Muhwati v Nursing And Midwifery Council [2014] EWHC 2549 (Admin)

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Facts

The appellant was a registered nurse working at the Anglia Support Partnership, an organisation providing support services to various NHS bodies in the East of England. At the start of her employment she underwent an induction programme, a later record of which purported to show that the appellant had been told that she was not to be allocated any immunisation or venepuncture appointments until she had received up-to-date training.

On 11 April 2011, a patient contacted the Anglia Support Partnership requesting a Hepatitis B booster vaccination. The patient was booked in to a clinic the following week where an appropriate clinician would be available to give the immunisation. The patient attended at the clinic the following day on 12 April 2011, ahead of her appointment, where she was seen by the appellant. Following a conversation with a doctor (Dr Irish), at the clinic, the appellant proceeded to administer the immunisation to the patient and recorded this in the notes. The appellant did not locate a sharps disposal container and did not ascertain the availability of essential emergency equipment (adrenaline) prior to administering the immunisation. The appellant later argued that she had subsequently found the sharps disposal bin and that she knew where the adrenaline was located.

The appellant informed her manager, Ms Dawson, that the patient had attended the clinic. Ms Dawson reported to the Committee that the appellant had told her the immunisation had been administered by Dr Irish. The appellant retorted that she had not said Dr Irish had administered the immunisation but rather had confirmed Dr Irish was in the clinic at that time.

The charges against the Appellant were therefore:

  1. That she administered a Hepatitis B immunisation:

    (a) Against the instructions of her employer;
    (b) when she was not up-to-date with the required training;
    (c) without first ensuring the availability of essential emergency equipment, namely adrenaline;
    (d) without having first located a sharps disposal container;
  2. That she falsely stated the immunisation had been given by Dr Irish; and
  3. That her conduct was dishonest.

The appellant admitted charges (1) (b) (c) and (d). The Conduct and Competence Committee did not find charge (1) (a) proved but found charges (2) and (3) proved.

The appellant appealed pursuant to article 38 of the Nursing and Midwifery Order 2001 against the decision to find charges (2) and (3) proved; to find the appellant impaired; and to impose a suspension order.

The High Court had to determine whether: (i) the Committee's finding that the appellant knew she should not have administered the immunisation was wrong and/or logically inconsistent with its finding that charge (1a) was not proved; (ii) whether the Committee was wrong to conclude that the finding that the appellant knew she should not administer the immunisation supported charge (2); (iii) the Committee should not have relied upon Ms Dawson's evidence; and (iv) the Committee was wrong to find the appellant impaired and impose a suspension order.

The appeal was dismissed.

Judgment

Handed down by Judge McKenna (Sitting as a Deputy Judge of the High Court)

McKenna J considered Gupta v GMC [2002] 1 WLR 1691 in relation to the proper assessment of evidence by an appeal court. McKenna J directed the court to Lord Rodger's notes at (10) that "In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by witnesses… the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters if more likely to be correct than any decision of the court which cannot deploy those factors…" These notes carry particular relevance in looking at McKenna J's decision to dismiss ground 3 of the appeal.

Ground 1 – Finding of Fact:

The appellant submitted that there was no evidence that she knew it was wrong to have administered the immunisation, on the basis that the alleged instruction from her employer to this end was found not to be proved. Moreover, it was "perverse" to conclude that the appellant knew she should not have administered the immunisation based on the fact that she was not up-to-date with her training, had not ensured the availability of adrenaline, had not located a sharps disposal container and had not ascertained whether she was authorised to administer the immunisation.

McKenna J rejected the submissions, noting that "the Committee, in my judgment, correctly considered the professional responsibilities of a nurse of the Appellant's seniority, asked relevant questions and concluded by making reasonable inferences from all the circumstances and in particular the absence of a number of identified safeguards that the Appellant knew she should not have administered the immunisation." He concluded it was "frankly implausible" that the appellant would not have known it was wrong to administer the immunisation in light of the fact that there was no sharps bin and no adrenaline available. This ground was therefore dismissed.

Ground 2 – Incorrect Reliance:

The appellant submitted that the Committee had relied upon the finding that the appellant knew she should not have administered the immunisation in support of charge (2) and that this was wrong. McKenna J found that upon a careful reading of the decision, charge (2) was proved on the basis that Ms Dawson's evidence was preferred to that of the appellant's, which was inconsistent. This ground was therefore dismissed.

Ground 3 – Undue Reliance:

The appellant submitted that there was undue reliance on the fact that Ms Dawson contacted Dr Irish after her conversation with the appellant to confirm who had given the immunisation. McKenna J rejected this noting that; the fact Ms Dawson contacted Dr Irish "supported the credibility of her account but was by no means determinative." As with ground (2), the Committee was entitled to prefer the "clear and consistent evidence" of Ms Dawson when compared to the inconsistent evidence offered by the appellant. McKenna J commented that "the Committee had the advantage of hearing the witnesses give their evidence and were able to base their assessment on their demeanour and by weighing up their evidence." This ground of appeal was essentially a disagreement with the Committee's finding of fact and was dismissed.

Ground 5 – Impairment and Sanction (Ground 4 was not pursued):

The appellant submitted that, on the basis of grounds 1-3, it was wrong to find the appellant impaired and impose a suspension order. This was rejected by McKenna J, who noted that the challenge to the finding of impairment depended on the merits of grounds 1-3. As there was no merit in these grounds, there could not be merit in ground 5 and this was also dismissed.