The PSA successfully appealed a decision of the NMC's Conduct and Competence Committee ('CCC') on the basis that there was a serious procedural irregularity whereby charges of professional misconduct
The PSA successfully appealed a decision of the NMC's Conduct and Competence Committee ('CCC') on the basis that there was a serious procedural irregularity whereby charges of professional misconduct laid against M did not sufficiently reflect the gravity of his conduct. The High Court held that this prevented the CCC from evaluating the true seriousness of M's behaviour and rendered the decision on sanction unsustainable.
The allegations arose out of an investigation into the conduct of another nurse, X. X had been struck by a patient during a shift in April 2011. M was on shift at the time and did not raise any concerns with his superiors around X's account of the incident, making a brief entry in his electronic patient journey system ('EPJS') which also raised no concerns in relation to the incident. However, in August 2011, M revealed to his superiors that he was unable to support X's account of the incident. M told the acting Ward Manager that X had jumped on the patient's back and held her in a headlock. He indicated that he wished to have his name removed from the list of witnesses for the police investigation as he felt that he should be supportive of X as a colleague and was unsure of how to deal with the situation.
Managers were concerned that there was a conspiracy of silence among the ward staff and the Investigation Committee closed the case against X with no further action due to the lack of corroborative evidence (M had not given an account). The NMC referred M to a Conduct and Competence Committee ('CCC') for failing to report what he had seen X do and for failing to complete a serious incident report in relation to X's conduct. M did not contest the allegations, was found guilty of serious professional misconduct, and the CCC made him subject to a conditions of practice order. The PSA appealed, submitting that M should have been charged with dishonesty in relation to this original report.
The High Court held that this was not a case in which it was obvious that dishonesty should have been alleged. M at no point provided a positively false account and did ultimately voice his concerns to his superiors. This was wholly inconsistent with the idea that he deliberately presented a skewed account of events.
Notwithstanding this, Andrew J held that 'it is a matter of serious concern to me that nowhere in the decision does the CCC address the reason why it took M five months to report X’s inappropriate behaviour, or properly examine the circumstances in which it came to be reported… it seems from their reasoning that they attributed M’s failure to report the incident to an insufficient understanding of his reporting obligations. Even on the basis of his own explanation given in 2014, that was incorrect.' She cited CHRE v GDC; Marshall [2006] EWHC 1870 to highlight that it is a serious procedural irregularity if the CCC fails to provide adequate reasons for its decision as to sanction.
Andrews J reflected that:
'the root cause of the problem lies in the failure by the NMC to adequately reflect the seriousness of M’s conduct in the charges. The CCC panel was obliged to investigate the reasons for M’s failure to report the matter for five months. I am firmly of the view that the reason why it did not do so, was that it was not directed to, and it did not need to in order to find the charges as formulated were proven or that M’s fitness to practice was impaired. This is therefore a case of under-charging, not because the NMC should have alleged dishonesty, but because in these particular circumstances the reasons why there was a failure by M to report the incident for five months matter a great deal in terms of evaluating (a) the true seriousness of M’s behaviour and (b) what the appropriate sanction should be – including making a decision as to whether this is really a problem that can be rectified by further education, or whether there is a deep-seated attitudinal problem, and therefore whether the public interest would demand a period of suspension (which, contrary to the panel’s apparent views, could be coupled with a requirement for further education or training to be undertaken before return to practice).'
The High Court considered the issue of failing to charge dishonesty as recently as August 2014 (see PSA v GCC). What is interesting about the present case is that the Court held that the evidence did not necessarily support a dishonesty charge but that, nevertheless, the Court remained troubled by the fact that it was arguable that the sanction that was ultimately imposed failed to reflect possible underlying issues in relation to M's practice and that a sanction on the basis of a misunderstanding of reporting requirements (as opposed to the more serious basis of a decision to give a colleague's career primacy over patient safety) was suspect. In that sense, the case makes clear that both the PSA and the High Court will not be slow to review charging failures in order to ensure that any sanction adequately protects the public.
The allegations arose out of an investigation into the conduct of another nurse, X. X had been struck by a patient during a shift in April 2011. M was on shift at the time and did not raise any concerns with his superiors around X's account of the incident, making a brief entry in his electronic patient journey system ('EPJS') which also raised no concerns in relation to the incident. However, in August 2011, M revealed to his superiors that he was unable to support X's account of the incident. M told the acting Ward Manager that X had jumped on the patient's back and held her in a headlock. He indicated that he wished to have his name removed from the list of witnesses for the police investigation as he felt that he should be supportive of X as a colleague and was unsure of how to deal with the situation.
Managers were concerned that there was a conspiracy of silence among the ward staff and the Investigation Committee closed the case against X with no further action due to the lack of corroborative evidence (M had not given an account). The NMC referred M to a Conduct and Competence Committee ('CCC') for failing to report what he had seen X do and for failing to complete a serious incident report in relation to X's conduct. M did not contest the allegations, was found guilty of serious professional misconduct, and the CCC made him subject to a conditions of practice order. The PSA appealed, submitting that M should have been charged with dishonesty in relation to this original report.
The High Court held that this was not a case in which it was obvious that dishonesty should have been alleged. M at no point provided a positively false account and did ultimately voice his concerns to his superiors. This was wholly inconsistent with the idea that he deliberately presented a skewed account of events.
Notwithstanding this, Andrew J held that 'it is a matter of serious concern to me that nowhere in the decision does the CCC address the reason why it took M five months to report X’s inappropriate behaviour, or properly examine the circumstances in which it came to be reported… it seems from their reasoning that they attributed M’s failure to report the incident to an insufficient understanding of his reporting obligations. Even on the basis of his own explanation given in 2014, that was incorrect.' She cited CHRE v GDC; Marshall [2006] EWHC 1870 to highlight that it is a serious procedural irregularity if the CCC fails to provide adequate reasons for its decision as to sanction.
Andrews J reflected that:
'the root cause of the problem lies in the failure by the NMC to adequately reflect the seriousness of M’s conduct in the charges. The CCC panel was obliged to investigate the reasons for M’s failure to report the matter for five months. I am firmly of the view that the reason why it did not do so, was that it was not directed to, and it did not need to in order to find the charges as formulated were proven or that M’s fitness to practice was impaired. This is therefore a case of under-charging, not because the NMC should have alleged dishonesty, but because in these particular circumstances the reasons why there was a failure by M to report the incident for five months matter a great deal in terms of evaluating (a) the true seriousness of M’s behaviour and (b) what the appropriate sanction should be – including making a decision as to whether this is really a problem that can be rectified by further education, or whether there is a deep-seated attitudinal problem, and therefore whether the public interest would demand a period of suspension (which, contrary to the panel’s apparent views, could be coupled with a requirement for further education or training to be undertaken before return to practice).'
The High Court considered the issue of failing to charge dishonesty as recently as August 2014 (see PSA v GCC). What is interesting about the present case is that the Court held that the evidence did not necessarily support a dishonesty charge but that, nevertheless, the Court remained troubled by the fact that it was arguable that the sanction that was ultimately imposed failed to reflect possible underlying issues in relation to M's practice and that a sanction on the basis of a misunderstanding of reporting requirements (as opposed to the more serious basis of a decision to give a colleague's career primacy over patient safety) was suspect. In that sense, the case makes clear that both the PSA and the High Court will not be slow to review charging failures in order to ensure that any sanction adequately protects the public.