Hanna Wisniewska v Nursing Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 27 October 2016 |
| Neutral Citation | [2016] EWHC 2672 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 October 2016 |
| Docket Number | Case No: CO/2712/2016 |
[2016] EWHC 2672 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: CO/2712/2016
Mr Hookway (instructed by Royal College of Nursing Legal Services Directorate) for the Appellant
Mr Vallance (instructed by Nursing & Midwifery Council) for the Respondent
Hearing dates: 25 th October 2016
Approved Judgment
This is an appeal brought by Hanna Wisniewska against the decision of the Nursing and Midwifery Council ("the NMC") to impose a striking off order, consequent upon its finding that her fitness to practice was impaired.
Appeal is made pursuant to Article 38 of the Nursing and Midwifery Order 2001 ("the 2001 Order"). By rule 52.11 of the Civil Procedure Rules, (rule 52.21(3), for notices lodged after 03.10.16: The Civil Procedure (Amendment No.3) Rules 2016), the appeal may be allowed where the decision of the committee was wrong or unjust because of a series of procedural or other irregularities. Where an appeal succeeds this court may quash the decision and thereafter substitute for it any decision the Conduct and Competence Committee (CCC) could have imposed. Alternatively, the case may be remitted back to the CCC for reconsideration: see Article 38 (3) of the 2001 Order.
The background
The Appellant is a nurse. On 29 October 2012 she was notified by letter that she had been referred to the NMC. The referrer was her previous employer, Hertfordshire and Essex NHS Trust. The primary allegation was that on nine occasions she had not attended work, having reported sick. Instead, it was alleged, she had undertaken shifts at St Elizabeth Centre where she had worked as a bank nurse. There were two further allegations relating to an alleged failure to apply a dressing when requested to do so and a failure to conduct an electrocardiogram, again having been requested to do so.
The allegations were heard before the committee of the NMC, between the 22 nd and 25 th July 2014. At that hearing the Appellant accepted having worked elsewhere whilst not attending her scheduled shifts. As she had subsequently failed to mention this in her "return to work" interview, the Appellant accepted that her actions were dishonest. The remaining two allegations were contested but they both were found to be proved. It was considered that the failure to carry out the electrocardiogram, when requested, did not amount to professional misconduct.
The sanction imposed by the Committee was to suspend the Appellant from the nursing register for six months. In April 2015 the Appellant successfully returned to practice having served her period of suspension. She had returned to the register on 28 th February 2015. It is common ground that she has predominantly worked as a nurse since that time, though since 4 April 2016 she has been employed in a non-nursing role as a Care Assistant Manager.
The facts which give rise to this present appeal arose out of a failure to notify a subsequent employer of the earlier referral. On 8 th November 2013 the appellant applied for a job at the Princess Alexandra Hospital NHS Trust. In her application form Ms Wisniewska stated that she was not currently the subject of fitness to practice proceedings. Similarly, she declined to mention this in an interview for the position which took place on 5 th December 2013.
On 24 th March 2014 the Appellant commenced employment at the Prince Alexandra Hospital, again she did not mention her referral to the NMC. Though the Appellant made reference to having worked for the NHS in the past, when completing an HR questionnaire she omitted to mention her previous employment at the Hertfordshire and Essex NHS Trust.
Having initially been suspended, the Appellant resigned from the Princess Alexandra Hospital Trust on the 27 th July 2014. Thereafter the Trust initiated disciplinary proceedings and an investigatory meeting was held on the 5 th August 2014. In the written notice of decision the NMC record that, at this meeting, Ms Wisniewska stated that at the time of completing her application she had checked her PIN number on the NMC's online register and as no referral had been listed had thought that the matter was no longer 'live'.
At the April 2016 hearing the Appellant faced six charges which require to be set out:
i) On or around 8 th November 2013 provided misleading information on your application form to the Princess Alexandra Hospital NHS Trust ('the Trust') in that you indicated that you were not the subject of a Fitness to Practise investigation and/or proceedings;
ii) On or around 5 th December 2013 did not inform the Trust that you were under investigation by the NMC during your interview;
iii) Between 5 th December 2013 and 17 th July 2014 did not inform the Trust that you were under investigation by the NMC and/or subject to Fitness to Practise proceedings;
iv) Your action at charges 1 and/or 2 and/or 3 above were dishonest in that you deliberately did not disclose to the Trust that you were under investigation by the NMC and/or subject to Fitness to Practise proceedings when you knew you were under a duty to do so;
v) During your application for employment to the Princess Alexandra Hospital, failed to declare your previous employment history with Hertfordshire and Essex Hospital and/or your reasons for leaving that employment:
a) On your application form on or around 8 th November 2013;
b) During your recruitment interview on or around 5 th December 2013;
c) On a new Employee Questionnaire dated 29 th January 2014.
vi) Your conduct at charge (v) above was dishonest in that you intentionally attempted to conceal the facts referred to at charge (v) from the Princess Alexandra Hospital Trust when you knew you had a duty to disclose those facts
AND, in the light on one or more of the charges as set out above, you Fitness to Practise is impaired by reason of your misconduct.
