Hefferon v Professional Conduct Committee of the United Kingdom Central Council

for Nursing Midwifery and Health Visiting

10 BMLR 1

QUEEN'S BENCH DIVISION

WATKINS LJ, NOLAN J3 MARCH 1988

Nurse – Professional misconduct – Professional Conduct Committee – 'Conduct unworthy of a

nurse' – Nurses Midwives and Health Visitors Act 1979, ss 12, 13 – Nurses Midwives and

Health Visitors Rules 1983, SI 1983/887.

United Kingdom Central Council for Nursing and Midwifery – Professional Conduct

Committee – Procedure – Failure of committee to call witnesses to support allegations.

United Kingdom Central Council for Nursing and Midwifery – Professional Conduct

Committee – Need for legal assessor to direct committee as to burden and standard of proof.

United Kingdom Central Council for Nursing and Midwifery – Professional Conduct

Committee – Procedure – Mitigation – Witnesses called in rebuttal of nurse's mitigation –

Fresh charges made by witnesses – Nurse given no opportunity to rebut these charges – Effect

on proceedings.

The appellant, a school and clinic nurse, had been charged with four counts of misconduct,

arising from events which had taken place on 23 May 1984. The first was failing to check a

prescription and computer schedule prior to administering an injection to a child. Secondly, it

was alleged that she gave an incorrect immunisation to the child. Third, she was charged that

she had failed to record that she had given an incorrect immunisation. Finally, it was alleged

that she had failed to report the giving of the incorrect immunisation to the senior nurse or to

the health visitor. Mrs Hefferon discovered her mistake when she went to record the injection

and immediately notified the doctor in the clinic who gave reassuring advice and told her that
no harm would befall the child other than a raised temperature which would disappear

quickly. Consequently the third charge of failing to record the incorrect immunisation was

unfounded and the solicitor for the professional body offered no evidence on that charge. The

only evidence called on behalf of the professional body was from Miss Baichoo, the senior

nurse at the clinic. After Miss Baichoo and the appellant had given their evidence the

committee retired to consider their verdict and returned a verdict of guilty of misconduct on

all three counts. The prosecutor was permitted to recall Miss Baichoo who proceeded to

ventilate past incidents of alleged failures by the appellant to perform her duties properly.

Then a health visitor, Mrs Rudder, who had been present was called to give similar evidence,

before the appellant's representative was allowed to give a speech in mitigation. The appellant

was not given an opportunity to answer the fresh charges made during this process, and was

struck off the register. She appealed to the Queen's Bench Division. She asserted that the

committee was wrong to find that she had failed to check the records, and therefore wrong to

find that she had misconducted herself, and wrong to find that the giving of an incorrect

inoculation amounted to misconduct. There was insufficient evidence to support any alleged

requirement that the appellant report the mistake to the senior nurse or health visitor, and in

any event the committee was wrong to find that the absence of such a report was, despite the

steps taken by the appellant, a failure amounting to a breach of discipline. Finally, she

submitted that the committee should not have concluded that her failure to report was

misconduct and that the penalty of removal from the register was too severe.

Held – (1) (Per Watkins LJ) There were some disturbing features about the way in which the

hearing was conducted. The mother of the child was not called to give evidence, but

surprisingly when the appellant was called the focal point of her evidence was put to the

appellant. This was an impermissible and highly prejudicial way to proceed by someone

appearing for a professional body accusing a member of that body of an offence. Similarly,

Mrs Rudder was not called to give evidence about the instructions given to the appellant to

report errors, and Miss Baichoo mentioned it only under cross-examination and re-
examination. A more experienced advocate than the appellant's would not have mentioned it

and there would have been no evidence before the committee that there had been any

instruction or warning as to errors. Finally, as to the way the hearing was conducted, there

was no reference by the legal assessor to the burden or standard of proof. At hearings of

disciplinary committees of professional bodies, it is most necessary that the committee be

directed that allegations are not substantiated unless the committee by the evidence before it

is sure of the facts asserted against the person accused.

(2) As to the charges, the finding that the appellant had not checked the records was perverse

since the evidence was all in the appellant's favour. The charge that she gave the wrong

injection was a simple error, which was clearly explained by the appellant in her evidence.

