Wisniewska v NMC [2016] EWHC 2672 (Admin)

Posted by Matthew Corrie on
This decision serves as a reminder not only that fitness to practise committees must ensure that they take all relevant matters into account at the appropriate stage, but also that they must show that they have done so in their reasoning.

High Level Summary

This was an appeal against the decision of the Nursing and Midwifery Council's Competence and Conduct Committee to impose a striking off order, consequent upon its finding that her fitness to practice was impaired.

Facts

The appellant is a registered nurse.   In July 2014 she appeared before a Conduct and Competence Committee in relation to allegations that, whilst she had been on sick leave from her employer she had on nine occasions worked shifts as a bank nurse elsewhere and that she had failed to mention this at her return to work interview.  She admitted these allegations and that her actions were dishonest. She also faced allegations that she had failed to apply a dressing and had failed to conduct an electrocardiogram when requested to do so.  These were contested and proved, however the failure to carry out a cardiogram did not amount to misconduct.  The sanction imposed was 6 months suspension from the register.

The appellant faced further proceedings before the Nursing and Midwifery Council for failing to notify a subsequent employer:

  • Of the previous referral to the Nursing and Midwifery Council; and
  • Of her previous employment and the reasons for leaving that employment.

The appellant had been notified of the earlier referral on 29 October 2012; however, on the 8 November 2013 she applied for a position at the Princess Alexandra Hospital NHS Trust ("the Trust").  In the application she stated that she was not currently subject to fitness to practise proceedings. Further, at interview on 5 December 2016 she declined to mention the previous referral.  The appellant was successful in her application and commenced employment in March 2014 and again did not mention the referral.

At a hearing in April 2016, the Appellant faced six allegations including: providing misleading information on her application form; not informing the Trust during her interview that she was under investigation; failing to declare her previous employment at the Trust and the reasons for leaving that employment and dishonesty allegations related to these.  These allegations were admitted and it was conceded that her actions amounted to professional misconduct and that she was currently impaired.

In reaching its decision that her conduct amounted to misconduct and that her fitness to practise was impaired the Committee concluded that: her actions had put patients at unwarranted risk of harm; she had breached a fundamental tenet of the profession; the dishonesty was prolonged; there was limited insight and remorse; there was an absence of remediation and that there was a risk of repetition.  Further it was considered that a finding of impairment was required to maintain public confidence in the profession.

The panel rejected submissions that the appropriate sanction was suspension and the appellant was struck off.

Three grounds of appeal were advanced:

  • That the Committee had failed to properly evaluate the mitigating features of the case when considering the suspension order;
  • The Committee was wrong to conclude that the appellant posed a risk of harm to patients in its consideration of impairment and that this erroneous decision being relied upon at sanction invalidated that decision;
  • The Committee's decision on impairment was wrong in that irrational findings were made in respect of insight and remediation and that this invalidated the decision on sanction.

Judgment

Dealing with each of the grounds in turn:

  • Hayden J made reference to the principles set out in O v NMC [2015] EWHC 2949 (Admin) and the Indicative Sanctions Guidance (‘the guidance’) published by the Nursing and Midwifery Council. Namely, that where there are only two options, as was the case here, i. e. striking off or suspension, it is critical that the available mitigation is applied not only when considering striking off but also when evaluating the proportionality of a suspension. He found that it was impossible to evaluate what weight the Committee had given to the mitigation advanced on behalf of the appellant.  
  • It was held that there was no evidence identified in the written reasoning that the appellant had or would put patients at unwarranted risk of harm.  Further, it was clear that the Committee had incorporated this conclusion, which was unsupportable, into their justification for a striking off order and so said order could not be sustained.
  • The Committee’s conclusion that there was no evidence of remediation was ‘plainly wrong’.  Further, rather than there being any evidence to support the Committee's view that she had appeared to place her wellbeing above that of patients and the reputation of the profession, there was compelling evidence to the contrary.  The Committee’s reasoning was considered to have been illogical such that it rendered the decision on sanction unreliable.

The appeal was allowed and a twelve month suspension order imposed.

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Matthew is a Barrister in our Professional Regulatory team based in our London office.

Matthew Corrie
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