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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) Sarah Elizabeth Johnson (2) Lynette Maggs |
Claimants |
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- and - |
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Nursing and Midwifery Council |
Defendant |
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Lynn Griffin (instructed by Ward Hadaway) for the Defendant
Hearing dates: 24-25 April 2013
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Crown Copyright ©
Heading | Para No. |
Introduction | 1 |
Chronology of the Disciplinary Case | 3 |
The Result of the Disciplinary Case | 12 |
The Claim for Judicial Review | 17 |
The Findings of Misconduct | 21 |
The Registrant's Case | 27 |
The NMC's Case | 30 |
Alleged Errors of Law | 32 |
Adequacy of the NMC's Reasons | 36 |
Alleged Irrationality and Perversity | 39 |
Charge 2 | 43 |
Resident J | 54 |
Resident K | 64 |
Resident D | 70 |
Resident A | 76 |
Misconduct | 79 |
Charge 2 – Sarah Johnson | 81 |
Charge 2 – Conclusion | 90 |
Charge 7 | 91 |
Conclusion | 106 |
Mr Justice Leggatt :
Introduction
Chronology of the Disciplinary Case
"We fully understand the anxiety and distress that the delays in the handling of this case have caused to all the parties involved and offer our sincere apologies for the unacceptable length of time it has taken to reach a conclusion.
We are confident that if similar allegations were referred to the NMC today, changes in our rules and processes would mean that the cases would be completed much more quickly."
The Result of the Disciplinary Proceedings
The Claim for Judicial Review
"It is a serious matter to be found guilty of misconduct by the [NMC]'s professional conduct committee …"
Sarah Johnson has a previously unblemished career of 30 years spent caring for the elderly. She continues to work in the care sector and is obliged to declare a finding of misconduct against her on any job application or any application to become a registered person for a care home. Lynette Maggs is no longer working in the sector having retired after 42 years of nursing, but the finding of misconduct casts a pall over her long and otherwise distinguished and unblemished career.
The Findings of Misconduct
i) In respect of Resident J, that "no risk assessment or care plan in relation to falls was kept during the period 12 May 1999 to 24 January 2002";ii) In respect of Resident K, that "no separate risk assessment in relation to falls was kept during the period 8 January 2001 to 17 April 2001";
iii) In respect of Resident D, that "there was no review kept of risk of falls and implementation of a care plan to reduce the risk and/or injury for the period 30 October 1998 to 15 May 1999"; and
iv) In respect of Resident A, that "no care plan was kept in relation to falls covering the period 25 May 1999 to 29 August 2000".
"The sphere within which Mrs Maggs was nursing at the time was the care of the elderly in Nursing Homes. Mrs Maggs should have ensured that her system for record keeping with falls actively and expressly included proactive measures, such as a care plan and an assessment of the risk of falling in each case. This would have addressed the risk to patients of falling, which, in the elderly has a high morbidity rate ...
The Committee found that the number of falls that were happening to the residents in the Charges found proved were of concern. Mrs Maggs could not have foreseen that the safety of the residents was assured following a fall. The simplest of risk assessments could have been used to document that all appropriate investigations and actions had been taken to safeguard the well being of the residents. Mrs Maggs had at her disposal a documentary framework for assessing the risk of falling, formulating an appropriate individualised care plan and undertaking reviews of the risks to the residents during their period of residence in the Home. The Committee finds the absence of such documentation in the context of repeated, frequent falling episodes with injury demonstrated sufficiently serious as to amount to misconduct."
"Ms Johnson, as Manager, held ultimate responsibility for the safety and well being of residents in the Home. She was responsible for data collection and any subsequent investigation into falls in the Home, a known risk in that sector at that time. She was required to submit specific information with regard to falls occurring in the Home to Head Office and for reviewing the Home's Accident Book. This, in itself, in the Committee's view indicates the seriousness with which falls were viewed in the Nursing Home at that time. An integral part of preventing possible falls was ensuring that relevant and appropriate documents such as individual assessments, care plans and written reviews were completed as part of her investigations arising from accidents. It was her remit to ensure that such actions were taken by the Matron to complete the more detailed and specific documentation than simply a progress and evaluation entry of the fall occurring.
