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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 >> Gbidi v Nursing And Midwifery Council [2015] EWHC 237 (Admin) (20 January 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/237.html Cite as: [2015] EWHC 237 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		20 January 2015

MR JUSTICE KNOWLES:

1. Ms Gbidi received a three year caution from the Nursing and Midwifery Council on 15 May 2014.
2. The proceedings had been under way since 2010. Ms Gbidi emphasised, amongst other points, that she has felt the strain of, as she puts it, being dragged through proceedings that in her view have lasted too long and in their accumulation have produced consequences for her continuing private and professional life, not helped by some adverse publicity.
3. The caution followed two findings by the Tribunal in relation to Ms Gbidi's conduct as a registered nurse: first, that on 2 April 2009, whilst a nurse at Consort Care Home, having been notified that a resident for whom she admitted she was responsible had fallen, she did not promptly notify the resident's daughter; second, that her admitted conduct when completing an application form seeking employment at Bedford Park Care Centre in not declaring her previous employment at Consort Care Home was dishonest.
4. The hearing today, an appeal from the decision of the Tribunal, has focused, at Ms Gbidi's instigation, on the second of the two findings, but it is appropriate that I deal briefly with the first. They are not without interrelationship.
5. On the first the Tribunal's assessment was that Ms Gbidi was aware that notification was appropriate, both because it was the standard required at Consort Care Home and because the family of the resident who had fallen was very anxious about the resident even before that episode. The Tribunal recorded that Ms Gbidi had described herself as terrified. The Tribunal considered Ms Gbidi's evidence that she did not see the fall, that when it was brought to her knowledge she found no apparent injury, that there was no policy in place that required relatives to be called, and that a colleague had told her there was no need to do so.
6. I find, having examined the papers and read and listened to argument, that there is no basis on which I could properly conclude that Ms Gbidi's points were not properly considered by the Tribunal. Having considered this aspect of the matter I find further no basis on which the Tribunal's assessment was other than properly arrived at. There was sufficient evidence to support its finding.
7. However, as I have indicated, the focus of today has principally been on the second finding, that of dishonesty. The Tribunal, indeed, made clear that that second finding, rather than the first, was what had led to the caution.
8. Dishonesty was a term on which the Tribunal carefully directed itself. Ms Gbidi understandably has told the court today her own understanding of what dishonesty entails. As she described it, it, for present purposes at least, is about somebody not telling the truth, about hiding, or lying, and is to be contrasted with something that has been forgotten or a situation where somebody simply does not know the rules. In the present case as a working definition it is useful to keep Ms Gbidi's description of her understanding of the term "dishonesty" in mind. It is helpful, not least, I suspect, to her, to do so.
9. The Tribunal heard Ms Gbidi's explanation for what had happened. It listened to her account that the reason for omitting reference to Consort Care Home in the application form was that Ms Gbidi was working in two places at once at the relevant period and that she had only worked at Consort for two months part-time and that was not even as long as the probation period.
10. The Tribunal also heard, and, again, these points have been emphasised to me today by Ms Gbidi, that she found the form confusing.
11. She drew attention to the fact that, for example, there was another previous employment, that with Toshiba, that she had not written on the form, because it would not have helped anyone to know about it.
12. A suggestion mentioned in her grounds of appeal was that some people have told her that in circumstances where one resigns from a place where one feels one has not been treated fairly one is entitled to omit reference to that employment in an application form. This was a suggestion that exchanges between myself and Ms Gbidi made clear had not been made to her at the time she completed this application form. It was not that suggestion that caused her to omit Consort Care Home, but instead it was a suggestion that had been drawn to her attention subsequently in case it had some bearing on the case.
13. In my judgment it does not and, in particular, it does not illuminate the key question, which is whether there was dishonesty on Ms Gbidi's part in failing to mention Consort Care Home on this occasion with this application form.
14. The Tribunal observed that on any view Ms Gbidi had had a bad experience at Consort and that she would have been aware that if Bedford Park had contacted Consort Care Home then what may have been received was an unfavourable reference which may have prevented the application from succeeding. The Tribunal observed by contrast that elsewhere on the application form the entries were notably complete.
15. Ms Gbidi drew attention earlier in her submissions to me today to the fact that the need for honesty is not spelled out in the Council's Practice when it comes to the completion of CVs or application forms; the references in the Council's Practice are more general. She also emphasised to me that she, by the time she came to complete the application form, had had relatively little experience, at least in this country, and had not appreciated the importance of what she was doing when completing the application form in the way she did.