The appellant had shown the utmost frankness at the time, and had shown care to ensure that

no real harm would come to the child. The committee's decision on this charge and the charge

of failure to report could not have been arrived at by any reasonable committee properly

directing itself.

(3) As to sentence there was a very serious departure from a proper procedure: a breach of

natural justice. To make sweeping allegations in the process of mitigation is impermissible

unless the person concerned has the opportunity to answer the charges levelled against her.

Per Watkins LJ. The responsibility of the court in an appeal of this kind is to examine the

evidence which was before the committee to determine whether the committee was justified

in reaching the conclusion which it did, having regard as well to any fresh evidence which is

admitted here. It must also review the application by the committee of the relevant law, and

consider whether there has been any breach of the rules of natural justice in the way in which

the hearing was conducted.

[Editors' note: The Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1983

(SI 1983/887) have since been replaced by the Nurses, Midwives and Health Visitors

(Professional Conduct) Rules 1987 (SI 1987/2156).]

Cases Referred To

Eyre v Pharmaceutical Society of Great Britain (17 June 1976, unreported). DC.

Harari v Pharmaceutical Society of Great Britain (26 April 1982, unreported), DC.

Singh (Malkit) v Pharmaceutical Society of Great Britain (18 March 1987), unreported).

Smith v Pharmaceutical Society of Great Britain (1986) Independent, 11 December, DC.

Stock v Central Midwives Board [1915] 3 KB 756, [1914-15] All ER Rep 1045, DC.

The appellant, Elizabeth Marion Hefferon, appealed against the finding of the respondent, the

Committee of the United Kingdom Central Council for Nursing, Midwifery and Health

Visiting, (i) that she had failed to check the records prior to administering an injection to a

child and therefore was wrong to find that she had misconducted herself, (ii) that the

committee was wrong to find that the absence of any report to the senior nurse or to the health

visitor was, despite the steps actually taken by the appellant, a failure amounting to an offence

against discipline, (iii) that the committee, having found that there was such a failure, should

not have concluded that that was misconduct and that the order removing the appellant's name

from the register was too severe. The facts are set out in the judgment.

Peter Hunt for the appellant; Robert Webb for the respondent.

William Heath & Co; Walker Martineau

3 March 1988WATKINS LJ

Mrs Hefferon of Sudbury qualified as a state registered nurse in 1977. She became employed

by what is now the Brent Health Authority as a clinic and school nurse from December 1979

with the grade of deputy sister.

Her duties consisted of, when working at the Craven Park Health Centre in Harlesden,

assisting the large number of doctors and others who worked there with necessary health

measures, including the weighing and measuring of children and the carrying out of

immunisations.

During the first year of life of a child the child should in the ordinary way receive a basic

immunisation course. This consists of three inoculations of equal strength given at intervals to

cover diphtheria, tetanus and whooping cough. At approximately the same time an oral dose

of drug against poliomyelitis is given. During the second year of life, the child should receive

an inoculation against measles. There follow, though not inevitably I gather, between the third

and fifth years, various reinforcing doses.

When a child is brought to such a clinic as Craven Park a nurse is specially assigned for the

purpose of giving immunisation inoculations. Mrs Hefferon was such a nurse at material

times. Meticulous records are kept, as one would expect, at the clinic of the inoculations

which are given to children at every stage. It is the duty, therefore, of a nurse to examine the

records in order to tell, when a child is brought in by its mother, what inoculation has to be

rendered at that particular time, having regard to what has gone before according to the set

course for that particular child.

The records which are kept include ordinary record sheets, computer sheets, and appointment

cards. In addition the parent has a record so that she may herself check on the progress of her

child through the inoculation process.

The routine at the clinic that should be and generally was followed by the nurse responsible

for immunisation ran somewhat along these lines. When the child was brought into the clinic

and seen by the nurse she would talk to the mother and possibly examine the mother's own

record card, if it was to hand. Inevitably, if she was performing her duties properly, she would

examine the records I have referred to.

Having examined the records and checked which inoculation that day was appropriate and

rendered it, it was her further duty to record that upon the records so that all those who

afterwards looked at the records would know precisely what had been done, and be able, of

course, to check that what was done was correct. Persons who would see the records would

include the senior nurse at the clinic, the health visitor, and doctors.

