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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hamilton v Nursing & Midwifery Council [2006] EWHC 2105 (Admin) (26 July 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2105.html Cite as: [2006] EWHC 2105 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		26th July 2006

Wednesday, 26th July 2006

1. MR JUSTICE OWEN: The appellant is a nurse and a midwife who had worked in the Health Service for over 20 years before the suspension of her registration on 18th May 1999. She appeals against the decision of the Nursing and Midwifery Council ("the NMC") on 21st October 2005 refusing her application for termination of her suspension. On 1st April 2002 the NMC took over from the United Kingdom Central Council for Nursing, Midwifery and Health Visiting ("the UKCC") as the regulatory body for the nursing and midwifery professions and the maintainer of the Register of Nurses.
2. The background to this application is to be found in the witness statement of Stephanie Taylor filed on behalf of the respondent. As I have already said, on 18th May 1999 the appellant was suspended from the Register on the grounds that the Council considered her fitness to practise seriously impaired by her physical or mental condition. The appellant had a statutory right of appeal against the decision to suspend her name from the Register, but did not exercise that right. A nurse suspended from the Register also had at that time a right to apply to have the suspension terminated under Rule 49 of the Nurses, Midwives and Health Visitors Professional Conduct Rules 1993 as amended ("the 1993 Rules"). The appellant sought the termination of her suspension via this route by an application dated 5th May 2000. That application was heard by the UKCC's Health Committee on 19th December 2001. Her application was refused. The transcript of that hearing is within the bundle filed by the respondent.
3. The reasons given by the Committee for refusing the application on that occasion were set out at page 392 of the bundle, namely that:

"... we are persuaded that the weight of medical evidence indicates that you do suffer from a psychiatric disorder, and what gives us particular concern is that you lack the insight that would enable you to recognise and manage your condition, should you have a relapse. The medical advice is that it would benefit you to be in formal contact with the psychiatric service, and we consider this to be a minimum requirement before any further application for the termination of your suspension is made.

Having said that, we hope that in time you will be restored to full health and when you and your medical advisers believe that you are fit and ready, we should be very pleased to consider a further application to end the suspension of your registration."

4. The appellant sought and obtained leave to apply for judicial review of the decision of the UKCC's Health Committee of 19th December 2001 on various grounds, including that there was no sufficient evidence to justify the refusal to terminate her suspension from the Register. Following a full hearing, her application was dismissed by Crane J in a judgment handed down on 20th December 2002. The appellant was then given permission by the Court of Appeal to appeal in relation to points concerning Article 1 of Protocol 1 of the ECHR. The Court of Appeal dismissed her appeal by a judgment dated 23rd October 2003.
5. The medical evidence that had been before the Committee was summarised by Sedley LJ in giving the judgment of the court in the following terms:

"Miss Hamilton was suspended from practice in May 1999 for an unspecified period because she had been diagnosed as suffering from bi-polar affective disorder. ... The expert evidence about Miss Hamilton's mental state as it stood before the Health Committee in late 2001 was not unanimous, but it was not radically divided. It included four medical examiners' reports, together with a report from the claimant's treating practitioner and one from an expert independently instructed by her. Of the medical examiners, Professor McClelland had been brought in to resolve a difference between Dr Deahl and Dr Bergmann. He alone gave oral evidence to the Health Committee.

None of the doctors considered that the claimant was currently mentally ill. All of them considered that she was at risk of relapse. Professor McClelland concluded:

'... I have to be strongly of the view that whilst Miss Hamilton is well and it augurs well for the future, it would be better for her own self-interest in her health management and her illness management, just as with any other illness, even though the illness is in remission, to be in professional follow-up.'"

