England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th December 2014

Mrs Justice Andrews:

1. This is an appeal brought under s.29 of the National Health Service Reform and Health Care Professions Act 2002 by the Professional Standards Authority for Health and Social Care ("the PSA") against a decision made by a panel of the Conduct and Competence Committee ("CCC") of the Nursing and Midwifery Council ("NMC") on 17 April 2014 to impose a Conditions of Practice order upon the Second Respondent's ("M") registration for a period of nine months. The PSA contends that:

i) There was a serious procedural irregularity in that the charges of professional misconduct laid against M did not sufficiently reflect the gravity of his conduct;

ii) Alternatively the sanction imposed upon M by the CCC was unduly lenient;

iii) Further or alternatively to (ii) the CCC gave inadequate reasons for its decision to impose a Conditions of Practice Order on M instead of suspension or erasure from the register (striking off).

2. The NMC and M both seek to uphold the order that was made. They contend that the decision not to charge dishonesty did not constitute a serious procedural irregularity, and that the decision taken by this professional and experienced panel was a reasonable one in the light of the evidence and charges before it. The reasons given by the CCC were adequate to explain why it took the view that it did and why the particular outcome was decided upon. Moreover, any perceived deficiency in the reasons could not, in and of itself, lead to the conclusion that the sanction imposed on M was, or may have been, unduly lenient.
3. M, who is in his mid-forties, qualified as a registered general nurse in 1998. On 10 January 2000 he commenced his employment as a band 5 registered mental health nurse working in a well-known hospital on a specialist acute psychiatric ward caring for female patients suffering from serious mental illness. There would be up to 20 patients on the ward at any given time. According to the evidence of P, the Clinical Service Leader ("CSL") of inpatients at the relevant NHS Trust, who completed an internal investigation on the Trust's behalf, M had completed safeguarding training in the 12 months prior to the incident in question. Thus he was an experienced professional who, at the time of the events giving rise to the relevant charges, had worked on that specialist ward for over ten years.
4. The charges arose out of an incident which took place as long ago as 22 April 2011. On that date, M was working an early shift on the ward. Charge Nurse X was also working on that shift; she was a band 6 nurse and the most senior nurse on the shift, but she was not M's manager. He was the next most senior nurse on the shift. During the shift, patient A struck Charge Nurse X with a hairbrush, causing a laceration above her eye that necessitated treatment. X called an ambulance herself, and was taken to A&E. She remained absent from work on sick leave for approximately 5 months. X completed a Serious Incident Report on the Datix computer system on which such reports are logged, immediately after the incident and prior to attending A& E. M was aware that she had done so, though he did not see her report.
5. M did not make his own Serious Incident Report, but he made a brief reference to the assault on Charge Nurse X in his electronic patient journey system (EPJS) entry for that shift. His entry raised no concerns in relation to the incident that had taken place. He made no other reports of the incident, either verbally or in writing, at the time.
6. The acting ward manager, S, was not on duty at the time of the incident. There should have been a formal debriefing session, but for reasons which remain unexplained, that never occurred. S found out about the incident on her return to work on Monday 25 April 2011, and immediately initiated a fact-finding process, in the course of which she spoke to M and other nurses on the shift. None of the members of staff present on the ward at the time of the incident, including M, said anything to indicate that there had been anything untoward in Charge Nurse X's behaviour towards patient A. M raised no concerns with S at that time.
7. In line with the Trust's "no tolerance" policy of assaults by patients on staff, the incident was reported by Charge Nurse X to the police, who commenced an investigation. The police contacted those who witnessed the incident, including M, with a view to obtaining witness statements from them. It was only then, in August 2011, that M revealed to his superiors that he was unable to support Charge Nurse X's version of events. On 13 August 2011 M sent an email to S stating that he wished his name to be removed from the list of witnesses for the police investigation as "the statement that I give would not help [Charge Nurse X's] case as I did have concerns for the events of the shift/period in question". He added "I feel that I should be supportive to team members, and support their case. Please could you advise the most appropriate course of action. Thanks." Pausing there, it appears that what M was seeking advice about was whether it was appropriate for him to refuse to give a statement to the police if (as he knew) it would be unhelpful to X. He was not seeking advice about whether he should report his concerns to management, and he did not articulate what those concerns were.
8. On 17 August S responded, encouraging M to give a statement to the police, saying that this would be supportive of his colleagues, adding "in terms of concerns re the shift and the incident it would be useful for me if you would discuss these concerns with me. So that if needs be I can take this further." On the same date, 17 August 2011, M told his supervisor, H, that he had concerns about what he had seen on 22 April, but was unsure as to how to proceed. It was in the course of that conversation that M reported that he had witnessed Charge Nurse X standing on a sofa, jumping onto the back of patient A and holding her in a headlock. He also said that Charge Nurse X had been verbally abusive to the patient. H advised him to write a statement based upon the facts.