We are concerned with events which took place as long ago as 23 May 1984. What has

happened since then I shall have something to say about later. On that day a Mrs Benta

appeared at the clinic with her child. It is relevant to observe here, before passing on, that Mrs

Benta was herself a nurse.

She had her record card with her. She showed that to the appellant. According to the appellant

she examined the records and observed from them that the child had had a number of

inoculations, and that what was necessary then was the rendering of what was called a 'third

triple and polio' inoculation. She gave that to the child.

What unfortunately the appellant missed in looking at the records was an entry to the effect

that the child was due for a measles inoculation. If she had noticed that very different

treatment would have been afforded to the child. It is not clear whether that would have been

given then or at some later time.

When the appellant went to make an entry of what she had done upon the records she noticed

what she had formerly missed, namely the entry relating to measles. That disturbed her, as

indeed it should have done. She went to see the doctor who was nearby. I should interpolate

here that there was no challenge to any of these facts. The doctor gave the appellant

reassuring advice. He told her in no uncertain terms that no harm would befall the child by

reason of the inoculation which had just been given. It was customary some time before he

said to give that inoculation anyway regardless as to anything else which the child had

received, and indeed to this day, the doctor also said that – other evidence which is at the
disposal of this court assures me of this – in the United States of America it is customary for

that inoculation to be given at the stage at which the appellant gave it to this child.

The doctor went further and said the likelihood would be that if there was any after-effect it

would take the form of a raised temperature which would disappear quite quickly. If, the

doctor said finally, something happened contrary to what he believed was likely to happen,

the appellant should tell the mother that she should go and see her doctor straight away.

So it was perfectly clear that the appellant not only made the necessary entry showing what

she had done on the records but took the advice of the doctor which she passed on to the

mother of this child. If the prosecution so to speak at the disciplinary hearing had wished to

establish anything to the contrary it was open to them to call the doctor. They did not. It was

further open to them to call the mother. They did not.

The senior nurse at the clinic at that time was a Miss Baichoo. She became involved later in

what became known as the Beckford Inquiry. Another person employed there, to whom

reference will have to be made in some little detail later, was a Mrs Rudder. She was a health

visitor. She too could have been called by the prosecution and given relevant evidence. She

was not called.

The fact that the wrong inoculation according to the set course had been given to Mrs Benta's

child did not come to the notice of Miss Baichoo or Mrs Rudder until August of that year. It

was brought to their notice by Mrs Benta. Why she did not tell anybody before I cannot

understand, if she was concerned about it. The fact is that the child did not come to any harm.

The child had, as the doctor expected, a temperature not very long after the inoculation was

given and that disappeared pretty quickly.

What ensued after that was an inquiry by the Brent Health Authority. That ended with the

dismissal of this well-experienced state registered nurse from her employment. We do not

know how that inquiry was conducted. In fact, we know nothing about it at all, save its result.
Following that, a fairly considerable time later, the appellant who by that time had gained

other employment as a nurse – employment of a responsible kind – was told that her

professional body was now concerned about her 'mistake'. It matters not who reported that

matter to the professional body. One supposes that it was either the Brent Health Authority, or

one or other of the persons whom I have mentioned.

Eventually, it was decided that the appellant should come before the Professional Conduct

Committee of the Central Council for Nursing, Midwifery and Health Visitors under the

provisions of the Nurses, Midwives and Health Visitors Act 1979 and rules made under that

Act.

She made her appearance before that committee on 11 June 1987, that is to say, three years

after she had been dismissed from her employment by the Brent Health Authority. At the

hearing she was represented by a trade union official. The professional body was represented

by a lady solicitor. The only evidence called for the professional body was from Miss

Baichoo. The appellant gave evidence in answer to the accusations made against her.

The charges which the appellant faced ab initio were these. First, that on 23 May 1984, whilst

employed as a clinic and school nurse by the Brent Health Authority she failed to check a

prescription and computer schedule prior to administering an injection to a child and

consequently was guilty of misconduct; secondly, that at the same time she gave an incorrect

immunisation to that child and consequently was guilty of misconduct; thirdly, that at the

time she failed to record that she had given an incorrect immunisation and consequently was

guilty of misconduct; and, fourthly, that at the same time she failed to report the giving of the

correct immunisation to the senior nurse or to the health visitor.

