QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|Nursing and Midwifery Council
Miss L Hartley (instructed by NMC) for the Respondent
Hearing dates: 15th June 2017
Crown Copyright ©
MR JUSTICE GREEN :
C. The Facts
(i) The events leading up to the decision
(ii) The CCC proceedings
"The charges in your case all relate to alleged inappropriate touching of colleagues and other inappropriate and unprofessional behaviour in a workplace setting. The panel also took into account the wide range of seniority of the NMC witnesses from a healthcare assistant and a student nurse to a Lead Nurse; the fact that several of them had had little or no previous contact with you prior to the incident complained of; and that the charges relate to incidents occurring over a considerable period of time in three separate locations. The panel considered that this combination of factors lends weight to the NMC's case.
Ms Campbell-Clause on your behalf commented on the absence of various potential witnesses referred to in these charges and suggested the lack of their evidence was strange. However, the panel has heard live evidence from at least one witness directly involved in each alleged incident.
The panel also heard evidence from you under oath. The panel found many of your answers to questions to be evasive. Throughout you appeared to have difficulty answering some of the questions you were asked: your responses were frequently lengthy and repetitious and they were not always focussed on answering the questions. This was despite you being prompted, at regular intervals, to listen to the question being put and answer it. The panel found your descriptions of some of the events to be inconsistent and lacking detail. The panel found your evidence generally lacked credibility and was not reliable.
Broadly speaking your case was that these events did not happen at all or as described and that the evidence against you was fabricated. Throughout the hearing, you remained focussed upon your earlier complaints of bullying, discrimination and harassment which had already been considered and dismissed by both the Trust and the Employment Tribunal. You repeatedly stated that people were speaking out against you because of your complaints about them, even though at least two of the witnesses had only known you for very short periods of time. You were concerned that none of the witnesses liked you and that their dislike provided motivation for the allegations made.
You said that these were reasons why they were making allegations about you.
Taking all of the above into account, in considering the facts of each individual charge, the panel determined that where there was a direct conflict between evidence given by the NMC witnesses and evidence given by you, it preferred the evidence of the NMC witnesses."
(iii) The decision of the CCC
"The panel concluded that your actions would be regarded as deplorable by fellow practitioners. It found that your actions, both individually and collectively, fell seriously below the standard expected of a registered nurse and amounted to misconduct."
"Registered nurses occupy a position of privilege and trust in society and are expected at all times to be professional and maintain professional boundaries. Patients and healthcare professionals must be able to trust registered nurses. To justify that trust, registered nurses must comply with the Code. They must make sure that their conduct, at all times, justifies both their patients' and the public's trust in the profession."
"In relation to insight, the panel took account of your evidence that whilst you respected the panel's decision on the facts you were unable to accept the panel's findings. You did accept that, hypothetically, the conduct alleged in the charges, if proved, would bring the profession into disrepute and would have an adverse impact on public confidence in the profession.
You were unable to accept that your own actions, as found proved by the panel could bring the profession into disrepute. Throughout this hearing you have sought to rebut the charges on the grounds that they either did not happen or did not happen as charged. You also suggested that there was a conspiracy against you and others have made up their evidence. The panel considered that your reflective piece did not show an understanding as to what impact your actions would have on patients, colleagues (particularly Colleague A and Student Nurse B) or the public's confidence in the profession. The panel concluded that you have demonstrated no insight into your misconduct which occurred over more than two years, across three different Trust sites and involved a number of staff of different grades, seniority and professions.
The panel considered that your behaviour which amounted to misconduct is difficult but not impossible to remediate.
The panel acknowledges that you have provided it with some testimonials attesting to your character and practice. The panel noted that the courses in which you have participated since these events, for which you have provided certificates, did not directly relate to your clinical nursing practice; nor did these courses appear to address the specific shortcomings found by the panel.
The panel could not be satisfied, based on the answers you gave to the panel's questions and the evidence you have provided, that you had accepted and learnt from your past misconduct. The panel could not be sure that you would not repeat your misconduct in the future.
The panel considers that, for you to undermine junior and senior colleagues in front of patients and inappropriately touch junior members of staff, breached fundamental tenets of the profession and has brought the profession into disrepute. The panel is satisfied, based on all the evidence, that should you be in a similar situation again there is a real risk that you may repeat your actions.
Having regard to all of the above, the panel is satisfied, in its judgement, that your fitness to practise is currently impaired by reason of your misconduct."
