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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
FARIBA MIRTORABI |
Appellant |
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- and - |
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THE NURSING AND MIDWIFERY COUNCIL |
Respondent |
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Samantha Forsyth (instructed by The Nursing and Midwifery Council) for the Respondent
Hearing date: 1 March 2017
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Crown Copyright ©
Mrs Justice Lang :
Proceedings before the CCC
Charges
"That you, whilst working as a nurse through Superior Care ("The Agency") at Westbrook House ("the Home"):
1. On the night of 25 November 2014, and in relation to Resident A,
(a) Failed to administer the Resident's 0.4ml Clexane injection;
Admitted and found proved
(b) Did not record your reasons for not administering the Resident's 0.4ml Clexane injection on the Resident's Medication Administration Record.
Admitted and found proved
2. On or about the night of 26 November 2014 incorrectly transcribed the medication time(s) for Resident B's Medication Administration Record for Cetirizine.
Found Proved
3. On 3 December 2014 at 13:00 administered 10mg of Cetirizine to Resident B when a 10mg dose of Cetirizine had already been administered to Resident B at 08:00.
Not found proved
4. On 13 December 2014 failed to sign the controlled drug book following the administration of 10mg [of] Zomorph MR to Resident C.
Admitted and found proved
And, in light of the above, your fitness to practice is impaired by reason of your misconduct".
Misconduct
"The panel had in mind that in isolation, this error might not be so serious as to amount to misconduct. However, your failure occurred in the context of previous medication administration errors and resultant extra training and assessment, just days before this event and the day after you had given an assurance that you would be extra vigilant in relation to mediation administration, as is recorded in the safeguarding investigation report dated 12 December 2014.
As a consequence of the above, the panel determined that your failure to sign the controlled drugs book constitutes a sufficiently serious departure from the standards expected of a Registered Nurse as to amount to misconduct."
Impairment
"Whilst employed as a registered nurse by Charing Health Care based at St Michael's Care Home:
1. On 12 February 2011:
(a) Accepted delivery of a controlled drug, Zomorph, without checking the amount of medication being delivered;(b) Did not enter the amount of Zomorph tablets delivered on to the controlled drugs register.
2. On 17 May 2011, asked Colleague A, who is not a registered nurse, to sign the controlled drugs register.
3. Between 14 December 2010 and 9 June 2011, did not inform Charing Health Care that you had made a self referral to the NMC in September 2010 and that you were being investigated by the NMC.
4. In or around 14 December 2010, when completing an application form for the role of a registered nurse at St Michael's Care Home, did not include details of your previous employment with East Kent Hospitals NHS Foundation Trust.
5. Your conduct in respect of charge 4 was dishonest.
And, in light of the above, your fitness to practise is impaired by reason of your misconduct."
"That you whilst employed as a Registered Nurse at Signature Miramar Care Home:
1. On 24 September 2013, slept whilst on duty;
2. On 24 October 2013, in relation to Resident A, administered and/or caused to be administered crushed medication when no covert medication policy was in place;
And, in light of the above your fitness to practise was found to be impaired by reason of your misconduct."
"In the panel's judgment, at this time the likelihood that your misconduct will be repeated is very high. Your insight is limited. Your reflection suggests that you still do not accept full personal and professional accountability. Your misconduct involved errors of a similar nature to those previously found proved and amounts to misconduct repeated over a significant period of time."
Sanction
"The ISG makes clear that a Striking-off Order is the appropriate sanction where the behaviour is fundamentally incompatible with being a registered nurse and where the behaviour involves any of the following:
- serious departures from the relevant professional standards;
- persistent lack of insight into seriousness of actions or consequences.
In the panel's judgment, these features are all present in this case and a Striking-off Order is needed to protect the public interest. In the panel's view there is also no real likelihood of your practising as a safe nurse in the foreseeable future.
A vital consideration for the panel was whether the case required a Striking-off Order or whether applying proportionality, public confidence could be maintained by imposing a lesser sanction.
In the panel's judgment for all of the above reasons, the only proportionate and appropriate sanction in this case, sufficient to protect the public and maintain confidence in the profession, is a Striking-off Order."
Legal framework
"Hearing of appeals
52.11
(3) 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 in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence."
"197. On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
"19. ….the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:
"the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances."
20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
Grounds of appeal
"That the Conduct and Competence Committee erred in law and otherwise acted wrongly and/or unjustly in their determination that the only proportionate sanction to be applied to the Appellant in all of the circumstances was that she be struck from the Register when:
a. The Committee placed undue reliance/consideration on previous referrals.
b. There were lesser sanctions which were proportionate in all of the circumstances."
Conclusions
"The panel was concerned that you were slow to give it full information about your employment history as a registered nurse. It noted that in the past you have been found to have acted dishonestly in relation to not reporting full details of previous employment during an application for employment as a registered nurse".
"…..misconduct arising from medication administration and record keeping failing is one which could be remedied by training and supervision. However, this requires the registrant to be willing and, critically, to be capable of responding appropriately to training and supervision. You have demonstrated a commitment to the profession and a degree of willingness to undergo further training by attending courses intended to address your medication and recording errors. However, you have not been able to demonstrate that you have addressed your misconduct by practising safely since the incidents that are the subject of this hearing because you have not worked as a Registered Nurse since then. Although the present Conditions of Practice are said to have dissuaded employers from employing you as a Registered Nurse, public protection would demand that there could be no relaxation in the Conditions.
Notwithstanding this, the panel was gravely concerned about your ability to respond appropriately to further training and supervision because of the now longstanding and sustained pattern of misconduct of a similar nature. The last error which led to this hearing occurred despite extra training and assessment, just days before and the day after you had given an assurance that you would be extra vigilant.
For all of the above reasons the panel concluded that a Conditions of Practice Order would be insufficient to protect the public and maintain public confidence in the profession and the regulatory process."
"….this is not a single instance of misconduct. Although there is no evidence of a repeat since the incidents in this case, you have not worked as a Registered Nurse since then and there is a pattern of repetition dating back to shortly after you qualified, namely three occasions of similar misconduct in quite quick succession ….The panel is concerned at the level of your insight and that you continue to not fully accept your accountability. The panel is of the view that you demonstrate an attitudinal problem to your accountability. There is a very high risk of repetition.
In these circumstances, a Suspension Order, even if imposed for the maximum period allowed would be insufficient to protect the public, maintain standards of professional conduct and uphold public confidence in the profession and the regulatory process."
"In coming to this conclusion, the panel applied the principle of proportionality. It balanced your interests in being able to continue in your chosen career and the possible effect on you of a Striking-Off Order with the need to protect the public and maintain public confidence in the profession. Notwithstanding how this decision may affect you, the panel found your interests were outweighed by the public interest."