Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 29

XA49/16

 

Lady Paton

Lord Malcolm

Lord Glennie

OPINION OF THE COURT

delivered by LORD MALCOLM

in the Appeal

by

THE PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE

Appellant

against

a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council dated 22 March 2016

Respondent

Appellant:  O’Neill (sol adv);  Brodies LLP

First Respondent:  Anderson (sol adv);  Nursing & Midwifery Council

Second Respondent:  Dunlop QC;  Anderson Strathern LLP

9 May 2017

[1]        In terms of section 29(4) of the National Health Service Reform and Health Care Professions Act 2002, as amended, the Professional Standards Authority for Health and Social Care has asked the court to consider whether a decision of a conduct and competence committee of the Nursing and Midwifery Council dated 22 March 2016 is “not sufficient for the protection of the public.”  This is treated as an appeal by the Authority against the decision (section 29(7)).  A hearing took place on 21 and 22 March 2016 in relation to several charges that a nurse’s fitness to practise was impaired by reason of her misconduct.  The committee made a finding of misconduct;  in particular that the nurse had acted dishonestly after she became aware of a clinical error on her part.  However, it also concluded that the nurse’s fitness to practise was not impaired.  In the absence of such a finding, in terms of the relevant regulations (The Nursing and Midwifery Order 2001) the committee had no power to impose a penalty in respect of the misconduct.  As a result it did not require to consider whether to impose a sanction, and if so, which sanction. 

[2]        In essence, the submission for the Authority is that, given the nature and gravity of the misconduct, the failure to make a finding of impaired fitness to practise was “manifestly inappropriate”;  a reference to a well recognised test for invalidity used in cases of this kind.  It was contended that, given the nurse’s dishonesty, the decision was insufficient to maintain both public confidence in the profession and proper professional standards and conduct – see section 29(4A)(b) and (c).  A finding of unfitness should have been made and an appropriate sanction imposed.  The court was asked to quash the decision, make such a finding, and impose an appropriate penalty;  failing which to remit the matter to a committee to dispose of the case in accordance with the court’s directions (section 29(8)).

 

The Regulatory Regime

[3]        Article 21 of the 2001 Order requires the Council to establish effective arrangements to protect the public from persons whose fitness to practise is impaired.  It can investigate and determine allegations of unfitness based on misconduct;  incompetence;  conviction of a criminal offence;  physical or mental ill health;  deficiency in English;  or a determination of unfitness by another regulatory body.  In terms of Article 29, if a health committee or a conduct and competence committee concludes that such an allegation is well founded, it may refer the matter to mediation or decide that there is no need for further action.  Failing either of these, it can issue a caution;  make a conditions of practice order;  suspend the practitioner;  or strike him or her from the register.  The practitioner can appeal to the court against any such penalty.  It is clear that one purpose of the 2002 Act was to allow for an appeal to be brought against a decision which the Authority considers to be insufficient for protection of the public.  Until a recent amendment, the test was phrased as “unduly lenient”, but no one has suggested that the change in wording is significant for present purposes. 

 

The Charges

[4]        The charges brought against the nurse (SM) can be summarised as follows.  She administered the wrong drug to an end of life patient (phenobarbitone rather than morphine), thus depriving the patient of 24 hours of pain relief (the wrong drug itself caused no direct harm).  In a dishonest attempt to cover up what had happened, SM destroyed two vials of morphine;  made incorrect entries in the controlled drugs book, including a false signature of a colleague;  and failed to report the drugs error to her manager.  While the specific charges were admitted, SM challenged the allegation that her fitness to practise was impaired by reason of her misconduct. 

 

The Background Circumstances

[5]        SM was a senior charge nurse in a busy NHS hospital.  She was asked to refill a morphine syringe for a patient.  As the ward was low on morphine, along with a colleague she obtained two vials from another ward.  Two days later a nurse on the other ward noticed that, rather than two vials of morphine, in error two vials of phenobarbitone had been removed and administered to the patient.  On discovering this, SM checked on and was reassured as to the patient’s wellbeing.  She then attempted to conceal her error in the manner set out in the charges.  Pending an internal investigation, her employers placed her on suspension.  At interview SM admitted what had happened.  She was issued with a first and final written warning and was demoted from a band 7 to a band 5 nurse.

