18-07-2012

Failure to admit a witness statement merits judicial review

The case concerned a mental health nurse who undertook work in a hospital via a nursing agency.  He had a conditional discharge for an assault in 1999 and disclosed this to the agency.  He subsequently received a police caution for an assault on his daughter in 2007 which he failed to disclose. Subsequently a riot broke out in the hospital in which he worked and he together with a colleague had to restrain a female patient. He was subsequently alleged to have assaulted the patient and faced suspension and disciplinary proceedings. These included allegations that he had committed misconduct due to the non disclosure of the caution.  He was referred to the Secretary of State for Education and his name was placed on the Protection of Children and Protection of Vulnerable Adults lists ( POCA and POVA). He appealed against that placement and his appeal was dismissed. During that hearing no reference was made to the evidence of his colleague’s statement.

The nurse went on to seek leave to appeal and was refused and he appealed that decision. Ultimately the matter fell to be subject to Judicial Review and the court ruled that the failure of the first tier tribunal to refer to the statement had amounted to a serious procedural irregularity. The statement contained evidence which could have provided a possible lawful self defence claim. The decision was overturned and the case remitted.