Nasrin Abbas v The Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWHC 971 (Admin) |
| Docket Number | Case No: CO/5118/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 April 2019 |
[2019] EWHC 971 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/5118/2018
Simon Gurney (instructed by Stephensons Solicitors LLP) for the Appellant
Matthew Cassells (instructed by The Nursing and Midwifery Council) for the Respondent
Hearing date: 27 March 2019
Approved Judgment
The Appellant appeals, pursuant to Article 30(10) of the Nursing and Midwifery Order 2001 (“the NMC Order”), against the decision of a panel (“the Panel”) of the Fitness to Practise Committee (“FTP Committee”) of the Nursing and Midwifery Council (“the NMC”), made on 23 November 2018, to strike her off the Register.
Facts
The Appellant qualified as a nurse in Dubai in 1982. She came to England in 1988 and qualified as a registered general nurse in 2003. She completed a BSc degree in critical care nursing in 2007.
Between 2004 and December 2007 the Appellant worked in the intensive care units of North West London Hospitals NHS Trust. In December 2007, the Appellant made a medication error which resulted in her being given a written warning and being required to undertake a period of supervised practice. During the period of supervised practice, when she was given training and support, further concerns were raised about her competence, both in general nursing skills and in intensive care nursing. She was dismissed, but following an appeal, she was re-employed as a health care assistant.
The Appellant's employer referred her to the NMC. On 26 March 2012, the NMC's Conduct and Competence Committee (“CCC”) 1 found the following allegations proved, on the basis of the Appellant's admissions:
“That you, whilst employed by North West London Hospitals NHS Trust working within Northwick Park Hospital Intensive Therapy Unit (ITU):
1. Failed to demonstrate the standards of knowledge, skill and judgement required to practise without supervision as a Band 5 Registered Nurse, from June 2008 to January 2009, more particularly on one or more occasion:
i. You did not interpret the output of clinical equipment and relate this to the condition of your patient;
ii. You did not demonstrate that you understood the theory and practice in relation to the use of a ventilator;
iii. You did not demonstrate that you understood the theory and practice in relation to Advanced Life Support;
iv. You did not demonstrate that you understood the theory and practice in relation to inotropic therapy
v. You did not demonstrate that you understood the theory and practice in relation to the renal system;
vi. You did not listen effectively to instructions;
vii. You did not manage your time effectively;
viii. You did not relate theory to practice;
ix. You did not retain theoretical information as required;
x. You did not retain clinical information as required;
xi. You did not communicate clinical information to your colleague(s) as required;
xii. You communicated incorrect information to your colleague(s);
xiii. You did not make full and complete clinical notes at the end of a shift;
xiv. You were unable to complete simple calculations correctly;”
In the light of these findings, the CCC found that the Appellant's fitness to practise was impaired, by reason of lack of competence. The CCC imposed a conditions of practice order for 6 months. The Appellant was required to practise only with direct supervision, not to practise in any critical care unit, and to confine her practice to the National Health Service (“NHS”). She was required to formulate a personal development plan to address the particular deficiencies the CCC had identified, namely: (1) interpretation of the output of clinical equipment relating to patients; (2) communication of clinical information at multi-disciplinary meetings (both orally and in writing); (3) time management; (4) relating theory to practice; and (5) numerical skills relevant to her practice.
Previous reviews
On 17 September 2012 the Appellant's order was reviewed by the CCC and extended for a further 6 months. The Appellant's health had prevented her from complying with her conditions. At her request, the conditions were varied to make it easier for her to find work as a nurse. She was no longer required to work under direct supervision throughout the duration of the order, but rather for a period of 4 weeks, which was to be reviewed by her employer at its conclusion, reported on to the NMC and, if appropriate, then changed to indirect supervision by a Band 6 nurse.
On 6 March 2013 the Appellant's order was reviewed by the CCC and it was extended for 12 months. It was again submitted on the Appellant's behalf that the conditions should be varied to make it easier for her to find work as a nurse. The CCC removd the requirement that a report be sent to the NMC at the conclusion of the period of direct supervision.
On 12 March 2014 the Appellant's order was reviewed by the CCC and it was extended for a further 18 months. It was further varied to make it easier for the Appellant to find work as a nurse. The CCC removed the requirement that she had to be indirectly supervised by a Band 6 nurse, indicating indirect supervision by a Band 5 would be sufficient, and also removed the condition which prevented the Appellant working outside the NHS.
On 6 August 2015 the Appellant's order was reviewed by the CCC and it was extended for a further 2 years, without variation. By Article 29 (6) of the Order, a striking-off order may not be made in respect of a nurse whose fitness to practise is impaired by reason of her lack of competence, unless she has been subject to a conditions of practice order for, at least, 2 years. Thus, this was the first review at which the CCC had the power to impose a striking-off order.
In October 2016, the Appellant obtained employment as a nurse for the first time during the currency of the conditions of practice order. Since 2012, she had only been able to obtain employment as a healthcare assistant.
On 18 January 2017 the Appellant's order was reviewed by the CCC and it was continued, with minor variations, for the remaining 7 months. The CCC expressed concern about the length of time that conditions had been in place.
On 8 September 2017 the Appellant's order was reviewed by a panel of the FTP Committee and it was extended for a further 6 months. The order was varied to remove the requirement for direct supervision.
On 8 March 2018 the Appellant's order was reviewed by a panel of the FTP Committee and it was extended, with minor variations, for a further 9 months. The panel indicated in the course of their determination that a period of 9 months had been arrived at as it would, ‘allow sufficient time to remedy the deficiencies in [the Appellant's] practice and complete [her] assertiveness training’.
The challenged review decision
On 23 November 2018 the Appellant's order was reviewed by the FTP Committee. The Appellant admitted that her fitness to practise remained impaired. The Panel considered the earlier decisions, together with references, reflective writings by the Appellant and an updating report from the matron on her ward. Although the Appellant invited the Panel to make a further conditions of practice order, the Panel decided instead to impose a striking-off order.
In its determination on sanction, the Panel stated:
“The panel next considered whether to extend the current conditions of practice order. It noted that you have been subject to a conditions of practice order for six-and-a-half years, and have been working as a nurse continuously whilst under conditions for over two years. It had regard to the decision of the previous reviewing panel, which stated that, in imposing the current order for nine months, such a period would “allow you sufficient time to remedy the deficiencies in your practice and complete your assertiveness training”. The panel noted that you have completed your assertiveness training, but the issues in your practice remain outstanding. The panel considered that these issues relate to basic and fundamental areas across all aspects of nursing; even when working in what appears to be a supportive environment, you have not managed to successfully remediate them over a period of over two years.
Accordingly, the panel concluded that extending a conditions of practice order would not, in the long term, serve a useful purpose. Although the public would be protected were you to remain subject to a conditions of practice order, the public interest would not be upheld due to the length of time you have been subject to such an order, and the lack of progress you have made in that time.
The Panel next considered imposing a suspension order. However, it concluded that such sanction would not serve a useful purpose. Although the public would be protected by such a sanction, in that you would not be able to provide nursing services to patients, it would not enable you to improve your competence, which remains lacking. The panel also considered that such a sanction would not uphold the public interest.
In considering whether to impose a striking-off order, the panel had regard to the SG. Given the length of time you have been subject to restrictions on your practice, as well as the lack of progress you have made in that time, the panel considered that public confidence in the nursing profession and the NMC would not be maintained if you remained on the register. The panel accepted that you have made efforts to improve your nursing competence, but was not satisfied that you would ever reach a point where you would be able to practise unrestricted.
It therefore concluded, with regret, that the appropriate and proportionate sanction in this case is that of...
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