A midwife who says she was wrongly accused of stealing drugs has won her appeal against being struck off, after a judge ruled the way the Nursing and Midwifery Council had handled her case was “unfair”.
Kathryn Jordan El Karout, who has consistently maintained her innocence, was struck off by the NMC last year after being accused of stealing painkillers from several women she was caring for.
“I just burst into tears and sobbed in my car for half an hour, because it was just such a relief”
Kathryn Jordan El Karout
But this month a judge ruled the decision to remove her from the register must be overturned due to “serious procedural irregularity” on the part of the NMC.
In an exclusive interview with Nursing Times, Ms El Karout expressed her relief at the ruling, which could mean she is able to return to the profession she loves.
However, she also described the “devastating” impact of the fitness to practise process on her and her children. A single parent of three boys aged five to 13, she described how the family had been plunged into “poverty” and had been “on the absolute edge of homelessness”, because she had been unable to work.
“My innocence and getting justice is what has powered me but I have sometimes wondered where I get the strength to keep going, because it has been so awful,” she said.
“When I got the ruling I had to read it three or four times,” she said. “Then I just burst into tears and sobbed in my car for half an hour, because it was just such a relief. I knew that my life might go on and I might have a life to give my kids.”
Kathryn Jordan El Karout
Source: Kathryn Jordan El Karout
Ms El Karout was employed as a band 6 midwife by Brighton and Sussex University NHS Trust when she was accused of stealing dihydrocodeine from seven patients – and falsifying patient records – in the summer of 2015.
The police were called in by the trust and she went on to stand trial for theft in relation to two of the patients. But she was found not guilty by a crown court jury in March 2017.
However, when the case finally came before the NMC in May 2018 the panel found charges of theft relating to five patients – including those already heard in the criminal court – and charges of dishonesty had been proved and she was struck off.
Ms El Karout has always strenuously denied stealing, but did admit to accidentally taking one packet of drugs home with her and then throwing them away.
While she fully expected to account for this to the NMC, she told Nursing Times she was shocked to be struck off given her otherwise unblemished 20-year career as a midwife, and the fact she had already been acquitted by a jury.
“In my mind, I was going to go to the NMC and the one thing they could say was, ‘you shouldn’t have taken that medication home with you, you should have returned it’, but that’s not the way it went and I was absolutely mortified,” she said.
“As a matter of common sense and common fairness, the panel were obliged to proceed with greater caution”
She explained one of the reasons she was determined to appeal the striking off decision and clear her name was the idea that families she had worked with would think less of her. She added: “I felt strongly that somebody had to stand up for people like me.”
She went on to represent herself in appeal hearings in the High Court in October and November last year, and said she felt “someone had actually listened to what I had been saying” when she learned the judge had found in her favour and awarded her costs as a litigant in person.
In his judgement handed down on 11 January, Mr Justice Spencer raised key concerns about the way her case was handled by the NMC, especially when it came to the admission of “hearsay” evidence, which should never have been considered.
Much of the NMC’s case rested on an informal “investigation” overseen by a manager at the trust who spoke to a number of new mothers recently discharged from hospital over the phone about the medication they had been given, in what were described to the women as “welfare calls”.
The conversations were not recorded and any notes made at the time were not kept, “which was extremely poor practice”, said the judgement.
When four of the women were later approached by the NMC to provide a formal witness statement they refused to get involved. But the manager’s account of what they apparently said was still put before the panel.
By allowing hearsay evidence to be included, Mr Justice Spencer concluded that “the proceedings were thereby rendered unfair by serious procedural irregularity”.
The local investigation “based solely on ‘welfare’ telephone calls, could never have been a proper foundation in itself for disciplinary proceedings whose outcome could jeopardise the appellant’s whole career as a midwife”, he concluded.
“This is sad for the mothers and babies she would no doubt have benefitted during this time”
In allowing Ms El Karout’s appeal and quashing the striking off order, he made it clear the case would need to come back before the NMC but all mention of four of the patients should be removed.
He also questioned the weight given to other evidence against Ms El Karout in the three remaining cases and highlighted that she had made “strong points” in her defence, which should be carefully considered when the case was reheard.
In the judgement, he flagged up what he described as a “rather unattractive” email from the manager who oversaw the local investigation, which was sent to the NMC’s case examiner after the crown court case, “bemoaning her acquittal”.
“Unfortunately, they found her not guilty based on the evidence of only two ladies,” said the email.
