QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE||Appellant|
|NURSING AND MIDWIFERY COUNCIL||First Respondent|
|JOSELO SILVA||Second Respondent|
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Ms Alice Hilken (instructed by the Nursing and Midwifery Council) appeared on behalf of the First Respondent
Ms Jessica Russell-Mitra (instructed by AB Mackenzie Solicitors) on behalf of the Second Respondent
Crown Copyright ©
i. "That you, whilst acting as the home manager of [the care home] between an unknown date in October 2014 and 28 April 2014:
(2) Between 13 February 2014 and 15 April 2015 failed to submit one or more referrals to Safeguarding in respect of any or all of the following residents:
1.1 Resident A;
1.2 Resident B;
1.3 Resident C.
(3) Upon receiving one or more allegations that Colleague 1 [Mr 4] had been physically abusive to Resident A and/or B and/or C you:
i. 2.1 conducted an inappropriate investigation, in that you asked Resident A to review pictures of members of staff in order to try and identify [Mr 4];
ii. 2.2 failed to remove [Mr 4] from the clinical environment in that you moved [Mr 4] to another clinical area with access to residents,
iii. And, in light of the above, your fitness to practise is impaired by reason of your misconduct."
i. "... failed to do so due to your poor and personally biased assessment of the facts which should have had no bearing on your obligation to immediately refer the allegations to Safeguarding."
i. "The panel had some concern regarding your professional opinion as to the behaviour of dementia patients. In particular, you stated that some residents with dementia had a tendency to constantly assert matters that were not true, such as not being fed when they had been. You stated that you would address this by making a note of what they had a tendency to allege in the care plan. The panel considered that, in all the circumstances, this was not sufficient. However, it was satisfied from your evidence that you will ensure that two members of staff will always attend a resident who makes such allegations.
ii. The panel concluded that you have demonstrated adequate insight.
iii. The panel has carefully considered the public interest in this case. The panel noted that it would not be appropriate in this case to find impairment solely on a public interest basis and that public confidence in the profession will not be undermined by a finding of no impairment, given the specific circumstances of this case and the lack of any subsequent fitness to practise issues."
i. "Although your fitness to practise was impaired at the time of the incidents, given all of the above, your fitness to practise is not currently impaired."
i. "1. The decision of the Conduct and Competence Committee of the First Respondent that the Second Respondent's fitness to practise is not impaired arose from a serious procedural irregularity, in that the first respondent had failed:
(a) to allege that the Second Respondent ordered the member of staff reporting allegations of abuse of residents at the Home of which he was manager to stop making inquiries into those allegations;
(b) to allege that the Second Respondent told the member of staff reporting allegations of abuse of residents at the Home of which he was manager to 'fucking leave it' as the residents 'are fucking dementia and do not know what they are talking about';
(c) to allege that when a team leader at the Home of which he was manager left him a written note concerning abuse of a resident at the Home by a member of staff, including the words 'should this be safeguarding', the Second Respondent used the paper upon which the note was written as notepaper for other purposes;
(d) make any allegation as to the Second Respondent's motivation, or his reasons, for:
(i) the actions described at (a) to (c) above;
ii. (ii) the actions referred to in the Head of Charge 2.
iii. 2. By reason of the serious procedural irregularity described in Ground 1 above or in any event, the Conduct and Competency Committee failed to make adequate findings as to the nature and seriousness of the Second Respondent's misconduct, in that the committee:
(a) took no account of the matters set out at (a) to (c) under Ground 1 above;
(b) had carried out no enquiry into the matter set out at (d) under Ground 1 above;
(c) in any event failed adequately to identify the seriousness of the Second Respondent's misconduct, in that:
(i) it took no account of the fundamental importance of safeguarding in the care of vulnerable residents in nursing homes;
iv. (ii) it took no account of the fact that reports of possible abuse of residents of the nursing home came from more than one member of staff, including team leaders;
v. (iii) in respect of Head of Charge 1, it took inadequate account of the risk posed to the residents of the Home during the period when no safeguarding report had been made but allegations of abuse had been and were being made;
vi. (iv) it took no account of the fact that, in relation to the residents of the Home the Second Respondent was in a position of trust and his actions amounted to a breach of that trust;
vii. (v) it failed to take account of the fact that the Second Respondent put the interests of the employee complained about ahead of those of the residents for whom he was responsible;
viii. (vi) it failed to consider whether the facts admitted and found proved demonstrated a deep-seated attitudinal problem on the part of the Second Respondent;
ix. (vii) it failed adequately to identify the extent to which the Second Respondent was in breach of The Code: Standards of Conduct, Performance and Ethics for Nurses and Midwives.
