England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		25th November 2010

JUDGE BEHRENS:

1. This is an appeal by Ms Robson against a decision made on 29 March 2010 of the Conduct and Competence Committee of the Nursing and Midwifery Council. Following a hearing which had taken place between 25 and 27 January and 29 March, the panel found six charges of professional incompetence proved, found that Ms Robson's fitness to practice was impaired and decided to suspend Ms Robson for a period of twelve months. Ms Robson had been the subject of an interim suspension since October 2008
2. There is no appeal against the findings of guilt (if it is appropriate to use that word) and impairment. However, Ms Robson appeals against the sanction of twelve months' suspension. On her behalf, Mr Lynch, who represented Ms Robson before the panel, submits that the sanction was too severe. He submits that the lesser sanction of a caution or a conditions of practice order ought to have been imposed.
3. There are in fact four grounds of appeal in the notice of appeal: first, that the panel did not have sufficient regard to the NMC's indicative sanctions guidance and the provisions for cautions and conditions of practice order; second, that the panel did not have sufficient regard for the personal mitigation of Ms Robson and for the references and testimonials submitted on her behalf; third, that the panel did not have sufficient regard for Ms Robson's insight and her efforts to remedy the deficiencies in her practice; and fourth, that the panel imposed the maximum sentence when such a disposal should be reserved for the most serious type of case.
4. In answer to the appeal, Mrs McDonald on behalf of the Council submits that the panel, who have had the benefit of seeing Ms Robson and hearing her evidence, took into account all matters that were relevant, arrived at a conclusion with which this court should not interfere and in the particular circumstances of this case the panel were fully entitled to conclude that the incompetence that was found was serious and lasted over a long period despite considerable support.
5. Before turning to the more detailed facts, it is convenient to look at a number of aspects of the law. Firstly, so far as the sanctions are concerned it is important to bear in mind this is not a case of misconduct. There is no criticism made of moral impropriety or indeed dishonesty or anything of that sort on the part of Ms Robson. In those circumstances it is plain from Article 29 of the 2001 Nursing and Midwifery Order that if the panel decide that it is not appropriate to take no action, there are three sanctions open to them: (1) a caution for between one and three years; (2) a condition of practice order for a period not exceeding five years; and (3) a suspension order not exceeding a year. It is, however, important to note that under Article 30 both a suspension and a condition of practice order are subject to review before they expire. Furthermore, they can be extended. If a suspension order exceeds two years the registrant can be struck off. Thus, whilst it can be said that the sanction imposed was the maximum that could have been imposed at the time it was imposed, it was not the maximum overall sanction in the light of the provisions of Article 30. It does not therefore follow that it should be reserved for the most serious cases.
6. I turn to the guidelines. In April 2008 the NMC published a document entitled "Indicative Sanctions Guidance for Panels of the Conduct and Competence and Health Committees". It is a six page document. Under "General principles", the Guidance sets out factors that the panel should take into account when considering the appropriate sanction and suggests criteria to apply when considering any particular sanction. In paragraph 2 it is made clear that, because of the nature of their role, the members of the panel "must always exercise their own personal judgment in making decisions". However, to ensure a consistent approach in the use of sanctions, those decisions should be made within a framework set out by the NMC in this guidance. It then sets out some general principles, and Principle 4:

"4. In considering what sanctions, (if any) to apply, a panel must have regard to both:

• the public interest; and

• the registrant's own interests.

5 The 'public interest' includes:

• the protection of members of the public;

• the maintenance of public confidence in the professions and the NMC; and

• declaring and upholding proper standards of conduct and performance."

Paragraph 6 provides:

"6 The sanction must demonstrate in each case a considered and proportionate balance between:

• the interests of the public and the particular registrant; and

• the mitigating and aggravating factors in the particular case."

7. It then goes on to discuss each of the sanctions. It sets out the possible sanctions which are available to the NMC in paragraph 8. In paragraphs 9 to 10 it sets out the criteria for no sanction. In paragraph 11 it sets out the criteria in relation to a caution of one to five years. Paragraph 11 reads:

"This sanction may be appropriate where most of the following factors are present. This list is not exhaustive:

evidence that behaviour would not have caused direct or indirect patient harm;

early admission facts alleged and/or:

insight into failings;

isolated incident which was not deliberate;

genuine expression of regret/apology;

acting under duress;

previous good history;

no repetition of behaviour since incident;

appropriate rehabilitative/corrective steps have been taken; and

relevant and appropriate references and testimonials."

