QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ERIC BRIAN PHILLIPS||Claimant|
|NURSING AND MIDWIFERY COUNCIL||Defendant|
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Robert Lawson (instructed by Field Fisher Waterhouse LLP) appeared on behalf of the Defendant
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"Conduct and Competence Committee
I am writing on behalf of the Chair of the Conduct and Competence Committee to inform you of the decisions taken by the panel at its hearing of your case on 29-30 March 2007 and 23 May 2007.
Facts of allegations found proved as follows:
Allegations proved: 1a(i, ii, iii, iv, v, vi, vii) and 2a(i, ii).
In relation to charge 1(a)(i), we are satisfied on the basis of his own admissions in the course of the investigatory interview on 15 November 2004 and the disciplinary hearing on 10 January 2005 (as set out in exhibits 9 and 10) that on 18 June 2004 Mr Phillips ceased to act as Mrs R's CPN and care co-ordinator and transferred these roles to Vicky Smith in order to be able to accept Mrs R's offer of a ticket to Glastonbury.
In relation to charge 1(a)(ii), we are satisfied on the basis of the evidence of Joan Underwood, whom we regarded as an honest and reliable witness, and on his own admission at the investigatory interview on 3 September 2004, as set out in exhibit 7, that Mr Phillips acted against the advice of Mrs Underwood.
In relation to charge 1(a)(iii), we are satisfied on the basis of his own admissions in the course of the investigatory interviews on 3 September 2004 and 15 November 2004, and the disciplinary hearing on 10 January 2005, (as set out in exhibits 7, 9 and 10), that Mr Phillips attended the Glastonbury Festival with Mrs R on the dates alleged.
In relation to charge 1(a)(iv), we are satisfied on the basis of his own admissions in the course of the investigatory interview on 15 November 2004 and the disciplinary hearing on 10 January 2005, (as set out in exhibits 9 and 10), that Mr Phillips shared a tent with Mrs R at the Glastonbury Festival.
In relation to charge 1(a)(v), we are satisfied on the basis of his own admissions in the course of the investigatory interview on 15 November 2004 and the disciplinary hearing on 10 January 2005, (as set out in exhibits 9 and 10), that Mr Phillips shared with Mrs R two sleeping bags that had been zipped together while he was naked and she was fully clothed.
In relation to charge 1(a)(vi), we are satisfied on the basis of his own admission in the course of the disciplinary hearing on 10 January 2005, (as set out in Exhibit 10), that while naked in the sleeping bags with Mrs R he asked her to kiss him.
In relation to charge 1(a)(vii) we are satisfied on the basis of his own admissions in the course of the investigatory interview on 15 November 2004 and disciplinary hearing on 10 January 2005, (as set out in exhibits 9 and 10), that he acted as set out in (v) and (vi) despite having observed signs that Mrs R was relapsing into mental illness and being aware that sexual disinhibition was a symptom of her mental illness.
We are further satisfied on the basis of the evidence we have heard, and taking account of established nursing practice and principles, that the only appropriate professional relationship between a practitioner and a client is one that focuses on the needs of the client.
We are satisfied on the basis of the evidence of Joan Underwood and Vicky Smith that Mrs R remained a client of Mr Phillips, in his capacity as a member of the CMHT, even after he had relinquished direct responsibility as her CPN and care co-ordinator.
We are satisfied that on his own admission Mr Phillips took the initiative in seeking to develop a personal relationship with Mrs R when he was fully aware of her medical history as a vulnerable patient.
In light of all the above, we are satisfied that Mr Phillips failed to respect Mrs R as an individual.
In relation to charge 2(a)(i), we are satisfied on the evidence of Mrs Underwood that Mr Phillips failed to report to her that he had been to the Glastonbury Festival with Mrs R and had observed signs that she was relapsing into mental illness.
In relation to charge 2(a)(ii) we are satisfied on the evidence of Steve Melton, whom we found to be an honest and reliable witness, that the facts set out in this charge have been proved.
Misconduct of allegations found proved as follows:
Allegations: 1(i, ii, iii, iv, v, vi, vii) and 2(i, ii)
That your fitness to practice is impaired
The panel has taken into account the NMC's definition of 'fitness to practise'. The charges of misconduct of which Mr Phillips has been found guilty are of a very serious nature and we are satisfied that, pursuant to Article 22(a)(i) of the 2001 Order, they amount to impairment of his fitness to practise. Furthermore, the lack of insight he displayed when he appeared before the panel regarding the nature and seriousness of his conduct convinces us that his fitness to practise remains impaired,
To make a striking-off order.