x. 3. By reason of its failure to identify the seriousness of the Second Respondent's misconduct adequately and/or in any event, the Conduct and Competence Committee was wrong to determine that the Second Respondent's fitness to practise was not impaired, as:
(a) in the absence of an adequate identification of the nature and seriousness of the Second Respondent's misconduct, it was not able to undertake an adequate assessment of his fitness to practise;
(b) given the concerns it expressed in respect of the Second Respondent's level of insight, it was wrong to find that the Second Respondent had demonstrated adequate insight;
(c) it failed to have adequate regard to:
(i) the nature and the seriousness of the Second Respondent's misconduct, including in the respect described at (c) under Ground 2 above;
xi. (ii) the risks posed to residents by a Home manager who had made, or may have made, the statement set out at (a) to (c) under Ground 1 above;
xii. (iii) given the concerns it expressed in respect of the Second Respondent's level of insight, the risk the Second Respondent continues to pose to those in his care;
xiii. (iv) having regard to (i) to (iii) above, the need to protect patients;
xiv. (v) having regard to (i) to (iv) above, the public interest in maintaining confidence in, and the declaration of standards for, the profession of nursing;
xv. (d) it gave undue weight to:
(i) the steps which the Second Respondent had taken to remediate the deficiencies in his practice;
xvi. (ii) a letter from the daughter of a resident at the home at which he is now employed;
xvii. (iii) the references he produced.
xviii. 4. In the circumstances described at each of Grounds 1 to 3 above the determination of the Conduct and Competence Committee that the Second Respondent's fitness to practise as a nurse is not impaired is unduly lenient.
xix. 5. The Appellant respectfully asks the Court to allow this appeal, quash the decision of the Conduct and Competence Committee and (i) remit the matter to the Committee with a direction to the First Respondent that it include the matters set out at (a) to (d) under Ground 1 above in the allegation to be addressed to the Second Respondent; alternatively (ii) determine that the Second Respondent's fitness to practise is impaired by reason of his misconduct; (iii) either impose the appropriate sanction upon the Second Respondent or remit the matter to a differently constituted Committee to impose the appropriate sanction; and in any event (iv) make provision for the Respondents to pay the Appellant's costs of this appeal."
i. "29. Reference of disciplinary cases by Council to Court.
1. This section applies to —
(i) any corresponding measure taken in relation to a nurse, midwife or health visitor
2. This section also applies to —
(a) a final decision of the relevant committee not to take any disciplinary measure under the provision referred to in whichever of paragraphs (a) to (h) of subsection (1) applies
(b) any corresponding decision taken in relation to a nurse, midwife or health visitor...
(2) The things to which this section applies are referred to below as 'relevant decisions'.
(3) 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,
ii. 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.
iv. (7) If the Council does so refer a case—
(a) the case is to be treated by the court to which it has been referred as an appeal by the Council against the relevant decision (even though the Council was not a party to the proceedings resulting in the relevant decision)...
vi. (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 may make such order as to costs ... as it thinks fit."
i. "The appeal court will allow an appeal where the decision of the lower court was —
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court."
i. "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."
i. "72. It may be that the Court will find that there has been a serious procedural or other irregularity in the proceedings before the disciplinary tribunal. In those circumstances it may be unable to decide whether the decision as to penalty was appropriate or not. In such circumstances the Court can allow the appeal and remit the case to the disciplinary tribunal with directions as to how to proceed, pursuant to CPR 52.11(3)(b) and section 29(8)(d) of the Act.
ii. 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.
iv. 76. ... We consider that the test of whether a penalty is unduly lenient in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of the disciplinary proceedings, could reasonably have imposed."
i. "We are at the stage of misconduct and impairment where we have to consider whether in the light of the facts found proved as to whether Mr Silva's fitness to practise is impaired, and I think evidence at this stage must be related to that."
i. "Mr McLean, I think the Panel is very aware that actually what has been admitted to is a failure to submit referrals and that is what the Panel in due course will have to decide whether or not that is misconduct."
i. "Having heard submissions on misconduct and impairment, the Panel then went on to consider whether the facts found proved, by way of admission, amount to misconduct and if so whether your fitness to practise is currently impaired."
1. The appeal is allowed.
2. The decision of the Panel of the Conduct and Competence Committee on 5 November 2015 is quashed.
3. The matter is remitted to a differently constituted panel for rehearing.
4. I direct that the Nursing and Midwifery Council draft a new charge or charges which include the matters referred to in paragraphs (a) to (d) of the first ground of appeal.