Pausing there, Mr Lynch's submission is that a large number of those factors are present which should have led the panel in this case to have considered and adopted the sanction of caution.

8. The Guidance then moves on to consider the criteria relevant to a condition of practice order for a maximum of three years This sanction may be appropriate where most of the following factors are present: identifiable areas of the registrant's practice are in need of retraining and there is no evidence of general incompetence (in lack of competence cases); potential and willingness to respond positively to conditions requiring retraining (misconduct and lack of competence cases).
9. After considering a factor relevant to health cases, it goes on to point out that the conditions must be conditions which will protect patients and clients during the period they are in force and, that it must be possible to formulate the appropriate and practical conditions of practice.
10. Finally, there is consideration of a suspension for a specified period of one year in the first instance and subject to review. The sanction may be appropriate where most of the following factors are apparent. "Misconduct but not fundamentally incompatible with continuing to be registered with the NMC; apparently irremediable lack of competence but where striking off is not available; and serious ill health where striking off is not available". Those then are the guidelines.
11. Finally it is necessary to consider the approach of this court in appeals under Article 38 of the Order. It is common ground between the parties that the principles that this court applies are the same principles as it applies in appeals against sanctions imposed by the GMC. There is no real dispute between the parties as to the approach of the Court. I was referred by Mrs McDonald to the decision of Ghosh [2001] 1 WLR 1915, and in particular a passage in the judgment of Lord Millett at page 375, where he said the fact that the appeal is on the paper and that the witnesses are not recalled makes it incumbent on the appellant to demonstrate that some error has occurred in the proceedings before the committee in the decision. She also referred me to the decision of McCombe J in the case of Azzam v GMC [2008] EWHC 2711 (Admin), and in particular what the learned judge said in paragraph 25. He said that the principles involved are well established, and they are most recently from Meadow v GMC [2007] QB 462, Raschid v GMC [2007] 1WLR 1460 and Gupta v GMC [2007] EWHC 2918. The principles are:

"(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;

(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession;

(3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;

(4) The court's function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it."

12. Mr Lynch also referred me to a passage from the judgment of Laws LJ in Raschid, to which I have just referred, where he himself cited a further passage from the judgment of Lord Millett in Ghosh. Laws LJ said:

"As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 34 of Ghosh v GMC [2001] 1 WLR 1915, page 1923G:

'The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner's failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances.'"