 

The Decision of the Conduct and Competence Committee on Misconduct

[6]        The conduct and competence committee heard evidence from a clinical nurse manager at the hospital.  She described the challenging and demanding role performed by SM, who was and is “a good and professional nurse”.  The committee heard evidence from SM.  It came to the view that she was honest about what had happened.  Private evidence was taken as to certain health issues affecting her at the time.  The committee also had the benefit of a large bundle of documents and statements, including those ingathered in the internal investigation, as well as the investigation report itself. 

[7]        The committee noted that the Council had defined “fitness to practise” as a registrant’s suitability to remain on the register unrestricted.  It considered the proven facts and noted that there were two elements in the charges – the first of a clinical nature, and the second of dishonesty.  As to the first, the committee concluded that there was a single and isolated clinical error (the drugs error) which amounted to a serious departure from the standards expected of a nurse.  As to dishonesty, the committee took account of all the circumstances and the testimonials before it, and the evidence from the manager, all of which was to the effect that SM was an honest person and a good and caring nurse.  It noted that she had health issues at the time of the incident.  SM had described how she “panicked” and acted “impulsively”.  Nevertheless the committee concluded that in amending records and destroying two vials of morphine her actions amounted to dishonest misconduct which breached fundamental tenets of the profession and brought it into disrepute.  SM had fallen short of the conduct and standards expected of a nurse.  Reference was made to the Nursing and Midwifery Code in respect of the need to keep clear and accurate records;  the duty to act immediately to put matters right if a patient suffers harm;  and the obligation to uphold the reputation of the profession at all times. 

 

The Decision on Fitness to Practise

[8]        The committee considered whether SM’s fitness to practise was currently impaired.  It noted that nurses are in a trusted, privileged position, and are expected to act in a professional manner at all times.  Patients and their families must be able to trust a nurse, so nurses must be open and honest.  Reference was made to a judgment of Mrs Justice Cox to the effect that, when assessing whether a practitioner’s fitness to practise is impaired, a committee should consider not only future risk to patients, “but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made” (Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Another [2011] EWHC 927 (Admin)).  Mention was made of another judgment where the court rejected the proposition that a doctor’s fitness to practise must be impaired if he has acted dishonestly:  “...even in cases of dishonesty, a separate assessment of impairment is required, and not every act of dishonesty results in impairment” (Professional Standards Authority for Health and Social Care  v GMC and Uppal [2015] EWHC 1304 (Admin)).  It was noted that in that case, and notwithstanding the dishonesty, the court upheld the finding of no impairment, in that the doctor was guilty of “an isolated lapse in an otherwise unblemished career”.  The judge explained that the risk of repetition was extremely low, and professional standards had been upheld and public confidence in the profession maintained by the fact that the doctor “had undergone a rigorous disciplinary assessment of her fitness to practise, resulting in a finding of misconduct on her record, with the option of a warning by way of sanction.”  (The latter option is not available in the case of a nurse or a midwife unless a finding of impairment is made, a curiosity which no one at the appeal hearing was able to explain.)

[9]        The committee noted that, while no direct patient harm was caused by the administration of phenobarbitone, for a period there was a deprivation of adequate pain relief.  It had regard to the issues of insight and remediation, and considered the full circumstances surrounding the events.  The nurse made “immediate admissions” and checked the patient’s welfare.  Reference was made to the evidence of SM that she panicked.  She said that she “did not act logically” in circumstances which amounted to “the last straw”.  The context for this comment was a previous incident in which she had been let down by her manager, something which had a traumatic and significant impact upon SM.  In addition management had paid no attention to her concerns as to the difficult circumstances on the ward, including staff shortages, and the adverse consequences for staff and patient care.  The committee noted that her trust in management was undermined, adding to her confusion as to how to deal with the error made by her and her colleague.  The committee considered that these were “exceptional circumstances”. 

[10]      The committee also took into account a letter from SM’s GP as to a “a depressive illness which impacted on her concentration and functioning significantly.”  The doctor stated that she had since recovered from the illness, and there were no continuing concerns as to her present fitness. 

