England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		3 March 2010

1. MR JUSTICE CRANSTON: In this case the appellant appeals against a decision erasing her name from the register of nurses. That decision was made by a panel ("the panel") of the Conduct and Competence Committee of the Nursing and Midwifery Council. That committee is established under a Statutory Instrument, The Nursing and Midwifery Order 2001, SI 2002/253. The appeal to this court is under article 38 of that Order. It is that article which empowers this court to dismiss the appeal, to allow it, to substitute for the decision appealed another decision, or to remit the case to the committee.
2. The factual background is as follows. The appellant was employed as a registered nurse at Addenbrookes Hospital in 2006. She was on the haematology unit, Ward C10. In April 2006 she had, under her care, a patient whom I shall describe as patient A. Patient A has subsequently died for reasons quite unconnected with the circumstances of this case. Patient A had a long and complicated medical history. At the time of the events in April 2006 she was undergoing chemotherapy, which resulted in an infection. She had been admitted to Ward C10, to be treated for that infection. On 3rd April 2006 the appellant entered patient A's room. She was to administer an antibiotic, Meropenem. Patient A had been prescribed that drug since she was allergic to penicillin. Meropenem is a non-penicillin based antibiotic. That day the appellant was being observed by a student nurse, a Joanne Tonkin. Because of the condition of patient A the antibiotic was to be administered intravenously through a central line, called a Hickman line.
3. The first allegation against the appellant was that before she administered the medication on 3 April 2006 she failed to check patient A's identity. At the hearing before the panel the appellant admitted that she had failed to do this but advanced mitigating factors. The second allegation was that she administered a quantity of Tazocin, which is a penicillin based antibiotic. She vigorously denied that allegation but ultimately the panel found it proved. The third allegation was that she then withdrew about 30 millilitres of blood from patient A in an attempt, as she put it, to reassure the patient that she was withdrawing any untoward drug from her. The appellant admitted that she did withdraw the blood but said that it was not harmful.
4. The fourth allegation was that, following this, she failed to report the error to the ward manager. A second aspect to this fourth allegation, that she had not prepared an incident report, was found to have no basis and was withdrawn. The fifth allegation was that the appellant challenged patient A for raising the matter with the ward manager. The appellant admitted that she had spoken to the patient later in the afternoon of 3 April 2006 but she denied confronting her. The panel found that the appellant had seen the patient and that it was inappropriate for her, in the circumstances, to have done so.
5. The hearing before the panel occurred over the course of a year. Throughout the proceedings the appellant was represented by Mr Sykes. In the first phase, which was in late July 2008, evidence was heard from the student nurse, Joanne Tonkin, and also from a senior sister. When the hearing resumed in December 2008 further evidence was heard from the ward manager and from another senior nurse. The appellant herself gave evidence for a whole day, on 19th December 2008. The hearing then resumed in June 2009. The appellant gave further evidence and there were then closing submissions. The panel made its decision, as regards the facts, on what was day 7 of the proceedings, the 30th June 2009. There were then submissions on impairment. On the 8th day, 1st July 2009, the panel found that the appellant's fitness to practise was impaired.
6. The panel then turned in the third phase of their considerations, the issue of sanction. The presenting officer for the Council made submissions. He drew the panel's attention to an incident in January 2006, which involved the provision of medication to a patient on the ward. As a result of that the appellant had been subject, it appears, to a complaint. She was subsequently given training in respect of the need to communicate well with patients. The presenting officer submitted that, given that earlier incident and the training which followed, there was no evidence that the appellant had reflected on the matter. The earlier incident, coupled with the incident in April, the subject of the allegations, demonstrated that the appellant had obtained no real benefit from her training and lacked insight.
7. On her behalf Mr Sykes submitted to the panel that the weight to be given to the earlier incident in January 2006 should be very little, given that there was a dearth of information on what had happened and that there had been no disciplinary investigation. He then went on to contend that the April incident, the subject of the allegations, was a one-off incident. There was no evidence of any complaint in relation to the appellant's work over a period of two years and two months when she had been in practice as a nurse. For example, she had been administering medication, apparently without any issues arising. In Mr Sykes' submission she also had demonstrated insight. She may not have learned her lesson as to the standard which the panel would think necessary, but she had gone some way towards doing that. Moreover, Mr Sykes returned to a point that he had made in submissions during the earlier phases, the fact finding and the impairment of fitness phases, that the hospital conditions should be taken into account, understaffing and the lack of training provided.
8. Mr Sykes submitted that to strike off the appellant would be wholly excessive. This was a nurse who had a relatively short period of practice, who had been placed into a difficult ward, who was somewhat lost in terms of drug administration, and who did not understand chemotherapy. There were vague rules in the hospital about double checking. Mr Sykes continued that, once the appellant had realised that she had mistaken a patient, she stopped the procedure. Moreover, she subsequently completed the incident form.
9. The panel made its finding on sanction. Its reasoning tracked the Indicative Sanctions Guidance issued by the Council. Thus it began with the lowest level of sanction and worked upwards towards the most severe. When it considered issuing a caution, it said that the appellant in its view had shown insufficient insight, particularly when answering questions at the hearing as to her reflections about what she had done in April 2006:

"Her oral responses throughout the hearing on this issue gave the panel the impression that, despite her letter of June 21st 2006, following her dismissal from her employment with the Addenbrookes Hospital (in which she apologised for her actions to the patient and showed some insight into her failing at the time), in this hearing [the appellant] seemed to be reluctant to acknowledge the seriousness of what she had done. She appeared to be intransigent and diffident in her demeanour."

10. The panel went on to identify what it saw as the direct harm caused to the patient as a result of what had happened. It went on to note that this was not an isolated incident, contrary to the submissions of Mr Sykes. There were five proved allegations caused by more than one nursing duty failure: the failure to check the patient's identity; the failure to check further so as to avoid giving the wrong intravenous drug to her; the failure to deal with the situation appropriately, including extracting a considerable amount of blood from the patient after the event without her consent; the failure to report the drug error in a consistent manner so as to avoid delay and confusion; and, finally, challenging the patient about the action which the patient was forced to take ie the complaint, because of the appellant's delay in responding to the patient's concern about what had happened.
11. The panel noted that the appellant had undergone additional training after the January drug-related incident. The panel noted that the appellant's words "show a trend to casting the blame away from herself to others and a reluctance to accept constructive criticism of others of her practice." The panel concluded that the hospital had done all it could to help her through her deficiencies but had met with resistance. There was a lack of self-awareness in sessions she had undertaken. It noted that it could see no relevant testimonials or references from the appellant. The panel then said this:

"The panel considered a conditions of practice order and rejected this on the basis that there could be no appropriate conditions of practice that could adequately address the many issues arising from this case, at present. The [appellant] has demonstrated a resistance and an inability to respond to training and suggestions in the past and, thus, it is highly questionable that any conditions at this time could be efficacious."

12. In considering the conditions of practice order it would seem that from its earlier comments the panel would have had in front of it paragraph 11 of the Indicative Sanctions Guidance. That provides that conditions of practice orders

"may be appropriate when most of the following factors are apparent. This list is not exhaustive:

* identifiable areas of the registrant's practice are in need of retraining and there is no evidence of genuine incompetence (lack of competence cases);

* potential and willingness to respond positively to conditions requiring retraining (misconduct and lack of competence cases);

* willingness to comply with conditions requiring supervision of health (health cases);

* conditions will protect patients and clients during the period they are in force;

* and possible to formulate appropriate and practical conditions of practice."

13. The panel turned to consider a suspension order, a more severe sanction. It noted the provisions of the Guidance in relation to that. It decided that the appellant's misconduct was such that it was incompatible with continuing to be registered as a nurse "due to the serious nature of the case against [her]". It then said that the only proportionate and appropriate sanction was a striking off order:

"Although the registrant had continued to work as a carer in the residential and community sectors in the last two years, has addressed some very basic drug administration issues by way of a recent course of one day's duration ... the overwhelming factor in this case is that the registrant made a significant drug error which she then compounded by obfuscation and obstruction at the time and which she continued to do at this hearing, where the panel has held that her evidence was contradictory and inconsistent.

"Furthermore, the registrant has not shown any insight at all since the said letter of June 2006. She has demonstrated intransigence and resistance to any help given to her when she was in practice as a registered nurse and that makes the concept of a suspension order with a view to a staged return to practise extremely unrealistic. This was further shown by the failure of the registrant at this hearing to present any form of useful reference or testimonial evidence to the panel to show a thought-out process on her part so as to provide reassurance to the panel and to the public that she would ultimately make a safe and competent practitioner.

"In the panel's view protection of the public and public confidence in the profession of nursing as well as the upholding and safeguarding of standards of the profession in this case, outweighs the registrant's own interests in continuing in her chosen profession."

