QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| COUNCIL FOR HEALTHCARE REGULATORY EXCELLENCE
|- and -
| (1) NURSING AND MIDWIFERY COUNCIL
(2) PAULA GRANT
Melanie McDonald (instructed by The Nursing and Midwifery Council) for the First Respondent
Ijeoma Omambala and Nadia Motraghi (instructed by Thompsons, Solicitors) for the Second Respondent
Hearing dates: 11 February 2011
Crown Copyright ©
Mrs Justice Cox :
The Relevant Background
"While employed as Audit Lead Midwife at the Basildon University Hospital, Essex you:
1. On or around March 5th 2006 failed to provide appropriate assistance and/or support to a junior colleague in that you:
(a) failed to perform a vaginal examination of Patient A when requested to do so by a midwife still on preceptorship and who was unsure of the baby's presentation.
(b) Refused a second request by the said junior midwife to perform a vaginal examination on Patient A."
"It accepts Midwife Dolly Hewett's evidence that she did request the registrant to assess patient A as she had not understood her findings following a vaginal examination on Patient A. She had conducted that examination because the CTG reading was giving her some concerns and indeed Patient A was wanting to push. The registrant explained that she refused a request to carry out a vaginal examination on Patient A because there was grade 3 meconium liquor, something which warranted a doctor being summoned. The panel does not accept her evidence that that was the case at the time. In fact she only referred to one request from Midwife Hewett to carry out a vaginal examination. The panel find that the request to which she was referring was in fact Midwife Hewett's second request. Moreover she did not write up any notes. She therefore advances no explanation for her failure to carry out the examination. The panel do not consider that there was any justification for the registrant failing to perform a vaginal examination on Patient A when it was first requested by Midwife Hewett. The latter was unsure of the presentation. She turned to the senior midwife on duty. Patient A wanted to push. If there was any justification for not assisting her, it behoved the registrant to write it up. In fact she did not. The panel therefore find that there was an obligation on the registrant to carry out a vaginal examination which she failed to discharge. By reason of these matters the panel find that the registrant failed to provide appropriate assistance and/or support to a junior midwife. "
"2. Between March 2006 and February 2007 you subjected a junior colleague to bullying and/or harassment in that you:
(a) On numerous occasions in an unpleasant and/or intimidating manner questioned the junior midwife about the fact that she had reported the matters set out at 1 above, to her preceptorship leader.
(b) On or around October 20th 2006 locked the said junior midwife in a room and questioned her about the statement she had made regarding the incident set out at 1 above, in a threatening and/or aggressive manner."
"The Panel find the facts of Charge 2 as particularised in Charge 2 (a) proved. the panel prefer the evidence of Midwife Hewett concerning this issue rather than that of the registrant. The panel regarded Midwife Hewett as credible about the manner in which the registrant spoke to her. Indeed Midwife Hewett explained that in consequence of this, she changed her shift, she talked to a close friend. And eventually she asked Lynn Cook, the Head of Midwifery and Gynaecology, to abandon the investigation. Those matters are consistent with Midwife Hewett feeling that she was being bullied. It finds that subjectively and objectively the registrant was questioning her in an unpleasant and intimidating manner.
Likewise the panel find the facts of Charge 2 as particularised in Charge 2 (b) proved. The panel prefer the evidence of Midwife Hewett about this. It finds that the registrant did lock her in a room and questioned her about a statement which she claimed to have seen in respect of the incident the subject of Charge 1. It accepts Midwife Hewett's evidence that her manner was threatening and aggressive both subjectively and objectively.
In the light of these findings the panel finds that, between March 2006 and February 2007, the registrant subjected a junior colleague to bullying and harassment."
"3. On or around February 1st 2007, you failed to provide appropriate care to Patient B who had been admitted for the delivery of her baby who had died in utero, in that you:
(a) Spoke to Patient B in a rude and/or insensitive manner.
(b) Asked patient B why she wanted to see a priest.
(c) Failed to explain to patient B that she would be unable to use the SANDS room for the delivery.
(d) Told Patient B and her partner that the birth of a dead baby was as traumatic for the midwife as it was for the parents.