16. I consider all of these matters overall, including, I emphasise, the fact that the Tribunal had a lot of opportunity in which to form a view of Ms Gbidi's evidence on a question that really has to be judged with the benefit of that type of opportunity and close observation and consideration of evidence.
17. I find no basis on which to conclude that Ms Gbidi's points, which I have heard today but which were also put so far as material before the Tribunal, were other than properly considered by the Tribunal.
18. Having considered the matter I further find no basis on which the Tribunal's assessment was other than properly arrived at.
19. I go so far as to say that there was ample evidence to support its finding although I understand how strongly Ms Gbidi resists the thought that for one occasion in her life she has acted in a way that has attracted a finding of dishonesty.
20. The present was not a case, as the Tribunal found, of forgetfulness, it was a case of a decision to hide the Consort Care episode in case it affected the progress of her application. To address another point raised by Ms Gbidi there was no assumption built in to the consideration of the Tribunal, that if the form was not filled in as expected then a finding of dishonesty would result. The finding of dishonesty comes in part from the Tribunal's assessment, having heard Ms Gbidi's evidence at some length, as to her motivation in omitting Consort Care Home.
21. As to the decision to impose a caution, the Tribunal approached this with great care. It weighed what it described as strong mitigation in Ms Gbidi's favour, including, and I emphasise, the absence of any previous like episode in the course of her career and life. The caution was an exceptional sanction in the context of a finding of dishonesty of this nature, but by "exceptional" I mean that a more severe sanction could readily have been visited had Ms Gbidi's circumstances differed.
22. I do not overlook the length of the proceedings that led to this conclusion, a conclusion that takes an overall duration of proceedings and sanction to the point of seven years. I appreciate the force of the points that Ms Gbidi makes, that her ability to make a new beginning has been postponed for what is a very considerable period. But I cannot fault and do not fault the Tribunal in its choice of sanction.
23. Ms Gbidi has drawn attention to the sanctions imposed in other cases. She has also drawn attention to the decision to proceed or not to proceed with proceedings before the Council in other cases.
24. Each of the examples, whether of sanction or of a decision to press on with a charge or allegation, to which my attention has been drawn by either side, can be distinguished on its own particular facts. What is important in the present case is a fair consideration of Ms Gbidi's conduct and a fair sanction if that conduct was found wanting.
25. In a case where it is suggested matters were not pursued in relation to another individual, there is no a suggestion that the circumstances involved dishonesty. Even if there was, the context, again, needs to be examined within its own corners and that is true of the present case.
26. I find the Tribunal's decision and sanction as fair. There was no ground for Ms Gbidi's argument, then or now, that she has been in any way treated unequally or been discriminated against.
27. I do take very much to heart and accept that to Ms Gbidi her profession is very important. She has told me and I accept that she has acquired knowledge - valuable knowledge - in the sphere of neurology. I appreciate that it is difficult with the episode that she has been engaged with and with the sanction that follows to get nursing work and, therefore, it is difficult to put these matters behind her, but the answer to that difficulty does not lie in a challenge in these proceedings or to the decision of the Tribunal. At least today can mark a point of finality, finality that does involve the caution but at least with the clarity that that is the end of the position.
28. It falls for Ms Gbidi, who strikes me, from what I have seen in the course of this morning, to be a resourceful and energetic person, to come to terms with the facts as they are, and to seek help with ways in which she can move on, as others have, despite the presence of this type of sanction on her record. It is hard, but I have little doubt that for someone of Ms Gbidi's energy and resourcefulness it is not impossible.
29. I am prepared to accept, as she urges me, that what happened on this episode was out of character. On the basis it was out of character then she has every opportunity for her strength of character to give her future opportunities.
30. In those circumstances I dismiss the appeal.
31. MR JUSTICE KNOWLES: There may be consequential matters. I will hear first, in the normal way, from Miss Fleck.
32. MISS FLECK: My Lord, there is a schedule of costs that I have drawn up and I do seek those costs --
33. MS GBIDI: I oppose them. I'm sorry. I have been already through four years and you took my profession almost.
34. MR JUSTICE KNOWLES: Ms Gbidi, at this stage, and I will call on you in a moment, I want to hear Miss Fleck. Do not interrupt.
35. MISS FLECK: My Lord, can I hand up a copy of the schedule as it stands. There will be amendments to be made. I have rather overestimated the time we may have been in court. As it stands the figure sought was £5,383 but revising down my own appearance and that of Mr Jeffs who assists me my figure for attendance would be two hours, so £634, and Mr Jeffs' only £252, bringing the total sum to £4,054.
36. My Lord, my submission is simply that the amounts posed are reasonable, indeed, if anything, they are an underestimate.
