My first brush with Open Justice was, on reflection, quite a bruising one. I think another description might be a baptism by fire!

In May 2018 I was serving as a public governor at Southern Health NHS Foundation Trust which provided in-patient and community mental health and learning disability services in Hampshire and Oxfordshire. Following the death of Connor Sparrow in 2013 in an assessment and treatment unit run by Southern Health, the Nursing and Midwifery Council Fitness to Practise panel had convened a hearing to determine the charges against 6 nurses who had been employed by Southern Health at the time.

So now, five years later, at the hearing centre in Stratford, London a panel chaired by Ms Hilary Nightingale was starting a six-week hearing of the evidence against the Southern Health nurses.

On the first day of the hearing on 22 May 2018, I arrived at Stratford by underground and made my way to the 5^th floor of the building at 2 Stratford Place where the NMC had a whole floor of the building as its hearing centre. Getting out of the lift, you have to press a buzzer to be allowed through the glass doors and on to the floor. Ahead is a reception desk with two staff and to the right is a waiting area with several seats (I would end up spending quite a lot of time on those seats!)

I walked up to the reception desk and introduced myself and said that I was a member of the public and that I was there to observe some of the hearings. To say that the welcome was a little underwhelming is something of an understatement. The reception staff seemed wholly unprepared to welcome a member of the public and to support them in accessing the public hearings. There was no list of hearings published anywhere that I could see although there were some screens showing generic adverts for the work of the NMC.

Having made clear which hearing I wished to observe I was asked to sit in the waiting area. And sit and wait I did. And wait. And wait. I was then advised that the panel that I wished to observe were meeting in private session and I would be told when they were meeting in public. And I waited.

Around lunchtime, after a 3 hour wait, I checked again and was told that, “sorry, yes the panel did hold a short public session, but we forgot to come and get you”. I was less than amused at this and asked to speak with the panel secretary, a Mr Ian Dennehey. Mr Dennehey came over to speak with me and I managed to obtain his email address. I immediately sent Mr Dennehey am email which was an application under the Open Justice principle for a copy of the papers for the upcoming hearing. I also contacted the Hearings Manager and made a complaint about not being allowed in to the public hearing. The Hearings Manager apologised and agreed to send to me a copy of the decision of the panel which had been handed down in public that day.

The panel sat on 22 to 31 May 2018, 1 to 29 June, 9 to 31 July 2018 and 1 to 9 August 2018. I attended on a number of occasions and tried my best, when I was present, to live tweet the proceedings, having sought permission from the NMC to do so.

I continued to email to Mr Dennehey asking that my email request under the Open Justice principle be put before the panel and set out in an email on 29 May 2018, exactly one week after my initial email, the legal provisions that I thought applied to my request. But I was directed each time to the NMC who apparently were dealing with my request.

Then, out of the blue on 10 July 2018, whilst I was waiting for the hearing to recommence after a lunch break, the solicitor representing the NMC at the hearing approached me with a single A4 page containing an “undertaking” that the NMC wanted me to sign regarding access to the documents that I had requested on 22 May. The NMC, acting as the Data Controller under the Data Protection Act of the papers before the hearing panel, were offering to disclose to me, in the hearing centre, a selection of those documents, subject to some restrictions on what I could do with those documents. The NMC, through their solicitor, wanted me to sign this undertaking and would then provide me with access to this selection of documents.

I studied the proposed undertaking, but was not happy with signing it, and told the NMC representative this. They seemed surprised at this, and I was then informed that the panel had decided to hear my application. I was given 10 minutes notice of this before being called in to the hearing room again. I spent that 10 minutes drafting a page of rather scrappy notes on the principles that I wanted to address before the panel. I have to admit now that, having read the transcript of the address I gave to the panel, based on those notes I put together in the 10 minutes notice that I was given, I am quite pleased with my performance that day. Here is the transcript that I managed to obtain from the NMC (how I got the transcript is another story!) of what I said to the panel.

And so, you might ask, what did the Panel decide?

It took some time before the panel set out its reasons for refusal of my application but eventually these reasons were published in the panel decision for one of the nurses Betsva

What legal advice did the Fitness to Practise directorate obtain following my Open Justice request?

I submitted a Freedom of Information request to try and find out why it was that the NMC sat on my request to view the documents for so long, and how they came to the conclusions that they did

Here is the NMC response to that FOI requests

Discussion

Having described what happened to my first attempt to access information using the Open Justice principle, what are the legal issues raised by my request to the Fitness to Practise hearing panel at the Nursing and Midwifery Council in May 2018?

The first issue, of course, is the delay between my submitting the request on 22 May 2018 and the panel considering that request on 10 July 2018. At the hearing on 10 July 2018 the NMC position was that they were a Data Controller and that it was for the NMC to decide under Data Protection law whether or not to release any documents to me. And they went so far as to produce, on 10 July 2018, some seven weeks after I made my request, an undertaking for me to sign whereupon they were prepared to allow me to see a range of documents but under their supervision in the hearing centre.

When the panel addressed my request, they accepted that they had a power, completely independently of the NMC acting in its administrative capacity, to consider my request under the common law principles of Open Justice. They accepted that they were a tribunal created by statute and that the Open Justice common law principles applied to them. One of the reasons that they gave for refusing the application was owing to the timing of the request ie that it was being considered by them some seven weeks in to the hearing process.

The panel also considered that, under the rules that applied to the panel, they did not have the powers necessary to regulate the release of the documents. It is an interesting legal question of what powers the hearing panel actually do have. I have observed a panel chair say to a witness when adjourning with the witness evidence part heard "when you leave the hearing centre you must not discuss your evidence with anyone. We will reconvene tomorrow at 9 a.m.". What legal force does that instruction to the witness have? In a case in a court, that instruction from a Judge will have legal force and the Judge would be able to hold the witness in contempt of court, with the sanctions that can be applied for a contempt, if the witness does not comply with the instruction. Does an instruction from a hearing panel chair have the same legal force - is there any sanction available to the hearing panel chair if a witness does not comply with that instruction?

I have attempted to find out what the Nursing and Midwifery Council intend to do if there is indeed a lacuna in the powers of a hearing panel chair that needs to be addressed. But my efforts have so far not been very successful. I did get to the stage where the former chair of the NMC, Philip [Graf], had agreed to meet with me to discuss this but unfortunately Philip had to step down as chair owing to ill-health before that meeting could be arranged.