PSA v Nursing & Midwifery Council
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Glennie,Lord Malcolm |
| Judgment Date | 09 May 2017 |
| Neutral Citation | [2017] CSIH 29 |
| Docket Number | No 33 |
| Date | 09 May 2017 |
| Published date | 09 May 2017 |
| Court | Court of Session (Inner House) |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 29
XA49/16
Lady Paton
Lord Malcolm
Lord Glennie
OPINION OF THE COURT
delivered by LORD MALCOLM
in the Appeal
by
THE PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE
Appellant
against
a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council dated 22 March 2016
Respondent
Appellant: O’Neill (sol adv); Brodies LLP
First Respondent: Anderson (sol adv); Nursing & Midwifery Council
Second Respondent: Dunlop QC; Anderson Strathern LLP
9 May 2017
[1] In terms of section 29(4) of the National Health Service Reform and Health Care Professions Act 2002, as amended, the Professional Standards Authority for Health and Social Care has asked the court to consider whether a decision of a conduct and competence committee of the Nursing and Midwifery Council dated 22 March 2016 is “not sufficient for the protection of the public.” This is treated as an appeal by the Authority against the decision (section 29(7)). A hearing took place on 21 and 22 March 2016 in relation to several charges that a nurse’s fitness to practise was impaired by reason of her misconduct. The committee made a finding of misconduct; in particular that the nurse had acted dishonestly after she became aware of a clinical error on her part. However, it also concluded that the nurse’s fitness to practise was not impaired. In the absence of such a finding, in terms of the relevant regulations (The Nursing and Midwifery Order 2001) the committee had no power to impose a penalty in respect of the misconduct. As a result it did not require to consider whether to impose a sanction, and if so, which sanction.
[2] In essence, the submission for the Authority is that, given the nature and gravity of the misconduct, the failure to make a finding of impaired fitness to practise was “manifestly inappropriate”; a reference to a well recognised test for invalidity used in cases of this kind. It was contended that, given the nurse’s dishonesty, the decision was insufficient to maintain both public confidence in the profession and proper professional standards and conduct – see section 29(4A)(b) and (c). A finding of unfitness should have been made and an appropriate sanction imposed. The court was asked to quash the decision, make such a finding, and impose an appropriate penalty; failing which to remit the matter to a committee to dispose of the case in accordance with the court’s directions (section 29(8)).
The Regulatory Regime
[3] Article 21 of the 2001 Order requires the Council to establish effective arrangements to protect the public from persons whose fitness to practise is impaired. It can investigate and determine allegations of unfitness based on misconduct; incompetence; conviction of a criminal offence; physical or mental ill health; deficiency in English; or a determination of unfitness by another regulatory body. In terms of Article 29, if a health committee or a conduct and competence committee concludes that such an allegation is well founded, it may refer the matter to mediation or decide that there is no need for further action. Failing either of these, it can issue a caution; make a conditions of practice order; suspend the practitioner; or strike him or her from the register. The practitioner can appeal to the court against any such penalty. It is clear that one purpose of the 2002 Act was to allow for an appeal to be brought against a decision which the Authority considers to be insufficient for protection of the public. Until a recent amendment, the test was phrased as “unduly lenient”, but no one has suggested that the change in wording is significant for present purposes.
The Charges
[4] The charges brought against the nurse (SM) can be summarised as follows. She administered the wrong drug to an end of life patient (phenobarbitone rather than morphine), thus depriving the patient of 24 hours of pain relief (the wrong drug itself caused no direct harm). In a dishonest attempt to cover up what had happened, SM destroyed two vials of morphine; made incorrect entries in the controlled drugs book, including a false signature of a colleague; and failed to report the drugs error to her manager. While the specific charges were admitted, SM challenged the allegation that her fitness to practise was impaired by reason of her misconduct.