14. Before me today Mr Makulla has made cogent submissions, attractively and succinctly put. He accepts the legal principle that for the appellant to succeed before me she must demonstrate that the imposition of the striking off order was either excessive or disproportionate, or outside the range of what could be regarded as reasonable. In his submission there were five factors which demonstrated that it was an excessive and disproportionate sanction imposed by the panel, and if it was also outside the range of what could be regarded as reasonable.
15. First, he pointed out that the appellant had only been in practice for two years. Indeed, she was only in her 7th month of serving on this highly specialised haematology ward. In his submission, because of her rotations to various other wards during the two years of her practice, she did not have the requisite experience. That factor had not been sufficiently taken into account by the panel. Secondly, he submitted that the public interest could be served by a less severe sanction. The incident of April 2006 reflected her inexperience, and a lesser sanction could, with time, lead to her effective practice as a nurse, whilst ensuring the protection of the public.
16. That led to Mr Makulla's third submission, that what the panel should have considered was a combination of robust training and rigorous supervision. The panel could have imposed conditions to that end. The appellant could, for example, have been subject to a condition limiting her ability to administer drugs for a certain period until she had been adequately trained and supervised. In his submission, the panel had not adequately considered that avenue. Fourthly, Mr Makulla submitted that the panel had misconceived what they described as the appellant's reluctance to acknowledge the seriousness of what had occurred in April 2006. They placed great weight on her demeanour and on her behaviour during the course of the hearing. That, in Mr Makulla's submission, did not adequately take into account the pressure that the appellant would have been under as a result of cross-examination in a hearing which potentially could, and in fact did, result in her striking off. Finally, in his submission the panel had not given adequate reasons in relation to the conclusion it had reached.
17. In my view the panel's decision cannot be faulted in terms of its approach. When it considered the most serious sanction, striking off, it would have had in front of it paragraph 13 of the Indicative Sanctions Guidance. That provides that striking off is likely to be appropriate when a nurse's behaviour is fundamentally incompatible with being registered. That can result from either a serious departure from the relevant standards as set out in the Code of Professional Conduct, or other standards, or that confidence would be undermined if the person were not to be struck off. It is evident from the reasoning of the panel on sanction, which I have set out, that it did take into account the range of matters which Mr Makulla now raises and which Mr Sykes had advanced before it.
18. The context was that the appellant had given evidence over a period of a day in December 2007, and then over part of a day in June 2009. She had subsequently given evidence in relation to what had happened after April 2006 in terms of her employment as a carer. The panel would have had adequate opportunity to observe her and to reach conclusions about, for example, her demeanour and her acknowledgement, or otherwise, of the seriousness of what had happened. That would have been notwithstanding the fact that she would have been under pressure, given the nature of the proceedings. The panel was aware of the training issue but had come to the conclusion that a period of further training would not address the serious deficiencies which they identified as a result of what happened on that day in April 2006. The panel was also aware that she was in the early stages of her career but also that she had been on this ward for a considerable period. The reasons given, both in relation to sanction and in relation to the findings of fact and the finding in relation to impairment of fitness to practise evidence, in my view, a very careful and considered approach on the part of the panel to the decisions which it needed to make.
19. In summary, in my view the panel was entitled to take the view that there had been a series of errors on that day in April 2006, which represented a serious departure from the standards expected of a registered nurse. It was not simply the original mistake as to the identity of patient A but the subsequent behaviour of the appellant, in both extracting blood without consent, and in terms of not reporting the matter to the ward manager. The was also her subsequently speaking to the patient once the patient had made a complaint. The panel took into account that the appellant had undergone the additional training in January 2006 as a result of a previous drug related error. In those circumstances, the panel was entitled to regard the April incident not as isolated, but as demonstrating inadequacies, both in practice and also in the response to training. Consequently, in my judgment the appellant has not demonstrated that the imposition of the striking off order was excessive and disproportionate or outside the range of what could be regarded as reasonable. I dismiss the appeal.
20. MRS THOMPSON: There is an application for costs. I have a copy of the schedule of costs. I hand that up.
21. MR MAKULLA: I have had a look at the costs schedule. The only observation is the 10 hours preparation of a skeleton argument. I caution to say that, having regard to the rather straightforward nature of the facts in this case and the points of law, I would not imagine that that should have taken 10 hours to prepare. I have given consideration to the volume of the documentary evidence here but the Council's case is straightforward in its approach. It should not have taken counsel 10 hours.
22. MR JUSTICE CRANSTON: Mr Makulla, the way the case had been prepared before you came into it was much more a scattergun approach. In terms of the time I had to take to prepare it I think 10 hours is eminently reasonable. The £2200 is allowed.