37. MR JUSTICE KNOWLES: Just give me the revised total again.
38. MISS FLECK: The revised total is £4,054.
39. MR JUSTICE KNOWLES: You seek an order for costs in that figure.
40. MISS FLECK: I do, on the basis that costs should follow the event. Of course, enforcement would be a matter for the NMC.
41. MR JUSTICE KNOWLES: Thank you very much.
42. Ms Gbidi, I want to hear you, please, particularly on the question of costs.
43. In the normal way at the conclusion of a contest such as this, the side that has been successful, and that is the Council in this case, will seek an order that the losing party, and that is you, pay their legal costs. There is a schedule -- has Ms Gbidi got a copy of this?
44. MISS FLECK: My Lord, one was sent by email. I can hand over a copy.
45. MS GBIDI: Yes, I have that. I have seen it.
46. MR JUSTICE KNOWLES: Very good. So the figure that is sought is just over £4,000. It is open to you to give me any special reasons, any particular reasons, why the normal course should not follow, which is that you are ordered to pay some costs, and it is also open to you to tell me why, if this is the case, the figure sought is too much.
47. MS GBIDI: Okay. First of all, I have no job. I am struggling to survive so I am living from benefits and I am a single mother and I am only one person who is a parent of the child, daughter. So it is just crucifying me.
48. MR JUSTICE KNOWLES: How old is your daughter?
49. MS GBIDI: Fifteen.
50. I am sorry. I think it is just horrendous. I have already paid costs, four years I have not been employed, is it not enough? I do not know who can survive these NMC procedures, it has to be (inaudible) because I represented myself and I won actually, only this caution order hanging around me three years. At least one year but three years? For what? For omitting by coincidence two months work? How justice is that?
51. I am barely surviving, struggling a life. I was forced to searching other job which, you know, the local newspaper also been dumped. If I did not have a daughter then probably I would be able to do more but because of my daughter I am not able to just run and move wherever I want. It is like I am a prisoner of my own, of the circumstances which NMC dragged me to.
52. It is not fair also that those witness NMC, they have not been prosecuted. They have made lies, very official lies. They have been found out and nothing has been done.
53. MR JUSTICE KNOWLES: On the question of costs, Ms Gbidi, is there anything else you want to say?
54. MS GBIDI: First of all, I am struggling to survive and I have no money. I am almost in bankruptcy. So I do not know how you are going to do it. Are you going to shut me in a prison for not paying because I have no money to survive and I am paying some bills sometimes in delay.
55. Secondly, most of those documents it is just irrelevant. It was irrelevant regarding the manager who is pathological liar anyway and the other documents which they were irrelevant. We only just looked in a judgment from Tribunal at Mrs Edwards' statement and the skeleton arguments in number 6 and the rest was just useless. It is not relevant.
56. So I believe those transcripts, like transcript 13 January, 14 January, irrelevant. Those days I was not represented. The transcripts were irrelevant anyway because it is just what we are saying, not documentation, not the facts. So it is just also irrelevant. The bundle which my solicitor prepared actually -- actually this is a very important actually issue because the representative of NMC has not given all documentation. She wrote "Registrant Documents". There is something missing here.
57. MISS FLECK: My Lord, if Miss Gbidi, and I hesitate to interrupt when she is mid-flow, but if Miss Gbidi is referring to the Registrant Document section, which is 14.1, it is under the heading "NMC Bundle and Exhibits" and it is simply those documents which emanated from her which were exhibited from the hearing. So the court had the full bundle. That is all they are.
58. MR JUSTICE KNOWLES: Thank you.
59. MS GBIDI: No, I am sorry, page 586. It is not Registrant Bundle because you are referring to the bundle prepared by solicitor. So you are supposed to have also ten pages and you just take it off and you just put it in Registrant Bundle's index. So you just omitted ten pages.
60. MR JUSTICE KNOWLES: That is not going to have any bearing on the matter of costs, which is what I am addressing.
61. MS GBIDI: Yes, but I am just saying.
62. MR JUSTICE KNOWLES: Take a seat now, Ms Gbidi, because I am going to give my decision now on the question of costs.
63. MS GBIDI: Can I say something else?
64. MR JUSTICE KNOWLES: On the question of costs, yes.
65. MS GBIDI: So, first of all, most of the documents -- first of all, I am struggling to survive as I am living from benefits and now I am having one daughter and I am already in some debts with some bills which I have to pay in instalments, which takes me ages. Second of all, most of the documents, over 100 pages, maybe even more, it is not relevant to the case. Third of all, NMC did not have to appear some expensive representative and put in the other one. It is usually one to one. It is quite extremely unfair taking God knows how many solicitors, putting on my schedule of costs and putting all documents which are not even irrelevant (inaudible) me costs. I think it is too much. It is just earning on somebody who cannot even afford to survive.