The Committee has concluded that, in this way, as Manager, Ms Johnson should have ensured that the Home's system for record keeping with falls was addressed so as to actively and expressly include proactive measures, such as a care plan and an assessment of the risk of falling in each case. This would have met the risk to patients of falling, which, in the elderly has a high morbidity rate ...
Falls, and investigating them in a pro-active way by checking that risk assessment and care plans were in place, were an intrinsic and important part of her role as Manager. ...
The Committee finds that Ms Johnson's proven failure in respect of her omission is sufficiently serious so as to amount to misconduct."
"... whilst Ms Johnson had no direct responsibility for the administration of medication within the Home, she had an overall responsibility for ensuring the system was a safe one. Where she had knowledge of any occasions where this system had broken down, she had a responsibility to pass this information on to Mrs Maggs, as the Matron, who was responsible for training and supervision of staff who were directly administering medication, so that she could take action to address this."
The Registrant's Case
i) failed to understand the correct test for misconduct and in particular that a breach of professional duty must be serious in order to amount to misconduct;ii) failed to understand that the concept of vicarious liability is not applicable to allegations of professional misconduct and that personal culpability is required;
iii) failed to understand the test established by Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 – that the standard expected of a professional person is that of an ordinarily competent member of the profession and not any higher standard;
iv) failed to understand that conduct must be judged from the perspective of the time when the events occurred and without employing hindsight; and
v) ignored the fact that the burden of proof lay on the NMC to prove misconduct beyond reasonable doubt.
The NMC's Case
Alleged Errors of Law
i) In both cases the Committee expressly noted that misconduct must be "serious" and such as would be seen as "deplorable" by fellow practitioners. Furthermore, the Committee found that certain failures did not amount to misconduct because they did not satisfy this test. For example, under Charge 2, in addition to the matters which were held to be "sufficiently serious to amount to misconduct", the Committee declined to find that certain other "failures" by Lynette Maggs were "sufficiently serious" to do so.ii) The Committee expressly approached the allegations against Sarah Johnson on the basis that she "could only have personally and professionally failed where she was aware of an issue and did not take appropriate action(s)." A little later in its reasons the Committee recorded its view that Sarah Johnson "was responsible for failures of others and of systems at the Home save and except where she could not reasonably have personal knowledge for events that had occurred or had failed to take place." While there are no corresponding statements in the case of Lynette Maggs, there is nothing to suggest that the Committee approached her case on any different basis. In each case various allegations were rejected because the Committee considered that the registrant did not know or did not have reason to know of the matter in question. Although there is some ambiguity as to whether the Committee regarded actual knowledge as necessary or thought constructive knowledge sufficient, it is clear that the Committee recognised that personal culpability was required for a finding of misconduct.
iii) The Committee expressly noted in its reasons that "the standard required of the professional is that of the reasonable average in terms of expertise, skill and care." Certain allegations were rejected because they did not satisfy this test. For example, an allegation under Charge 2 that records ought to have been kept of pain suffered by Resident L was rejected on the ground that it was not in accordance with usual practice at the time to keep such records.
iv) The Committee likewise expressly noted "the principle that a professional must be judged at the time of the events in question and must not be judged by the wisdom of hindsight." Again, the Committee expressly applied this principle in rejecting various allegations – the allegation about the absence of pain records for Resident L again being one example.
v) The Committee expressly noted that the NMC bore the burden of proving the case and are doing so to the criminal standard of proof – i.e. beyond reasonable doubt. Various allegations were rejected because the Committee was not satisfied that relevant facts had been proved to this standard. For example, the Committee rejected an allegation under Charge 2 that a continence assessment ought to have been maintained for Resident I on the basis that "the NMC has not proved that these were necessary or a requirement at that time beyond reasonable doubt."
Adequacy of the NMC's Reasons
Alleged Irrationality and Perversity
Charge 2
"I think if you have a resident that is falling and one does not need to do a risk assessment, I think that is a lack of good judgment."
