Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 95

XA66/16

 

Lord Menzies

Lord Malcolm

Lord Glennie

OPINION OF THE COURT

delivered by LORD MALCOLM

in the appeal

by

MMALESFSANE SARAH MOLUBI

Appellant

against

NURSING AND MIDWIFERY COUNCIL

Respondent

Appellant:  Lay Representative

Respondent:  Anderson (sol adv); Nursing and Midwifery Council

23 December 2016

[1]        This is an appeal against a decision that Ms Molubi (the appellant) be removed from the register of nurses.  The circumstances are as follows.  In March 2011 the appellant was employed as a senior staff nurse.  An incident occurred in which a patient fell and sustained a head injury.  In due course certain allegations arising out of that incident concerning the conduct of the appellant towards her patient came before a panel of the Conduct and Competence Committee of the Nursing and Midwifery Council (The Council).  Ultimately the panel considered that “by reason of her omissions in record keeping, patient observations and monitoring, and in her failure to communicate with colleagues,” the appellant breached fundamental tenets of standards of conduct, performance and ethics” which had the potential to put the patient at risk of harm.  The omissions were regarded as sufficiently serious to constitute misconduct.  The appellant’s fitness to practise was impaired by reason of her misconduct. 

[2]        The panel asked itself whether she was liable to repeat misconduct of this kind, something which depended upon issues such as insight, remediation, and the appellant’s working history.  It concluded that there remained a real risk of repetition of misconduct of the kind found proved, thereby putting patients at risk of harm.  The sanction imposed was a suspension order for a period of six months.  The view was taken that, given her significant lack of insight and lack of remediation, there were no practical or workable conditions which could be imposed upon her ability to practise which would protect the public.  “The panel has seen no evidence that Ms Molubi understands her personal and professional responsibilities on the night in question, or that she understands the impact her failure to act appropriately had on patient A and the reputation of the nursing profession.”  The panel also took into account that it had seen no information from her current employer attesting to her fitness to practise.  Striking off was not appropriate since the panel concluded that there were steps which the appellant could take which might allow her to practise safely. 

[3]        It was recognised that towards the end of the period of suspension another panel would review the order.  It could revoke the order, confirm it, or replace it with any other sanction available at the substantive hearing.  It was stressed that this could include a striking off order.  The appellant was told that the review panel would be assisted by “a substantial reflective account which demonstrates a full understanding of each of the charges which have been found proved” and an up-to-date reference from her employer.

[4]        In February 2015 the suspension order was reviewed.  The review panel remained concerned that there was inadequate evidence that past failings had been remedied.  Nonetheless the panel acknowledged that the appellant had fully engaged with the process and had demonstrated a commitment to return to nursing practice.  It was concluded that a conditions of practice order would be the most appropriate and proportionate way forward.  An extension of the period of suspension would not allow the appellant an opportunity to address her clinical failings and, in all the circumstances, was not necessary in the public interest. 

[5]        The conditions of practice included supervision requirements and monthly meetings with the appellant’s line manager, mentor or supervisor to discuss performance and progress regarding record keeping, patient observations, and communication with colleagues.  In addition the next review panel was to receive a report from that person setting out the standard of the appellant’s performance and progress in relation to those matters. 

[6]        The above order was reviewed in June 2015.  In the meantime the appellant had found employment as a registered nurse at a Care Home in Edinburgh.  The appellant gave evidence at that hearing.  The panel reached the view that the appellant had demonstrated little evidence of remorse and had not demonstrated any recognition or insight into the risk of harm caused to patient A nor as to the effect of her actions on the reputation of the nursing profession.  It took account of a positive report from a former manager of the Care Home, however recognised that the appellant had only worked there for less than three months.  It was noted that the appellant had experienced difficulties in obtaining a report on monthly meetings with her mentor.  The panel was not satisfied that there had been sufficient demonstration that clinical deficiencies had been remedied.  It was decided that the appellant should be given a further opportunity to demonstrate sufficient insight and to comply with the conditions of practice order.  She was to provide an appropriate report commenting on the frequency of meetings with her mentor, the content of discussions at such meetings, and her performance and progress in relation to record keeping, patient observations and monitoring, and communication with colleagues.  The order would continue for a further period of six months. 

[7]        A third review panel met in November 2015.  It was informed that the appellant had told the Council of further medication errors made by her in August 2015.  Her employer had expressed serious concerns about the quality of the appellant’s work, albeit no formal action was taken.  The appellant telephoned the Council on 21 October to advise that she was being investigated for a subsequent medication error.  The employer advised the Council that this matter remained under investigation.  An unsigned report from the appellant’s mentor had been attached to an email from the Home manager dated 4 November.  It was submitted on behalf of the Council that it fell short of the expectations of the previous panel, though the fault could lie with the employer.  The appellant described her working environment and indicated that it was “scary” as there was no continuity of care within the Home, something which compromised the care of service users.  There had been difficulties in obtaining monthly reports from the mentor.  Some training had been undertaken in food hygiene, infection control and medicines.  The appellant acknowledged that recent drug errors had been made.  Her employers had not investigated them in a satisfactory manner. 