(e) Failed to reassure Patient B properly or at all about the circumstances under which the delivery would take place."
"The registrant herself made some concessions in respect of this charge. She conceded that the ward was busy and that she could have used more appropriate language. She regretted not spending more time with her. She admits that she did not explain to patient B that she would not be able to use the SANDS room for delivery. But in the view of the panel these admissions, and the apologies which she says attended them, did not address the matters identified in the charge. Patient B explained in graphic terms how her experience on the ward would be ingrained in her memory. By contrast some 4 months after the incident the registrant contended that she had no independent recollection of Patient B's labour. That position persisted even when she had sight of the notes. In consequence it was not possible for the internal investigation to come to a conclusion. Nevertheless the registrant gave evidence about this incident before the panel. With that background, the panel found Patient B's evidence much more credible than that of the registrant.
By reason of the matters set out in Charge 3 (a) to (e), the panel find that the registrant failed to provide appropriate care to Patient B whose baby had died in utero."
"4. On February 11th 2007 you failed properly to supervise and/or record the birth and death of a baby of 20 weeks gestation in that you:
(a) Instructed the junior midwife allocated to the case, to record the delivery as a Termination of Pregnancy, notwithstanding the fact that the mother, Patient C, had gone into spontaneous labour.
(b) Failed to ascertain whether the baby was born alive.
(c) Failed to heed the observation both of the said junior midwife and Patient C and her partner, that the baby had been born alive.
(d) Failed to provide appropriate support to the junior midwife who had not dealt with a similar situation before.
(e) Altered the funeral form to show that the baby's time of death was the same as the time of birth.
(f) Removed the entry from the Live Births register and entered it instead on the Non-Viable Register."
"It may be that the registrant anticipated that the baby would not be born alive, but it was not good enough to assume that the baby would be born dead. She did not check for heart rate or respiratory rate, although she asserted that there [were] no such rates. There was no explanation for the movement other than that the baby was born alive. The registrant's explanation for movement after birth, namely that it was a consequence of the baby being expelled quickly, could not have endured for as long as 40 minutes, or even for the duration of the period when she was present. In consequence she failed to ascertain whether the baby was born alive."
"Midwife Hewett was a junior member of staff. The registrant acknowledges that she was asked to provide Midwife Hewett with support. Yet she left her to cope with a situation where the baby was moving but certain to die shortly thereafter. She instructed her to complete the Perinatal Loss Check List inaccurately. She changed the date on the funeral form. Lynn Cook asserted that she had not provided adequate support. The panel accept that."
"5. Between June 2007 and November 2007 you failed to comply with the academic requirements of the period of supervised practice you were required to undertake."
Misconduct and Impairment of Fitness to Practise
MS MOTRAGHI "....So taking those matters that we have gone through, your supervised practice, the academic and practical parts, and the fact you have been on the counselling course and other courses that you have attended, if you are given the opportunity to return to practice, how do you feel you would act differently and do you feel you would meet the standards of a safe practitioner?
A. I would meet the standards of a safe practitioner because I have had time to reflect and I have reflected and I have taken steps to improve upon my practice. I mean I am ashamed and very sorry for what took place........
A. ........I have worked very hard and I have reflected. I have gained insight. (Registrant distressed). The safety of midwifery has always been paramount to me.
Q. I am sorry, I did not hear that.
A. The safety of midwifery has always been paramount in my mind. I have never been an unsafe practitioner.
Q. MS MOTRAGHI: How do you feel you would be able to better relate to patients and members of their families and your other colleagues?
A. I will better relate because, as I say, the communication and counselling course has helped and I will apply that to my practice.
Q. And how did supervised practice in itself assist you?
A. Supervised practice made me reflect because that is the whole idea of supervised practice; you reflect on your actions, and I did. I was not given the opportunity to prove what I learnt in supervised practice because I was suspended from practice on 9 November so I was not given the opportunity. I was looking forward to being given that, but, saying that, you know, I did not work and I am taking the initiative to do the counselling course to enhance the whole communication issue."