9. M's crisis of conscience appears to have coincided with Charge Nurse X's return to work, but it is unknown whether the fact that she was back on the ward (and thus once again in direct contact with patients) had anything to do with his decision to seek advice about what he should do about giving a statement to the police. M has never suggested that it did.
10. As M did not immediately respond to her invitation to tell her what his concerns were, S escalated the issue to the then acting CSL, D, among others. On 26 August 2011, not knowing of his conversation with H, S sent a further email to M, advising him that if he had concerns about the incident on 22 April 2011 it was his duty to inform her. She told him that he could contact the acting CSL in her absence, if he needed to discuss it further. On 31 August, D wrote to M, as M had been asked to supply a statement about the incident and had still not yet done so. In response to D's communication, on 2 September 2011, M told D what he had seen. He reported that "he had seen Charge Nurse X jumping on the back of Patient A and holding her in a head lock on 22.4.11. He reported that he had advised her to use the correct PSTS procedure. He also reported that [Charge Nurse X] confronted Patient A and was hit with a hairbrush as a result. He reported that many of the staff on duty had witnessed [Charge Nurse X] holding patient A incorrectly".
11. D asked S to obtain statements from members of staff who had witnessed the incident. She therefore contacted a number of people in late September 2011, including M, asking them to provide statements. By then, of course, M had reported the matter, (though from her evidence to the CCC it appears that S did not know about his conversation with D). Responsibility for completing the investigation was handed over to the new CSL, P, in October 2011. In the course of P's inquiries, M told P that other staff were witnesses to the incident and could support his view that Charge Nurse X had held patient A in a headlock. He also said that X had been "goading" the patient.
12. However, P had considerable difficulties in eliciting information, let alone reliable information, from the staff that were present at the time. They gave conflicting accounts as to what (if anything) they had seen, where the assault took place, who raised the alarm, and whether the incident was discussed among the team afterwards. Only one member of staff, B, who had initially denied seeing anything, "very reluctantly" reported that she had seen Charge Nurse X stand on the settee in the quiet room holding patient A round the neck in a hold that she had not witnessed before. B told P that she thought that this was wrong, but did not report her concerns to the ward manager. B had to be persuaded at the investigation interview to tell the truth. B also told P that "staff" had said they did not want to get involved, but she would not reveal who had said this. It is hardly surprising that P had serious doubts as to the reliability of B's evidence, particularly as it was given months after the incident occurred.
13. P reached the view that the staff were not being completely truthful about what they had seen and that there was a "collusion of silence" amongst those who were on duty that day. So far as she was able to ascertain, M was the only person who had witnessed the incident from beginning to end. P's investigation report refers to an email sent on 1 September by a Mr J, whose role is not clear (he may have been a police officer), reporting that "the level of resistance amongst the team on [the ward] to co-operate with police investigations is higher than he has ever encountered anywhere."
14. It appears that the police investigation came to an end in late August 2011. In the event, when the NMC referred Charge Nurse X's conduct to an Investigating Committee panel to determine whether disciplinary charges should be brought against her, the panel decided that there was no case to answer because of a lack of sufficient evidence to support the allegation that she had physically assaulted and verbally threatened patient A. The outcome may have been different if M had reported what he saw when he should have done, although this is far from certain: the ensuing investigation may still have been met with the resistance that P and the police encountered.
15. When formally interviewed by P in January 2012, in the presence of his Royal College of Nursing ("RCN") representative and a senior HR advisor, M confirmed that he had witnessed Charge Nurse X standing on a sofa, getting on to patient A's back and holding her in a headlock, and that prior to this, Charge Nurse X had been making threats to the patient. The hit (by patient A) occurred after the headlock. When he was asked about his email to S of 13 August 2011, M said it was just a situation that he had not encountered before, and that he was "putting feelers out" [as to what he should do].
16. M said it was the first time he had seen staff assaulting a patient. He knew the right people needed to be aware of his concerns, and that it was "a good learning opportunity for him for if such a situation came up again, he would know exactly what to do". When asked why he did not immediately escalate his concerns he said that he was "waiting for people to come to him" but that he did report the matter to H and D. He added that "initially his interest was to protect [Charge Nurse X]. This is a learning curve for him as he wanted to protect [Charge Nurse X.]"
17. There was no suggestion at this juncture that M was in any doubt as to what he saw, and it is plain that from his perspective at least it constituted an assault on a vulnerable patient. The reason he gave at that stage for not being proactive in reporting what he had seen was that initially he wanted to protect his colleague. Although he said he was "waiting for people to come to him", it must be remembered that when S was carrying out her fact-finding enquiries, and asked him questions about the incident, he failed to raise his concerns with her.
18. The relevant charges, as laid against M were that:

