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Harford v NMC (2013) EWHC 696 (Admin)

Sarah Ellson
10/05/2013
H appealed against the decision of a Panel of the NMC's Conduct and Competence Committee ("the Panel") to (a) find her fitness to practise impaired by reason of misconduct and (b) to impose conditions H appealed against the decision of a Panel of the NMC's Conduct and Competence Committee ("the Panel") to (a) find her fitness to practise impaired by reason of misconduct and (b) to impose conditions on her registration for a period of six months.

H had raised concerns about a colleague's fitness to practise after receiving adverse comments and complaints from patients about the colleague. H was asked by letter on two occasions to provide the names of the patients involved, but she did not reply. The NMC alleged that Ms H had failed to cooperate in the local investigation by failing to provide a list of the relevant patients, and that this amounted to misconduct.

The Panel applied the definition of misconduct in Roylance v GMC and concluded that as a registered nurse, H had a duty to cooperate with internal and external investigations as set out in paragraph 56 of the Nursing and Midwifery Council Code (May 2008). The Panel concluded that H's failure to cooperate potentially caused harm to patients, as their complaints could not be dealt with, and potentially jeopardised their trust and confidence in the nursing profession.

On appeal, H submitted firstly that the Panel applied the wrong test in determining whether misconduct had been proved, and that paragraph 56 of the Code imposed an obligation to cooperate with internal and external investigations only insofar as they related to a registrant, and secondly that the Panel was wrong to conclude that her fitness to practise was impaired, and failed to have proper regard to Ms Harford's evidence that if similar circumstances were to be repeated she would disclose the names of patients because she had come to recognise that patients' safety was paramount.

The High Court dismissed H's appeal, holding that the Panel had not misdirected itself on the appropriate test, making express reference to the leading authority, Roylance and applying it. There was no reason why paragraph 56 of the Code should be interpreted narrowly, as circumstances could arise where it would be wholly unprofessional if a registrant failed to cooperate with internal and external investigations which related to persons other than the registrant. The Court therefore held that the Panel's conclusion that the breach of the Code constituted misconduct in the particular circumstances was not wrong. H had actively refused to engage in the local investigation, making it difficult to ascertain whether or not the colleague was performing her work properly and professionally. As a result, the Panel's decision on misconduct was well within the reasonable range of decisions open to it.

In relation to the finding of impairment, the High Court noted that the Panel's decision did not say, in terms, that H's evidence as to her future conduct had been considered and rejected by the Panel. However, that did not mean that the Panel was wrong in its conclusion about impairment. The High Court noted that the Panel had the advantage of seeing and hearing H and it provided sufficient cogent reasoning to justify its conclusion that her fitness to practise was impaired.

The Court held that although a differently constituted Panel might have viewed the evidence given by H as to her future conduct in a more favourable light, it could not be said that the instant Panel had been wrong in holding that her fitness to practise was impaired.

Read the case here.

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