Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council (First Respondent) Joselo Silva (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde |
| Judgment Date | 17 March 2016 |
| Neutral Citation | [2016] EWHC 754 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 March 2016 |
| Docket Number | CO/6302/2015 |
[2016] EWHC 754 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holroyde
CO/6302/2015
David Bradly (instructed by Browne J Robson) appeared on behalf of the Appellant
Ms Alice Hilken (instructed by the Nursing and Midwifery Council) appeared on behalf of the First Respondent
Ms Jessica Russell-Mitra (instructed by AB Mackenzie Solicitors) on behalf of the Second Respondent
On 5 November 2015 a panel of the Conduct and Competence Committee of the Nursing and Midwifery Council found that the second respondent, Mr Silva, was guilty of misconduct, but that his present fitness to practise as a nurse was not impaired. This is a reference by the Professional Standards Authority for Health and Social Care pursuant to section 29 of the National Health Service Reform and Health Care Professions Act 2002, brought on the ground that the decision of the Panel was unduly lenient. For convenience, I shall refer to the Panel of the Conduct and Competency Committee as "the Panel". I shall refer to the Nursing and Midwifery Council as "the Council" and I shall refer to the appellant as "the PSA".
Mr Silva has been a nurse for a number of years. In 2013, he was employed as the deputy manager at a particular care home in Croydon. In October 2013, his employers needed to deploy the manager of that care home to work for a time at a different care home. In those circumstances, Mr Silva was asked at very short notice to take over as acting manager of the home at which he worked. Although there is an issue as to whether or not he was subsequently formally promoted, it is I think common ground that he acted in the role of manager of that home for the ensuing months, during which period the relevant events occurred.
The residents at the home were, or at any rate included, elderly persons, at least some of whom had the misfortune to suffer from dementia. One of Mr Silva's colleagues was an employee at the home who was referred to before the Panel, and to whom I shall refer, as "Mr 1". Mr 1 and his wife shared a house with Mr Silva. In February and March of 2014, Mr 1 received complaints from three of the elderly residents of the home about the conduct of a member of staff towards them. By reference to duty rosters and the like, it was subsequently possible for those responsible for the home to determine that all these complaints related to one particular employee referred to as "Mr 4".
The chronology of relevant events, at any rate according to the evidence of Mr 1, can be summarised as follows: on 15 February 2014, Resident A reported that overnight Mr 4 had pushed him, had been rough with him and had been rude to him. Resident B independently reported that Mr 4 had been rough with him. Mr B said that the two of them had fought and that he, Mr B, had suffered a cut to his nose. Mr 1 did indeed observe a cut to Resident B's nose. Mr 1 reported these complaints to his team leaders, ladies referred to in the proceedings below as "Ms 2" and "Ms 3". It should be noted that Resident A, in addition to suffering from dementia, was also partially blind.
About two days later, Mr 1 saw that there was a cut on Resident B's wrist. He asked about it. Resident B said that he had been in a fight with a member of staff. Mr 1 reported this matter to Mr Silva. He took the opportunity to ask what action had been taken in respect of the earlier complaints. Mr Silva said that no action had yet been taken.
Some three weeks later in March 2014, Resident A reported to Mr 1 that Mr 4 had thrown a zimmer frame at him, which Resident A had thrown back. Resident A said that Mr 4 had then pushed Resident A onto the bed and had refused to let him leave his room. A team leader told Mr 1 that he should obtain a statement about this incident. Mr 1 did so. He took the statement to Mr Silva.
At around this time a third resident, Resident C, told Mr 1 that he did not want to be left with Mr 4 because Mr 4 had been rough with him.
A few days later, Mr 1 asked Mr Silva whether he had taken any action about the complaints. Mr Silva said that he had shown Resident A photographs of the male members of staff, but Resident A had not been able to identify the person about whom he was complaining. According to Mr 1, although this allegation was denied, Mr Silva told Mr 1 to stop enquiring into the allegations made by residents A and B, because Mr 4 could take them to court for making allegations that he had abused Resident A.