"[Re Charge 1]
Q. Were you acting in good faith, Ms Grant, when you failed to comply with a request of a junior midwife?
A. I would not say that I failed to comply with a request. As I said, the situation at the time this was 2007 and at the time I did not perform the VE, and I apologise for that. I have reflected on this and it is something I would not do again. There is nothing else, you know, I could have done --- Sorry, on reflection now I should have done the vaginal examination and I am sorry. At the time the situation that was going on with everything else I didn't perform the VE and I hold my hand up to that and I was wrong."
"Q. You accept that with regard to charge 1(a) and with regard to charge 2 that before the NMC you disputed these allegations. Is that right?
A. Well, I wrote statements about it, yes.
Q. You disputed the allegations, the subject matter of charge 1(a) and charge 2, you didn't accept them when you came before the Conduct and Competence Committee of the Nursing and Midwifery Council; do you accept that?
A. Well, I gave evidence to the situation at the time, yes, but, you know, I have been proven and I just want to accept what has been said and what has been proven. I will accept that. That is the case and I can only move forward.
Q. Do you accept that your reflection is based upon the facts having been found proved?
A. My reflection is based on myself, the whole me, just to relook at myself completely. This is my reflection. On everything else that I have done in the past."
"[Re Charge 3]
Q. you said that you were in a hurry and you were in a rush at the time.
A. Well, I had other patients.
Q. How does that justify speaking to a patient in a rude and insensitive manner?
A. At the time I did not feel that I was rude but I accept that is the decision that I was rude and I will apologise and I will not be rude to patients that I look after in this sort of situation. I did not on that day set out to be rude to Patient B. It was not my intention to go into Patient B and to be rude. I was perceived to be rude and I accept that I am sorry the way Patient B felt and the upset it caused her. And I apologise and I will endeavour not be rude again.
Q. You said that you accept it now. Do you accept that your conduct was in the way described by charge 3 because the Panel found charge 3 proved?
A. I accept that the standard that was expected of me was not right, it was not high. I had failings on the day and I accept that and want to improve. I want to improve it.
Q. And the reason why you accept that is because it was found proved? (After a short pause) You can agree or disagree, Ms Grant.
A. Well, I will agree."
"[Re Charge 4]
Q. You did not act upon the concerns of the junior midwife when she said that the baby was moving. That's correct, is it not?
A. Yes, I agree with that, yes.
Q. You assumed that the baby would be born dead, didn't you?
A. (After a short pause) I acted on what I saw at the time.
Q. Having observed what you say you observed and being told thereafter that the baby had moved, because you had assumed that the baby would be born dead, you disregarded that information, didn't you?
A. Again I acted on what I saw at the time."
"Q. And again your reflections are based upon the fact that the Panel found charge 4 proved?
A. Well, I would say my reflection is on everything, on my entire midwifery practice. All these things are included but I reassessed, I re-evaluated, I re-looked and saw how what I did, you know, why I did it. Because this is all done in my reflection when I did my communication and record keeping and I went over the whole thing and, you know, I looked at it all, and it was wrong and, you know, I have moved on. I have, you know. I have done quite a lot of things that will prevent this from happening again."
"Q. You stated: 'However, some involuntary movements, perhaps due to the spinal reflex, were interpreted by the midwife and parents as indicating a live birth.' That was your assessment after ten months of reflection. Is that correct?
A. I mean, this is the description of the incident, so I'm writing about the incident. Reflection covers a whole thing. The reflection is really going to go ahead from the evaluation, the analysis it's the whole I was describing the incident here.
Q. We will go on to that in due course. The question I am asking is simply your opinion at that paragraph: 'However, some involuntary movements, perhaps due to the spinal reflex, were interpreted by the midwife and the parents as indicating a live birth.' Is that your opinion ten months after the incident?
A. That's written down here, so I would just have to accept yes. It is in 2007, yes.
Q. Based upon your reflection, subsequent to that, at the hearing in July of last year, that was also your opinion of the incident. Was it not?
A. I'm sorry, can you say that again?
Q. When you gave evidence in July of last year, your evidence to the Panel, when you denied the charge, was that there was not any movement and that any movement was due to the rate of expulsion of the baby. Do you recall that?
