Case Summary – PSA v Silva and The Nursing and Midwifery Council [2016] EWHC 754 Admin

Posted by Emma Bradley on

High Level Summary

On 5 November 2015, a panel of the Conduct and Competence Committee ["the CCC"] of the Nursing and Midwifery Council ["the NMC"] found that Mr Silva's ["the Registrant"] failure to refer complaints of abuse made by elderly patients with dementia amounted to serious professional misconduct.

Although the CCC found the Registrant's failure amounted to misconduct, they concluded that his fitness to practise was currently not impaired.

The Professional Standards Authority ["the PSA"] subsequently brought an appeal against the CCC's decision, citing that the decision was unduly lenient. The appeal was brought on the grounds that the NMC had committed a 'serious procedural irregularity', in that no allegations had been brought to reflect the reasons for the Registrant's failure to refer complaints to Safeguarding and the Registrant's motivation in not so doing. The PSA argued that these allegations were highly relevant and significant matters which should have been considered by the CCC.

The appeal was allowed on the ground that a serious procedural irregularity had occurred. The court emphasized the importance of the absent allegations and stated that without these, the CCC could not fully understand the reasons why the Registrant's fitness to practise was previously impaired and as such, they were unable to properly address the issue of impairment.

The appeal directed that the matter be remitted to a freshly constituted panel for rehearing and that the NMC draft charges which reflected the missing allegations.

Facts

The Registrant was the acting manager at a care home, which primarily cared for elderly patients, including patients who suffered from dementia. A member of staff received complaints from 3 elderly residents at the home regarding complaints of abuse by another member of staff. The complaints were then reported to the Registrant. It was identified that the Registrant had not taken the concerns seriously and had not referred the complaints to Safeguarding. The Registrant was suspended from work and later resigned from that employment.

The Registrant was subsequently referred to the NMC and a hearing took place in November 2015. The Registrant admitted all of the factual allegations at the outset of the hearing; however, he denied that his fitness to practise was impaired by reason of misconduct. The CCC concluded that the Registrant was guilty of serious professional misconduct and that the Registrant was under a clear duty to refer the complaints to Safeguarding. When considering the issue of impairment, the CCC noted that the Registrant had recognised his failings and taken substantial steps to remedy those matters. The CCC concluded that although the Registrant's fitness to practise was impaired at the time of the incidents, his fitness to practise was not currently impaired.

The PSA subsequently appealed the decision of the CCC and the appeal was heard in March 2016. The PSA submitted that the CCC's decision arose from a serious procedural irregularity. They argued that the NMC had failed to draft allegations which set out the Registrant's motivation and the reasons for the Registrant's failure to refer the complaints to Safeguarding. The PSA argued that the NMC had failed to include the following key allegations:

  1. That the Registrant had ordered a member of staff, who was reporting the allegations of abuse, to stop making inquiries into those allegations;
  2. That the Registrant made offensive comments about the residents who were making allegations of abuse;
  3. When the Registrant was left a written note by a member of staff, which concerned the abuse of a resident, the Registrant used the paper for other purposes.

In light of the above, the PSA argued that the CCC had failed to identify the seriousness of the Registrant's misconduct. The PSA highlighted that the CCC had failed to consider:

  • the fundamental importance of safeguarding in a case involving vulnerable residents in a nursing home;
  • the Registrant's position of trust and the fact that his actions amounted to a breach of that trust;
  • the risk posed to the residents of the Home and whether the facts, which were admitted by the Registrant and found proved, demonstrated a deep-seated attitudinal problem on the part of the Registrant.

Judgment

Holroyde J allowed the appeal on the ground that a serious procedural irregularity had occurred. He concluded that the three missing allegations would have assisted the Panel in determining whether the Registrant had a serious underlying attitudinal problem, which could affect his ability to care for elderly patients; in particular patients suffering with dementia. Applying the principles set out in Ruscillo v Council for the Regulation of Health Care Professionals and General Medical Council [2004] EWCA Civ 1356, it was held that the CCC's failure to consider the three allegations rendered their decision unduly lenient.

It was also agreed that it is 'not absolutely necessary' for each allegation to be included within a specific charge. Holroyde J noted that it is acceptable to proceed on the basis of a general charge, which contains a number of specific allegations within it.

Holroyde J concluded that the Panel could not properly address the issue of impairment, without considering the significance of the three missing allegations. This meant that the CCC could not have properly considered whether the Registrant was currently fit to practise, as they had not fully understood the reasons why the Registrant's fitness to practise was previously impaired.

As such, Holroyde J quashed the determination and directed that the case was heard again by a differently constituted panel. Furthermore, Holroyde J ordered the NMC to draft charges which addressed the reasons for the Registrant's failure to refer complaints to Safeguarding and the Registrant's motivation. 

About the Author

Emma Bradley is a Trainee Solicitor in the Commercial Litigation team, based in London.

Emma Bradley
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