High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The statutory scheme.

"(4) If the Council considers that –

(a) a relevant decision falling within sub-section (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practice on the part of the practitioner concerned (or lack of such a funding), or as to any penalty imposed, or both, or

(b) a relevant decision falling within sub-section (2) should not have been made and 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.

(7) If the Council does so refer a case -

(a) the case is to be treated by the court to which is 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), and

(b) the body which made the relevant decision is to be made a respondent.

(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 (or, in Scotland, expenses) as it thinks fit."

The disciplinary charges.

"An audit of the notes held in the caseload of Mrs McDonnell were found to have a significant paper record gap. This audit was confirmed by the evidence of Rosemary Hughes, which she compiled from the records removed from the Portadown clinic base. We are satisfied that she reported what she found and followed the instructions held within the terms of reference in 1.2 of the audit introduction. On several occasions under cross-examination the respondent accepts that her record keeping did not always reflect the actual work done."

"In relation to charge 1a the Committee finds that you were guilty of misconduct and the reasons are that record keeping is an integral part of health visiting practice. It is not an optional extra and such record keeping is the mark of a safe practitioner in that it assists the care process enabling other practitioners as well as yourself to provide appropriate levels and continuity of care."

"In respect of family E the respondent categorised the family as low priority. This is evidenced not only by the statement of Mrs Maguire, but also by the respondent's own evidence. Having carefully analysised the records, the Committee is satisfied that on or before 22 June 2000 the family should have been categorised as a family in need. Mrs McDonnell observes but does not heed the warning signals.

In respect of family J the respondent categorised them as low priority. However after analysis of the records the Committee are satisfied that the family should have been categorised as a family in need following a series of accidents to the children of this family. Mrs McDonnell records in her own records that child protection is an issue on 11 February 2000.

In respect of family K the respondent does not categorise this family as in need. Following a careful analysis of the records, we determine that Mrs McDonnell fails to be alerted by the previous entry of a student health visitor who clearly states that the mother has self expressed concerns about the child on 10 September 1999. The results were a significant height centile decrease visible in the records. Mrs McDonnell appears not to instigate home visits, despite frequent failures to attend for further development assessment. These 'Did not attend' contacts were recorded, but not actioned.

In respect of family L Mrs McDonnell fails to correctly categorise the family as in need. Following analysis of the records, the Committee is satisfied that the respondent missed warning signs that this was a family with potential to become dysfunctional. Between 1997 and January 2000 there are entries in the records in Mrs McDonnell's own hand which in the professional judgment of the Committee should have changed Mrs McDonnell's priority categorisation."

"In charge 4a(i), that you failed to promote correctly the cases of families E, J, K, L and the Committee has noted the contents of the records of these families and in spite of the evidence having completed the appropriate training, it is not reflected in the copious notes that an assessment of need has taken place. That collaborative plans had been devised and there is little evidence of evaluation or review of the health visiting or other interventions made. Had you taken a more systematic approach to the assessment of need this might have assisted you to prioritise correctly. We note, however, that the failure to visit the homes on a monthly basis did not itself justify a finding of misconduct.

"The Committee is mindful hitherto of your exemplary character as set out in many of the professional testimonials that have been submitted. We particularly note the testimonials from your working colleagues and peers and senior members of the primary care team who work with you at Portadown Health Centre during the period in question, and were able to speak, at first hand, about the calibre of your work and their knowledge of your relationships with your clients.

We have also taken into account and given due weight to the Colgan report in respect of mitigation. We have been mindful of the difficulties faced by yourself and others in the discharge of your responsibilities as confirmed by the Council's witness who indicated that staffing shortages had resulted in changes to the developmental assessment schedules.

The Code of Professional Conduct was drawn to the respondent's attention."

To the text of the Minute should be added the additional words that appear in the transcript in relation to the issue of penalty –

"You should appreciate that to be found guilty of misconduct is an extremely serious matter. You must understand that the Committee does not condone your actions and omissions in any way. However the Committee also recognises the circumstances particular to your case and for this reason feels it appropriate to take no further action."

The Council's grounds of appeal.

(1) The hearing before the PCC arose out of six separate charges relating to the period between January 1996 and 9 February 2001. The PCC hearing took place over a period of nearly ten months ie between 25 February 2004 and 14 December 2004. The evidence was heard on 25 to 27 February 2004, 25 to 27 May 2004 through to November 2004 with findings as to misconduct and sanction being given (following submissions on evidence as to mitigation) on 14 December 2004.

(2) The PCC gave little by way of reasons for their decision to impose no sanction, save that they observed that they had taken into account -

2.1 the second respondent's exemplary character;

2.2 testimonials as to the calibre of the second respondent's work and her relationships with clients;

2.3 the Colgan Report (a report of an audit carried out in three NHS Trusts including the Craigavon and Banbridge NHS Trust for whom the second respondent worked prepared by E. Colgan in January 2002);

2.4 difficulties faced by the second respondent in the discharge of her responsibilities.

(3) None of these matters could excuse the persistent and widespread failure of the second respondent in relation to record keeping. None of these matters properly addressed the issues of future risk, maintenance of public confidence in the nursing and health visiting profession and/or maintenance of standards in the nursing and health visiting professions.

(4) These are impermissible omissions given that, in reaching its conclusion as to the facts and as to misconduct in relation to charge 1a (relating to record keeping) the PCC held that there was significant gaps in the second respondent's records between 1996 and 9 February 2001, that record keeping is an integral part of health visiting practice, and that it assists the care process enabling other practitioners as well as the health visitor to provide appropriate levels and continuity of care.

(5) Moreover, the PCC did not in their reasons explain in any way the significance which it attributed to the Colgan report, if any, save to note that it was a matter to which they had given due weight.

