QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE
|- and -
|THE NURSING AND MIDWIFERY COUNCIL
DUNCAN GERALD MACLEOD
(Transcript of the Handed Down Judgment of
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Alice Hilken (instructed by The Nursing and Midwifery Council) for the First Respondent
Christopher Geering (on 12 December) and Paul Gustave Renteurs (on 15 December) (instructed by The Royal College of Nursing) for the Second Respondent
Hearing dates: 12 and 15 December 2014
Crown Copyright ©
Mrs Justice Andrews:
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).
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."
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.