PSA v NMC and X [2018] EWHC 70 (Admin)

Posted by Krystal Whyment on
This case concerns an appeal by the Professional Standards for Health and Social Care ["PSA"] against the decision of the NMC not to pursue allegations that a Registrant ["Miss X"] was responsible for non-accidental injuries to her son ["Baby A"] and/or a failure to protect Baby A from harm.

By way of brief background, Miss X gave birth to Baby A on 15 January 2014. Within 6 weeks of giving birth (by Caesarean), she returned to work.

On 4 March 2014, Miss X reported two bruises to her son's face to a health visitor. She told the health visitor that she had discussed the bruises with a GP who was considering a blood disorder. This was not true as Miss X had not visited a GP around this time.

On 13 March 2014, Miss X did take her son to a GP to report the bruises. The GP advised Miss X to take Baby A to the hospital. Miss X did not adhere to the GP's advice.

On 11 April 2014, Miss X reported bruises to a health visitor and advised that she had not taken Baby A for blood tests due to personal circumstances. Those circumstances being that she and her partner had separated (it later transpired that she had assaulted him). The health visitor arranged for an appointment with a GP later that day, however, Miss X did not take Baby A to the appointment. Due to concerns surrounding Miss X's attitude towards Baby A, the health visitor arranged for a GP to conduct a home visit. The home visit did not take place as Miss X cancelled it.

On 17 April 2014, Miss X told a health visitor that the GP was not unduly worried about the bruises and that blood tests were being considered. The health visitor telephoned the Safeguarding Nurse Advisor [SNA] with a view to making a referral to social services. The SNA did not consider it appropriate to make such a referral at that time.

On 22 April 2014, Miss X reported a bruise to Baby A's chin to a health visitor. An urgent referral was made to a GP and, following a report by the health visitor, admitted to hospital. Baby A was found to have been suffering from "significant injuries…non-accidental in nature" which included multiple rib and leg fractures dating back to when Baby A was approximately 6 weeks old.

There were Family Court proceedings in December 2014 and, in short, the determination was that Miss X and her partner were potentially responsible for Baby A's injuries. Both Miss X and her partner were found to have failed to protect Baby A.

A police investigation was conducted and Miss X was suspended from employment pending its own investigation. At the same time, Miss X's employer made a referral to the NMC.

The outcome of the police investigation was that there was insufficient evidence to pursue a criminal case against Miss X. As such, the police investigation was closed in April 2015.

On 29 May 2015, prior to any internal investigation by her employer, Miss X resigned.

On 3 June 2015, the NMC wrote to the Family Court requesting a copy of the hearing, a copy of the judgment and a copy of a psychological assessment report which it had obtained (indicating concerns for Miss X's mental health). The NMC relied upon the Data Protection Act 1998 and its powers within the Nursing and Midwifery Order 2001, 2001 SI No 253 to require any person to produce a document which appears relevant to discharge its functions. The NMC stated that the disclosure was necessary to investigate Miss X's fitness to practise "given the seriousness of the concerns raised".

On 15 June 2015, Miss X was dismissed following a disciplinary hearing which she did not attend. Her employer held that she had failed to protect Baby A. On that same day, the Family Court wrote to the NMC advising them that the documentation requested was confidential and that an application ought to be submitted with supporting arguments. The NMC did not make such an application (at this time or at a later stage).

In September 2016, the NMC prepared an investigation report which was to go to its Case Examiners. Within that report, the NMC noted a concern that Miss X was "wholly or partly responsible for the non-accidental injuries to [Baby A] and/or did not protect [Baby A] from harm".

The NMC wrongly advised the Case Examiners within that report that, despite "attempts", the Family Court had refused to release the requested documentation unless it had the consent of all parties (interestingly, even had the Family Court's response said this, the NMC made no attempt to obtain the parties' consent and made no further attempt to obtain the documentation). In addition, the investigation report only referred to Baby A's bruising and not his suffering from non-accidental multiple broken ribs and legs.

As a result of this incorrect information, the Case Examiners determined that the suggestion that Miss X was "wholly or partly responsible for the non-accidental injuries to [Baby A] and/or did not protect [Baby A] from harm" were "factual issues where no case to answer deemed appropriate"[sic]. As a result, the Case Examiners did not refer those concerns to the Fitness to Practise Conduct and Competence Committee. The Case Examiners did, however, make a referral in respect of Miss X's responsibility to protect Baby A from non-accidental harm.

Mrs Justice Laing DBE made significant criticism of the NMC investigator in that:

  1. they failed to pursue the Family Court's invitation for a disclosure application to be made; 
  2. they prepared a report for the Case Examiners which wrongly (taken at its lowest) stated that "attempts" had been made to obtain disclosure from the Family Court but that the request was rejected due to the need for all parties' consent; and 
  3. they prepared a report which omitted Baby A's most significant injuries (and their implications on Miss X's fitness to practise).