The Panel's 'Decsion on Misconduct and Impairment' records the following:
i) 'You accepted that there was no excuse for having not declared your referral to the NMC to your employer nor your previous employment history. You said that failing to do so meant that employers were not aware of all the issues they need to be aware of at the time of deciding whether to employ a nurse'.
ii) 'You said that you recognised the importance of honesty to the nursing profession. You accepted that you have harmed the reputation of the nursing profession and said that you are "devastated" by this'.
iii) 'You told the Panel that you would advise colleagues to inform prospective employers if they had been referred to the NMC. You said that you have learnt a lot from your two referrals to the NMC'.
iv) 'The Panel noted that the facts of this case do not raise concerns about a deficiency in your clinical skills, nor is any criticism made of the quality of care you provided to any patient. The Panel have regard to the testimonials you provided, most of which speak positively to your clinical and interpersonal skills'
I extract the above as the key factors identified by the Panel as potentially mitigating the misconduct they were considering. However, the written reasons conclude:
i) 'Your actions in failing to declare the true position had the potential to put patients at unwarranted risk of harm in that you obtained a job which you may not otherwise obtained had you been honest'.
ii) 'Your misconduct involved breaching fundamental tenets of the profession, namely your duty to act with honesty and integrity at all times and, in so doing, will have brought the profession into disrepute' (sic)'
iii) 'The Panel bore in mind that your dishonesty was prolonged… it had regard to your oral evidence and written reflection… and accepted that you have apologised for your misconduct'.
iv) 'It was of the view that you lacked insight into the seriousness of your dishonesty and its impact on patients and public confidence in the profession… the Panel concluded that you provided it with nothing that suggests that you understand how the public might view a nurse of your seniority repeated acting as you have done'.
v) 'The panel found that there remains a significant risk that you may repeat your misconduct, there by once again reaching fundamental tenets of the profession and bringing the profession into disrepute. In the panel's judgement, the repeated nature of your past misconduct, coupled with the absence of any evidence of remediation, limited insight and remorse increase the likelihood that you would repeat your misconduct'.
In addition to those conclusions the Panel also identified an issue of 'public interest' concluding 'public confidence in the nursing profession would be undermined were a finding of impairment not to be made'.
At the hearing Ms Wisniewska conceded that her actions amounted to professional misconduct and a finding 'of current impairment was conceded, on the grounds of public interest (only)'. It was contended by Mr Hookway, who appeared before the committee and in this Court, that the circumstances of the case enabled the Panel to sanction the Appellant by way of suspension rather than requiring her to be struck off. As Mr Hookway puts it the sole issue was whether the Appellant should be struck off or suspended. The Panel concluded that Ms Wisniewska should be struck off and it is an appeal against that sanction which comes before me today.
Mr Hookway advances three grounds of appeal:
"Ground One : The Panel's decision to...
To continue reading
Request your trial
-
Nasrin Abbas v The Nursing and Midwifery Council
...renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56).” 33 In Wisniewska v Nursing and Midwifery Council [2016] EWHC 2672 (Admin), Hayden J. held that it was incumbent on tribunals to demonstrate coherent reasoning, including in respect of the weight given to factors......
-
R Fernando v General Medical Council
...The first was O v Nursing & Midwifery Council [2015] EWHC 2949 (Admin) and the second was Wizniewska v Nursing & Midwifery Council [2016] EWHC 2672 (Admin). I deal with these below under ground 3 of the appeal. Grounds of Appeal 33 There are three grounds of appeal: (i) Ground 1 is that the......
-
Nkosana Brian Lusinga v Nursing and Midwifery Council
...appeal, Ms Maudsley submits that the panel made the same error as made in O. v. NMC [2015] EWHC 2949 (Admin) and Wisniewska v. NMC [2016] EWHC 2672 (Admin): failing properly to evaluate the mitigation relied upon by the nurse before deciding to reject the possibility of suspension. Ms Mauds......
-
Michael Kern v General Osteopathic Council
...for the decision in the decision notice do not come close to satisfying the need for, in the words of Hayden J in Wisniewska [2016] EWHC 2672 (Admin): “…coherent reasoning and particularly the need to demonstrate the weight given to mitigating factors in demonstrating a proportionate sanct......