1. On or around 22 April 2011 [you]

a) Failed to complete a serious incident report in relation to an allegation that Patient A had assaulted charge nurse X

b) Failed to immediately report that you had witnessed charge nurse X acting inappropriately towards Patient A

And as a result of the above your fitness to practice is impaired by reason of your misconduct."

19. In a letter written to the NMC by the RCN on behalf of M dated 11 April 2014, it was made clear that M did not intend to attend the hearing and that he admitted the facts of Charges 1(a) and (b). In response to Charge 1(b) the letter said that M's instructions were that he did not report the incident immediately "because it was witnessed by around 5 other staff, none of whom were willing to say that they had witnessed an assault. M instructs that he therefore doubted and was uncertain about what he had seen. In addition M instructs that seeing a staff member assault a patient was an extraordinary and bizarre occurrence, which left him feeling confused and shocked." Thus even though the reasons for his passivity were not referred to in the charges, M obviously expected the CCC to take his explanation into account when deciding on the appropriate disposal.
20. The essence of Charge 1(a) turned on the allegation that, as Charge Nurse X was the person who was injured, "ideally" (P's expression) she should not have been the only person to make a serious incident report about the assault on her on the day in question. As the next most senior nurse on duty, and a witness, M should have completed a serious incident report but he failed to do so. However, the CCC panel found that this did not amount to professional misconduct because M had been told by Charge Nurse N, who had arrived for the next shift, and who had also witnessed the assault on X, that she would be completing a Serious Incident Report, which she did. Although that finding was challenged on this appeal, I am not persuaded that it was wrong. There is nothing wrong with the panel's reasoning, given the nature of the charge: M was not charged under this head with failing to make a Serious Incident Report about the behaviour of X towards A. The only relevant charge in this regard was Charge 1(b).
21. So far as Charge 1(b) was concerned, the CCC panel found that the conduct admitted by M amounted to serious misconduct. It expressed the view that the delay of five months between the incident and M reporting what he had seen was a "totally unacceptable" length of time, and amounted to a breach of the Trust's "Safeguarding Vulnerable Adults" policy and a breach of the NMC's Code, Standards of Conduct, Performance and Ethics for Nurses and Midwives. The panel quoted from relevant provisions of the Code, namely, the Preamble, and rules 32, 34, 54 and 61. The panel noted the evidence of S, the ward manager, that there were various people to whom M could have reported the incident, including the Trust's Emergency Team Lead, or the nurse to whom he gave handover at the end of his shift or, if he was unable to do this, S herself by email.
22. The CCC panel acknowledged M's indication in his written statement that he knew his responsibilities to raise safeguarding concerns, but formed the view that he showed only limited insight into his actions. It rightly expressed concern that he did not report the incident despite his indication that he is (and was) conversant with safeguarding requirements. He did not express insight into Patient A's experience of events or [into] her interests as a patient (for whom he has a duty to advocate), which were harmed. Contrary to his statement that "the public and patients may be put at risk" the CCC found that Patient A was in fact put at risk. It had no information to show the current status of M's training in respect of safeguarding or to demonstrate that he had improved his practice in the intervening period (3 years). The CCC therefore found that his fitness to practice was impaired by reason of his misconduct.
