Reka Tapster v Nursing and Midwifery Council [2019] EWHC 3349 (Admin)

Reka Tapster v Nursing and Midwifery Council [2019] EWHC 3349 (Admin) concerned an appeal by Mrs Tapster against a decision by the Nursing and Midwifery Council’s Fitness to Practise Committee on 5 June 2019 extending her suspension from the nursing register for a further four months from 29 June 2019. Mr Justice Mostyn dismissed the appeal.

The appellant had been the subject of professional misconduct proceedings arising from an email sent on 2 July 2014 containing allegedly confidential patient information. On 4 June 2016 the Committee found the allegations proved, found her fitness to practise impaired, and directed that her name be struck from the register. She appealed. On 3 March 2017 Hayden J allowed the appeal solely on the ground that the sanction was plainly wrong, substituting a 12-month suspension which ultimately commenced on 29 June 2018 following further procedural steps. Arden LJ refused permission to appeal to the Court of Appeal on 29 June 2018. The appellant also launched a collateral challenge in the Queen’s Bench Division claiming damages, which was struck out by Lavender J on 19 June 2017. A further attempt to set aside that decision and to reopen the Hayden J appeal failed before Andrews J on 13 October 2017, and Arden LJ again refused permission to appeal on 29 June 2018.

By operation of Article 30 of the Nursing and Midwifery Order 2001, the Committee was obliged to review the suspension order upon its expiry. Before the review hearing on 5 June 2019 the appellant wrote to the Committee stating that she would refrain from repeating the conduct for which she had been punished but offering no genuine insight. On 4 May 2019 she wrote that she would never again email anonymised patient information to regulating authorities to raise concerns about patient harm, which she now knew was seen as unacceptable and deplorable, and that she now understood the risk to confidentiality outweighed the risk of ongoing patient harm. On 7 May she wrote that the NMC lacked consistency, that she could only confirm she would refrain from repeating the conduct, and that she had nothing else to say.

The Committee found continuing impairment on both public protection and public interest grounds. It noted there was no evidence the appellant had reflected on the consequences of her actions or the risk to patients, no sign of remorse, and no insight into the importance of patient confidentiality. The tone of her letter did not satisfy the Committee that she was genuine in her remarks; it contained no insight, reflection or remorse. There was no evidence she had remediated her failings and she remained liable to repeat matters of the kind found proved. The Committee therefore imposed a further four-month suspension to allow her adequate time to develop insight and remediation. It noted that conditions would be inappropriate as there were no clinical practice issues and she had not demonstrated willingness to comply. No action or a caution order would be neither proportionate nor in the public interest.

Shortly after the expiry of the extension, on 29 October 2019, the Committee struck the appellant from the register. Mr Justice Mostyn initially considered the appeal academic under the principle in Ainsbury v Millington [1987] 1 WLR 379, but Mr Cassells for the respondent argued that if the June 2019 finding of impairment was wrong, the October 2019 striking-off would have been without power. The judge therefore proceeded to hear the appeal.

Before Mr Justice Mostyn the appellant sought to challenge the original findings of fact made on 4 June 2016. The judge held that the appellant was precluded by issue estoppel from relitigating those findings, which had been implicitly confirmed by Hayden J and upheld by Arden LJ’s refusal of permission to appeal. If not estopped, the attempt would be an abuse of process under the rule in Henderson v Henderson (1843) 3 Hare 100, applying the principle stated by Lord Bingham in Johnson v Gore Wood and Co [2000] UHL 65 that there should be finality in litigation and a party should not be twice vexed in the same matter. The respondent had already been vexed at least three times and the application constituted at least a fourth attempt. The judge rejected the challenge to the 2016 findings in limine, stating that road had reached its end.

The sole question was therefore whether the Committee was right on 5 June 2019, on the historical bedrock of the 2016 findings and having regard to the appellant’s conduct during suspension, to find continuing impairment and to impose a further period of suspension. The judge observed that whilst it was not a requirement that a registrant accept allegations chapter and verse in order to demonstrate insight and remediation, any conditional statement of the form “If (which is denied) I did wrong then I will conduct myself in a certain way” had to be judged sincere. The Committee had found the tone of the appellant’s letters insincere, a finding for the Committee to make. Having heard the appellant’s submissions, the judge agreed entirely. She was bursting with indignation at what she believed was wrongful treatment, was explicit that the terms of her letter had been very carefully considered, did not amount to any admission she was objectively in the wrong, and maintained she was at all times completely guiltless. The insincerity of her letter was thereby very clearly demonstrated.

The judge held that the appellant had not shown the Committee’s finding on impairment was wrong. Indeed, he concluded it was plainly right and it would have been perverse to reach any other conclusion on the material before it. As to sanction, having made the impairment finding it did, the decision was fully and squarely within the remit of available sanctions. The judge was satisfied the decision could not be said to be wrong and proclaimed it manifestly the right decision to make.

The judge made a declaration that the points seeking to relitigate matters previously before the High Court and the Court of Appeal were totally without merit and manifestly abusive. He declined to impose a civil restraint order, noting in part that the appellant had been struck off but had a statutory right to appeal the October 2019 striking-off decision by 26 November 2019. The judge awarded costs in the sum of £4,198 to the respondent but, having regard to the appellant’s receipt of employment support allowance of £116 per week and her living close to the breadline, ordered that for as long as she remained on benefits and not in gainful employment she need pay only £5 per month, with an obligation to inform the respondent if she obtained employment so the rate could be reconsidered.

In short, the appeal against the four-month extension of suspension was dismissed, the challenge to the underlying 2016 findings being barred by issue estoppel and abuse of process, and the June 2019 finding of continuing impairment and the sanction imposed being plainly correct.

Ainsbury v. Millington [1987] 1 WLR 379
Johnson v. Gore Wood and Co [2000] UHL 65