6. The appellant again applied to terminate the suspension from the Register by an application dated 9th October 2004. By this time, the functions of the UKCC had passed to the NMC. Under the transitional provisions contained in the Nursing and Midwifery Order 2001, the appellant's application fell to be dealt with by the NMC's Health Committee.
7. A report from Dr Moore, a consultant psychiatrist, was before the NMC when her application was considered on 21st October 2005. In addition to her written report, Dr Moore gave oral evidence to the Health Committee and the Committee heard from both the appellant and from her mother. At the conclusion of the hearing and having taken some time to deliberate, the Committee announced that it felt unable to accede to the appellant's application. The reasons that it gave are to be found at page 42 of the transcript of the hearing:

"On the evidence presented to us today we accept both Dr Moore's diagnosis and the opinion of the other medical examiners. The Committee therefore has concerns that you have a lack of insight into your illness and the effect this has on your behaviour. This lack of insight leads us to have grave concerns as to the practicality of being able to effectively monitor your progress should you return to nursing. We are further concerned by the lack of strong local supporting mechanisms that we believe you need to have in place. We note with regret that you did not take heed of the advice of the last Health Committee. We have further concerns about your ability to develop and sustain professional relationships. Our decision is made on these reasons and being mindful of our role in respect of public protection."

8. By a letter dated 15th December 2005 the NMC wrote to the appellant to confirm the decision that had been taken at the meeting on 21st October. The letter set out the reasons for rejecting the application in the following terms:

"1. On the evidence presented to us today, we accept both Dr Moore's diagnosis and the opinion of the other medical examiners.

2. The committee has concerns that you have a lack of insight into your illness and the effect this has on your behaviour.

3. This lack of insight leads us to have grave concerns as to the practicality of being able to effectively monitor your progress should you return to nursing.

4. We are further concerned by the lack of strong local supporting mechanisms that we believe you need to have in place.

5. We note with regret that you did not take heed of the advice of the last health committee.

6. We have further concerns about your ability to develop and sustain professional relationships."

9. The current position is that, unless renewed and subject to the outcome of this appeal, the suspension will expire on 21st October 2006. I was told in the course of the hearing that arrangements have been put in place against the contingency that this appeal fails to consider whether the suspension should be renewed. A provisional hearing date has been arranged for October.
10. This is a statutory appeal to which CPR Part 52 applies. The appeal will be allowed if one of the grounds in Part 52.11(3) is made out, namely (a) that the Committee's decision was wrong, or (b) was unjust because of a series of procedural or other irregularities in the proceedings. The appellant contends that the decision was wrong. She does not seek to rely on any irregularity in the proceedings. Accordingly, the issue before me is whether the Committee was wrong in the exercise of its discretion, and I bear in mind that in such circumstances an appellate court will only interfere with the decision of the lower tribunal if it has exceeded the generous ambit within which reasonable disagreement is possible, see Tanfern Ltd v Cameron-Macdonald [2000] 1WLR 1311.
11. I turn then to the grounds of appeal. Section 8 of the appellant's notice sets out the ten points upon which the appellant relies. I have considered each in detail but the central issue can be identified in relatively simple terms. The Health Committee of the NMC had before it a lengthy report from Dr Moore dated 31st August 2005, the report to which I have already made reference. The report was prepared following examination of the appellant on 11th July 2005. It contains the following paragraph under the heading "Diagnosis":

"She has been examined by a number of psychiatrists appointed at her request and by the UKCC and the NMC. Each psychiatrist has formed the opinion that Miss Hamilton suffers from Bipolar Affective Disorder, although none have found evidence of acute illness at the time of the examination. However hospital records, notes and reports describe a variety of symptoms which are deemed to fit the diagnosis as identified below."

12. Dr Moore then went on to set out the diagnostic criteria in ICD10.
13. On the following page of her report, page 22/23, Dr Moore expressed her opinion. It contains a number of passages of importance.

"Having interviewed Miss Hamilton and read through the extensive bundle of papers, I realised that whilst there were areas of disagreement and dispute between the family and the medical examiners, there were also many areas of agreement.