23. When considering the appropriate sanction, the CCC identified the mitigating factors and the aggravating factors. The latter were stated to be "the fact that Patient A was an extremely vulnerable patient who was acutely mentally unwell, a lack of full insight into the misconduct charge, and conduct that could foreseeably cause harm to patients". It then went through the available sanctions in ascending order of severity, concluding that a Conditions of Practice Order could be formulated to address the issues identified in M's practice which would allow him to return to safe practice and to protect the public whilst they are in force. They said there was "no evidence of M being generally incompetent or any evidence of attitudinal problems" (emphasis added) and that the public would be protected, and public confidence maintained, by imposing the conditions of practice which they then set out. It is unnecessary for the purposes of this judgment to repeat them.
24. The CCC went on to explain why it did not impose a Suspension Order. It said it felt that such an order would be "disproportionate", in particular given M's otherwise unblemished career. It also felt that although it would protect the public for its duration, such an order would not address the concerns identified in M's practice or allow him the opportunity to improve his knowledge and understanding so that he can safely return to unrestricted practice. It then said that it wanted to make M aware that a future panel reviewing this order would be assisted by evidence that he has completed safeguarding training (emphasis added).
25. Guidance on the approach to be taken by the court in appeals of this nature was given by the Court of Appeal in Ruscillo v Council for the Regulation of Health Care Professionals and General Medical Council [2004] EWCA Civ 1356. The following key principles can be distilled from that case:

i) The PSA may appeal against a decision by a disciplinary tribunal to impose a particular penalty on the basis that it has been "unduly lenient" because the findings of professional misconduct are inadequate, or because the penalty does not adequately reflect the findings of professional conduct, or both.

ii) On such an appeal, the Court must consider 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.

iii) The test for determining whether the penalty is "unduly lenient" is whether it is one which a disciplinary tribunal, having regard to the relevant facts and the object of the disciplinary proceedings, could reasonably have imposed.

iv) If the Court decides that the decision as to penalty was wrong because it was "unduly lenient," it must allow the appeal and set aside the decision. It then has the choice between substituting its own decision, or remitting the case for determination by a differently constituted disciplinary tribunal.

v) If the Court decides that the decision as to penalty was correct, it must dismiss the appeal, even if it concludes that some of the findings that led to the imposition of that penalty were inadequate.

vi) If the Court finds there has been a serious procedural or other irregularity in the proceedings, and is unable to decide whether the decision as to sanction was appropriate, it can allow the appeal and remit the case to the disciplinary tribunal with directions as to how to proceed.