[8]        The panel referred to a record of supervision provided by the mentor dated 2 November.  It included positive comments in support of the appellant’s performance and progress, however the panel was concerned that it represented only a snapshot of her practice during the relevant period.  The panel would have expected to have seen such a report for every month.  It was decided that the appellant should be given a further opportunity to demonstrate sufficient insight and to comply with the conditions, including monthly supervision reports of an appropriate standard.  The order was continued for a further six months. 

[9]        A further review was carried out in May 2016, which led to the decision to strike off the appellant;  this being the decision under challenge.  The hearing commenced on 6 May.  The panel was particularly concerned that the appellant had not complied with the condition requiring a report from her line manager or equivalent.  She was given an opportunity to provide such a report before the resumed hearing on 31 May.  The appellant gave evidence at both hearings.  At the end of the resumed hearing the panel considered all the information before it, including a letter from the manager of the Care Home dated 19 May 2016.  No report complying with the terms of the order had been produced.  The appellant stated that her supervisor was “too scared” to provide a report. 

[10]      The operative part of the panel’s decision is as follows: 

            “The panel had regard to the submissions of both Ms Daignan (made on the last occasion) and Mr McLachlan.  It also had regard to your own representations and the additional on-table documents provided in your support, which comprised of two bundles.  The NMC provided a letter from the manager at the Home dated 19 May 2016.  The panel considered the determination made by the panel on the last occasion that this order was reviewed (5 November 2015).  The panel notes that you have engaged with NMC and have been present both at the substantive hearing and at subsequent review hearings.  The panel is sympathetic as to the assertions you have made with regard to the issues you have faced at the Home and has taken into account the numerous training courses that you have undertaken.  However, this panel observed that your main focus has been to attribute blame for your shortcomings to others and the environment in which you work. 

 

You have placed before this panel, information which demonstrates serious risks and concerns with regard to patients at the Home.  However, you appear to be taking a step backwards in regard to your demonstration of insight into the importance of escalation and the requirement to involve others regarding patient care.  The panel determined that in the light of the charges found proved by the substantive panel and the determinations made by the subsequent reviewing panels, you continue to demonstrate a lack of recognition or insight into the risk of harm you caused to Patient A or the effect of your actions on the reputation of the nursing profession. 

 

The panel took into account the letter from the manager at the Home dated 19 May 2016.  In that letter, she states, that your communication, both oral and documentary is unnecessarily detailed and time wasting.  The letter also contradicts your position for the reason of your supervisor not providing a report on your performance.  With this in mind, it concluded that you continue to pose a risk to patient safety and that your fitness to practice remains impaired by reason of your misconduct.  Indeed, the panel reflected on the fact that although the substantive panel and previous reviewing panels considered that you remained committed to complying with the conditions of practice order and to remediating the deficiencies in your practice, you have been unable to fully do so.  This heightens the panel’s concern regarding the risk of repetition and your level of insight.  The panel were further concerned that given the time that has elapsed since the incident in 2011, you have made little progress to demonstrate your compliance with the conditions of practice order.  The panel considers this to be evidence of a deep-seated attitudinal issue.”

 

[11]      The panel considered what order, if any, to impose.  In the context of continuing or varying the current conditions of practice order, the panel stated: 

“Whilst you have demonstrated a willingness to engage with the current order, you have been unable, for a number of reasons, to demonstrate full compliance with the order.  Your consistent breaches of several conditions of the order had the potential to put patients at risk of harm.  The panel has determined that you continue to demonstrate limited insight into your failings.  It could therefore not be satisfied that you would take up the opportunities for remediation which a further period of a conditions of practice order would present and hence such a sanction is unworkable and therefore inappropriate. 

 

The panel next considered replacing the current conditions of practice order with a suspension order… Despite being given the opportunity to fully demonstrate compliance with the conditions of practice order and to remediate your actions, you have failed to do so.  Instead your continued stance has been to remain in the employment of the Home and to place blame on the organisation and the environment in which you work.  The information available to the panel suggests that you would be highly unlikely to utilise a period of suspension in a way which may remediate your misconduct and would therefore not be an appropriate or proportionate sanction.  Having determined that a suspension order is not sufficient or appropriate to protect patients and the public or to uphold standards and maintain public confidence in the nursing profession, the panel then went on to consider a striking off order. 

 

In light of all of the above factors and in particular your continued assertions since the incident, the substantive hearing and subsequent review hearings, the panel determined that you have demonstrated a deep-seated attitudinal issue towards remedying your failures, insight and complying with the conditions of practice order which is fundamentally incompatible with continuing registration.  In all the circumstances, the panel has concluded that a striking off order is the only proportionate and appropriate sanction necessary to ensure public protection and to maintain confidence in the nursing profession and in the NMC as its regulator. 

 

The panel noted that you have been working as a registered nurse since the current substantive order was imposed in February 2015.  It has limited evidence regarding your current financial circumstances.  The panel has applied the principle of proportionality weighing your interest and the public interest.  The panel has taken into account the gravity of a striking off order and the fact that it will prevent you from practising as a nurse for the foreseeable future.  However, the panel considered the protection of the public by an adequate sanction supersedes your interests.”