It is clear that on some occasions Miss Hamilton has recognised that life was difficult and she has been not functioning appropriately. It would appear that at such times she has asked for help from her General Practitioner. It is recorded that she believes that she was not offered appropriate help at the time of asking and that later when things deteriorated, it is her contention that the help that she was offered was disproportionate. On other occasions it is recorded that Miss Hamilton did not recognise that she was increasingly irritable and not coping as well as usual even though her parents were able to see the changes and had expressed concern. With hindsight Miss Hamilton had been able to acknowledge these episodes and agreed that she had, at times, been affected by life events. Once more however she thought that the reaction of the mental health service was disproportionate."

14. Two paragraphs later:

"At time of my examination I was unable to find any evidence of a mental illness. However, it is proven that Miss Hamilton is someone who is vulnerable to stressful life events and she may well encounter further stresses in the future which could affect her level of functioning. As in the past it is impossible to be certain that either Miss Hamilton or her parents will immediately recognise any changes. Consequently, should she return to nursing it would be essential that her health should be monitored by an appropriately qualified person.

In conclusion therefore it is my opinion that in considering this case the important issue is not labelling the illness but rather ensuring that the practitioner is able to perform her nursing duties at an acceptable professional level and to the satisfaction of her patients."

15. I shall return at a later stage to the evidence that Dr Moore gave in amplification of her report, but at this stage it is appropriate to refer to the submissions that were made to me by the appellant today, echoing the view that she has expressed repeatedly in the past, namely that she does not accept the diagnosis of a bipolar affective disorder that has been made on a number of occasions by different clinicians over the years.
16. The Health Committee accepted the diagnosis. That led inevitably to the conclusion that the appellant lacked insight into her condition, a conclusion that was central to the decision to refuse her application. Thus, so far as the appellant is concerned, she is caught in a variety of Heller's famous Catch 22. She does not consider that she is suffering from a bipolar affective disorder. Therefore, so far as she is concerned, there is nothing into which she ought to have insight; although I should, in fairness, add that it was clear to me from her submissions that the appellant does now have insight into certain aspects of her personality that have caused her difficulties in the past. As she put it to me, she has now learned tact and diplomacy. But the question at the core of this appeal is whether the Health Committee was justified in accepting the diagnosis of bipolar affective disorder and, in consequence, arriving at its conclusion that the appellant lacked insight into her condition. As to that, the Committee had before it the report from Dr Moore to which I have already made reference. The report contained a lengthy summary of the appellant's medical history, and also contained a summary of the views expressed by those who have examined her in the past.
17. As I have already indicated, the Committee also heard oral evidence from Dr Moore who, as appears from the transcript, carried out a further examination of the appellant in the presence of her mother on the day of the hearing. In the course of her evidence, Dr Moore set out in summary form what the appellant had said to her about her understanding of her condition:

"The other episodes which have led to her being admitted [to] psychiatric hospitals, she feels have been a reaction to life events and her treatment has been exaggerated. She feels that she has never been offered the opportunity of working through the way she was feeling at any particular time, that people have very quickly diagnosed her as having a psychiatric illness and used the Mental Health Act. She feels that it has been inappropriate, she is very concerned that psychiatric services have been influenced by the original GP who saw her and mistakenly diagnosed her as having schizophrenia and she feels that once that label got on her notes, even though it was later rescinded, that that has influenced all the doctors who have seen her since then and they have over-reacted to her behaviour. She tells me now that she accepts that all the psychiatrists [who] have seen her have labelled her as having a bipolar disorder and although she does not agree with the diagnosis, she does agree that she has at times been hypomanic although she does not accept that she has been manic and that she has an episode of depression, so she sees those differently." Page 6, line 18.

18. Then at page 7, line 18:

"When I examined Miss Hamilton back in July and again today, like my predecessors, I was not able to find any evidence of active illness at the time. She was able to talk with me very rationally and coherently and we spent a lot of time together."

