Nkosana Brian Lusinga v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 23 June 2017 |
| Neutral Citation | [2017] EWHC 1458 (Admin) |
| Docket Number | Case No: CO/5078/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 June 2017 |
[2017] EWHC 1458 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at Leeds Combined Court
Judgment handed down at:
Royal Courts of Justice,
Strand, London WC2A 2LL
Mr Justice Kerr
Case No: CO/5078/2016
Penny Maudsley (instructed by Keith Lomax, Minton Morrill) for the Appellant
Aja Hall (instructed by Nursing and Midwifery Council) for the Respondent
Hearing date: 12 th May 2017
Approved Judgment
Introduction
The appellant (Mr Lusinga) is a nurse. He has been struck off the register by the respondent (the NMC) for misconduct. Through counsel, Ms Maudsley, he says that was unfair and wrong. He does not suggest there was any procedural unfairness at his disciplinary hearing. He does not challenge the findings of misconduct, nor the finding that his fitness to practise was impaired. He says the decision to strike him off was disproportionately harsh; mitigating factors were not properly evaluated; findings relevant to sanction were unjustified on the evidence; and suspension should be substituted for striking off.
The NMC has responsibility for bringing disciplinary charges against nurses and midwives for alleged misconduct. Its rules provide for a "conduct and competence committee" such as the panel in this case to sit and determine such charges. The NMC opposes the appeal and, through Ms Hall, defends the panel's treatment of the evidence and its reasoning and conclusions. The NMC says the sanction was fair, reasonable and justified on the evidence and that the court should respect the panel's judgment and not interfere with it.
The Facts
The way in which the disciplinary proceedings against Mr Lusinga unfolded was, I hope, unusual. There was no written chronology available to me and if one was available to the panel, I have not seen it. I have had to piece together the following chronological account of events mainly from references within the detail in the transcripts of the disciplinary proceedings. Nor is there any succinct chronological account of the facts in the determination letter of 8 September 2016; it mixes procedural history and background with findings and determinations on individual issues.
The NMC has no rules limiting the number of hours per week (or per month, or year) a nurse may work. It is apparently content to leave the issue to be regulated by individual employment contracts and regulation 4(1) of the Working Time Regulations 1998, which provides for a maximum 48 hour working week (of seven days), including overtime, unless the employee concerned has agreed in writing to perform more than 48 hours per week of work.
A nurse working more than 48 hours per week or any higher weekly number of hours, therefore, would not thereby become subject to any disciplinary action unless he transgressed in some other way. There is no legal limit to the number of hours he could work, so far as the NMC's disciplinary regime is concerned. The NMC does not prescribe mandatory contract terms for employers of nurses. The issue of working hours is left to be determined as a private matter between the nurse and his employer.
Mr Lusinga qualified as a mental health nurse in 2008. There is no finding of misconduct against him, other than in these proceedings. Although he has been accused of medication errors, no such error has ever been found to amount to misconduct. He was, until this case, without any disciplinary blemish on his record. He was subject to the NMC's rules and standards of conduct, like any other nurse. This included the code that includes the requirement to "act with honesty and integrity at all times" and to uphold the reputation of the profession.
Mr Lusinga was under domestic financial pressure to work long hours, to maximise his earnings. In 2008, his sister unfortunately died, leaving five children for whose upbringing Mr Lusinga became responsible in addition to his immediate family. As I have said, there was nothing unlawful per se about him working long hours, provided he could do his job properly and subject to duties owed in private law to any employer under a contract.
In 2011, Mr Lusinga started working full time for a care provider called the Jeesal Group. His personnel manager was Mr Steven James. He is not medically qualified. Mr Lusinga's contracted normal working week was 36 hours. It was a full time appointment. His written terms of employment, signed by him, stated that he would not without the employer's written permission undertake other employment. The employer's permission could not be unreasonably withheld.
On 21 November 2011, the Jeesal Group issued a form to Mr Lusinga for him to sign and date, which he did. By signing the form, Mr Lusinga consented to opt out of the provision in the Working Time Regulations 1998 limiting his working hours to 48 hours per week. Although the evidence on this point is not clear, I infer that the Jeesal Group needed his consent so it would have the option of requiring him to work overtime amounting to a weekly total of over 48 hours per week without falling foul of the law.
Mr Lusinga's contract did not, therefore, limit the number of hours he could work, nor the number of jobs he could take on (whether in nursing or otherwise) or the number of employers he could work for; it merely gave his "primary" employer a veto over additional work without the written consent of that employer, which could not be unreasonably withheld. Although the contract of employment did not so state expressly, Mr Lusinga was clearly obliged to inform the Jeesal Group of any proposed additional employment.