At the commencement of the hearing the solicitor informed the committee that she would

offer no evidence on the third charge, that is to say, that she failed to record that she had
given the wrong immunisation. How that charge ever came to be brought against her I cannot

understand as it is plain for all to see on the record that she did record what she had done.

Thus there were three charges to be investigated by the committee. The committee consisted

of five persons. They were all ladies, and they were all very experienced nurses. There was a

legal assessor present, Mr Worsley, and following the opening remarks by the solicitor, Miss

Baichoo proceeded to give her evidence. She was cross-examined by Mr Brookes, the trade

union official. At the conclusion of her evidence the prosecutor said that she was not calling

any other witness. The mother and Mrs Rudder were there, but the prosecutor said that she

was content to tender the mother. She made no reference to Mrs Rudder at that time.

At the conclusion of the appellant's evidence the committee retired to consider their findings

as to misconduct. When they returned to the room where the hearing was taking place they

announced that on the facts they found upon each of the charges the appellant was guilty of

misconduct. They then announced that they would proceed to mitigation.

There then followed what I am bound to say I find a quite extraordinary process. The

prosecutor was permitted to recall Miss Baichoo who proceeded to ventilate past incidents of

alleged failures by the appellant to perform her duties properly, some of the evidence to that

effect being delivered apparently with a certain amount of venom.

Following her evidence, Mrs Rudder was called for a like purpose. By that I mean to show

the appellant in a bad light, in other words that the appellant had a past record of neglect of

duty. She was, to be fair to her, moderate in her evidence. When that was done Mr Brookes

was called upon to make a speech in mitigation. There was no opportunity given to the

appellant to give evidence to refute what were some serious accusations against her. It is not

surprising, therefore, to me at any rate, that when that process was done, there being no

opportunity, as I have said, given to the appellant to answer what were in effect a string of
fresh charges, the committee announced that they would strike the appellant off the register.

Accordingly, they did that.

It is from those findings and that sentence or penalty that the appellant appeals. Mr Webb in

his skeleton argument endeavoured to persuade us that the appropriate course which the

appellant should have embarked upon and did not was to apply to the committee to be

reinstated. I cannot accept that. The appellant had a right to appeal and she has properly

exercised that right.

The grounds of appeal relied upon by the appellant are these. She asserts that the committee

was wrong to find that she had failed to check the records, and therefore wrong to find that

she had misconducted herself. The committee ought not in the circumstances to have found

that the admitted giving of an incorrect inoculation amounted to misconduct. The committee

was wrong to find that the absence of any report to the senior nurse or to the health visitor

was, despite the steps actually taken by the appellant, a failure amounting to an offence

against discipline. The committee, having found there was such a failure, should not have

concluded that that was misconduct and that the order removing the appellant's name from the

register was too severe for a number of reasons to which I shall make reference a little later.

Those grounds were supplemented by the assertion that there was in any event insufficient

evidence to support any alleged requirement upon the appellant to report to the sister or to the

health visitor. There was, without the calling of suitable expert evidence, introduced into the

hearing the suggestion that the child concerned was subjected to a high risk from the giving of

a fourth inoculation. Finally, it is contended that the mother's alleged account was wrongly

introduced in opening and put in cross-examination to the appellant, the mother not having

been called.

Mr Hunt, who appeared for the appellant, applied to introduce fresh evidence. It took the form

of an affidavit from an epidemiologist, namely Christine Lavender Miller. She is a well-

qualified expert at the Public Health Laboratory Service. That is a position which she has held

since 1968. Her responsibility is the surveillance of the efficacy and safety of vaccines in

children.

What she has stated in her affidavit serves to counter evidence given by Miss Baichoo as to

what were claimed by her to be the deleterious effects of giving this vaccine, especially to a

premature baby, as this child apparently was. An attempt was made to persuade us that we

should not admit this affidavit having regard to what was said in this court, differently

constituted, in Smith v Pharmaceutical Society of Great Britain (10 December 1986). In that

case Stephen Brown LJ observed with reference to one of the rules of the Supreme Court that

usually anyway it was not appropriate in appeals from statutory committees that fresh

evidence should be adduced.