19. I pause to observe that the appellant presented her submissions to me in an impressively clear, articulate and well thought out manner.
20. To return to Dr Moore's report, page 7, line 24:

"At the moment the only symptom that she has is that she has clearly become quite stressed and she is hyperventilating from time to time which she accepts is something that she has experienced in the past."

21. Then at page 9 of the transcript, Dr Moore was asked this question by one of the members of the Committee, Dr Loucaides:

"Does Miss Hamilton now recognise the sorts of things -- the trigger symptoms for her, for what happens to her? Does she now recognise when things are not going quite so well?

Dr Moore: No. She accepts that life events and changes in her behaviour are connected but she does not or certainly has not in the past recognised when things were starting to go wrong. She recognised that [she] was stressed and hyperventilating but there are not any other issues. What I am saying I guess is that there is not any evidence to show that if she was to go into another depression or into another hypomanic episode that she would realise it was happening."

22. At page 10, line 25, another member of the Committee, Mrs Brown, put this question to Dr Moore:

"The other question I wanted to ask was clearly there has been a lot of discussion between the practitioner and the medical experts around about the labelling of being suggested that there is a mental health issue here. I wondered if it was part and parcel of having the bipolar disorder that makes you have no insight into that and perhaps more likely to deny the existence of that.

Dr Moore: I think that it is more most people lack insight who have a psychotic illness. If you have a psychologist you may have the insight into the fact that you have got an illness. There is also the stigma and there are lots of people who just do not want to accept that they have got a psychotic illness so there is that issue. I think for Miss Hamilton there is a big issue. She does see mental illness as a big stigma and really finds it very difficult to accept that it applies to her. She does not recognise quite how seriously changed her behaviour has been over the years. Whether that is part of her or whether it is part of the illness I think is difficult to say but as I have talked more to her she has become more able to accept that her behaviour has changed and has been -- she has behaved in a way that other people would not find acceptable or normal behaviour."

23. Then at page 12:

"Dr Collingwood: You have given an account, Dr Moore, which is very much from Miss Hamilton's point of view, what she believes. I felt that in the papers there is a lot of evidence of ill health which I felt that you almost disregarded. You just tell me about all these opinions from other people.

Dr Moore: I certainly have not disregarded them. There is an illness here without any doubt. She has an illness and I have told her that that is what I believe. What I was trying to get across is the way that she has seen her behaviour as opposed to the way the doctors have seen her behaviour.

Dr Collingwood: You talked just a minute or two ago about insight that she was now recognising some change in her behaviour. But coming through again from the papers, there seems to be very little insight from her.

Dr Moore: Indeed.

Dr Collingwood: Again, an example you gave was of taking these people into her home. I am just wondering, from your definition that you have put in and from your report, you are saying that she has a relapsing condition.

Dr Moore: Yes.

Dr Collingwood: In relation to that then, our function is to protect the public and how safe can she be looking after vulnerable people.

Dr Moore: I think that is a difficult decision. What I can say is that between each episode she appears to have made a very good recovery, appears not just when I examined her but when other psychologists have examined her, she seems to be able to function at quite a good level so although this is a chronic relapsing illness it is not one that between episodes has affected her ability to function. The episodes themselves are very damaging to her and to her surroundings."

24. Then, finally, at page 14, line 11:

"Dr Robson: Sorry to keep on about this point about diagnosis, but do you yourself agree with your colleague's diagnosis that this history is consistent with one of bipolar affective disorder? Dr Moore: Indeed."