66. MR JUSTICE KNOWLES: Thank you very much.
67. MS GBIDI: Thank you.
68. MR JUSTICE KNOWLES: Taking into account my understanding of the case as a whole and having regard to the submissions that have been made to me in relation to the matter of costs, the Council, having succeeded on this appeal, are, consistent with the normal approach, there being no exceptional or different circumstances in the present case, entitled to an order for costs in their favour.
69. As to the amount, the amount that is sought, now at £4,054, cannot be described as unreasonable or disproportionate, but those matters are always a question of judgment within a range.
70. I have reached the conclusion overall, having regard to the relatively narrow compass of the argument on the appeal, that the right figure would be one of £2,000.
71. I have heard reference from Ms Gbidi about her personal circumstances which I appreciate will mean that any sum is a challenge. I know that the Council will bear that in mind when it decides what, if anything, it will do to enforce an order for costs but that is a matter for the Council's judgment.
72. I will say that the figure of costs is payable within two months of today, is subject also to a permission to Ms Gbidi to apply for further time if that is necessary. If she does so she will have to provide evidence of her position and what can be managed and that hearing will be dealt with on its own merits. So provisions to that effect will be in the order.
73. That is the question of costs.
74. The remaining matter, subject to any additional points that either side has, is to draw up an order of the court. I would like you to ask you, Miss Fleck, to prepare a draft.
75. MISS FLECK: My Lord, I have one that I started in type. It is finished in hand. I hope your Lordship can read my handwriting. I have tried to encompass those matters which have just been referred to by way of costs.
76. (Handed).
77. MR JUSTICE KNOWLES: Thank you. I am just going to have a look at this first, Ms Gbidi. I am going to read this out. The draft order that I have got here says:
78. "That upon hearing from both sides it is ordered that the appeal be dismissed, that the appellant [that is yourself], Miss Gbidi, is ordered to pay the Council's costs in the sum of £2,000 payable within two months."
79. MS GBIDI: I am sorry, it is not physically possible.
80. MR JUSTICE KNOWLES: Just hear me out. This is what I am ordering. You are at liberty to apply for further time in respect of the payment of costs.
81. Let me tell that you in the normal course costs would be payable in a period much less than two months so you have the opportunity here to consider your position and to liaise, if you wish, with the Council. The Council will form a view about the course it wishes to take, if necessary. If necessary the matter can be referred back to the court if further time is needed.
82. MS GBIDI: Can I make application against costs because I think I am allowed to?
83. MR JUSTICE KNOWLES: No. I have heard your argument against costs.
84. MS GBIDI: But I have a written application. I need to have assistance and advice. I think I have rights for that.
85. MR JUSTICE KNOWLES: Sorry?
86. MS GBIDI: I think I have got rights. Any procedures I have got rights to write an application regarding costs.
87. MR JUSTICE KNOWLES: No. In relation to costs I have asked you a few moments ago to tell me what it was you wanted to say about costs.
88. MS GBIDI: But it is not everything, I have to have --
89. MR JUSTICE KNOWLES: I am afraid you told me what you wanted to tell me, I have considered that, I have reached my decision. that is the end of it.
90. MS GBIDI: But it is usually normal procedure is after hearing I have rights to apply for cost reduction.
91. MR JUSTICE KNOWLES: The normal procedure at the end of the hearing is to deal with costs in precisely the way that I have dealt with those costs on this occasion.
92. Is there any further matter, Miss Fleck?
93. MISS FLECK: No, thank you, my Lord.
94. MR JUSTICE KNOWLES: Thank you very much.
95. Is there any further different matter, Ms Gbidi?
96. MS GBIDI: No. I just wanted to say that I disagree that I have been dishonest and three years caution is just harming me. I omitted that by coincidence. I do not know how many times I have to say that.
97. MR JUSTICE KNOWLES: I have that --
98. MS GBIDI: At other work I had very good commitments and I never had a problem so ...
99. MR JUSTICE KNOWLES: I am afraid the position is, Ms Gbidi, and then I am going to finish, that you have been found on this occasion by the Tribunal to have been dishonest.
100. MS GBIDI: So whatever I say I am dishonest?
101. MR JUSTICE KNOWLES: That is it. You can either try and get on so that you put that behind you.
102. MISS GBIDI: How am I going to do this? How is it physically possible?
103. MR JUSTICE KNOWLES: That is for you to address.
104. MS GBIDI: It is not physically possible to any person.
105. MR JUSTICE KNOWLES: My gratitude to all of those here. That is the end of this hearing.