However, he was dealing with a situation in which fresh evidence related to events which

took place well after those which were the subject of the complaint before the disciplinary

committee of that society. There is in my view inappropriate circumstances power to admit

fresh evidence into an appeal of this kind.

Order 55, r 3(1) states:

'An appeal to which this Order applies shall be by way of rehearing and must be brought by

originating motion.'

Rule 7(2) states:

'The Court shall have power to receive further evidence on questions of fact, and the evidence

may be given in such manner as the Court may direct either by oral examination in court, by

affidavit, by deposition taken before an examiner or in some other manner.'

We were referred by Mr Hunt to Stock v Central Midwives Board [1915] 3 KB 756 at

762 where Lord Reading CJ said with reference to a similar rule current at that time:
'. . . the Rules of the Supreme Court, 1883, make it plain that this Court has power to hear

further evidence by affidavit, or oral evidence if it so chooses. The object of the Legislature

was to enable the Board to administer the affairs regulating the practice of midwives and to

give them the unrestricted right to administer those affairs subject to this one right of appeal;

and in my view, when a case of this kind is brought to this Court, it is the duty of the Court to

see that justice is done, and, in the absence of restricting or hampering words in the section,

the Court must inquire into all the circumstances, and is absolutely unfettered in any

investigation which it may think right to make in order to ascertain the facts.'

I respectfully agree with that. It has, of course, to be acknowledged that this is not a rehearing

in the sense that the Crown Court rehears a case on an appeal from a magistrates' court. What

this court is called upon to do is to, among other things, scrutinise the evidence given at the

hearing from which the appeal emanates.

Where there has been an opinion expressed or an assertion of relevant fact made in the course

of that hearing, as revealed in the transcript of evidence given, in my judgment, it is

competent for this court to receive in its discretion fresh evidence going to that expression of

opinion or that assertion of fact.

It was upon that basis that we came to the conclusion that it was proper to admit the evidence

by affidavit of the expert I have referred to. The effect of that evidence is I do not doubt

completely to destroy the opinion expressed by Miss Baichoo. She expressed an opinion to

the committee which, I do not think, the committee should have accepted in the absence of

confirmation from elsewhere. If the committee wished to be informed of the effects of the

inoculation carried out by the appellant it was necessary in my view for the prosecution to

produce an expert upon such a matter to inform the committee adequately of what could

possibly amount to a serious aspect of this affair.

The appeal comes by virtue of provisions contained in the Nurses, Midwives and Health

Visitors Act 1979. Section 12 of it, so far as material, provides:

'(1) The Central Council shall by rules determine circumstances in which, and the means by

which – (a) a person may, for misconduct . . . be removed from the register . . . whether or not

for a specified period . . .

(4) The rules shall make provision as to the procedure to be followed, and the rules of

evidence to be observed, in such proceedings, whether before the Council itself or before any

committee so constituted, and for the proceedings to be in public except in such cases (if any)

as the rules may specify.'

There is then a reference to Sch 3 where one finds provisions relating to the conduct of the

proceedings before an appropriate committee. They include a provision for the appointment

of a legal assessor.

Section 13(1) gives the right of appeal in this manner.

'A person aggrieved by a decision to remove him from the register . . . may, within 3 months

after the date on which notice of the decision is given to him by the Council, appeal to the

appropriate court; and on the appeal – (a) the court may give such directions in the matter as it

thinks proper, including directions as to the costs of the appeal; and (b) the order of the court

shall be final.'

It goes on to provide that the appropriate court is the High Court.

The rules made under the Act are the Nurses, Midwives and Health Visitors (Professional

Conduct) Rules 1983, SI 1983/887. Rule l(2)(i) defines 'misconduct'. It states:

'“Misconduct” means conduct unworthy of a nurse, midwife or health visitor as the case may

be . . .'
With those provisions in mind, I turn to consider the approach of this court to the issues here

bearing in mind that hearings before disciplinary committees are not as formal as court

hearings. It is submitted to us that we really should not interfere with a decision of so

experienced a body as this committee composed as it was of very experienced nurses. For that

purpose Mr Webb relied upon various observations passed in a number of cases, from two of

which I shall now make quotations. In Eyre v Pharmaceutical Society of Great Britain (17

June 1976, unreported) Croom-Johnson J in giving the leading judgment said:

'This court, although it has power to review the decision of statutory committees and statutory

bodies which control the discipline of the various professions such as this, is loath to interfere

with those decisions unless it is clear that the decision which was come to was a wrong one.'

