Odoi-Asare v Nursing and Midwifery Council [2014] EWHC 1151 (Admin)

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The Appellant, a registered nurse, was a band six health visitor and had been a nurse for 30 years. She was the named health visitor for a vulnerable child, C.

Complaints were made relating to the care provided to C by the Appellant and the matter was referred to the Conduct and Competence Committee of the Respondent Nursing and Midwifery Council (NMC) (the panel).

A number of the matters with which the Appellant was charged were admitted or found proved. They included the Appellant's failure to notify C's social worker that his mother had threatened to take him to another country during a home visit.

They also included her failure to record a number of incidents that had occurred to C on the trust's database and her failure to record any interactions, observations or risk assessments which would have been conducted during certain home visits.

In relation to the issue of impairment, the panel took into account evidence from the NHS foundation trust's (the trust) clinical services manager that the Appellant had had the necessary supervision and had been assessed and signed off as competent.

It also considered evidence from the Appellant's mentor that the Appellant had reflected upon the incidents and had insight into her capabilities. The Appellant gave evidence that she had learned from her mistake. She gave evidence of remedial action which she had taken in relation to her record keeping.

However, the panel stated that although it was satisfied there were no issues with the Appellant's clinical performance, it was concerned that she was receiving a significant amount of support from her employer and that she was still receiving weekly supervision meetings.

The panel concluded that, accordingly, her practise had not been tested in a stressful, high-pressured and less supported work environment which had been the setting in which the incident which had led to the instant proceedings had occurred. The panel considered that, in the light of their findings of fact, the Appellant's fitness to practice was impaired by reason of misconduct. The panel imposed a caution order for a period of 30 months.

The Appellant appealed.

The claimant submitted, inter alia, that; first, the panel had failed to have proper regard to the relevant authorities, where the approach taken on impairment had been different depending on whether the misconduct had been clinical or non-clinical and with that whether it had been capable of being remedied.

Secondly, the panel had been wrong to conclude on the facts that the Appellant's fitness to practice had been impaired.

Thirdly, the panel had failed to provide sufficient reasons as to why public trust and confidence in the profession would be seriously undermined if a finding of no impairment had been made.

Fourthly, the panel had incorrectly concluded that: (i) the Appellant had been continuing to receive weekly supervision meetings; (ii) her clinical practise had not been tested in a stressful and high-pressure environment; and (iii) that the misconduct had been particularly serious having previously stated that the facts found proven had not been at the higher ended of the spectrum of seriousness.

Fifthly, the panel in its findings on impairment had failed to pay sufficient or any weight to various relevant factors. Finally, the sanction imposed had been excessive and disproportionate in the circumstances.

The appeal would be dismissed.

(1) The approach to be applied to impairment in each case was the same. It was the act of misconduct which had to be considered, not whether the misconduct was clinical or non-clinical. The wider public interest was engaged in each case (see [47] of the judgment)

In the instant case, the panel had not failed properly to apply the test for impairment. The panel had followed the correct approach by adopting the required two-stage process. They had considered the relevant guidance and asked themselves whether the Appellant had acted so as to put a patient at unwarranted risk of harm, and brought the nursing profession into disrepute and/or had breached one of the fundamental tenets of the nursing profession.

The panel's reasons had made plain that it had viewed the Appellant's clinical failings to be so serious that even the accepted remediation had not been enough to enable it to uphold the public interest without a finding of impairment (see [46] of the judgment) Meadow v General Medical Council [2006] All ER (D) 315 (Oct) considered; Azzam v General Medical Council[2008] All ER (D) 149 (Dec) considered; Yeong v General Medical Council [2009] All ER (D) 300 (Jul) considered; Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council [2011] All ER (D) 159 (Apr) considered.

(2) The panel had had regard to all relevant matters in its decision that the Appellant's fitness to practice had been impaired. It had considered that the Appellant's misconduct had been serious and had had the potential to put C, a vulnerable patient, at risk of harm.

On the evidence the panel had been entitled to conclude that the misconduct had been of a particularly serious nature such as to conclude that public trust and confidence in the profession would have been seriously undermined if a finding of no impairment had been made (see [51] of the judgment).

(3) In the instant case, the panel had provided proper and adequate reasons as to why public trust and confidence in the profession would be seriously undermined if a finding of no impairment had been made (see [54] of the judgment).

(4) On the evidence, the panel had been entitled to conclude that the Appellant had been continuing to receive weekly supervision meetings. Further, the panel's observation that the Appellant's clinical practice had not been tested in a stressful and high pressured environment had really been no more than an observation made by the panel on the findings of fact that it had been entitled to make.

Furthermore, the observations the panel had made that the case had not been at the higher end of the spectrum of seriousness had been made when considering the decision on interim order when the test had been a different one of whether there had been a risk of harm to patients or to the public interest if the Appellant were allowed to continue to practise.

At the impairment stage the issue had been whether, inter alia, the misconduct had in the past brought and/or was liable in the future to bring the nursing profession into disrepute.

The panel would have expressed itself as to the seriousness of the Appellant's conduct when considering (i) whether or not to make an interim order, and (ii) on the issue of current impairment, having regard to the test that it had to apply in relation to each distinct issue (see [51], [61], [65], [67] of the judgment).

(5) In the instant case, the panel had not failed to give sufficient or any weight to relevant factors. The reasons given by the panel had demonstrated that it had very much in mind the evidence of the Appellant and that had provided on her behalf in testimonials, and the evidence relating to insight, remorse and her unblemished career.

Further, the panel had given proper consideration to the evidence relating to the Appellant's current work environment (see [70] of the judgment).

(6) Having regard to the Appellant's proven misconduct and the interests of the public, the imposition of a 30-month caution order had plainly not been inappropriate (see [78] of the judgment).

Reproduced with kind permission of LexisLibrary.