The line between lack of good judgment and negligence in doing or not doing something can sometimes be narrow. The distinction is, however, of critical importance where – as here – it was necessary for the NMC to prove negligence in order for the charge against the registrants to get off the ground. It was necessary for the NMC to establish in the first place that it was negligent not to record in the resident's notes a risk assessment and/or care plan for falls (as the case may be) – the test for that purpose being whether any ordinarily competent member of the nursing profession exercising reasonable skill and care and applying the standards of the relevant time would have made such a record. Responsibility for the care of any individual resident, and for keeping that resident's notes, lay with an individual nurse. Only if it was negligent for the nurse responsible for a resident's care not to have kept a particular record did the further questions arise of (a) whether the Matron or Manager of the Home was negligent in failing to ensure that the record was kept and (b) if so, whether that negligence was so serious as to amount to misconduct.
Resident J
"… the Committee noted that Marion Moody, the NMC's expert, had stated that there should have been a care plan and a risk assessment in this case. Moreover, the Committee noted that Margaret Jones, the Home's regional manager at the time, stated there should have been a risk assessment with "that many" falls as this resident had experienced. In addition, Mrs Maggs stated in evidence that she had wished she had made sure they had been done (in relation to all of the residents' falls risk assessment documentation). She also agreed in evidence in relation to Resident J that he was prone to falls, that she had missed an opportunity and that there should have been a care plan and risk assessment documentation. Thus the Committee finds this head of charge proved."
"A. I found no evidence that there was a care plan in place or that there was clear instruction to staff as to what they might have done to reduce the risk of falls. I also found no evidence there had been any analysis of the falls he previously had sustained with a view to trying to identify if there were any patterns which could then give some insight into whether or not at certain times of the day/night greater supervision was required.
Q. Would that be undertaken in a risk of falls assessment?
A. Yes, and it is an ongoing assessment as well. Each time the patient falls, what you are wanting to try and establish is could that have been prevented, and then you are beginning to build up a picture of the problems that are associated with that particular patient. Also, increasing falls could also be an indication that perhaps the patient's medication needed to be reviewed or that his dementia was worsening, because falls are often associated with patients with dementia."
"… as I say, I think at that time we were using the Mobility Care Plan to put in anything about the mobility. I mean, on reflection now, looking back, I wish I had made sure that they were all done, but at that time that's what they were doing and …"
It is plain that this was a regret expressed in hindsight and could not reasonably be regarded as an admission that she had been negligent judged by the standards and practice of the relevant time.
"Q. Well Mrs Moody takes the view that there should have been a specific Care Plan; do you agree with that or not?
A. I don't agree with her.
Q. In effect what is said is that by failing to make the assessment that you missed an opportunity, potentially, to intervene to assist Resident J?
A. Well, she didn't know Resident J; we did and we did our best for this gentleman. …"
"Q. The position of the NMC, through Mrs Moody, is that that was not sufficient; you understand that, that is the position Mrs Maggs, and you disagree with that?
A. I think Mrs Moody made judgments on paperwork. She didn't know the patient and that in today's world she didn't seem to understand at that time and how much things have moved on in the last 10 years, which is great. But, you know, you've got to be judged, if you like at that time.
Q. So, in terms of the question that I asked you, in the round you disagree with Mrs Moody for the reasons you have just told us?
A. Yes."
Resident K
"In relation to the alleged failure to maintain adequate nursing records, the Committee accepted the evidence of Ms Marion Moody, the NMC's expert nurse witness, that she had not seen a separate risk assessment in the record and that there should have been one, in light of Resident K's recent history of frequent falls (Day 34, page 58). Furthermore, Mrs Maggs also stated in her evidence that she wished she had made sure that a falls risk assessment had been done (Day 47, page 59). In addition, the Committee accepted the evidence of both of Mrs Margaret Jones, regional manager with the Group in 2001 and Ms Mawson, the registrant's registered nurse witness that there was a separate section in the residents' notes that could be used to assess risks, including the risk of falls. Whilst the Committee accepted the evidence of Ms Margaret Moody, the registrant's expert nurse witness, that such specialist risk assessment of falls was not routine in Care Homes at this time, and even taking into account that this matter is being viewed after the event, nevertheless, the Committee has accepted the evidence that the particular facts of this resident's propensity to fall at that time, using standards in Homes at that time, required a separate risk assessment of the risk of falling for Resident K, when it would have become apparent that she was liable to falls. The Committee finds that there was no such assessment in being."