A. Yes, I do recall that I recall saying that, yes.
Q. You accept today that the Panel found that that could not have been the case.
"...but in looking at this, this was in August and my communication and recording carried on in September and October and was improved."
"Paula Grant I found to be rude with an air of arrogance. Two incidents of note were Paula speaking to another member of staff when her manner was very abrupt and a rude comment overheard 'Well, you'll just have to wait there'. Further to that when I enquired about seeing a patient a member of staff was going to take me to see her when Paula interrupted sharply saying patient was not ready and would have to wait outside. It left me feeling quite belittled. I was surprised at Paula's attitude knowing she has attended in-house workshops within the Education Centre, on two occasions she has been a participant on the communications course, one of these sessions being a one-to-one session."
"A. No, it was not, it was not accepting the behaviour. I can't exactly --- I responded to what was written on here and I can't remember the exact words that I wrote. I think I wrote what was happening at the time. I do not have this statement here."
"Q. You were asked a question by your counsel. Ms Motraghi asked you: 'How confident are you regarding interacting with patients and colleagues?' Your response (and this is just from my note) was that you worked hard and reflected and gained insight into the and the safety of midwives has always been paramount. 'I've never been an unsafe practitioner.' Do you recall saying that?
A. Until this incident I've never had my practice, you know, to say 'You're unsafe', because if you are unsafe you would be coming up to the NMC; you are not safe to practise. This is the first time that this has come to light and has got to this stage.
Q. Do you accept that during these incidents you were an unsafe practitioner?
A. (After a short pause) I would have to disagree with I was unsafe. (After a short pause) And the reason that I would disagree is because I called the doctor when the doctor was needed, because there was a high risk lady who became high risk with meconium stains, so as a safe practitioner that is what is expected, that it was the norm, undeviated, and if you're safe you will just carry on, you won't involve the doctor, and with the funeral form I did went to a doctor. I did seek advice of a medical doctor and I did seek advice from a senior colleague. So that's not unsafe "
"Q. Can you tell us what you did between October 2007 and June 2009?
A. I was gravely ill.
Q. THE CHAIRMAN: You were what? I did not hear.
A. I was gravely ill. I had bilateral pulmonary embolism with deep vein thrombosis.
Q. Thank you very much. I did not hear you.
A. I nearly died."
"Reasons for the finding of impairment:
The panel finds that the matters proved against the registrant amount to misconduct.
In respect of Charge 1, by failing to perform a vaginal examination on patient A when requested to do so by a midwife on preceptorship, the registrant failed to co-operate with another health care professional and failed to facilitate her to develop her competence.
In respect of Charge 2, the registrant subjected a junior colleague to bullying and harassment on 4 occasions over a significant period of time. Thereby she did not treat her fairly. She did not treat her respectfully and with consideration. By her intimidating behaviour she did not uphold the reputation of the profession.
In respect of Charge 3 the registrant failed to treat Patient B with sufficient respect. Patient B had been admitted for the delivery of her baby who had died in utero. Yet the registrant spoke to her insensitively and treated her arrogantly. She did not fully consider Patient B's distress or act in a manner consistent with a professional midwife. Thereby she did not uphold the reputation of the profession of midwifery, nor did she justify the trust and confidence the public had a right to have in her.
In respect of Charge 4, the registrant overrode a junior midwife by not accepting her observation that Patient C's baby was showing signs of life, notwithstanding that she, the registrant, did not stay with patient C, nor did she examine the baby. She assumed that the baby was born dead. The registrant changed the records inappropriately and in a way which might have meant that Patient C and her partner were no longer able to have the funeral which they had chosen. In fact the baby had died after birth following spontaneous labour. The registrant should not have altered the funeral form to show the baby's time of death as the same as the time of birth. She removed the entry from the live birth register to the non-viable register. Further she failed to provide sufficient support for the junior midwife. By acting as she did, she failed to discharge her duty of care to Patient C. She failed to respect the skill, expertise and contribution of the junior midwife, who was in fact right in respect of her assessment. She made entries in the heath care record which were inaccurate. She failed to justify the trust and confidence the public had a right to have in her.