(6) In the circumstances -

6.1 the sanction imposed by the PCC was unduly lenient, having regard (a) to the professional misconduct found proved against the second respondent and (b) given all proper weight to the protection of members of the public and the need to maintain public confidence in the health visiting profession and the need to declare and uphold proper standards of conduct within the profession (the three interests which must be balanced by a PCC);

6.2 the decision fails to give any or adequate proper weight to the guidance from the UKCC and/or the MNC as to the critical importance of record keeping for health visitors, and the need for each health visitor to take responsibility for record keeping. To find serious breaches of these obligations, and that this amounts to misconduct, but not to impose any sanction whatsoever is manifestly inappropriate. This is particularly so where, as here, the identified failures could have compromised the care and attention provided to families who needed it;

6.3 the decision itself sends out a message that failures in relation to record keeping do not of themselves merit any disciplinary sanction;

6.4 the matters relied upon by the PCC as to mitigation were manifestly inappropriate in the circumstances and/or the reasons as to mitigation were inadequate;

6.5 given the features of this case as it was put before the PCC, the minimum sanction necessary for the protection of the public, maintenance of public confidence in the profession and maintenance of standards in the profession was to issue a caution against the second respondent. To direct that no action be taken was manifestly inappropriate in the circumstances;

6.6 there was a failure of process before the PCC in that the PCC gave inadequate reasons for their decision.

The approach to section 29 appeals.

(1) Disciplinary matters that are imposed under the various regulatory schemes do not have the primary object of penalising for misconduct. The primary object is to protect the public and the reputation of the profession in question. The primary object of the creation of the Council was also the protection of the public and Section 29 is only one of a number of provisions under which the Council is empowered to achieve this object. (Para. 60).

(2) Section 29 (4)(a) permits the Council to refer a case to the Court where it would be desirable for the protection of members of the public to take action and "a relevant decision falling within sub-section 1 has been unduly lenient, whether because the findings of professional misconduct are inadequate, or because the penalty does not adequately reflect the findings of professional misconduct that had been made, or both." (Para. 67).

(3) If the court considers 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 the penalty were inadequate. (Para. 70).

(4) If the court decides that the decision as to penalty was "wrong" it must allow the appeal and quash the relevant decision. It can then substitute its own decision under Section 29(8)(c) or remit the case under Section 29(8)(d). (Para. 70).

(5) It may be that the court will find that there has been a serious procedural or other irregularly in the proceedings before the disciplinary tribunal. In those circumstances the court may be unable to decide whether or not the decision as to penalty was appropriate. In such circumstances the court may allow the appeal or remit the case to the disciplinary tribunal with directions as to how to proceed (para. 72).

(6) 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 and where they do to impose the penalty that is appropriate having regard to the safety of the public and the reputation of the professions. The role of the court 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. That role is no different to the role of the Council in considering whether a relevant decision has been unduly lenient. The test of undue leniency involves 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 (para. 73).

(7) References to the court having regard to double jeopardy when considering whether a sentence is unduly lenient upon an Attorney General's reference as not really apposite where the primary concern is for the protection of the public (para. 75).

(8) 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 the object of the disciplinary proceedings could reasonably have imposed (para. 76).

(9) In any particular case under Section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public (para. 77).

(10) Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the Council and the court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where however there has been a failure of process or evidence is taken into account on appeal that was not placed before the disciplinary tribunal a decision reached by the tribunal will inevitably need to be reassessed (para. 78).

The issue concerning records and record keeping.

The introduction states that -

"Record keeping is an integral part of nursing, midwifery and health visiting practice. It is a tool of professional practice and one that should help the care process. It is not separate from this process and is not an optional extra to be fitted in if circumstances allow.

The quality of your record keeping is also a reflection of the standard of your professional practice. Good record keeping is a mark of the skilled and safe practitioner, whilst careless or incomplete record keeping often highlights wider problems with the individuals' practice.

Good housekeeping is, therefore, both the product of good teamwork and an important tool in promoting high quality health care."

Under the heading "Content and Style" it is stated that there are a number of factors which contribute to effective record keeping. Patient and client records should be factual, consistent and accurate; be written as soon as possible after an event has occurred providing current information on the care and condition of the patient or client; be consecutive; identify problems that have arisen and the action taken to rectify them.

Under the heading "Audit" it is provided that audit is one component of the risk management process and the ultimate aim of risk management is the promotion of quality. If improvements are identified and made in the processes and outcomes of health care, risks to the patient or client are minimised and costs to the employer are reduced. By auditing records one can assess the standard of the record and identify areas for improvement and staff development.

Under the heading "Legal matters and complaints" it is stated that -

"As a registered nurse, midwife or health visitor you have both a professional and a legal duty of care. Your record keeping should therefore be able to demonstrate -

a full account of your assessment and the care you have planned and provided;

relevant information about the condition of the patient or client at any given time and the measures you have taken to respond to their needs;

evidence that you have understood and honoured your duty of care that you have taken all reasonable steps to care for the patient or client and that any actions or omissions on your part have not compromised their safety in any way and a record of any arrangement you have made for the continuing care of a patient or client.

Undue leniency.

"In regard to this question, it is necessary to bear in mind the composition and nature of the Professional Conduct Committee which is constituted by the Council under the Rules made under (the legislation). It is composed of medical practitioners and lay members. The only legal assistance they have is that of the legal assessor appointed under (the legislation) whose function (under the Rules) is to advise them on questions of law. (The Rules) require the Committee to reach a view as a Committee on the matters which they have before them for determination. No provision is made for expressions of dissent either as to the result or on matter of detail. In these circumstances it is not to be expected of the Committee that they should give detailed reasons for their findings of fact. General explanation of the basis for their determination on the question of serious professional misconduct and of penalty will be sufficient in most cases."