""The panel concluded that a condition of practice order would not be workable given that it found that your misconduct is linked to attitudinal failings. You were supported by mentors and had actions plans in place during some of the relevant period. The panel heard that your engagement and compliance with, particularly the action plans, was poor and that some misconduct occurred whilst these were in place. Accordingly, the panel was concerned that you may not fully comply with a condition of practice order.
The panel was also not satisfied that the public interest would be sufficiently addressed by allowing you to return to practice, albeit under restriction, owing to the serious nature of the misconduct found.
The panel determined therefore that placing conditions on your registration would not adequately address the seriousness of your case and would not protect patients or the public interest."
"The panel determined that your actions amounted to significant departures from the standards expected of a registered nurse, and are fundamentally incompatible with you remaining on the register. The panel was concerned that due to your lack of insight there is a real risk that you will repeat your misconduct. The panel has taken into account the potential financial impact of such an order upon you and has balanced your interest with the public interest. However, the panel concluded that to allow you to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body.
Your misconduct involved undermining junior and senior colleagues in front of patients, inappropriately touching junior members of staff and a patient, and making clinically unjustifiable comments. Patients were put at risk of harm and distress was caused to your professional colleagues. You have subsequently shown no insight into, or remorse for, your actions.
The panel also took account of your submission that your fitness to practise was not impaired at the time, and is not impaired now, by virtue of your health. In reaching its decision on sanction, the panel determined that your health, at the time of these events, was not relevant to the issue of sanction.
Balancing all of these factors and after having taken into account all the evidence before it during this case, the panel determined that a striking-off order is the only sanction which is sufficient to protect the public and the public interest.
The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standards of behaviour expected of a registered nurse."
D. The Grounds of Appeal
"At page 8 and in furtherance of ground seven, the NMC committed a serious procedural irregularity by not cross-referring its conclusions on undermined public confidence in the profession to the relevant clause of the code on such matters so that the Appellant and the court on appeal would understand the basis for the reasoning of the NMC for coming to such a conclusion on the evidence available, there being none, to the NMC."
"17. At page 32 the NMC was wrong to conclude without any relevant evidence and/or written submissions from the parties that a conditions of practice order would not be workable for the Appellant.
18. At page 33 the NMC was wrong to conclude the Appellant put patients at risk of harm as there was no evidence and/or written submissions from the parties on such risk."
"The conclusions and sanctions decision of the NMC to ultimately make a striking off order against the Appellant are wrong, manifestly perverse, unreasonable, disproportionate and/or unfair to the Appellant. Under the circumstances, the court is respectively requested to set aside the decision of the NMC and to substitute it, in accordance with Article 38(3) of the Nursing and Midwifery Order 2001, with a less onerous sanction of conditions to practice that require the Appellant to attend designated or approved training courses or events and/or supervision for a short period of say 12 months, especially as the NMC misdirected itself over the same not being workable, as per ground 17, page 32, without having the relevant evidence on such matters before it."
E. Respondent's Arguments
"In these circumstances I accept Ms Morris's submission that the Panel's decision to order her suspension for 12 months, to allow the Registrant time to "develop her grasp of the concept of insight" was plainly wrong, in particular given the time that had already elapsed since the commission of these offences. The passage of time has provided no assurance that this Registrant has benefited from the opportunity it has afforded for reflection."
"At pages 27 and 31 and 34, the decision of the NMC was unjust because of a serious procedural irregularity in failing to provide sufficient reasons that the Appellant and court may understand in that the NMC has not formally recorded in the decision what the advice of the legal assessor was and what part, if any, such advice played or impacted on the actions or otherwise of the NMC and/or whether the NMC changed its considerations and/or deliberations in light of such advice."
"At page 29 the NMC was wrong to conclude that the Appellant's actions would be regarded as being deplorable by fellow practitioners without having any relevant evidence adduced before the NMC and/or in written submissions from the parties with regard to how fellow practitioners would find the Appellant's actions as being deplorable."
"word of general effect, involving some act or omission which falls short of what would be proper in the circumstances... It is not any professional misconduct which will qualify. The professional misconduct must be serious."
"At pages 29 and 30 the NMC was wrong to apply the Grant case tests at A, B and C when there was no evidence and/or written submissions before the NMC that the Appellant was likely in the future to act or liable in the future to bring or liable in the future to breach respectively any of those three aspects."