[11]      The committee commented that the issue of impairment was “inherently forward looking”.  It considered whether there was a risk of repetition.  It took account of two “reflective pieces” (written statements by SM reflecting on matters and lessons learned);  SM’s “honest and candid oral evidence”;  and the impact which the incident had on her, including demotion.  She had undertaken numerous courses since the events in question, including one entitled “Safe Administration of Medications”.  After an initial period of supervision, SM was once again working as normal.  For the 10 months preceding the hearing she had been in a very different nursing environment with a decreased workload.  She now enjoyed her work.  Her employers were supportive, and the testimonials and the evidence of the nurse manager attested to SM being a “good and competent nurse”.  The committee considered that this was “a single incident in an otherwise long and unblemished career”.  SM had full insight and had undertaken appropriate remediation with regard to the clinical issues.  The committee was convinced that the risk of repetition of the clinical error was very low. 

[12]      The committee considered whether SM’s dishonest misconduct justified a finding of current impairment.  It asked itself whether the public interest required such a finding.  It recognised that its primary function was to protect patients and the wider public interest, which included maintaining confidence in the nursing profession and upholding proper standards and behaviour.  The committee took account of all the information before it, including the wider circumstances which led SM to act in a dishonest manner.  It considered the early admissions.  She had “learned a difficult lesson”.  The positive testimonials spoke of an honest person.  There was no other such incident in her career.  Regard was had to the letter from the GP and the nurse’s health problems at the time.  The committee decided that it could be assured that SM would not repeat her misconduct.  She had engaged fully with the process and had taken responsibility from the outset.  In the view of the committee, “a right minded member of the public, in hearing all of the circumstances of the case, would not require a finding of current impairment.”  For the reasons set out, “a finding of current impairment was not necessary on the grounds of public interest.”  Rather the public interest was best served “by returning a capable, competent and caring nurse to unrestricted practice.” 

 

The Grounds of Appeal

[13]      The grounds of appeal by the Authority, which were elaborated upon in writing, and then orally at the hearing, can be summarised as follows.  The decision was not sufficient for protection of the public.  It did not maintain public confidence in the nursing profession.  Inadequate weight was given to the harm suffered by the patient, namely deprivation of pain relief for 24 hours.  In accepting that the dishonesty was, as put by SM, a “one off” incident, its seriousness was minimised.  The nurse falsified the signature of a colleague;  made two separate amendments to a drugs book;  destroyed controlled drugs;  and kept silent when she realised that colleagues had not reported the incident to management.  The committee did not “test” her evidence that she “wasn’t intending to conceal anything.”  It made no comment on the inconsistency between that and her admission of dishonesty.  The committee should have considered whether this “equivocation” undermined its view that SM had shown appropriate insight and remorse. 

[14]      The committee misdirected itself as to the decision in Uppal.  It did not have explicit regard to paragraph 75 in that decision, where it was noted that, in the case of a nurse, a finding of no impairment should be scrutinised with care because it amounted to a complete acquittal.  The committee was wrong to give SM credit for immediate admissions.  The committee misdirected itself as to the evidence on this matter.  Having admitted the drugs error to colleagues, she then attempted to cover it up. 

[15]      In the circumstances of the case, the decision was apt to damage public confidence in the nursing profession.  Furthermore, it failed to maintain proper professional standards and conduct.  It was a “wholly inadequate response” to the seriousness of the dishonesty.  The committee made no reference to a nurse’s duty of candour and openness when something goes wrong. 

[16]      The Authority suggested the following questions of law: 

1.  Is the decision sufficient for protection of the public in terms of section 29(4) of the Act? 

2.  If the answer is no, should the appeal be allowed and the decision quashed; 

(It can be noted that the second question is superfluous, since, if the first answer is answered in the negative, the upholding of the appeal and the quashing of the decision necessarily follows.)

 

The Answers to the Grounds of Appeal

[17]      The Nursing and Midwifery Council lodged answers to the appeal to the effect that a disposal which amounted to a complete acquittal was not appropriate.  A finding of current impairment should have been made and a caution administered. 

[18]      Leaving aside one matter which was not maintained, the answers to the appeal for SM can be summarised as follows.  The decision was made by a specialist tribunal best placed to consider what is necessary to protect the public and the reputation of the profession.  The committee expressly addressed these matters, and produced a fully reasoned decision based on the evidence, which included testimony from the nurse herself.  The determination was correct, or at the very least, was not “plainly wrong”.  The court should not interfere. 

[19]      The assessment of the evidence and the weight to be attached to parts of it were matters for the committee.  With regard to the decision in Uppal, the committee did not misdirect itself.  It was not for the tribunal to “test” the evidence.  As a specialist tribunal it would be familiar with the different regimes as between doctors and nurses.  In any event, there is no reason why a finding of impairment should be easier in respect of a nurse than a doctor.  As to SM’s admissions, if the decision is read in full, there was no misapprehension or mistake in this regard. 