The panel has considered the question of sanction in accordance with the indicative sanctions guidance provided by the NMC. We first considered whether this was a case where we might take no further action, but we were satisfied that it would not be in the public interest to impose no sanction.
We next considered the possibility of imposing a caution. While we noted that Mr Phillips' previous history as a nurse was commended by Mrs Underwood, we are satisfied that he has displayed no insight into his failings nor offered any expression of regret regarding the matters that form the basis of these charges. Furthermore, while his conduct related to one patient, his actions were wholly deliberate and compounded by his lack of co-operation with his colleagues. The panel has received no relevant or appropriate references or testimonials on his behalf.
While we note that Mr Phillips maintains that his actions were driven by love for Mrs R, we are satisfied that that does not amount to proper mitigation in a case such as this. Indeed, we repeat that we attach particular weight to his lack of insight regarding the nature and seriousness of his conduct. In all the circumstances the panel is satisfied that a caution would be neither appropriate nor sufficient in this case. We are further satisfied that this is not a case where a conditions of practice order would be appropriate or practicable.
We have concluded that Mr Phillips's conduct was fundamentally incompatible with his continuing to be a registered nurse, and so we are satisfied that a suspension order would not be a sufficient sanction. In his conduct over the material period Mr Phillips was guilty of a serious departure from the relevant standards as set out in the NMC's code of professional conduct. Furthermore we are satisfied that the public's confidence in the council would inevitably be undermined if he were not to be struck off.
In all the circumstances we are satisfied that a striking off order is the appropriate and proportionate sanction.
Start date of the order
The order will come into effect 28 days after the posting date of this letter.
You may not apply for restoration until five years after the date that this decision had taken effect.
The panel decided that it was necessary to make an interim suspension order until the final order can come into effect.
The period of the interim order is 18 months. If you have not lodged an appeal by the end of the appeal period, the interim order will lapse and be replaced by the final order. On the other hand, if you do appeal, the interim order will continue to run until the end of the appeal process.
If the interim order continues to run because you have lodged an appeal, it must be reviewed before the end of six months and every three months after that.
The panel's reasons for making an interim suspension order are:
For the protection of the public and in the public interest.
Marking the register
The striking-off order will show against your entry in the register. Anyone who enquires about your registration will be told about the order.
Under Articles 29(9) and 38 of the Nursing and Midwifery Order 2001, you have 28 days to appeal against the order. If you want to appeal, you must apply to the appropriate court for the order to be revoked or changed. The appropriate court depends on the country of your registered address.
• the Court of Session in Scotland; (registered address in Scotland)
• the High Court of Justice in Northern Ireland; (registered address in Northern Ireland)
• the High Court of Justice in England and Wales; (registered address in England, Wales or any other non-UK country)
The NMC cannot help you with your appeal. If you want help in making an application to the court, you should consult your professional organisation or union. Alternatively, you should consult your solicitor, or ask for help from your local Citizens Advice Bureau or free law centre.
Council for Healthcare Regulatory Excellence (CHRE)
The CHRE is a body established by the NHS Reform and Health Care Professions Act 2002. It works with all the health professions' regulators to promote the interests of patients and members of the public. The NMC must report the outcome of all Conduct and Competence Committee cases to the CHRE and accordingly will report the outcome of your case.
You will be liable to proceedings under Article 44 of the Nursing and Midwifery Order 2001 if you:
• falsely represent yourself to be a registrant or
• use a registered nursing or midwifery title or
• allow anyone else to refer to you as a registrant.
You should now complete the enclosed form and return it in the envelope provided.
If you have any questions about this letter, please contact your case officer. Their details appear at the top of this letter."
"The Committee finds that in relation to charge 1b and charge 2b, the Registrant is guilty of misconduct.
And the reasons for the Committee finding misconduct are as follows:
For the avoidance of doubt we repeat that we are satisfied that Mrs R was a client according to the definition set out in para 2 NMC's publication Practitioner-client relationship and the prevention of abuse. That states that the term refers to all groups and individuals who have direct or indirect contact with Registered Nurses in a professional capacity.