A short time later, at the house which they shared, Mr 1 reported Resident C's complaint to Mr Silva. According to Mr 1's account, Mr Silva made an offensive remark in response. Mr 1's evidence was that Mr Silva's words were, "Fucking leave it. They have fucking dementia and don't know what they are talking about." The making of this offensive remark has always been denied by Mr Silva.
Mr Silva at some point in this chronology moved Mr 4 to duties in another part of the home.
In about mid-April 2014, Care UK, who ran the home and employed Mr Silva, began an investigation into Mr Silva's conduct. In the course of this investigation, a regional support manager spoke to Mr Silva in early May 2014. Her evidence included the following two matters. First, she said that Mr Silva told her that he had moved Mr 4 to another unit of the home in order to protect Mr 4 from the risk of Resident A making further allegations.
Secondly, the regional support manager found that a note which had been left for Mr Silva by the team leader to whom I have referred had been written on by Mr Silva. The note was to the effect that the team leader was reporting the complaints made as summarised above by one of the residents. The note ended with the words, "Should this be a safeguarding?" That note occupied the top half of what appears to have been an A4-sized sheet of paper. The bottom half was taken up with manuscript notes by Mr Silva which appear to have been miscellaneous jottings in connection with his other duties. The evidence of the regional support manager on this point was that she pointed out to Mr Silva that he had used the note left for him as notepaper on which to record sundries. She added, "To me this indicated that [Mr Silva] had not taken the concerns raised by [the team leader] seriously."
In the course of the investigation, Mr Silva was suspended from work. He later resigned from that employment. Subsequently, as the evidence showed, he took up employment in another care home.
The hearing before the Panel took place between 3 and 5 November 2015. The charges against Mr Silva were in the following terms:
i. "That you, whilst acting as the home manager of [the care home] between an unknown date in October 2014 and 28 April 2014:
(2) Between 13 February 2014 and 15 April 2015 failed to submit one or more referrals to Safeguarding in respect of any or all of the following residents:
1.1 Resident A;
1.2 Resident B;
1.3 Resident C.
(3) Upon receiving one or more allegations that Colleague 1 [Mr 4] had been physically abusive to Resident A and/or B and/or C you:
i. 2.1 conducted an inappropriate investigation, in that you asked Resident A to review pictures of members of staff in order to try and identify [Mr 4];
ii. 2.2 failed to remove [Mr 4] from the clinical environment in that you moved [Mr 4] to another clinical area with access to residents,
iii. And, in light of the above, your fitness to practise is impaired by reason of your misconduct."
At the outset of the proceedings, Mr Silva through his counsel Ms Russell-Mitra admitted those charges subject to a qualification. It is to my mind clear that the effect of what was said was that Mr Silva admitted the factual allegations contained in the charges, but denied that his fitness to practise was impaired by reason of misconduct.
The Panel heard evidence from Mr 1, from the regional support manager, from the team leader and from two other witnesses employed by Care UK. Mr Silva himself gave evidence. He called witnesses who gave evidence as to his entirely satisfactory work at the care home in which he was by then employed. He also adduced evidence from a close relative of one of the elderly persons then in his care at that other home, praising the way in which Mr Silva had dealt with her grandfather.
It is fair to say that the witnesses called on behalf of Mr Silva spoke in very flattering terms of his work following his return to work after his period of suspension from the care home with which I am most particularly concerned. It is also right to record, this being a point on which reliance is placed on behalf of Mr Silva, that in cross-examination of two of the witnesses called by the Council Mr Silva's attitude towards residents was also spoken of in flattering terms.
At the conclusion of the hearing, the Panel gave its decision. In summary, it concluded that Mr Silva was guilty of serious professional misconduct. It referred to the terms of the Council's Code of Standards for Conduct, Performance and Ethics for Midwives. It found that that having been informed of three separate incidents of alleged abuse against vulnerable patients reported to him by three different colleagues Mr Silva had been under a clear duty to refer the allegations to Safeguarding but had:
i. "… failed to do so due to your poor and personally biased assessment of...
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