25. The appellant also gave evidence to the Committee. It appears to me from the transcript that, as before me, she advanced her case with care and with moderation. It is equally clear to me that she is frustrated at not being able to free herself from the label, erroneously attached, so far as she is concerned, of psychiatric illness.
26. In this application the appellant also sought to place reliance upon the evidence of one of the consultant psychiatrists who has reported on her in the past, Dr (now Professor) Deahl. A copy of his report dated 17th October 2000 was before the Committee and is before me. Dr Deahl's opinion and conclusions, which I set out in full because of the importance that the appellant attaches to them, are in the following terms:

"Ms Hamilton is not suffering from mental illness at the present time. Her medical records suggest she has previously suffered from hypomania although she steadfastly denies this and has taken steps to seek redress of this perceived injustice. Ms Hamilton has a blunt direct manner and she admits that she becomes irritable and easily upset under stress. It is conceivable that her behaviour may have been misconstrued and perceived in terms of mental illness particularly once she had received a psychiatric 'label'. It is however likely that she did suffer affective disturbance particularly as several different psychiatrists have reached the same conclusion and that apparently these views have been endorsed by a Mental Health Review Tribunal during her various periods of involuntary admission into hospital."

27. I should add that Dr Deahl went on to express the view in the final paragraph of his report that he could find no psychiatric or medical reason at the present time why Miss Hamilton should not be able to practice as a nurse.
28. At today's hearing Miss Hamilton also sought to rely upon a recent report from yet another consultant psychiatrist, Dr Gillian Smith. The report is dated 3rd July 2006. It was not, of course, before the Committee. Dr Smith, in the concluding section of her report, says under the heading "Opinion":

"A) I believe it is unlikely that Ms Hamilton suffers from bipolar affective disorder as such. If this were the case, I would expect her to have had more frequent episodes of depression or hypomania, particularly bearing in mind the fact that she does not take mood stabilising or other psychiatric drugs, and the fact that her life contains a good deal of stress."

29. At her conclusion C, she says:

"It is likely that she has had stress-related psychotic episodes, which have resulted in her admission to psychiatric hospital."

30. There are three points to make about this report, aside from the fact that of course it was not before the Committee. The first is that the opinion is prefaced by the following qualification:

"My opinion with respect to her diagnosis must be regarded as tentative, due to limitations in receipt of some background information."

31. Secondly, Dr Smith does not assert in terms that the appellant is fit to return to work as a nurse, although I am mindful of the submission made to me by the appellant that Dr Smith has told her verbally that she does not require treatment and therefore does not wish to see her again.
32. The third point is that the critical issue, namely whether the appellant suffers a chronic condition and is therefore vulnerable to relapse, is not addressed.
33. I do not find that the report provides a sound basis for impugning the decision made by the Committee in October last. I simply add that if this appeal is dismissed then the appellant will be able to put the report from Dr Smith, together with any addendum to that report to embrace the full psychiatric history, when the question of the continuation of the suspension is addressed in October of this year.
34. I have come to the conclusion that there was a clear evidential basis for the decision at which the Committee arrived and that it was entitled to arrive at the decision that it did. It is illuminating in this context to consider the judgment given by Crane J on 20th December 2002. In paragraph 56 he said:

"The Health Committee had concluded in May 1999 that the Claimant did then suffer from a mental condition. Mr Lawson's submission that she was not entitled to challenge that decision is not now contested. Moreover, the medical evidence before the Committee and now before me overwhelmingly supports the finding. There were several episodes of serious mental illness, although the actual diagnoses had sometimes differed."

35. Crane J then went on to summarise the content of the medical reports that had been before the Health Committee and were before him. At paragraph 75 he said:

"In my view there was sufficient evidence before the Committee that the condition was one that seriously impaired her fitness to practise. They were entitled on the evidence to find that the Claimant lacked the insight to recognise and manage her condition if she had a relapse. She made it plain in answer to sympathetic questioning that she was unlikely in fact to recognise a relapse or, unless obliged to do so, to seek or follow psychiatric advice."