Therefore the panel has considered whether by reason of the misconduct, the registrant's fitness to practise is impaired. The panel has addressed this question on the basis of Mr Justice Silber's 3 fold test referred to in the case of Cohen, namely:
Is the conduct of the registrant remediable; Has it been remedied; Is it highly unlikely to reoccur.
When considering this, the panel has taken into account the following matters:
1. by October 2007 the clinical facilitators (Supervisors of Midwives) who had been appointed by the Trust to consider the registrant's clinical practice in respect of a range of matters, in particular communication and record keeping, were satisfied that she was a competent midwife. This was reflected in the Notes of the Meeting between Joy Kirby, (the LSA Midwifery Officer), Lynne Cooke (Head of Midwifery), Colleen Beg (Deputy Head of Midwifery) and Gillian Ottley (Ward Manager) dated 24th October 2007 which was based on feedback from clinical facilitators, the assessment documentation and women.
2. It was the academic element of the supervised practice which the registrant did not pass. However, that was only because it was alleged that she had not submitted her work in time. In fact the panel found that allegation (which was the gravamen of Charge 5) not proved. As to the quality of her work, the academic supervisor Trudy Stevens, senior lecturer in midwifery, effectively indicated that she was satisfied with this element in an e-mail dated 2nd November 2007.
3. It is right to observe that in August 2007 there were 4 criticisms of the registrant's practice, which formed the subject of Exhibit 8. Those criticisms related to the registrant's manner towards certain patients and a member of staff. It is fair to say that the panel found the material in respect of these criticisms unsatisfactory. Only one of the criticisms was brought to the attention of one of those supervising Sister Grant, and then only because she herself was involved in the matter. No action was taken in respect of these criticisms of the registrant, notwithstanding that the Trust was aware of them. Moreover there is this point. Even if the matters betrayed unsatisfactory practice in August 2007 on the part of the registrant, that was at a time when the registrant was really on the threshold of addressing the shortcomings in her practice. One of her supervisors, from whom the panel heard evidence, acknowledged that the registrant had found it difficult to come to terms with the criticisms which had been made of her at the outset of her period of supervision in June 2007. By October 2007 she said that she had thoroughly come to terms with her failings and had addressed them. August 2007 may be said to have been at a relatively early stage in the process of the registrant's journey of self awareness.
4. On 24th June 2009 and 14th January 2010 the registrant accessed a Supervisor of Midwives outside her NHS Trust to enable her to keep her practice up to date. The first of these occurred before such time as any evidence had been heard.
5. From June 2009 the registrant has embarked on a range of courses including:
a. Maternity and gynaecological training on 22nd June 2009;
b. A 2 day course starting on 30th September 2009 on maternity and newborn care;
c. A communication skills course on 6th March 2010;
d. On 20th March 2010 a course called HIV, a Midwife's Dilemma.
6. She joined the Stillbirth and Neo natal Death Charity (SANDS) in December 2009.
7. Significantly the registrant embarked upon a year's Diploma Course with the Counselling and Psychotherapy Central Awarding Body in September 2009. She paid for this course herself. Her practice had been suspended by the NMC in November 2007. Therefore a course on communicating with others within the nursing and midwifery profession was not available to her. The course upon which she did embark includes a significant element in relation to communicating empathic understanding. The registrant explained that this was a most important matter in enabling her to reflect upon her ability to deal with others, i.e. her interpersonal skills. It addressed the very matters which were lacking in her attitude in her practice.
It was urged upon the panel by Miss Baljit that the registrant did not admit the Charges in July 2009 when the case was first listed. That is right, although the panel observe that the registrant did make a number of concessions when giving her evidence on the facts of the case. Miss Baljit's point would be a good one if there was nothing to suggest that the registrant's attitude to these matters in April 2010 has changed since July 2009. The panel accept that it has changed. Indeed the panel discerned something of a profound difference in the registrant's demeanour and manner of giving evidence in April 2010 as opposed to July 2009. It was interesting that one of the witnesses whom she called, Sister Williams, a Band 7 Senior Midwife and Supervisor of Midwives, indicated that it was the Counselling and Communication Course which has made a significant difference to the registrant's attitude and practice. The panel accept that.