26. "Serious procedural irregularity" includes what might be shortly described as "under-charging", that is, omitting from the heads of charge allegations reflecting the true seriousness of the conduct complained of. Mr Bradly, on behalf of the PSA, referred the court by way of example to the decisions of Sullivan J in R(Council for the Regulation of Health Care Professionals) v GMC and Rajeshwar [2005] EWHC 2973 (Admin) and of Beatson J in R(Council for the Regulation of Health Care Professionals ) v NMC and Kingdom [2007] EWHC 1806 (Admin).
27. It is also a serious procedural irregularity if the CCC fails to provide adequate reasons for its decision as to sanction, in particular an explanation of why that sanction is felt to be sufficient to meet the need to protect the public interests raised by the facts of the case: Council for the Regulation of Health Care Professionals v General Dental Council and Marshall [2006] EWHC 1870 (Admin).
28. The decision as to what charges, if any, to bring is for the Investigating Committee panel based upon the information before it, which of course will be open to review if and when further evidence comes to light. It has to decide whether there is a "case to answer", and the test is whether it is satisfied that there is a real prospect that the ultimate decision-making committee could find the registrant's fitness to practice to be impaired (by reason of the conduct charged). As the relevant guidance makes clear, the search is for a possibility, not a probability. No interest is served by the referral of cases that are doomed to fail. On the other hand, cases which raise a real issue of fitness to practice ought to be ventilated before the disciplinary tribunal.
29. In Rajeshwar the charges against the registrant had been that his examinations of the breasts of female patients had been unjustified (medically), inappropriately carried out, and inadequately recorded. There was no allegation that his conduct was sexually motivated and/or indecent. The judge decided that once the witness statements of the two patients concerned had been obtained, any reasonable assessment of the totality of the available evidence could have led to only one conclusion, namely, that it was appropriate to amend the charges to allege sexual and/or indecent motivation. Although such a motive was denied by the registrant, there was a sufficient prospect that the allegation would be proved at the hearing, and that would plainly have an impact on sanction.
30. Kingdom was a case in which a nurse was charged with producing false documentation showing that she had passed a unit on a particular course when she had not, and telling her line manager that she had passed the unit when she had not. The charges did not include the word "dishonestly" and the CCC in that case, acting on legal advice, took the view that it was unable to find dishonesty or explore the issues of dishonesty as fully as it would have liked. The judge found that the failure to properly charge the nurse was a serious procedural error, and if the issue of dishonesty had been on the charge sheet and resolved against her, the finding in the case that there had been no misconduct would undoubtedly have been unduly lenient.
31. Mr Bradly contended that there was enough information in the present case for the Investigating Committee to have concluded there was a case to answer on dishonesty. He submitted that M's initial report on the EPJS gave a misleading picture of what had occurred, by confining the entry to describing the assault by A on X, without explaining that X had provoked the incident by holding A in a headlock and being verbally abusive towards her; and that at the very latest after the January 2012 interview it was clear from M's own admissions to P that he had deliberately kept quiet about X's behaviour because he did not wish to get her into trouble. From this it could reasonably be inferred that M must have known when he made the entry in the EPJS that this would present a skewed picture of the overall incident to those in authority, who would naturally assume that patient A was the aggressor. Thus, he submitted, there was a sufficiently realistic prospect of persuading the CCC that there was a dishonest intention to mislead management, so as to warrant including dishonesty in the charges.
32. Mr Bradly submitted the charge under 1(a) should have been one of dishonestly making an inaccurate or incomplete report of the incident involving Patient A and Charge Nurse X. Further or alternatively, it should have been alleged that the conduct alleged in Charge 1(a) and (b) was intentionally misleading, dishonest, and/or involved intentionally putting the interests of Charge Nurse X ahead of those of patient A.
33. Mr Bradly further submitted that what happened was symptomatic of a serious attitudinal problem on the part of M, in that by failing to speak out in order to support and/or protect his colleague, he must have been prepared to leave A and other patients resident on the ward at risk of similar behaviour by Charge Nurse X. Insofar as the charges said nothing about any of these matters, and were silent as to M's reasons for his behaviour, it was incumbent on the CCC to make inquiry about them. Mr Bradly relied upon paragraph 80 of Ruscillo, in which the court said that the disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it. In this case, the failure of the CCC panel to include in its deliberations any consideration of M's reasons for not escalating his concerns sooner than he did amounted to a serious procedural irregularity.