 

The Appeal
[12]      The appeal to this court poses two questions in law which reflect the following propositions: 

“1.       The respondent erred in law in their decision to invoke a striking off order.  The order is wrong, unfair, unreasonable and disproportionate in the circumstances of this case.  Okeke v Nursing and Midwifery Council [2013] EWHC 714.

 

2.         The respondent erred in law by their failure to properly protect the appellant’s Article 6 right to a fair and independent hearing/and the appellant’s right to practise her profession under the Human Rights Act 1998.  Tehrani v UK Central Council for Nursing, Midwifery and Health Visiting 2001 SC 581.” 

 

Submissions for the Appellant and the Council
[13]      The lay representative for the appellant correctly acknowledged that the review panel had the power to impose a striking off order, but emphasised that, after the original ruling, there was no further adverse finding in respect of her conduct as a nurse.  It was the Care Home which failed to produce the report.  The letter of 19 May 2016 did not indicate continuing impairment.  In the circumstances the ultimate decision was harsh.  It was disproportionate for a 64 year old to be struck off at the end of her professional life when initially the panel dealing with the original complaint concluded that such would not be appropriate, and imposed only a period of suspension.  Insufficient weight was given to that consideration.  The appellant had “served her sentence”.  She had been under a conditions of practice order for a considerable period, and had not been found guilty of a further offence. 

[14]      Both the lay representative for the appellant and the solicitor advocate for the Council referred the court to certain decisions.  They are helpful for certain statements of general principle, but, as so often, each turned on its own facts.  The solicitor advocate stressed that the purpose of the panel is to maintain discipline and standards, and to protect the reputation of the profession, not to punish individuals.  The court can only interfere if the decision is “plainly wrong”.  In the present case successive review panels gave the appellant a chance to provide reassurance that lessons had been learned such as might allow her return to unrestricted practice.  None of these opportunities were taken.  The conditions were never fulfilled.  Review panels spoke of matters such as limited insight, personal interests being given priority, and recent drug errors.  The conditions imposed reflected those concerns. 

[15]      The review panel in May 2016 reviewed all of this.  It heard evidence from the appellant on 6 and 31 May.  It was submitted that its reasoning displays no error.  There had been the episode of misconduct, and then non-compliance with the panel’s orders over a lengthy period.  The conditions had been imposed in the interests of patient safety.  The panel identified a “deep-seated attitudinal issue.”  It is a specialist tribunal well used to making decisions in the best interests of the public and the profession.  Its reasoning was coherent and error-free. 

 

Discussion and Decision
[16]      It is well settled that the court must afford respect to the decisions of specialist professional tribunals, whose primary concern is the public interest, not the individual circumstances of the person concerned, nor with notions of punishment.  As was observed in Dad v General Dental Council [2010] CSIH 75:  “The court should be slow to interfere with a decision of a professional conduct tribunal as to what is necessary for the protection of the reputation of the profession” (paragraph 13).  The court will only act in cases of clear error, or where an order is excessive or disproportionate.  It is sometimes said that the decision must be “plainly wrong”. 

[17]      It would be difficult not to have sympathy for the appellant, who is approaching the end of her career in public service.  However the court must keep in mind that the panel had the benefit of hearing and seeing her on two separate occasions, which no doubt helped it to form a view as to the “deep-seated attitudinal issue”, something which clearly troubled it.  The reasoning which led to the decision to strike off has been set out in full.  The background is of an initial finding of misconduct which placed a patient at risk, and then a concern held by successive review panels that the appellant continued to pose a risk to patient safety, hence the terms of the conditions imposed.  There had been some further concerning information in the meantime about her work at the Care Home.  Having heard directly from her, the panel was not satisfied as to the appellant’s awareness of the importance of involving others in her patient care.  She continued to have inadequate insight into the risks and concerns generated by the original incident, and as to the impact upon the profession. 

[18]      Had the appellant at any stage been able to demonstrate compliance with all of the conditions of practice imposed upon her, matters might have been different, but the panel concluded that there remained a risk to patient safety.  It was not prepared to allow this risk of a patient being put in harm’s way to continue;  by then there being no reason to believe that things would change for the better.  The appellant had been given every opportunity, but, no doubt for a variety of reasons, had failed to take advantage. 

[19]      The panel considered the various sanctions available to it.  It explained why it was not prepared to impose yet another conditions of practice order, nor repeat the initial period of suspension.  A striking off order was seen as the only proportionate and appropriate sanction.  In our view the panel’s reasoning is coherent and free of any error in law.  We are unable to describe its decision as excessive, disproportionate, or otherwise plainly wrong.  There is nothing to indicate any unfairness or incompatibility with ECHR in either the procedures adopted or the final outcome.  The questions of law are answered as follows: 

            1.         The decision was fair and reasonable.

            2.         The procedure adopted was fair and compatible with ECHR. 

The appeal is refused.