"Q. So, in effect, the issue between you and Mrs Moody is a relatively small one in that she says there should have been a specific document where this assessment was made?
A. I think that's where the difference is; that Mrs Moody is talking about the falls risk assessment, whereas we, if you like, put it under the umbrella of mobility and that is where the discrepancy has come.
…
Q. And in so far as she went, and she was not forceful about it, Mrs Moody said she felt that there should have been a risk assessment and there was not one on the notes.
…
A. Yes, because she had not looked at the mobility. As I said, she is looking at it from nursing today when there are these falls clinics and everything; whereas at that time it was just – I think it was probably just beginning to come out about the falls and setting up the falls clinics. So we did use mobility as the care plan …"
Nothing said by Lynette Maggs amounted to an admission of fault or otherwise provided any support for the Committee's findings.
Resident D
"Mrs Marion Moody stated (Day 34, pages 76-77) that part of good practice (sic) 'if you are looking at the care to be provided under your managerial umbrella, is that you have some insight into what's gone on before. And particularly relevant is falls because it carries such a high morbidity rate. So I would not expect you to be pulling out all the files, but what I would jolly well expect is when I am looking at the patient's records is to see the last review of the forms, the analysis. She then went on to describe the system in Homes of monitoring falls as a corporate organisation because of trying to reduce elderly people falling. The Committee noted that Ms Johnson, as Manager, was required to fill in a falls return to the WCG Headquarters each quarter which, in the Committee's opinion, supports the emphasis that Mrs Marion Moody had placed in her evidence on falls in Homes caring for the elderly at this time. The Committee noted that Mrs Margaret Moody stated that she did not think that at that time care plans for this situation were in place and that if there were other care plans, these would have been sufficient to monitor what was happening to Resident D and that 'an additional piece of paper wouldn't have stopped the fall necessarily' (Day 66, page 156). In addition, the Committee noted that Mrs Maggs stated in her evidence she felt the charge was 'unfair' as she was not working on that floor and that 'Marjory Brigham was the nurse in charge and the patient she knew very, very well' (Day 43, page 84). She also added in cross-examination about this matter, that the documentation in Resident D's records was sufficient to monitor the fall situation and that Mrs Marion Moody was 'coming from the world of the falls clinics now' (Day 47, page 90).
The Committee is of the view that the evidence overall supports the fact that falls in the elderly were a known risk in the Care Home sector at that time. In the opinion of the Committee this was evidenced by the requirement for a falls return to headquarters, the number of records, such as the Progress and Evaluation records of this resident, that referred to the fact of her falls, as well as the number of falls sustained by Resident D and that they were increasing in January to April 1999, at a time when her condition was very frail.
The Committee has concluded that on this matter, it found the evidence of Mrs Marion Moody, the NMC's expert, to be compelling and convincing and it preferred her evidence to that of Mrs Margaret Moody, the registrant's expert. It is clear to the Committee that this resident at this time was very ill and was falling more frequently. It is the Committee's conclusion that the expert evidence it has accepted in its own judgement points to a clear managerial duty of Mrs Maggs, as Matron, to ensure that adequate nursing records on the review of the risk of falls and the implementation of a care plan to reduce the risk of injury and/or to reduce the injury to Resident D were maintained. The Committee has concluded that these records were not maintained and that, therefore, for these reasons, she failed to fulfil this duty."
Resident A
"The Committee has taken account of the number and severity of Resident A's falls and that the NMC's expert Mrs Marion Moody stated that this invoked a duty to develop a care plan in relation to falls. The Committee has accepted the evidence of Mrs Marion Moody (Day 35, pages 4-9) that there was a responsibility to provide such an audit by way of a care plan in circumstances such as this where the resident was falling regularly and where the resident would be at risk of falling again and causing himself further injury. Therefore, for these reason, the Committee finds this head of charge proved."
