s evidence was she misremembered the date of the BLS training, her account had been consistent from the outset and throughout the hearing, it was consistent with Ms Mkh

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