Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council [2017] CSIH 29 (Inner House, Extra Division)

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Summary

An appeal by the PSA after a decision by the NMC that a nurse's fitness to practise was not impaired despite a finding of dishonesty. The appeal was refused on the grounds that to make such a finding was a discrete exercise to be addressed on its merits.

Facts

At the fitness to practise hearing of the NMC's Conduct and Competence Committee on 21 and 22 March 2016, the Council brought charges against a nurse (SM) involving: Administering the wrong medication to an end of life patient, thus depriving the patient of pain relief, but without causing direct harm; destroying medication to conceal her error; making incorrect entries in the Controlled Drugs Register; forging a colleague's signature and failing to report the incident. SM admitted the specific charges but contested the allegation that her fitness to practise was impaired by reason of her misconduct.

The PSA brought the appeal on 9 May 2017 on the grounds that:

"…given the nature and gravity of the misconduct, the failure to make a finding of impaired fitness to practise was "manifestly inappropriate"…"

The PSA contended that in light of the finding of dishonesty, the decision of no impairment and therefore no sanction, was insufficient to maintain both public confidence in the profession and proper professional standards and conduct.

The PSA submitted that the Committee misdirected itself as to the decision in PSA v GMC and Uppal [2015] EWHC 1304 (Admin) , para 75, where it is noted that a finding of no impairment of a nurse should be scrutinised with care because it amounted to a complete acquittal.

The PSA asked the Court to quash the decision of the NMC, make a finding of impairment and impose an appropriate penalty; or failing that, to remit the matter to a committee to dispose of the case in accordance with the Court's directions.

Judgment

Opinion of the Court delivered by Lord Malcolm

The Court refused the Appeal.

The Court reinforced the provision in the Cheatle v GMC [200] EWCH 645 (Admin), para 20 that:

"…the (practitioner's) misconduct may be such that, seen within the context of an otherwise unblemished record, a fitness to practise panel could conclude that, looking forward, his/her fitness to practise is not impaired, despite the misconduct." – Cranston J

The Court found no issue with the Committee's reliance on "early admissions" as part of their reasoning for the finding of no impairment:

"…we have found no material flaw or fault in the committee's consideration of the evidence before it, and certainly nothing which would allow the court to interfere with its ultimate decision..." [para 29]

The Court found that deciding on whether to make a finding of impairment is a discrete exercise to be addressed on its merits and echoed the comments in Uppal that a finding of impairment is not necessary to uphold public confidence where a charge of dishonesty is upheld:

"Professional standards and public confidence have been upheld by a rigorous regulatory process which resulted in a finding of misconduct." [para 30]

The Court warned against the making of a finding of impairment to enable the enforcement of a perceived necessary penalty.

The Court attributed any fault for not providing a sanction to the limiting provisions of the legislation (The Nursing and Midwifery Order 2001 (SI 2002/253)), rather than to the Committee, as the Order provides that to give a sanction, the Committee must find current impairment.

Commentary

This is an important case for regulators and parties involved in the professional regulatory process, as it reinforces the trend (also followed in PSA v GMC and Uppal [2015]) of accepting that a finding of misconduct can function to uphold the professional standards and public confidence, without need for a finding of impairment.