Professional Standards Authority –v- Nursing and Midwifery Council & Ors

Eimear Burke examines the Judgment of the UK High Court in the recent case of Professional Standards Authority –v- Nursing and Midwifery Council & Ors. This case is of interest to regulatory bodies in terms of their overarching public protection role and specifically how the manner in which allegations levelled against Registrants are drafted may impact on fulfilment of this role.

Facts:

• Nurse X had allegedly been assaulted by Patient A
• Nurse M was a witness to the assault and became the subject of this Inquiry.
• Nurse M did not raise any issue with the account of the event that Nurse X reported to management at the time of the incident.
• Four months later, in the context of a police investigation into the assault, Nurse M reported to management that he digressed from X’s account of events.
• Nurse M reported that what had actually occurred was that Nurse X had jumped on Patient A’s back and held her in a headlock.
• No charges were brought against Nurse X due to a lack of corroborative evidence, as Nurse M was not willing to give evidence against X in a police investigation.

NMC Inquiry:

The matter was referred to the NMC’s Conduct and Competence Committee (“CCC”) in respect of Nurse M’s:

• Failure to complete a serious incident report in relation to the allegation that Patient A had assaulted Nurse X, and
• Failure to immediately report witnessing Nurse X acting inappropriately towards Patient A.

It was found by the CCC that the failure to complete the incident report form was not professional misconduct, because Nurse M had been told by another nurse that she would complete this form. A finding of serious professional misconduct was made in respect of the failure to immediately report Nurse X acting inappropriately, on the basis that the delay of 5 months was “totally unacceptable”. A sanction of conditions was applied, involving education in safeguarding procedures and reporting. This was appealed to the High Court by the Professional Standards Authority (“PSA”), on the basis that the charges of professional misconduct brought against Nurse M did not sufficiently reflect the gravity of his conduct, and also that the sanction imposed was unduly lenient.

High Court Decision

The Court held that

• It was of serious concern that the CCC had not addressed in their decision making process the reason why it took Nurse M 5 months to report Nurse X’s inappropriate behaviour. It seems the CCC attributed his failure to report the incident to a lack of knowledge of reporting requirements (despite the fact that Nurse M gave evidence that he was familiar with these)
• The CCC had not addressed this issue due to the fact that this was not included in the allegations put before the CCC.
• If the root cause of Nurse M’s conduct was not due to a failure to understand his reporting obligations, and more to do with misguided loyalty to Nurse X, further education is unlikely to have been the solution to this.
• The CCC failed to take into account important factors in determining what the sanction should be. There was sufficient evidence to justify an allegation that Nurse M deliberately failed to report the incident in order to protect Nurse X, and so deliberately put Nurse X’s interests before those of a vulnerable patient, Patient A.
• The Court stated that the root cause of the problem lay in the failure by the NMC to adequately reflect the seriousness of M’s conduct in the charges. The CCC was obliged to investigate the reasons for the failure to report for 5 months. It was deemed to be a case of “under-charging”, on the basis that Nurse M’s reasons for failing to report the incident were particularly relevant in determining:
  • (a) the seriousness of his behaviour; and
  • (b) the appropriate sanction, to include an evaluation of whether the public interests required a suspension of Nurse M from the register.

The Court held that the decision could not stand as it was informed by a “serious procedural irregularity”. The Court directed that the NMC amend the allegations, so as to clearly assert that the reason for Nurse M’s failure to immediately bring his concerns about Nurse X’s behaviour was his desire to support or protect his colleague, Nurse X. The Court held that the sanction applied was made without adequate consideration of the reasons for the failure to report the incident and the underlying risk that the reason for this was Nurse M placing his colleague’s interests over public protection and patient safety. In the course of the appeal, the NMC submitted that it was unnecessary for the allegations to have explicitly included Nurse M’s motives for keeping quiet. However, the Court felt that a Registrant facing a disciplinary Inquiry is entitled to know the case he has to meet. This case highlights the manner in which the PSA considers protection of the public as having ultimate importance for regulators. Remember that this article is for information purposes only and does not constitute legal advice. Specific advice should always be taken in given situations. For further information please contact Eimear Burke of the Public and Regulatory Team at McDowell Purcell.