In relation to charge 1b the relevant NMC Code of Professional Conduct is clear regarding the issue of relationships between Registrants and clients. Para 2.3 states as follows:
'You must, at all times, maintain appropriate professional boundaries in the relationships you have with patients and clients. You must ensure that all aspects of the relationship focus exclusively upon the needs of the patient or client.'
Further guidance is provided in para 8 of the booklet Practitioner-client relationships and the prevention of abuse referred to above. We feel it is appropriate to set out the paragraph in full:
'Boundaries define the limits of behaviour which allow a client and a practitioner to engage safely in a therapeutic caring relationship. These boundaries are based upon trust, respect and the appropriate use of power. The relationship between registered nurses...and their clients is a therapeutic caring relationship that must focus solely upon meeting the health or care needs of the client. It is not established to build personal or social contacts for practitioners. Moving the focus of care away from meeting the client's needs towards meeting the practitioner's own needs is an unacceptable abuse of power.'
Mindful of the NMC guidance, as set out above, we are satisfied that Mr Phillips failed to maintain appropriate boundaries and failed to respect Mrs R as an individual and thereby breached the provisions of the Code of Conduct. He is, therefore, guilty of misconduct."
The passage continues:
"In relation to charge 2b, we would refer to the content of para 4.3 of the relevant NMC Code of Professional Conduct.
'You must communicate effectively and share your knowledge, skill and expertise with other members of the team as required for the benefit of patients and clients.'
We would also refer to the terms of para 8 of the Code, the substantive provision of which is as follows:
'As a registered nurse...you must act to identify and minimise the risk to patients and clients.'"
The Committee continued:
"Mr Phillips failed to co-operate with other members of the CMHT and minimise risk to Mrs R in that he failed to communicate with them regarding the full nature of her deteriorating mental health conditions. Mr Phillips has thereby failed to act in accordance with the required standards expected of a Registered Nurse as set out in the NMC's Code of Conduct. He is, therefore, guilty of misconduct."
"The Panel finds that in relation to Mr Eric Brian Phillips that his fitness to practise is impaired. The reason for the Panel reaching this decision is the Panel has taken into account the NMC's definition of fitness to practise. The charges of misconduct of which Mr Phillips has been found guilty are of a very serious nature and we are satisfied that in pursuance of article 22(a)(i) of the 2001 Order they amount to impairment of his fitness to practise. Furthermore, the lack of insight he displayed when he appeared before the Panel regarding the nature and the seriousness of his conduct convinces us that his fitness to practise remains impaired."
It then went on to consider what sanction to impose.
(1) criticism of the conclusion that Mrs R was a patient of the team at the relevant time;
(2) criticism of the admission of exhibit 10 into evidence. Exhibit 10 is the note of a disciplinary hearing held on 10th January 2005 by the Trust;
(3) criticisms of the Committee's findings of fact;
(4) criticism of the extent of the investigation undertaken by the NMC;
(5) a complaint of delay on the part of the NMC in pursuing the proceedings; and
(6) criticisms of the Committee's finding of misconduct and impairment of fitness to practise.
I shall consider each of these in turn.
"We are satisfied on the basis of the evidence of Joan Underwood and Vicky Smith that Mrs R remained a client of Mr Phillips in his capacity as a member of the CMHT, even after he had relinquished direct responsibility as her CPN and care co-ordinator."
"The term 'client' has been used throughout this document and refers to all groups and individuals who have direct or indirect contact with registered nurses, midwives or health visitors in a professional capacity."
"Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place)."
"If it helps you, the reports of the investigatory interviews were generally OK as reports, but I wouldn't like to comment on the veracity of the content."
"JS Regarding the sleeping bag arrangements. She suggested you zip them together — what was your opinion of this?
EP That she felt the same as I did, otherwise she wouldn't have agreed
JS Did you not think she might have been uncomfortable?
EP No. When we got in, I asked her to give me a kiss and she turned away
JS What message did you think this gave?
EP A clear 'I'm not interested in you sexually'"
Thereafter, according to the note, Mr Phillips was questioned further about this on the premise that he had asked for a kiss and he did not suggest, according to the note of the proceedings before the disciplinary body, that he had not asked her for a kiss. The disciplinary tribunal made a finding that Mr Phillips had asked Mrs R for a kiss. The Committee relied on the evidence of the admissions contained in this document as evidence that Mr Phillips had asked Mrs R for a kiss. It has not been suggested by Mr Phillips that he did not make the submission or, if he did, it was untrue.