Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council (First Respondent) Philomena Judge (Second Respondent)

JurisdictionEngland & Wales
JudgeMr Justice Garnham
Judgment Date07 March 2017
Neutral Citation[2017] EWHC 817 (Admin)
Docket NumberCO/4354/2016
CourtQueen's Bench Division (Administrative Court)
Date07 March 2017

[2017] EWHC 817 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Garnham

CO/4354/2016

Between:
Professional Standards Authority for Health and Social Care
Appellant
and
Nursing and Midwifery Council
First Respondent
Philomena Judge
Second Respondent

Mr P Mant (instructed by Capsticks) appeared on behalf of the Appellant

Ms H Fleck (instructed by the Nursing and Midwifery Council) appeared on behalf of the First Respondent

Ms C Binding (instructed by the Royal College of Nursing) appeared on behalf of the Second Respondent

Mr Justice Garnham

Introduction

1

The Professional Standards Authority for Health and Social Care (hereafter "the PSA") is a body corporate created by section 25 of the National Health Service Reform and Health Care Professions Act 2002, as amended. Its statutory functions include promoting the interests of patients in relation to the performance, by the Nursing and Midwifery Council ("NMC"), of its functions. The NMC is a body corporate recognised in The Nursing and Midwifery Order 2001 (2002/253). The functions of the NMC include the establishment and maintenance of standards of conduct and performance for nurses and midwives. Ms Philomena Judge (hereafter "the Registrant") is a nurse registered by the NMC.

2

On 20 April 2016, a conduct and competence committee of the NMC commenced a hearing into allegations of misconduct against the Registrant. Those proceedings were concluded on 23 June 2016 when the committee suspended her from the register for a period of twelve months.

3

By this appeal, which is brought under section 29 of the 2002 Act, the PSA appeal against that decision to suspend the Registrant, contending that that sanction was insufficient for the protection of the public. That appeal is opposed by the Registrant who asserts that the sanction was within the range of reasonable sanctions open to the committee. The NMC appeared before me to indicate that they did not seek to uphold the decision of their committee.

The Statutory Scheme

4

There is a considerable measure of agreement as to the relevant statutory provisions.

5

Thus it is agreed that the decision to impose a suspension order against the Registrant was a "relevant decision" under section 29.1(i) of the 2002 Act. Pursuant to section 29(4) the PSA may refer a relevant decision to the High Court where it considers that "the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public". Section 29(4A) provides that:

"(4A) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—

(a) to protect the health, safety and well-being of the public;

(b) to maintain public confidence in the profession concerned; and

(c) to maintain proper professional standards and conduct for members of that profession."

6

Pursuant to section 29(7), where a case is referred to the High Court under section 29(4) it is to be treated as an appeal and accordingly CPR 52 applies. It follows that the court should allow an appeal where the decision was "wrong" or unjust because of a serious procedural irregularity.

7

Section 29(8) makes provision for the court's powers on hearing the appeal. The court may dismiss the appeal, allow it and quash the relevant decision, substitute any other decisions for the relevant decision or remit the case to the committee to dispose of in accordance with the directions of the court.

8

The Court of Appeal considered what criteria were to be applied by the court when deciding whether a relevant decision was "wrong" in the case of Ruscillo v Council for Regulation of Health Care Professionals [2004] EWCA Civ 1356. The court held that the statutory test to be applied by the Authority in deciding whether to refer a case to the court, namely, whether the relevant decision was unduly lenient, should also be the criteria adopted by the court in determining the appeal. The statutory test is no longer "undue leniency" but is "insufficiency", but I accept the submission advanced by both principal parties that the approach of this court should be the same as that indicated in Ruscillo. At paragraph 73 in that case the court said this:

"The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession. The role of the court when a case is referred is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. Is that any different from the role of the council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession."

The Facts of the Case

9

In October 2013, the Registrant was employed on the Campion Unit at Prospect Park Hospital in Berkshire. She had worked there since 2003. That unit is a short-term assessment and treatment service for adults with learning difficulties who also have mental illness or present serious behavioural challenges. Patient A was a patient at the unit. He had been diagnosed with autistic spectrum disorder, severe mental impairment and challenging behaviour.

10

It was alleged before the committee that the Registrant had been seen "poking" Patient A four or five times in the chest and hitting him on the side of the head with a broom or mop handle. It was also alleged that the Registrant had "cuffed" Patient A around the head with her hand. It was said that she had been seen brandishing a mop handle close to Patient A's head. When another person entered the room, it was said, the Registrant stopped brandishing the mop handle and put it down. But after the man left the room, it was said, she picked up the mop and continued to brandish it, striking Patient A two or three times on the head. It was said that Patient A became increasing distressed.

11

The charge brought by the NMC against the Registrant asserted that she had inappropriately used a mop or broom or brush handle in the course of providing care to Patient A, on one or more occasions had struck Patient A with the handle and had, in addition, struck him with her hand. As regards the first of those charges the NMC clarified to the committee that its case was that the Registrant's conduct was "deliberate and malicious".

12

The Registrant disputed all heads of charge, claiming at one stage that she used a broom to place a pillow behind Patient A's head because she did not want to get too close to him, on another occasion that she was sweeping up toys as a distraction and that the broom may have made contact with Patient A accidentally, and on a third occasion that she touched Patient A's head to calm him or to straighten his protective hat.

13

The hearing before the committee lasted from 20 to 22 April 2016 when findings of fact were made. The case was then adjourned. On 22 June, the committee addressed the questions of misconduct and impairment. The following day the panel reached its decision on sanction.

14

The committee found all heads of charge proved. It expressly accepted the NMC's case, noting in particular that it found that the actions of the Registrant were deliberate and emotionally abusive. The panel held that the Registrant's actions amounted to misconduct noting that they involved emotional distress to an extremely vulnerable patient. Although the committee accepted that there was no intent to cause physical harm, it concluded that the Registrant's actions were deliberate and known by her to be the type of abusive actions that would cause distress and emotional harm.

15

On the question of impairment the committee noted that some weeks had passed since the fact finding hearing but there had been no meaningful reflection by the Registrant either as regards the consequence of her actions or what she might do differently in the future. The panel concluded there was no real insight, remorse or remediation and there was a risk of repetition.

16

In reaching its conclusion on sanction the panel identified the following aggravating factors: first, Patient A was very vulnerable and unable to raise concerns about the abuse he suffered; second, the Registrant struck Patient A despite there being clear signs of distress; third, they referred to her use of the broom handle to strike Patient A as being repeated; fourth, they said she had shown no meaningful element of insight, remorse or remediation; fifth, they said that as an experienced nurse she ought to have known that her actions would have caused distress and emotional harm to Patient A and thereby constituted abuse; and, finally, they said she had demonstrated a lack of insight.

17

By way of what they called mitigation, the panel noted that the Registrant had no previous referrals to the NMC, the committee had no information about any other issues raised in respect of her practice; the events in question occurred on a single occasion involving a single patient; there was no physical harm to Patient A; the Registrant had thirty years of previously unblemished service; and...

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