Misconduct
Charge 2 - Sarah Johnson
".. Ms Johnson managerial role in this respect encompassed a quarterly return to WHC which included falls for which she was responsible for compiling. Therefore, the Committee has determined that Ms Johnson would have known the number of falls occurring at the Home. Furthermore, an accident book was kept by the home and she stated in evidence that she was responsible for reviewing it (Day 53, page 112). In the Committee's opinion, therefore, Ms Johnson had the information available that should have triggered an investigation to determine if the appropriate actions and records had been kept, including a general risk assessment form for [the resident]. The Committee took into account that Ms Johnson knew that there was a general risk assessment section in the WHC documentation that could be used to assess the risk of falls (Day 53, page 113)."
The exception is that in the case of Resident A no reference was made to a general risk assessment form, as the allegation in that case was limited to the absence of a care plan rather than a risk assessment.
"Q. … was there any set documentation for care plans for falls, was there any guidance from Westminster in terms of policies for it?
A. No. We had a general risk assessment form and the risk could be anything that we'd identified. I mean, if you were looking after somebody in their own home, it would be different because often you are looking at the environment and seeing where the environment is perhaps the reason for falls, whether they have got steps and that sort of thing. But in a purpose-built nursing home, all the rooms were the same, all the en suites were the same and we had the same grab rails and raised toilet seats, so …"
Charge 2 - Conclusion
Charge 7
"the Committee was satisfied that the evidence demonstrated that Mrs Maggs had trained her staff and had ensured as best as she could, in the circumstances of the case, as Matron of the Home, that they knew how to administer the medication. In the Committee's opinion, the fact that there have been a number of incidents of medication being left in the residents' rooms is outweighed by the efforts demonstrated by Mrs Maggs in her evidence of how she had set up, and ensured were maintained, systems to ensure the safe administration of medicines. The Committee has concluded that Mrs Maggs has done all she could and could not reasonably have predicted the number of tablets left unconsumed by residents in their rooms, especially when the staff administering the medications were registered nurses, also with a duty to comply with the UKCC's Guidelines on the Administration of Medication and the relevant UKCC Code of Professional Conduct.
For these reasons, the Committee has found that Mrs Maggs had not failed to ensure that medication was consumed by residents after it was dispensed and that, therefore, she had not failed to ensure a safe system for the administration of medicines. Thus head of charge 7 is found not proved."
i) The daughter of Resident O had complained in a letter to Sarah Johnson of (among other matters) finding plastic pots of pink liquid in her mother's room which were likely to have been an antibiotic medicine; but Sarah Johnson had not addressed this issue in her reply.ii) The daughter of Resident D (Auriol Walters) had on "many occasions" seen pills in her mother's room and had mentioned this when she met Sarah Johnson (which she did three times).
iii) The daughter of Resident Q had found tablets in a pot and under the bed on occasions when she visited her mother and had spoken to Lynette Maggs and to Sarah Johnson about it.
"…Ms Johnson had direct knowledge of incidents involving medication being left in the rooms of three residents. … The Committee has also taken into account the fact that Ms Johnson had herself stated in evidence that she had seen medication (pills) on the floor (Day 54 page 136). Thus the Committee has concluded that Ms Johnson had considerably more direct knowledge of the problems with the medication not being fully administered than Lynette Maggs, although the Committee takes into account the fact that there were many drug rounds over approximately these three years with a total of 72 residents at maximum capacity at any one time.
However, such was the level of intensity of this problem at this time and the level of contact that Ms Johnson had about this issue with the relevant relatives and friends of the residents concerned, especially Mrs Walters, that the Committee has concluded that when this happened there was not a safe system for the administration of medicines in place. In the Committee's view, Ms Johnson as Manager of the Home, had it in her power to inform Mrs Maggs immediately about the issues as she, Ms Johnson, heard about them, for Mrs Maggs to be aware of them and to address them. In the Committee's opinion Mrs Maggs believed that she had a safe system of medicines administration in place and, she could, relatively easily, have attempted to rectify any problems as they arose if she had known the full extent of these.
"If we were concerned about anything, we would obviously discuss it, but it is such a long time ago now I can't remember. But if there were any concerns about somebody not taking their medication, we would have dealt with it."
In these circumstances there seems to me to have been no evidential basis for finding that Sarah Johnson failed to inform Lynette Maggs of any particular incident involving medication being left in the room of any resident.
Conclusion