The panel does not underestimate the seriousness of the allegations which it has found proved against the registrant. The misconduct of the registrant revealed her at that time as someone who was behaving arrogantly and impatiently with junior members of staff and patients. The panel consider that she has addressed this unfortunate poor performance. If it did not, the panel would have had no hesitation in finding the registrant's fitness to practise to be impaired today. It may be observed that the registrant took no steps to address deficiencies in her practice between about November 2007 and about June 2009. In part this is attributable to the Interim Suspension Order imposed in November 2007 which deprived her of much opportunity. It is to her credit that the registrant ultimately sought ways of getting round that. But the main reason for her inactively (sic) throughout most of this period was because the registrant was seriously unwell.
The panel is confident in the registrant. It accepts the observations of Sister Williams and Sister Dowuona that the registrant is a competent midwife. The mere fact that the registrant has been out of practice since November 2007 is immaterial. Indeed the registrant has had sufficient hours of practice within the period of the last 3 years to meet the NMC's requirements of a practising midwife as set out in the Post registrant Education and Practice (PREP) handbook. Quite why she behaved in the way she did in the period March 2006 to February 2007, the panel cannot say. But it does accept that the consequences of her behaviour represented a profound wake up call to the registrant. The panel does not find that the registrant's fitness to practise is impaired. The behaviour of the registrant was remediable. It has been remedied. The panel consider that it is most unlikely that the registrant will commit misconduct again."
The Legal Framework
References by the CHRE
"(4) If the Council considers that
(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or
(b) a relevant decision falling within subsection (2) should not have been made,
and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court.
"(8) The court may-
(a) dismiss the appeal,
(b) allow the appeal and quash the relevant decision,
(c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or
(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court, and make such order as to costs... as it thinks fit."
"73 What are the criteria to be applied by the court when deciding whether a relevant decision was 'wrong'? The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession. The role of the court when a case is referred is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. Is that any different from the role of the council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must we think, involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession.
77 In any particular case under section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and-the interests of the public."
"78 The question was raised in argument as to the extent to which the council and the court should defer to the expertise of the disciplinary tribunal. That expertise is one of the most cogent arguments for self-regulation. At the same time, Part 2 of the Act has been introduced because of concern as to the reliability of self-regulation. Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the council and the court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. "
The Statutory Scheme for Misconduct by Nurses and Midwives
" Any approach to the issue of whether a doctor's fitness to practise should be regarded as 'impaired' must take account of 'the need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the'(sic). In my view, at stage 2 when fitness to practise is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor's misconduct, his or her fitness to practise has been impaired. It must not be forgotten that a finding in respect of fitness to practise determines whether sanctions can be imposed: s 35D of the Act.
 I must stress that the fact that the stage 2 is separate from stage 1 shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner's fitness to practise is impaired.
 There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discreet (sic) exercise whether the practitioner's fitness to practise has been impaired. Indeed s 35D(3) of the Act states that where the Panel finds that the practitioner's fitness to practise is not impaired, 'they may nevertheless give him a warning regarding his future conduct or performance'.
 Indeed I am in respectful disagreement with the decision of the Panel which apparently concluded that it was not relevant at stage 2 to take into account the fact that the errors of the Appellant were 'easily remediable'. I concluded that they did not consider it relevant at [that] stage because they did not mention it in their findings at stage 2 but they did mention it at stage 3. That fact was only considered as significant by the Panel at a later stage when it was dealing with sanctions. It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. These are matters which the Panel should have considered at stage 2 but it apparently did not do so."
" In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him."
" Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence."
"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."
The value of this test, in my view, is threefold: it identifies the various types of activity which will arise for consideration in any case where fitness to practise is in issue; it requires an examination of both the past and the future; and it distils and reflects, for ease of application, the principles of interpretation which appear in the authorities. It is, as it seems to me, entirely consistent with the judicial guidance to which I have already referred, but is concisely expressed in a way which is readily accessible and readily applicable by all panels called upon to determine this question.
Discussion and Conclusions