The judge said it was clear this had “prompted further attempts to secure the co-operation of the five other patients in order to strengthen the misconduct case against the appellant”, although it was now two years after the alleged thefts had taken place.
He also suggested more consideration should have been given by the FtP panel to the fact Ms El Karout had already been found not guilty of theft in a criminal court – even though the panel was entitled to come to a different conclusion.
“As a matter of common sense and common fairness, the panel were obliged to proceed with greater caution in differing from the jury’s conclusion on the very same allegations of theft, particularly in view of the serious consequences of such a finding for the appellant’s career as a midwife,” said the judgement.
“We’re absolutely broke and living in poverty”
Kathryn Jordan El Karout
Ms El Karout said she was angry with the way her case had been dealt with from the start by her former employer. This included the fact she had not been given the chance to respond to any of the allegations against her before the police were called in and that she was arrested on the ward where she worked.
“The first I ever knew of anything was that they came to work and arrested me, which was just horrifying,” she said. “I spent the night in a police station while they went out to my house, got my children up at 2am and searched my property for drugs.”
She said the fact the case had being going on for more than three years meant her family were now on the breadline. “We’re absolutely broke and living in poverty,” she said. Meanwhile, the case had taken its toll on her emotional and mental wellbeing, according to Ms El Karout.
“Initially the stigma and humiliation of what had happened to me, just made me want to hide away. I couldn’t work,” she said. “I didn’t have the confidence to go out and get a job, because the first thing a person asks is ‘What was your last job and why did you leave?’
“It has had a devastating impact on my life financially and personally and – more significantly – on my children who have suffered. It is the emotional impact on them of seeing their mother struggling and crying all the time,” she noted.
She told Nursing Time she could not have got through her appeal without the support of volunteer campaigning organisations Midwives’ Haven and NMCWatch.
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In a statement, Midwives’ Haven maintained Mr Justice Spencer’s judgement had “lifted the lid on the NMC’s unfair and poor case preparation, its lack of interest in ensuring that a panel has reliable facts before it and its appointed panel’s shortcomings in its consideration of the case before it”.
The group’s co-ordinator, Deborah Hughes and legal advisor John Rubenstein, called on the regulator to implement “urgent reforms to their consideration of referrals and their preparation of cases”.
A spokeswoman for NMCWatch said the case meant “the profession has been without a talented midwife for the last three years”.
“This is sad for the mothers and babies she would no doubt have benefitted during this time,” she said, adding that she also hoped lessons would be learned from the case.
“This case shows the importance of a thorough, fair and transparent local investigation by the employer. It also shows the need to ensure local investigations are carried out by independent practitioners not directly involved in the case,” she said.
“We take the judge’s findings very seriously and are reviewing our approach”
She added: “We have been assured by the NMC that part of their new processes includes a push back to employers to ensure they investigate thoroughly before referral – we hope that this will occur.”
She also said it was vital registrants had legal representation at hearings and that lawyers were “aware of all areas of the evidence and the need to challenge any hearsay evidence”.
Ms El Karout, who is currently waiting to hear from the NMC about the next steps, has said she would like to return to the register and continue working in a profession she is passionate about.
“This wasn’t about my clinical practice or my ability to work as a midwife and, to this day, I still feel capable of working with women and families,” she said.
“The only thing I am nervous about is working for the NHS – I would feel vulnerable because the environment and institutions you work in don’t protect you. So I would love to work again as a midwife but maybe in an independent capacity,” she said.
The NMC told Nursing Times it would be reviewing its procedures in the light of the case. “Openness and honesty are central to professionalism and essential for patient safety,” said director of fitness to practise, Matthew McClelland.
“We have a responsibility to take any allegations of dishonesty very seriously,” he said. “We updated our guidance in 2017 to recognise there are different degrees of seriousness.
“In this case, we gave more weight than we should have done to hearsay evidence on some of the charges,” he said. “We take the judge’s findings very seriously and are reviewing our approach to make sure we address them fully.”
“We will… be undertaking a review to explore any lessons that can be learnt”
Brighton and Sussex
Mr McClelland promised that the regulator would look again at the case against Ms El Karout very soon. “We will schedule the hearing on the remaining charges in this case as soon as possible,” he added.
Brighton and Sussex University NHS Trust also said it would carry out a review.
“The executive team currently in position are unable to fully comment on this individual as it was prior to their appointment,” said a trust spokeswoman.
“We will, however, be undertaking a review to explore any lessons that can be learnt,” it added.