The Background Circumstances
[5] SM was a senior charge nurse in a busy NHS hospital. She was asked to refill a morphine syringe for a patient. As the ward was low on morphine, along with a colleague she obtained two vials from another ward. Two days later a nurse on the other ward noticed that, rather than two vials of morphine, in error two vials of phenobarbitone had been removed and administered to the patient. On discovering this, SM checked on and was reassured as to the patient’s wellbeing. She then attempted to conceal her error in the manner set out in the charges. Pending an internal investigation, her employers placed her on suspension. At interview SM admitted what had happened. She was issued with a first and final written warning and was demoted from a band 7 to a band 5 nurse.
The Decision of the Conduct and Competence Committee on Misconduct
[6] The conduct and competence committee heard evidence from a clinical nurse manager at the hospital. She described the challenging and demanding role performed by SM, who was and is “a good and professional nurse”. The committee heard evidence from SM. It came to the view that she was honest about what had happened. Private evidence was taken as to certain health issues affecting her at the time. The committee also had the benefit of a large bundle of documents and statements, including those ingathered in the internal investigation, as well as the investigation report itself.
[7] The committee noted that the Council had defined “fitness to practise” as a registrant’s suitability to remain on the register unrestricted. It considered the proven facts and noted that there were two elements in the charges – the first of a clinical nature, and the second of dishonesty. As to the first, the committee concluded that there was a single and isolated clinical error (the drugs error) which amounted to a serious departure from the standards expected of a nurse. As to dishonesty, the committee took account of all the circumstances and the testimonials before it, and the evidence from the manager, all of which was to the effect that SM was an honest person and a good and caring nurse. It noted that she had health issues at the time of the incident. SM had described how she “panicked” and acted “impulsively”. Nevertheless the committee concluded that in amending records and destroying two vials of morphine her actions amounted to dishonest misconduct which breached fundamental tenets of the profession and brought it into disrepute. SM had fallen short of the conduct and standards expected of a nurse. Reference was made to the Nursing and Midwifery Code in respect of the need to keep clear and accurate records; the duty to act immediately to put matters right if a patient suffers harm; and the obligation to uphold the reputation of the profession at all times.
The Decision on Fitness to Practise
[8] The committee considered whether SM’s fitness to practise was currently impaired. It noted that nurses are in a trusted, privileged position, and are expected to act in a professional manner at all times. Patients and their families must be able to trust a nurse, so nurses must be open and honest. Reference was made to a judgment of Mrs Justice Cox to the effect that, when assessing whether a practitioner’s fitness to practise is impaired, a committee should consider not only future risk to patients, “but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made” (Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Another [2011] EWHC 927 (Admin)). Mention was made of another judgment where the court rejected the proposition that a doctor’s fitness to practise must be impaired if he has acted dishonestly: “...even in cases of dishonesty, a separate assessment of impairment is required, and not every act of dishonesty results in impairment” (Professional Standards Authority for Health and Social Care v GMC and Uppal [2015] EWHC 1304 (Admin)). It was noted that in that case, and notwithstanding the dishonesty, the court upheld the finding of no impairment, in that the doctor was guilty of “an isolated lapse in an otherwise unblemished career”. The judge explained that the risk of repetition was extremely low, and professional standards had been upheld and public confidence in the profession maintained by the fact that the doctor “had undergone a rigorous disciplinary assessment of her fitness to practise, resulting in a finding of misconduct on her record, with the option of a warning by way of sanction.” (The latter option is not available in the case of a nurse or a midwife unless a finding of impairment is made, a curiosity which no one at the appeal hearing was able to explain.)
[9] The committee noted that, while no direct patient harm was caused by the administration of phenobarbitone, for a period there was a deprivation of adequate pain relief. It had regard to the issues of insight and remediation, and considered the full circumstances surrounding the events. The nurse made “immediate admissions” and checked the patient’s welfare. Reference was made to the evidence of SM that she panicked. She said that she “did not act logically” in circumstances which amounted to “the last straw”. The context for this comment was a previous incident in which she had been let down by her manager, something which had a traumatic and significant impact upon SM. In addition management had paid no attention to her concerns as to...
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