In Malkit Singh v Pharmaceutical Society of Great Britain (18 March 1987, unreported), a

court of which I was a member, it was stated by Mann J giving the leading judgment:

'That approach was also adopted by Lord Justice May in the case of Harari v Pharmaceutical

Society of Great Britain (26 April 1982, unreported), . . . May LJ at 11 of the transcript, said:

“Once again, the decisions of this court in other cases relating to pharmaceutical chemists

and, indeed, other professional bodies, have made it clear that the principle that it will only

interfere where the tribunal below has clearly gone wrong applies with greater force in

relation to any penalties imposed by the domestic tribunal than to the actual decision on the

merits. That must follow from the professional composition of the statutory committee, who

have to decide on the suitability of the particular defendant before them to continue to carry

on practising as a pharmaceutical chemist”.'

Mr Hunt submits that whilst this court should always proceed with caution towards

overturning a decision of a disciplinary body, whether the decision which is impugned is one

which establishes misconduct or penalty, it should not shrink from upsetting the committee as

to either one or both of those decisions if it is convinced that it is right to do so.

Clearly, in my view, the responsibility of this court in an appeal of this kind is to examine the

evidence which was before the committee to determine whether that committee was justified

in reaching the conclusion which it did, having regard as well to any fresh evidence which is

admitted here. It must also review the application by the committee of the relevant law, and

consider whether there has been any breach of the rules of natural justice in the way in which

the hearing was conducted.

I find that there are some disturbing features about the way in which this hearing was

conducted. The case for the professional body was opened on the basis that the committee

would be hearing something about what happened between the mother and the appellant

before the child was inoculated.

In the event, as I have already said, the mother was not called to give evidence, but

surprisingly when the appellant was cross-examined the focal part of the mother's evidence

was put to the appellant. That is an impermissible way to proceed by someone appearing for a

professional body accusing a member of that body of an offence. It was incumbent upon the

solicitor appearing for that body to call the evidence supporting it if such an allegation as was

put to the appellant was to be made.

It was most prejudicial for that to be done. The object of it obviously was to put in the minds

of the committee that the appellant had not been telling the truth as to what happened between

her and the mother. Since truth was one of the most important factors which had to be

considered by the committee the harm which that may very well have done, could have been

quite substantial and crucial.

There is also the fact which I have already mentioned, namely the failure to call evidence

from Mrs Rudder who could have informed the committee about the instruction (if that is the

right word to use about it) if any given to the appellant and other nurses as to the need for

reporting errors.
That was something which was clearly heavily relied upon against the appellant as showing

that she had misconducted herself, but the only person who said that the appellant had been

instructed or warned that errors should be reported to the senior nurse or to the health visitor

or both was Miss Baichoo, and she did not say that until she was cross-examined. Not a word

was said about it in examination- in-chief, and she became very much stronger upon it when

in response to a number of leading questions she was re-examined.

I find that to be another highly prejudicial way of proceeding. If that allegation was to be

made it should have been made in examination-in-chief, and it was not. It came to the notice

of the committee by a sidewind almost. A more experienced advocate than the trade union

official would not have mentioned it in which case it could not have been re-examined upon,

and there would have been no evidence before the committee that there had been any

instruction or warning as to reporting errors.

Finally, as to the way in which the hearing was conducted, one finds no reference by the legal

assessor to the burden of proof or to the standard of it. He advised at various stages the

committee upon a number of points. He may of course have referred to the burden and

standard of proof when he retired with the committee. If he did, and he did less than direct

them that they had to be sure before they could find established certain essential facts, then he

would not have directed them properly.

At hearings of disciplinary committees of professional bodies it is most necessary that the

disciplinary committee should be directed that allegations are not substantiated unless the

committee by the evidence before it is sure of the facts asserted against the person accused.