Mrs Justice Laing BDE also criticised the Case Examiners decision not to request that further steps be taken to obtain the Family Court's disclosure. She stated, at para 31:
"…there is no conceivable justification for the conclusion that it was neither feasible nor proportionate for the NMC to try to get a copy of the judgment of the Family Court (or of the other document requested in the letter of 3 June 2016). That judgment,(and other documents), were highly relevant…of the very allegation which the NMC was supposed to be investigating…"

A substantive hearing commenced on 3 May 2017 and Miss X attended, represented. One of the allegations she faced (Charge 2) was that she was "directly or indirectly responsible for one or more non-accidental injuries caused to Baby A". Before opening the case for the Committee, the NMC offered no evidence in respect of charge 2 on the basis that the NMC had "taken consideration of all the available evidence [it] could obtain and…taken the view…that there is not sufficient evidence to prove this allegation…there is no case to answer". The NMC stated that the Family Court proceedings were "very confidential" and that it was "not able to obtain" the evidence to support the charge.
The Committee accepted that there had been no case to answer on charge 2 in accordance with rule 24(8) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order 2004, 2004 SI No 1761.

In its determination, the Committee referred only to Baby A suffering from "an injury" as opposed to "injuries" which showed that they were unaware of the true extent of alleged harm suffered by Baby A. Furthermore, it was evident that the Committee had not been made aware that the injuries to Baby A could only have been inflicted by Miss X or her partner.

At para 57, Mrs Justice Laing BDE criticised the NMC's approach in not opening the case for the Committee prior to offering no evidence. She stated:

"I consider that it is especially important, if the NMC considers that it is appropriate to offer no evidence, that it fully opens the case so that the Committee is able to make a decision, informed by a sufficient knowledge of the facts, whether it is appropriate for the NMC to offer no evidence, or whether it should require the NMC to reconsider that view, and try and obtain more evidence…In this case…the Committee were not given the information they needed to make a fully informed decision."

In Ruscillo v Council for the Regulation of Healthcare Professionals [2004] EWCA Civ 1356, the Court determined that a regulator ought to "play a more pro-active role than a judge presiding over a criminal trial in making sure that the case is properly presented and the relevant evidence is placed before it [para 80]."

Mrs Justice Laing DBE allowed the PSA's appeal on the basis that there had been significant flaws in the NMC's processes and that decisions were made which "no reasonable NMC or Committee could have reached".

In summary, she concluded that the NMC was wrong to:

  • Offer no evidence prior to opening its case (depriving the Committee of information regarding Baby A's injuries and the fact that Miss X had accepted the Family Court's findings that Baby A's injuries were non-accidental); 
  • Suggest that the NMC had been unable to obtain documentation from the Family Court when, in fact, only one attempt had been made on 3 June 2015;
  • Suggest that the Family Court would not disclose the documentation without consent of all parties;
  • Suggest that without the Family Court's judgment, the Conduct and Competence Committee would have been unable to find charge 2 proved; 
  • Submit that there was no case to answer on the basis that the NMC could not prove its case as opposed to there being sufficient evidence to raise a case to answer;
  • Suggest that the NMC had no medical records of Baby A (implying that there were none or that they had been requested but not disclosed) when no request was ever made to obtain them;
  • Suggest that there was no evidence to demonstrate that Baby A's injuries were non-accidental when, as a baby who was not independently mobile, it should have been obvious that broken ribs and legs were non-accidental (had the Committee have known about them). 

As a result of these errors, the Committee did not have a clear and accurate picture of the case it was being asked to make a judgment on.

Mrs Justice Laing DBE also made scathing criticism of the legal assessor, stating at paragraph 61 that:
"…the legal assessor gave the Committee the wrong advice. She was wrong to say that the Committee cold, without hearing any evidence…accept a submission of no case to answer. She was wrong to suggest that the Committee's only option was to find that there was no case to answer. The Committee could, for example, have probed the NMC's assertions about its attempts to get evidence…But the Committee was not given the information which would have enabled it to exercise this option, because of the partial and inaccurate way in which the case was presented to it."

Commentary

This case highlights the following for regulators to ensure that:

  1. Sufficient steps are taken to obtain all relevant evidence upon which they seek to rely;
  2. The information it provides to their Case Examiners (or equivalent) is accurate and properly reflects the evidential position; 
  3. They open the case prior to a submission of no case to answer being made, allowing the Committee to be provided with all of the relevant information (including the Council's positive case);
  4. A submission of no case to answer is made on the basis that there is insufficient evidence for there to be a case to answer (not that there is insufficient to prove the charge);
  5. They do not mislead any party when suggesting/submitting that evidence is unavailable.

About the Author

Krystal is a Barrister in the Professional Regulatory team. She has a wide range of experience in regulatory matters, acting both for the professional and the regulator.

Krystal Whyment
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0207 814 6853

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