Kamberova v Nursing and Midwifery Council  EWHC 2955
An appeal brought by a registered nurse against a 12-month suspension order imposed by the Council's Conduct and Competence Committee was allowed by the Administrative Court.
The sanction was imposed following a 10-day substantive hearing in which 5 out of 8 allegations of misconduct and competency were found proved in respect of the Appellant's practise as a nurse in the children's accident and emergency department at Darent Valley Hospital.
The appeal was brought against the findings of misconduct and competence which were dismissed, however, a further ground of appeal against sanction was upheld by Mr Justice Dingemans.
This appeal highlights the importance of disposing of cases in a timely fashion and sets out the need for Regulatory panels to take any period of time served by a Registrant under an interim suspension order into consideration when considering the proportionality of sanction.
The substantive hearing took place on several dates between September and December 2015 and related to allegations of misconduct and lack of competence between April 2013-May 2014; 5 of the 8 allegations were proved and a finding of misconduct and impairment followed.
The allegations related to the Appellant's employment as a band 5 nurse in the children's accident and emergency department at the Darent Valley Hospital; on April 2013 she was found to have falsely recorded observations of a patient in circumstances where no such observations took place and the Appellant's conduct was subsequently found to have been dishonest in this regard. On 20 April 2014 the Appellant was found to have been unable to properly change a Jelonet dressing and finally, on 20 May 2014 she had recorded a patient's paediatric early warning score ("PEWS") as zero without having first taken a respiration rate.
The Appellant sought to challenge the findings of fact on several grounds, however these were dismissed by the Judge at paragraph 26 who stated that there were "no grounds of appeal which would justify setting aside the findings in relation to [the]charges…made by the Committee".
The Appellant successfully challenged the 12-month suspension order imposed by submitting that the time she had spent subject to an interim suspension order whilst waiting for the substantive hearing to conclude had not been taken into account by the panel when imposing sanction.
The Judge considered the guideline case of Okeke v Nursing and Midwifery Council  EWHC 714 (Admin). This case is authority that, with regards to lack of competence, interim suspension is not counted as qualifying time when a reviewing panel considers its power to strike a Registrant off the Register pursuant to Article 29(6) of the Nursing and Midwifery Order 2001. However, Okeke does not comment upon whether or not a panel should take any period of time served by a Registrant under an interim suspension order into consideration when considering the proportionality of sanction.
Similarly, at paragraph 37, the Judge found that the Council's Indicative Sanctions Guidance to panels "fails to make it clear that time spent subject to an ISO may be a relevant factor when determining the proportionality of sanction".
The appeal against sanction was allowed on the basis that the panel had failed to address the issue of the time spent subject to an interim suspension and remitted the issue of sanction back to the Conduct and Competence Committee to be determined afresh.
At paragraph 35 the Council conceded that when considering sanctions a Committee must take into account not just the fact that an interim order had been imposed, but the effect it may have had on the Registrant as, which the Judge found to be the case: "If proceedings are long and delayed and a person is subject to suspension in the interim period, that period of suspension may affect the proportionality of the length of the subsequent period of suspension. Whether it has the effect is for the Committee to determine. If the appropriate sanction is one of striking off, then the fact that there has been an ISO may be of no relevant effect. However of the appropriate sanction is a short period of suspension, the fact that there has been an interim period of suspension may be relevant. This is particularly the case given the number of cases before this court in which ISO's of considerable length have, because of delays in arranging hearings, had to be extended".
This mirrors the Judge's earlier comment at paragraph 8 that "…the length of substantive hearings increase delays and therefore the need for interim suspension orders; increase costs; and cause problems for both the NMC and for registrants as litigants before the Committee".
Whilst clarifying the part an interim order will have to play in the consideration of a panel at sanction stage, this Judgment does not serve to alter the established principles that the purpose of sanction is to maintain public confidence in the regulatory body and to declare and uphold proper standards of conduct and behaviour. Whilst the principal function of sanctions is not to be punitive, they may have punitive effect and any sanction must be proportionate- this now includes the need to take into consideration any time spent subject to interim suspension.