[20]      The committee took note of the relevant terms of the Code, including the requirements to be “open and honest” and to “act with integrity”.  SM breached those requirements, thus was found guilty of misconduct.  Nevertheless, for the reasons it gave, the committee was entitled to conclude that there was no current impairment of fitness to practise. 

 

The Oral Submissions

[21]      At the appeal hearing the court was referred to a number of decided cases, principally in the context of the degree of any deference to be afforded by the court to the committee’s decision.  This is discussed in more detail below.  At the outset of her submissions on behalf of the authority, Ms O’Neill accepted the applicability of the “manifestly inappropriate” test, and also that a court’s overall approach should not depend upon whether it is hearing an appeal by the Authority, or one at the instance of a practitioner;  though later in her submissions her approach seemed less clear cut on both points.  The key submission was that the decision “did not reflect the scale of the nurse’s dishonesty”, and thus failed to uphold proper professional standards.  Deference to the decisions of such bodies should not be taken too far.  The committee was involved in an exercise of judgment.  The determination of no impairment was not a pure finding in fact.  The Authority was not suggesting a “backdoor” approach to the imposition of a penalty when there was no good reason to impose restrictions on practice.  

[22]      While primarily forward looking, the notion of “impairment” necessarily involves consideration of past conduct and the need to protect the public and maintain standards.  The tribunal dealt with the evidence in a peremptory manner.  It did not engage with the evidence.  In any event, and focussing only on the uncontroversial facts, no right minded member of the public would accept the outcome.  The court should review the merits of the decision. 

[23]      There was no challenge to the finding that there was no real risk of a repetition of this conduct by SM.  However, dishonesty breaches one of the fundamental tenets of a professional’s duty.  It was not suggested that all cases of dishonesty must result in a finding of impairment, but, given the kind of dishonesty under consideration here which followed a serious drugs error, a finding of current impairment was the only available outcome.  The decision was “obviously wrong”.  Controlled drugs were destroyed.  The whole purpose was to conceal the deprivation of pain relief to a patient receiving end of life care.  Reference was made to various passages in the nurse’s code of conduct.

[24]      For the Nursing and Midwifery Council, Mr Anderson adopted Ms O’Neill’s submissions.  The contention was that “impairment” is not to be interpreted in its natural sense.  It could be found proven even in the absence of any risk to patients in the future.  Current fitness could be impaired simply because a right minded member of the public would expect the imposition of a sanction of some kind, even if only at the lowest level in the scale.  A finding of impairment could be required simply in order to maintain public confidence in the regulatory process and the profession.  An example might be someone convicted of a serious criminal offence unconnected with clinical practice.  Given the seriousness of the misconduct on the part of SM, it was clear that the decision is wrong.  There should have been a finding of current impairment, which, given the various mitigating factors, should have led to the administration of a caution.

 

Discussion

[25]      The court was favoured with the citation of a large number of previous decisions in cases of this kind.  There is a well-established body of jurisprudence relating to the proper approach to appeals from regulatory and disciplinary bodies.  The general principles can be summarised as follows.  In respect of a decision of the present kind, the determination of a specialist tribunal is entitled to respect.  The court can interfere if it is clear that there is a serious flaw in the process or the reasoning, for example where a material factor has not been considered.  Failing such a flaw, a decision should stand unless the court can say that it is plainly wrong, or, as it is sometimes put, “manifestly inappropriate”.  This is because the tribunal is experienced in the particular area, and has had the benefit of seeing and hearing the witnesses.  It is in a better position than the court to determine whether, for example, a nurse’s fitness to practise is impaired by reason of past misconduct, including whether the public interest requires such a finding.  The same would apply in the context of a review of a penalty.  At the hearing there was a suggestion that the court should be more willing to quash a decision if it is challenged by the Authority, as opposed to a practitioner.  The court does not agree.  The approach is the same whether the question is one of insufficiency or undue harshness.