With those few observations in mind as to the need of the committee to be sure of the facts

alleged, I pass to the charges. As to the first charge the evidence was all one way, that is the

way of the appellant. There was nothing to gainsay what she said about checking the record,
and yet there was in court the one witness who could have established that the appellant was

wrong, if she was, namely the mother of this child, and she was not called upon to say a word.

How then could the committee come to the decision which it did, namely that the appellant

had not checked the records? There is nothing in the charge which qualifies the word

'checking', nothing to indicate that the charge means checking properly or anything of that

nature. I have not the slightest doubt that it would be right for this court to interfere with the

initial finding here, namely that the appellant did not check the records. There was no

evidence to that effect. Therefore, the initial finding of fact being in my view perverse the

finding of misconduct must fall with it.

I turn to the second charge, that is that she gave the wrong injection or inoculation. It was, as

was frankly conceded by Mr Webb, a simple error. It was induced partly, so the appellant said

without contradiction, by what the mother told her the child was due for, and confirmed to

some extent by the records.

The error was clearly explained by the appellant in her evidence, and, as I have said, advice

taken from the doctor and conveyed to the mother immediately. There was the utmost

frankness, as Mr Webb concedes, by the applicant at that time as to what had happened, and

care shown by her to ensure that no real harm would come to this child. The mother was

properly advised as to what to do if any after-effects manifested themselves.

Here again I find the decision of the committee seriously at fault. It was one which no

reasonable committee properly directing itself could have come to in my opinion. I would

quash that too.

As to the fourth charge, that is the failure to report, these things need to be said. I have

already mentioned the fact that nothing was said in examination-in- chief by Miss Baichoo

about instructing the appellant or any other nurse for that matter that she should be reported to
if there was an error. The error here was made plain, it will be remembered, upon the records

by the appellant herself.

The legal assessor at one stage reminded the committee that the mere fact that there was a

failure to report did not mean that there had been a breach of duty in that respect. I would add

that neither would the concession by the appellant when she was giving evidence that, with

hindsight, she would agree it would have been proper to report to the head nurse or to the

health visitor. Hindsight does not establish that there was a pre-existing system for dealing

with matters that should be reported.

Seeing that such evidence as was given was of the kind which I have thought it necessary to

criticise rather sharply, I have come to the conclusion in relation to the fourth charge that no

reasonable committee properly directing itself upon the evidence could have found that there

was a breach of duty in that respect and therefore that it amounted to misconduct. I would

quash those decisions too.

Finally, I turn to sentence. It is enough merely to state that here was a very serious departure

from a proper procedure: a breach of natural justice. To make sweeping allegations as were

made in the process of what is called mitigation – it should have been called aggravation in

the circumstances – is impermissible unless the person accused has the opportunity to answer

charges levelled against her.

Even if I had not come to the conclusions which I have as to the findings of misconduct, I

most certainly would have quashed the decisions which had the effect of removing this

nurse's name from the register.

Lastly, there is the matter of delay. Not one single day's delay during the many years which

have passed since the events which we have been dealing with took place has been due to the

appellant. Here we are in 1988 dealing with something which happened in the spring of 1984.
 There are some explanations for that delay which, of course, one is bound to accept as

entirely excusable, namely Miss Baichoo's engagement at the inquiry into the Beckford affair,

but that is only part of the explanation. It is to be regretted, in my view, that so much delay

has occurred.

What has happened as one of its effects is that the appellant, who was otherwise employed as

I have mentioned for some time following her dismissal by the Brent Health Authority, had to

leave that employment too when this professional body decided to proceed against her.

We were informed that there are proceedings before the industrial tribunal which lie in

abeyance pending the outcome of this appeal. Those proceedings do not concern us. I mention

them only because they are part of the history of the matter. It is a different endeavour by the

appellant to clear her name which I believe she has succeeded in doing here.

For those reasons, I would allow this appeal.

NOLAN J

I agree.

Appeal allowed.Back to Top

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 Butterworths Medico-Legal Reports > Volume 10 > Hefferon v Professional Conduct

Committee of the United Kingdom Central Council for Nursing Midwifery and Health

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