34. Ms Hilken, on behalf of the NMC, contended that the decision not to charge M with acting dishonestly was a reasonable one. She referred to the case of Uddin v General Medical Council [2012] EWHC 2669 (Admin) in which findings of dishonesty were successfully challenged on appeal because there were obvious alternative explanations for the conduct in question, including innocent mistake or negligence. In the light of that authority, Ms Hilken submitted that in a case where other explanations beside dishonesty were available, the regulator could not be criticized for taking the decision that a charge of dishonesty stood no realistic prospect of success.
35. Unfortunately the evidence before me contains no document similar to the one which set out the Investigating Committee's reasons for determining that Charge Nurse X had no case to answer. Thus there is no evidence to shed any light on why the Investigating Committee panel chose to formulate the charges in the anodyne way in which it did. Nevertheless, in my judgment, this is not a case in which it is obvious that dishonesty should have been alleged. M did not provide a positively false account of events on the day in question at any stage. Indeed, when the time came to give a statement to the police in which it would have been necessary for him to describe what he saw, he did voice his concerns to his superiors, in terms that made it clear he was only prepared to tell the full story, rather than lying (though he would rather not have to tell the story at all). That is why his statement would have been unhelpful to X. Far from being consistent with his having an intention to mislead, it reveals a reluctance to whistle-blow, which is something else entirely.
36. The evidence as at the end of the investigation in January 2012 from M himself indicated that whilst his misplaced sense of loyalty to Charge Nurse X may have prompted him not to speak out so as to get her into trouble, he was not prepared to give a partisan or partial account of what he saw to the police. That is wholly inconsistent with the idea that he deliberately included a skewed account of the incident in the EPJS. Indeed it might be said that in this regard he acted more honestly than many of his other colleagues on the ward had done, and that he was not part of the conspiracy of silence with which P felt she was confronted.
37. A reasonable investigator could have concluded on the basis of the August 2011 exchanges and the January 2012 interview that there was ample evidence that M was seriously misguided, and that he had wrongly and intentionally put the interests of a colleague above those of a vulnerable patient, but that does not mean that there was evidence from which it could reasonably be inferred that he was dishonest, or that there was a real prospect of persuading a disciplinary panel that he was dishonest.
38. However, it is a matter of serious concern to me that nowhere in the decision does the CCC address the reason why it took M five months to report X's inappropriate behaviour, or properly examine the circumstances in which it came to be reported. Had it not been for the police investigation the matter might never have come to light. There is no indication that the CCC panel addressed this or fully digested its implications; it seems from their reasoning that they attributed M's failure to report the incident to an insufficient understanding of his reporting obligations. Even on the basis of his own explanation given in 2014, that was incorrect.
39. Both Ms Hilken and Mr Geering took the position that all the relevant evidence was before the CCC panel, and that it was unnecessary for the charges to have included anything about M's motive or reasons for keeping quiet, because that was something it was always open to the panel to consider as part and parcel of Charge 1(b). Ms Hilken told the court that questions of a registrant's intentions, motivations or state of mind falling short of dishonesty are looked at as a matter of routine without being spelled out in the charges.
40. However, I must bear in mind that a person facing a disciplinary process is entitled to know what case he has to meet. Whatever might be the position in other cases, in this particular case M and those representing him might well have had legitimate cause for complaint if the CCC panel had concluded in its decision that he deliberately failed to escalate his concerns in order to protect Charge Nurse X, (at least until it got to the stage where it became apparent to him that it would be difficult, if not impossible, to maintain that position), if the NMC had not made it clear that this was its case against him. The obvious place to make it clear what case the registrant would be facing at the hearing would be in the charges themselves, or in the particulars of them.