[26]      If misconduct on the part of a nurse (or some other failing) is established, a committee then has to consider whether a finding of current impairment of fitness to practise should be made.  Important considerations in that regard are the safety of the public, maintenance of proper professional standards, and retaining the confidence of the public in the profession and the regulatory process.  There will be cases where any reasonable tribunal will make a finding of impaired fitness to practise, and in such a case, if no such decision is made, the court will step in.  Otherwise the court will respect the experience and expertise of a tribunal which has properly weighed up the relevant considerations and not committed any material error. 

[27]      In the case of the regulatory scheme for nurses and midwives, though not, for example, in respect of doctors, a finding of impairment is a prerequisite to the imposition of a penalty.  In the circumstances of the present case, the structure is: 

(a)        misconduct?

(b)        if misconduct is proved – impairment?

(c)        if impairment – penalty?

The submission on behalf of the Council was that, if misconduct is proved, the tribunal should consider penalty, and if a sanction is thought to be appropriate, a finding of impairment must follow.  We reject this submission.  There is no warrant for it in the scheme of the 2001 Order (though it is not obvious to us why a materially different structure is thought appropriate depending upon the particular health professional concerned).  Not every case of misconduct will result in a finding of impairment.  An example might be an isolated error of judgment which is unlikely to recur, and the misconduct is not so serious as to render a finding of impairment plainly necessary.  On the other hand, misconduct may be so egregious that, whatever mitigatory factors arise in respect of insight, remediation, unlikelihood of repetition, and the like, any reasonable person would conclude that the registrant should not be allowed to practise on an unrestricted basis, or at all.  In such a case, to have been guilty of misconduct of such a nature is itself clear evidence that the practitioner should not be allowed to practise, or to practise unrestricted;  and the public interest will point to a finding of impairment, and the imposition of an appropriate sanction.  On the other hand, as one judge observed “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” – Cheatle v GMC [2009] EWHC 645 (Admin) Cranston J at paragraph 20. 

[28]      The issue posed by Cranston J encapsulates the question with which this committee grappled.  It is clear that it had in mind and weighed up all the material factors, including the various public interest aspects.  In our view it committed no material error of law or procedure.  It addressed the evidence before it.  The inferences and conclusions on the issues of fact and evaluation were matters for it.  It might be different if a clear mistake was made, such as overlooking a significant factor, but there is nothing of that nature.  We would go further, and say that, not only was the committee entitled to reach the decision that there was no current impairment, we can identify no compelling reason to disagree with it.  This suggests that the “manifestly inappropriate” test is not satisfied, and, at the risk of making an undue assumption, that the submission that “all right‑minded people would reject the committee’s decision” should not be upheld. 

[29]      While Ms O’Neil offered certain criticisms as to the reasoning (or alleged lack of it) on the part of the committee, for example the reliance on “early admissions”, 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.  For example, on the specific point just mentioned, we note that when opening on behalf of the Council, the case presenter said that when SM was contacted by a senior member of staff about the incident on the day it was recognised that an error had occurred, “she admitted the conduct promptly and has been open with the NMC throughout these proceedings.”  Ms O’Neil also criticised the Committee’s comment that no harm was caused.  There is no merit in this.  The Committee appreciated that there was a deprivation of pain relief, and again the case presenter, immediately after the above remark, told the committee that “there was no lasting harm in this case.”

[30]      Returning to the question posed by Cranston J, given the whole circumstances, and for the reasons explained by it, we are of the view that the committee was entitled to conclude that, notwithstanding her admitted dishonesty, SM’s fitness to practise was not impaired.  If it is thought that the absence of any sanction leads to a decision which is insufficient for the protection of the public and fails to maintain confidence in the profession and its regulation, that can be attributed to the terms of the 2001 Order, which, unlike in the case of certain other health professionals, make a finding of current impairment a prerequisite to the imposition of a penalty.  We do not agree with the submission that a perceived need for a penalty means that a finding of current impairment must be made.  Whether to make such a finding is a discrete exercise to be addressed on its merits.  In any event, in the circumstances of the present case, we would echo the comments of the learned judge in Uppal to the effect that professional standards and public confidence have been upheld by a rigorous regulatory process which resulted in a finding of misconduct. 

[31]      For these reasons we reject the submission that the committee’s decision was insufficient for protection of the public and refuse this appeal.  If the Authority and the Council maintain the view that the position is unsatisfactory, they may wish to consider whether the terms of the 2001 Order should be reviewed;  in particular to allow the imposition of a sanction notwithstanding that no finding of impairment of fitness to practise has been made.