Jerry v Nursing and Midwifery Council

Ms Jerry, who represents herself at this appeal, seeks to challenge the decision of the Conduct and Competence Committee of the Nursing and Midwifery Council finding allegations of misconduct affecting Ms Jerry's fitness to practise proved and imposing the sanction of striking Ms Jerry off the register. The charges against Ms Jerry arose out of events which took place on a night shift at the Royal Surrey Hospital on 17/18 August 2011 whilst Ms Jerry was employed as an agency nurse. There was a first disciplinary hearing in December 2013 at which 11 separate charges, three relating to events on the night shift at Royal Surrey and eight in connection with entirely different events at another hospital, were investigated and found proven. However those findings were challenged and the Nursing and Midwifery Council agreed to an order in October 2014 setting them aside and remitting the matter for a rehearing.

At the second, remitted hearing, which took place on the dates between 11 to 15 May and 19 to 25 August 2015, three charges only were proceeded with. These concerned the night shift at the Royal Surrey Hospital in 2011 and were set out as follows:

i. "That you, whilst working as a band 5 staff nurse employed at Buckinghamshire Healthcare NHS Trust between 2006 and 2010, failed to meet the competence expected of a band 5 nurse in that you:

2. Failed to inform the nurse in charge that Patient A had raised blood pressure;

In respect of Patient A's oxygen saturation levels:

(a) did not measure the levels at 2200 hours;

(b) documented the levels at 2200 hours on Patient A's observations chart as a question mark;

(c) did not document any explanation for the entry of the question mark;

(d) later in the shift changed your entry described at 2(c) above to one stating that the levels were 95, and did not make clear that entry was retrospective;

Your conduct as set out in charge 2(d) above was dishonest in that you sought to create a false impression in Patient A's medical notes that you had successfully measured her oxygen saturations as being 95 per cent at 22.00 when you had not, and for the reasons above your fitness to practise is impaired by reason of your misconduct."

As already recorded, the panel found these charges proved and imposed the sanction of striking off. It is against those findings and that sanction that Ms Jerry appeals.

Approach to be taken by the court

The law as to the proper approach of a court faced with an appeal from a regulatory body such as the NMC is fully reviewed and summarised by Cranston J in the case of Cheatle v. General Medical Council [2009] EWHC 645 (Admin). It is for the Conduct and Competence Panel of the NMC as primary decision maker to hear the evidence and to make findings of fact. On an appeal, the court will correct material errors of fact, ie errors that might impact on the conclusions reached in a particular case. That could for instance include evidence overlooked or evidence wrongly taken into account, or a misapplication of the burden or standard of proof as applied to the evidence. Decisions of the panel which contain such errors will be quashed and the case remitted for a further hearing, or a different outcome may be substituted. Unless there are shown to be such errors, however, there is no basis for this court to intervene. It is not, I emphasise, a court of rehearing.

Thus, where the panel has heard the evidence and made a finding on that evidence, for instance where there is a direct conflict between witnesses as to a particular event, this court will not interfere even if it takes the view that it might not have reached the same conclusions as the panel did.

Where the panel decides that charges of misconduct have been proved, it must then come on to consider whether the misconduct impacts fitness to practise and, if it does, what sanction ought to be imposed. This court will only interfere with a panel's decision on sanction in very limited circumstances, the view being that the panel, whose members are drawn from the profession, is best placed to weigh up the seriousness of the conduct in question and its impact on the standing of the profession: Bolton v The Law Society [1994] 1 WLR 512.

Ms Jerry's Grounds of Appeal

Attached to Ms Jerry's notice of appeal were 12 pages of closely-typed grounds in which she set out the following points of challenge: a failure to get a fair hearing by reason of various decisions taken by the panel during the hearing and a failure to comply with the terms of the consent order made in October 2014, being the order by which the first panel's finding were quashed and the case remitted, by amending charges against Ms Jerry without obtaining the court's permission. A breach of CPR part 17.1 is relied upon.

So far as charge 1 is concerned, failing to inform the nursing staff of raised blood pressure, Ms Jerry alleges a failure critically to examine the evidence and a failure to allow her requests for the disclosure of Patient A's nursing notes.

So far as charge 2(a) is concerned, Ms Jerry asserts that the panel came to the wrong decision in that they were wrong to focus on the time of 2200 hours.

2(b), documenting levels on patient's A's observation chart as a question mark, Ms Jerry complains that the panel directed itself to the wrong time, and that it had reached conclusions without obtaining the nursing notes and the original patient observation chart, which she says the NMC failed to provide despite requests.

In relation to charge 2(c), the failure to document any explanation for the question mark entered on the chart, Ms Jerry complains that the panel reached conclusions without obtaining the nursing notes in which she says she documented the reason for the question mark.

In relation to charge 2(d), changing the question mark to 95 on the chart without indicating that it was a retrospective entry, Ms Jerry says that she made a note in the nursing notes at the time and the hour that the reading was done.

In relation to charge 3, that the entry on the chart was made dishonestly, Ms Jerry complains that the panel made a finding in relation to medical notes, not the observation chart, and asserts that she never wrote in the medical notes. She complains that the panel should have obtained the original telephone conversation recorded between her and one of the witnesses, and that the panel wrongly took into account an incident report recording information given by Ms Jerry to the ward manager, which was not intended for any investigation.

There are other matters of which Ms Jerry complains as follows: that the panel wrongly refused her application to have the hearing stayed for flaws in the process and instead to continue in circumstances where she was unable through stress to put her case properly; that the panel wrongly proceeded with the hearing without permitting her time to seek the further evidence; that the panel stated wrongly that the misconduct occurred over a four year period (I infer that Ms Jerry is pointing there to the reference in the charges to her working period being between 2006 and 2010); that the panel's decision on sanction was wrong and also that their decision on interim suspension pending appeal was wrong.

Counsel for the NMC, Ms Hilken, very helpfully synthesised the 17 separate points set out in Ms Jerry's grounds under three summary heads: charging issues, disclosure issues and decisions as to the admission or exclusion of evidence. I shall take each of these separately. In dealing with each, I have had regard to the full transcript of the ten days of hearing before the panel, all of which were included in the bundles before me for this hearing.

Charging issues

Ms Jerry argues that in bringing amended charges against her following the remittal from the order of October 2014, the NMC had failed to comply with rules of procedure requiring the court's permission. She referred in this regard to CPR part 17.22. However, this part of the CPR deals with statements of case in civil proceedings. The charges notified to Ms Jerry by the NMC are brought in accordance with different rules. These are the rules provided for by the Nursing and Midwifery Order 2001 Article 26.3, which set out the procedure to be followed by the NMC in investigating any complaint against one of its members.

Rule 11.3 of the Nursing and Midwifery Council (Fitness to Practice) Rules Order of Council 2004 provides that where there is to be a hearing of an allegation, the notice of hearing must set out the charges particularising the allegation. That is what happened in this case. Following the remittal, Ms Jerry was sent a fresh notice of hearing setting out the charges and notifying her that the NMC would offer no evidence on, and would invite the panel to find not proven, eight of the original 11 charges which related to events at a different hospital at a different time. The remaining three, relating to the night shift at Royal Surrey, were redrawn but related to the same factual circumstances as previously.

Having reviewed the Nursing and Midwifery Order, and the Nursing and Midwifery Council (Fitness to Practise) Rules, together with the notice of...