41. Had the NMC done so, I doubt that M would have admitted those motives (despite what he said, or was reported as having said, in August 2011 and January 2012). It seems likely that he would have repeated the excuses that appear in his representatives' letter of April 2014 and are reflected in his written statement. What the panel made of the divergent excuses would have depended on a number of factors, including whether M turned up to be cross-examined. Whereas the facts were formally found to have been proved at the onset of the hearing because M had admitted the charges as formulated (which said nothing about his state of mind or his motives), if the reasons for M's long silence had been part of the case of misconduct formulated by the NMC, then the panel may well have ended up having to resolve contested issues of fact. Had that happened, the resolution of those issues would undoubtedly have led to the panel taking all relevant matters into account in determining the appropriate sanction. In the event, in my judgment, they plainly failed to do so.
42. There is no mention in the determination of the different (and fundamentally inconsistent) explanations given by M as to why he failed to report the headlock incident sooner than he did. Nothing is said about those explanations in the panel's recital of the facts, under the heading "Background". It seems clear that the "limited insight" which the CCC found that M displayed was based upon the contents of his statement reflecting back on what had happened, and not upon the evidence of what he had said to H in August 2011 or to P in January 2012. That evidence is never mentioned, even in the short synopsis of the evidence given by S and P on pages 8 and 9 of the determination.
43. Mr Bradly submitted that it was obvious that the reason for the failure by the CCC to address M's state of mind or motive for keeping silent was that the charge sheet was silent as to M's intentions or motives. That was why the CCC felt able to express the view that there was no evidence of any attitudinal problems. However, if he was wrong about that, and the reasons for M's behaviour did not have to form part of the charges, he submitted that it was obvious that the sanction was unduly lenient, because the reasons for M's behaviour should have been regarded as aggravating features and they plainly were not.
44. On Ms Hilken's approach, Mr Bradly said that the CCC panel could and should have taken into account M's initial explanation which made it clear that he was putting the interests of Charge Nurse X ahead of those of a vulnerable patient, and contrasted it with the later excuses he gave in 2014 (confusion as to what he had seen, shock, disbelief, etc.) Once these factors were taken into account the CCC could not possibly have concluded that there were no attitudinal problems or that the public interest was adequately met by anything short of a suspension order – indeed Mr Bradly went so far as to submit that this was an appropriate case for erasure.
45. In my judgment, what underlies the CCC's explanation of why it considered a Conditions of Practice Order was a sufficient and appropriate sanction is a lack of satisfaction that M was sufficiently conversant with safeguarding requirements, despite the fact that he had told them that he was (and despite P's evidence that he had completed safeguarding training in the 12 months prior to the incident). Thus the panel felt that what was needed to safeguard the public was further education, coupled with active supervision, and that would also suffice to meet the overarching public interest. The panel appears to have attributed M's limited insight to the same cause.
46. However if the root cause of the conduct was nothing to do with a failure by M to appreciate that he was obliged to report what he saw at the earliest opportunity, but everything to do with a sense of misplaced loyalty and a feeling by M that he should support his colleague and not whistle-blow even though he knew full well that he was under a duty to do so, then ensuring that he was better educated about safeguarding procedures is unlikely to have been regarded by a reasonable panel as a sufficient means of addressing that attitudinal problem.
47. Because the panel made no reference at all to the explanations M gave in 2011 and 2012, let alone compared them with the much more self-exculpatory excuses given in 2014, in my judgment it failed to take into account factors that were of paradigm importance in determining what the sanction should be. That is not to say that it would not be open to the CCC to impose a Conditions of Practice order on M in this case after full consideration of all the relevant evidence; much would depend on what the CCC decided, as a matter of fact, caused M to keep quiet for five months, and what impact they thought it had on his fitness to practice. All that can be said at this juncture is that there is enough evidence to justify an allegation that he deliberately failed to report the incident in order to protect X, and in so doing put her interests ahead of those of patient A. As I have said, it may well be that the delay in speaking out had a significant impact on the inability of the Trust to gather sufficient evidence to justify disciplinary proceedings against X herself.