13. I turn then to the facts of this case. In Ms Robson's CV she sets out her employment experience. She has been employed in a nursing capacity for almost all of the time between November 1993 and April 2008. She has been with the Royal Victoria Infirmary in Newcastle from about December 1996 and was in the neurology department in the acute ward or the day unit from April 2002 until April 2008.
14. She ceased to work as a nurse in April 2008 and an interim suspension order was made in October 2008. It has been reviewed on a number of occasions since but on advice, as I understand it, there has been no challenge to that order. Ms Robson has in fact worked since April 2008. She sets out in her CV that she has worked from June 2008 as a paediatric medical secretary and from September 2008 as a ward clerk in the psychiatric ward at North Tyneside Hospital.
15. As already noted, she faced nine charges before the Council. Those nine charges were divided into three groups: two of the groups related to communication skills, one in respect of patients and the other in respect of members of staff. The third group related to the knowledge and administration of medication. Six of the charges were found proved. Of those six, four were admitted, thus it follows that two of the charges which she did not admit were found proved. Three others were dismissed. In respect of one of them there was no case to answer and the other two were simply not proved.
16. So far as the communication skills are concerned, the complaints that were found proved in relation to communications with patients were that on an unknown date in 2006 when on duty with Staff Nurse Gwen Walker, she erroneously informed a member of the public whom she believed to be the wife of an unknown patient that her husband had had a cardiac arrest earlier that shift, when in fact the lady in question was not the wife of that patient. Secondly, on more than one occasion when working on a supernumerary basis with Sister Chapman in May and/or June 2007, she failed to ensure that patients understood their plan of care. On more than one occasion while working on a supernumerary basis with Sister Chapman in May or June 2007, she failed to speak to patients when she entered their cubicles to check their infusions.
17. So far as communications with colleagues are concerned, there was one charge that was found proved. Whilst working on a supernumerary basis with Sister Chapman in May 2007, when planning a patient's admission, failed to enter a number of required investigations in the planning diary. So far as the administration of drugs was concerned, again two were found proved, both of which were in fact admitted. On 15 March 2005 she administered an unprescribed dose of bumetanide (2mg) to a patient and on 10 May 2007 she administered a quantity of temazepam to an unknown patient, despite having previously been informed that the quantity was out of date.
18. It is to be noted, as Mr Lynch pointed out to me, that four of those charges related to the period in May and June 2007 when she was working on a supernumerary basis with Sister Chapman. That is relevant because of a period of ill health to which I shall refer.
19. As I indicated, the panel gave a judgment in which they decided that Ms Robson's fitness to practice was impaired. That judgment is set out in full in the helpful advice which Mr Lynch has exhibited to the bundle, but it is not necessary for me to deal in detail with the reasons given for the level of impairment. A number of points however were taken and appear on page 9 of the bundle. Firstly, the panel drew attention to the fact that the registrant had received a considerable level of support during the time when the matters occurred and was concerned that, although there was some progress, it was clear that she could not sustain the improvements that she had temporarily shown.
20. The panel took into account that there were testimonials from other professionals and they were relatively positive, but they were, in the view of the panel, either historic in terms of the time referred to or covered periods when the registrant was not working as a nurse. As a result, they concluded that she had not been able to remedy the shortcomings shown by the evidence, and although it was right that the documents showed that she had attended various courses on communication -- and indeed I was shown the certificate that she received having attended a course on communication and other matters -- these were not specifically nursing courses but would allow her to do voluntary work. As a result, they concluded there was a real risk that the lack of competence would occur if she were to continue in practice without restrictions on her registration.
21. The panel then considered the sanction; It set out the criteria set out in the indicative sanction guide and took into account that any sanction must be proportionate. It concluded that it would be too serious to make no order. There is no challenge to that decision.
22. It went on to consider a caution. The decision makesreference to the following matters: firstly, that the two instances of maladministration and drugs could have caused some harm; secondly, that there were partial admissions only by Ms Robson; thirdly, that the panel considered that the evidence showed a pattern of incompetence; fourthly, that was there no real regret or apology; fifthly, that in its view this was not a case of duress; sixthly, there was some ill health, but the incompetence in their view extended over a period when there was no ill health or anxiety.
23. Perhaps I should pause there. The position here is, as I understand it, that between the end of April and the beginning of June 2007 Ms Robson had the misfortune to have a cancer scare in the sense that there was thought to be a tumour in one of her ears. Fortunately, the scare proved not to be correct, but there is no doubt that the scare itself would have caused her considerable concern. As I understand it, that is the extent of the ill health which is relied on by Ms Robson, but it is an important time because a lot of the allegations relate to the period when she was a supernumerary with Sister Chapman, which to a significant extent covered that period.
24. The panel took into account that there was previous good history and there had been no repetition of the problem since 2007, but it made the point she had not been working as a nurse since her dismissal. It repeated the view that there was only limited assistance in the testimonials and they concluded as a result of that analysis that a caution was not appropriate.
