Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council and another  EWCH 4354 (Admin)
The decision of the Nursing and Midwifery Council's Conduct and Competence Committee ["CCC"] was successfully appealed by the Professional Standards Authority. The High Court found that there had been a serious procedural irregularity and that the CCC had not reflected the seriousness of the registrant's conduct during the hearing. This led the High Court to determine that the decision made by the CCC as to sanction was untenable.
The Professional Standards Authority for Health and Social Care ["PSA"] brought an appeal against the decision of the Nursing and Midwifery Council's ["NMC"] Conduct and Competence Committee ["CCC"] against 'M' under s.29 of the National Health Service Reform and Health Care Professions Act 2002.
The appeal was brought on the following grounds:
i) There was a serious procedural irregularity in that the charges of professional misconduct laid against M did not sufficiently reflect the gravity of his conduct;
ii) Alternatively the sanction imposed upon M by the CCC was unduly lenient;
iii) Further or alternatively to (ii) the CCC gave inadequate reasons for its decision to impose a Conditions of Practice Order on M instead of suspension or erasure from the register (striking off).
Background to the case against M (a registered nurse)
The charges against M arose out of an incident which took place in 22 April 2011. During M's shift working on a hospital psychiatric ward, a patient ["Patient A"] struck a charge nurse ["Nurse X"] with a hairbrush causing a laceration above her eye. Nurse X completed a Serious Incident Form immediately after the incident occurred. M was aware Nurse X had done this. M did not complete a Serious Incident Form but noted the incident on his Electronic Patient Journey System ["EPJS"]. M did not note any concerns he had with the incident onto the EPJS.
M further did not discuss the incident with management and when the incident was investigated by Police, he requested to be removed as a witness stating the following; "the statement that I give would not help [Charge Nurse X's] case as I did have concerns for the events of the shift/period in question". M proceeded to inform his supervisor that he had witnessed Nurse X standing on a sofa, jumping onto the back of Patient A and holding her in a headlock. He also said that Nurse X had been verbally abusive to Patient A.
Nurse X's conduct was referred to the NMC Investigating Committee ["IC"] which found that there was no case to answer against Nurse X due a lack of evidence. This outcome may have differed if M had reported what he had seen.
M was referred by the NMC to the CCC for failing to report what he had seen. The CCC found that his fitness to practise was impaired by reason of his misconduct and a Conditions of Practice Order was imposed on M's registration for a period of 9 months.
Handed down by Andrews J DBE
The Court was directed by the PSA to Ruscillo v Council for the Regulation of Health Care Professionals and General Medical Council  EWCH Civ 1356 which provides that the PSA can appeal a decision by a disciplinary tribunal on the grounds that a decision was "unduly lenient". Upon receipt of such an appeal, the Court has the power to either allow the appeal and choose between substituting its own decision or remitting the case for determination by a differently constituted disciplinary panel, or, if the Court concludes that there has been a serious procedural and/or other irregularity and it is unable to decipher whether the decision was wrong, it can allow the appeal and remit the case to the disciplinary tribunal with directions as to how to proceed. Serious procedural irregularity covers undercharging and/or providing adequate reasoning.
The PSA argued that there was enough information in the case for the IC to have concluded that there was a case to answer on dishonesty. The NMC contended that the decision not to charge M with dishonesty was a reasonable one; reference was made to Uddin v General Medical Council  EWCH 2669 (Admin) in that there were obvious alternative explanations for M's conduct in question.
Andrews J. found that this was not a case whereby dishonesty should have been alleged and that the series of events revealed M's reluctance to whistle-blow. She nonetheless criticised the NMC for not adequately reflecting the seriousness of M's conduct within the charges put before the CCC.
Andrews J. found that "nowhere in the decision does the CCC address the reason why it took M five months to report X's inappropriate behaviour" and that "in my judgement it [the panel] failed to take into account factors that were of paradigm importance in determining what the sanction should be." The Judge cited CHRE v GDC; Marshall  EWHC 1870 in order to demonstrate that it is a serious procedural irregularity where a disciplinary tribunal provides inadequate reasoning for its decision as to sanction. In consideration of this, it was found that M's case was one of inadequate reasoning rather than an unduly lenient disposal.
Andrews J. allowed the appeal and quashed the decision of the CCC. She further directed that the NMC amend their charges "so as to clearly assert that the reason (or motive) for M's failure to escalate his concerns".