36. Thos observations are equally applicable to the decision made by the NMC in October of last year. As I have already indicated, I am entirely satisfied that there was evidence before the Committee on which they could properly come to the decision that they did. It follows that I must therefore dismiss the appeal.
37. MR LAWSON: My Lord, I would ask that you do so with costs. The NMC is not publicly funded. It is funded by restraints and therefore costs matter to it. A schedule has been served on Miss Hamilton. I understand that there was a discussion between her and my instructing solicitors as to why it was served, but I do not actually know what was said. If I can perhaps hand up the schedule.
38. MR JUSTICE OWEN: I have a copy, thank you.
39. MR LAWSON: I am obliged. I have nothing to add, but obviously any award of costs should be on an assessed basis here and now as opposed to put off. I would ask for costs in those sums.
40. MR JUSTICE OWEN: Miss Hamilton, what do you say as to the question of costs?
41. MISS HAMILTON: I would certainly dispute that. The NMC has prevented me from working on ground that I dispute. I will not dispute that myself but will later in October. I haven't had the relapse that people have foreseen. I still do not accept the diagnoses. I am prepared not to work as a qualified nurse. It is more important to me to stay away from psychiatry than ever, to practice as a nurse. The Health Service is not what it was. As I explained, the NMC has a lot to do with that. I do not have psychiatric services other than a retreat, which is not NHS. I think it is extraordinary that they want me to pay £11,000 for what they have deprived me of. The answer is no, I am not willing to pay the costs. Thank you. I can't anyway.
42. MR JUSTICE OWEN: Are you in employment of any sort at the moment?
43. MISS HAMILTON: I am a self-employed gardener at the moment, as I stated in court.
44. MR JUSTICE OWEN: Can you give me some guidance as to how much you are able to earn from that.
45. MISS HAMILTON: £230 a month. I receive Council Tax benefit because I am on a low income. Nor do I wish to work as a carer in a demeaning capacity. I am very reluctant to go back to that building. As I said, I will have to because they require me to appear. I will not be saying very much. (Inaudible) is a trained nurse and barrister and the only one I know who will represent me. I am very reluctant to go near that building. It has caused me and my family no end of stress. I don't think they can, in all fairness, expect me to pay £11,000. They shouldn't even ask me.
46. MRS HAMILTON (SNR): I could add that my husband and I have financed our daughter because she has had so much damage to her house and the surroundings by vandals, that we are now literally in thousands of pounds. We are still financing her all the time. I very, very much doubt if we could finance that sort of amount. We just keep ourselves going and we live very, very economically as retired 80 year olds.
47. MISS HAMILTON: They put me in this situation. I didn't choose it. They have listened to one client only, who started this case. I didn't actually tell you all my notes. He is a lawyer but he can't practice because of injury. He could have gone under the Prevention of Harassment Act and accused me of harassment. I don't think he would have got very far because you have to prove harassment caused alarm and distress. My letters were not aimed at that. He could also have thrown they them away. He did that deliberately. He was one patient in all those years.
48. MR JUSTICE OWEN: Mr Lawson, in the light of the information I have been given as to the financial circumstances of the appellant and her parents who have been supporting her now for some years, are there any further submissions you want to make with regard to costs?
49. MR LAWSON: Only that there is a distinction between getting the order and enforcing it. I merely ask for the order. I say nothing else in either direction. My client understands that too.
50. MR JUSTICE OWEN: Yes, thank you, Mr Lawson. Miss Hamilton, in legal proceedings, as I am sure you understand from the experience that you had when you were at the College of Law, the costs will ordinarily follow the event of a case but there is a difference as to whether an order for costs is made and whether an order for costs is enforced. I regret to say that I can see no justification for not giving an order for costs in favour of the respondent, but it would then be up to them as to whether they seek to enforce that order against you.
51. MISS HAMILTON: They are acting in character in that respect, I am afraid. I think you have heard my views already. They were not acting in the interests of nurses. I don't need to repeat what I said. A lot of the problems in the Health Service are unfortunately due to their --
52. MR JUSTICE OWEN: Mr Lawson, you can have your order for costs which is assessed in the sum on your schedule.
53. MR LAWSON: I am obliged.
54. MISS HAMILTON: Thank you for your judgment, my Lord.