25. The panel then went on to consider whether to impose a condition of practice order. They reminded themselves it must be workable. It must address the lack of competence before she returned to work. It noted the extensive support and training between 2002 and 2007 and again repeated that there had been no sustained improvement in her competence and performance. In the result it concluded that the shortcomings were so fundamental there were no conditions that could be devised that would address the lack of competence. In those circumstances it took the view that a conditions of practice order would be neither appropriate nor a proportionate sanction. So it arrived at the conclusion that the only appropriate sanction was a suspension for one year.
26. Perhaps I should pause there. Mr Lynch's criticism is not that the suspension was for one year but that there was a suspension at all. I think he accepted that insofar as there was a suspension it should be for one year because of course it needed to be reviewed. Furthermore the panel made the point that during the course of her suspension the panel would expect the registrant to devise a professional action plan which would address the lack of competence. This might include working for a sustained period in a relevant setting where she could demonstrate improvement in her communication skills with both colleagues and patients and identifying a suitable method of improving her knowledge on the administration of medication.
27. Mr Lynch makes a number of attacks on that judgment and it is those attacks that it is necessary for me to address because they form the basis of the four grounds of appeal that I have already mentioned. Firstly, he makes the point that it was no part of the case that there was any actual harm to patients. The two maladministrations of drugs did not result in any harm, and he submits that it is not right to speculate on harm. It is, however, to my mind obvious that wrong maladministration of drugs can potentially give rise to patient harm and it is equally obvious to my mind that if there is this maladministration, that harm can potentially be very serious. In my view the potential risk of maladministration of drugs was a risk that the panel were fully entitled to take into account. The fact that there was in fact no harm on these two occasions in my view does not mean that the panel were wrong to take into account the potential harm that can be done by maladministration of drugs.
28. So far as admissions and insight are concerned, Mr Lynch referred me to the fact that four admissions were made in relation to the charges and indeed he reminded me or referred me to the fact that during the course of the evidence Ms Robson admitted that in 2007 she was not fit to practice. He therefore says or submitted that that demonstrates some insight into her position. Mrs McDonald on the other hand referred me to part of the evidence on page 232 and part of the evidence of Ms Chapman on page 124 of the bundle. I shall not lengthen this judgment by reading out the passages to which she referred, but in my view in the light of those two passages the panel were entitled to come to the conclusion that there was a significant lack of insight into the problems which were occurring. I agree with Mrs McDonald on the point.
29. So far as duress are concerned, this to some extent is a non-point. It is not suggested by Mr Lynch that there was duress in the form understood by contract lawyers or in the form understood by chancery lawyers dealing with wills. He wishes to interpret duress as part of the anxiety caused by the ill health. It is abundantly plain, as it seems to me, that the panel did in fact take into account the ill health. They referred to the fact that some of the problems occurred during periods when there was no ill health. If I were asked to construe the guidelines -- one reminds oneself they are only guidelines -- I would have agreed with Mrs McDonald it was not referring to that sort of ill health, but I do not think that is a major point in this appeal.
30. Then Mr Lynch complains that the panel had not taken into account sufficiently the good history of Ms Robson and for complaining of lack of work since 2008. He points out that she has been subject to an interim order since 2008. Mrs McDonald on the other hand pointed out that she could have applied for a review of the interim order with specific proposals. She said it was within her experience that such orders can be made. She also pointed out that Ms Robson could have attempted to work as a health care assistant and obtained relevant practical experience which might well have demonstrated her addressing problems about communication and drugs which are identified.
31. Mr Lynch complains that the courses and testimonials were not sufficiently taken into account, but again it seems plain to me from the passage in the judgment to which I have referred that they were taken into account. It was their view that they were of limited assistance for the reasons which they have given and I have already read out. Again, in my view that was a course they were entitled to take.
32. Then, as I have indicated, Mr Lynch complains this was a maximum sentence case but there is no true analogy between this and criminal cases, but also for reasons that I have given earlier in this judgment a twelve month suspension is not a maximum sentence. All one can say it is the maximum that could have been given at that time, but because of the provisions as to review for reasons I have given there may be many cases where the protection of the public and the need to maintain public confidence in the profession justify an initial suspension for twelve months and when the matter is reviewed that the panel can then consider whether that suspension is to be continued or not continued.
33. My overall view in this case is that the judgment of the panel is a careful judgment. They have considered the guidelines. They have been through the matters which they have been asked to consider and set out clearly why they consider a caution and conditions of practice are not suitable. Their views are entitled to considerable weight. There are not in my view any errors of fact or law in the analysis that they have carried out or their assessment.
34. I was referred to the case of Taiwo where a lesser penalty was imposed, but the report is a short one and it is in any event clear from that report that there are differences between that case and this. One major difference is that Ms Taiwo had undertaken employment in two hospitals through an agency without complaints since the matters which were complained of. Ms Robson has not worked as a nurse since 2008.
35. As Mrs McDonald has pointed out, all cases of incompetence are difficult. The decisions are harsh ones because there are no allegations of misconduct or the like. However, for the reasons I have given I can see nothing wrong with the panel's decision and I would dismiss the appeal.