48. The Court cannot say what the appropriate sanction should be, save that despite Mr Bradly's submissions, even taking the reformulated case against M at its highest, and assuming that the allegation is proved to the requisite standard, I am not persuaded that this case comes anywhere near the type of conduct that would deserve erasure. A person who eventually, albeit reluctantly, voluntarily reveals to his superiors that another member of staff has behaved inappropriately towards a patient is not in the same category as someone who remains silent and is then found out, or who deliberately paints a false picture by lying about the incident. Striking someone in M's position off the register could have the undesirable consequence of encouraging registrants to stay silent for fear of the consequences of being the lone voice speaking out on behalf of the vulnerable patient. I am sure that an experienced CCC panel would have that danger well in mind; however, ultimately the appropriate sanction in this case will be a matter for them.
49. I have given considerable consideration to the question whether the obvious deficiency in the determination can be attributed to a failure by the NMC to reflect the seriousness of the conduct alleged in the charges, or to a failure by the CCC to take a sufficiently proactive stance so as to ensure that the full seriousness of M's conduct was presented before it, or whether this is simply a case of inadequate reasoning for imposing a Conditions of Practice Order, bearing in mind the totality of the evidence that the CCC panel had seen and heard. My initial view was that this was a plain case of inadequate reasoning, rather than unduly lenient disposal. On any view the panel's reasoning is open to criticism, particularly in the light of the lack of any cogent explanation of why the public interest in maintaining the reputation of the profession would be sufficiently served by a Conditions of Practice Order in the circumstances of this case. Yet a Conditions of Practice Order might well have been an appropriate sanction for an admitted charge formulated as Charge 1(b) was formulated, with no reference to intention or motive, particularly if there was strong mitigation. I cannot conclude with confidence that no reasonable panel of the CCC could have imposed that sanction, given the way the charge was put.
50. On reflection, therefore, it does seem to me that the root cause of the problem lies in the failure by the NMC to adequately reflect the seriousness of M's conduct in the charges. The CCC panel was obliged to investigate the reasons for M's failure to report the matter for five months. I am firmly of the view that the reason why it did not do so was that it was not directed to, and it did not need to in order to find the charges as formulated were proven or that M's fitness to practice was impaired. This is therefore a case of under-charging, not because the NMC should have alleged dishonesty, but because in these particular circumstances the reasons why there was a failure by M to report the incident for five months matter a great deal in terms of evaluating (a) the true seriousness of M's behaviour and (b) what the appropriate sanction should be– including making a decision as to whether this is really a problem that can be rectified by further education, or whether there is a deep-seated attitudinal problem, and therefore whether the public interest would demand a period of suspension (which, contrary to the panel's apparent views, could be coupled with a requirement for further education or training to be undertaken before return to practice).
51. In my judgment there was ample material to justify an allegation that M failed to escalate his concerns because of a wish to support or protect Charge Nurse X. It might also have been possible to formulate the charge differently, for example, by including a charge that in breach of the Code, M deliberately (or intentionally) put the interests of a colleague ahead of the interests of a vulnerable patient.
52. Ms Hilken expressed concern on the part of the NMC that a charge which alleged, for example, that M deliberately failed to report the incident might well give rise to challenge on the basis that it was unclear whether dishonesty was being alleged – but in my judgment that legitimate concern could be met by clear and careful drafting. Just as in Rajeshwar there was a world of difference between an allegation that the registrant examined the patient when there was no need to carry out such an examination, and an allegation that he did all of those things, but for a sexual motive, so there is an obvious difference in nature and seriousness between a charge that simply alleges that a registrant failed to escalate his concerns immediately, and a charge that he did so in order to support or protect the colleague who appeared to have assaulted a vulnerable patient.
53. For these reasons I am satisfied that this decision cannot stand and that it was informed by a serious procedural irregularity. It is impossible for the Court to evaluate whether the sentence was unduly lenient, although there is a real possibility that a more serious sanction would have been imposed had the CCC panel taken into consideration all the relevant factors that it should have done when reaching its determination. I will allow the appeal, quash the decision, and remit the matter for consideration by a differently constituted CCC panel, with a direction to the NMC that it must amend the charges so as to clearly assert that the reason (or motive) for M's failure immediately to escalate his concerns was to support or protect Charge Nurse X. An alternative (lesser) charge in the form of Charge 1(b) should obviously remain on the charge sheet in case the panel is not satisfied that the reason is proved.