At some point during the period from late 2011 to about early 2013 (it is not clear when), Mr Lusinga was also working for an employer described in a later letter from Mr James as "Walsham Grange". He did not tell the Jeesal Group about this. While he was working for (or at) Walsham Grange, an allegation concerning his fitness to practise was made to the NMC. At some point before 14 June 2013 (again, it is not clear when) Mr Lusinga resigned from his work at Walsham Grange.
On 14 June 2013, Mr Lusinga told his manager and the director of operations at the Jeesal Group, a Mr Ncube, about the allegation made during his (by then) former employment at Walsham Grange. He said he denied the allegation. It was agreed at the meeting that he would complete his medications training course, meet ongoing professional development requirements, keep the Jeesal Group informed about the referral to the NMC, work days only with a senior nurse on duty and not give out medication until completion of the training course.
As regards the issue of failure to inform the Jeesal Group about working for a different employer, Mr James told Mr Lusinga at the meeting that this was a matter of concern, as the latter's contract stated that he must seek prior permission for any other employment and this had not been done. According to Mr James' (undisputed) later letter of 25 June 2013 confirming the outcome of the meeting, Mr Lusinga said that he was "not aware of this contractual requirement".
In January and February 2014, Mr Lusinga was working for the Jeesal Group at a private hospital in Norwich. An allegation was made that he made medication errors in relation to "Patient A" between 20 January and 3 February 2015. That allegation was referred to the NMC on 16 July 2013. It later became the subject of a charge ("charge 1") which Mr Lusinga denied. The panel later found no case to answer on that charge, as appears later in the sequence of events.
In October 2014, unbeknown to the Jeesal Group, Mr Lusinga began working as a nurse at Amberley Hall, working three 12 hour shifts weekly on top of the work he was doing for the Jeesal Group. His hours at Amberley Hall subsequently declined when more permanent staff were taken on. He did not inform the Jeesal Group about the work he was doing at Amberley Hall. He told the employment agency, KK Healthcare, about the first NMC investigation (which, it appears, came to nothing), and also about his job with Jeesal Group.
Mr Kenneth Kamiri, of KK Healthcare, later made a written statement to the panel. He was evidently unconcerned about Mr Lusinga having two jobs. His evidence was that feedback on Mr Lusinga was very positive as he was "very committed to his job" and the management "had repeatedly requested him for further shifts". His acting manager at Amberley Hall was Mr Rob Hammond, who made a statement to the panel including that his "impression of him was positive as I found him to be polite, positive, caring in nature and he had a good rapport with patients".
Also in October 2014, Mr Lusinga was given a further form to fill in by the Jeesal Group, according to his later evidence to the panel, not disputed on this point. He said "we were given some forms to fill in to confirm that we were willing to work over and above our working hours". It is not clear, but it is likely that this was a further written consent to waive the limit of 48 hours per working week set by regulation 4(1) of the Working Time Regulations 1998. A copy of the actual document was not before the panel, nor before me.
In April 2015, Mr Hammond learned of further medication errors allegedly committed by Mr Lusinga at Amberley Hall. Mr Hammond informed Mr Kamiri and the matter was investigated. These matters later became the subject of two further charges ("charge 2" and "charge 3") relating to, respectively, "Resident A" and "Resident B". I find the panel's later decision letter dealing with these charges opaque: at one stage, the panel (at page 6) appears to confuse charge 2 with charge 3, referring to "charge 2" as if it related to Resident B rather...
To continue reading
Request your trial
-
Watters v Nursing and Midwifery Council
...tests have been considered in a number of cases that come before High Court judges by way of appeal, most recently in Nkosana Brian Lusinga v Nursing and Midwifery Council [2017] EWHC 1458 (Admin), in which Kerr J made observations on an appeal against striking off, to which I will have rea......
-
Kathyrn Amanda Jordan El Karout v Nursing and Midwifery Council
...guidance should be revised and refined accordingly: see Watters v NMC [2017] EWHC 1888 (Admin) (Cheema-Grubb J) and Lusinga v NMC [2017] EWHC 1458 (Admin) (Kerr J), see postscript at 165 I make no further observation on the appropriate sanction in this case save to make the obvious point ......
-
Solicitors Regulation Authority v Sovani Ramona James
...and of culpability for it, which is obviously correct. She relied upon the medical disciplinary cases, specifically Lusinga v Nursing & Midwifery Council [2017] EWHC 1458 (Admin) to submit that where what is involved is what Kerr J in that case described as “attenuated dishonesty” rather t......