SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Wheatley Lord Clarke	[2010] CSIH 17 XA171/08 OPINION OF THE LORD JUSTICE CLERK in Appeal by EMMA RACHAEL SHELDON Appellant against THE NURSING AND MIDWIFERY COUNCIL Respondent Against a decision of the Conduct and Competence Committee of the Respondent dated 11 September 2008 _______

For the appellant: Lindsay; Anderson Strathern

For the respondent: Dunlop; Balfour + Manson LLP

26 February 2010

Introduction

[1] This is an appeal under article 38(1) of the Nursing and Midwifery Order 2001 against a decision of the respondent's Conduct and Competence Committee (the Committee) dated 11 September 2008 by which it suspended the appellant's registration for a period of six months on the ground of misconduct.

The facts

[2] The appellant is a registered nurse. In October 2005, she began a degree course in midwifery at Napier University. She had to complete a number of study modules which involved placements at the Royal Infirmary of Edinburgh under the supervision of a qualified mentor. Between 27 November 2006 and 21 January 2007 her mentor for her labour ward module was Elaine McVicar.

[3] Ms McVicar should have supervised most of the appellant's shifts in the labour ward; but as it turned out, she had little contact with the appellant and little knowledge of her performance.

[4] At the end of this module, the appellant had to have her Labour Ward Record Card and her Practice Placement Record of Hours completed and signed by her mentor. The appellant fabricated the following entry in the Labour Ward Record Card:

"Emma has developed confidence in her midwifery skills and has managed to conduct deliveries with minimal assistance. Emma has also been involved with deliveries in theatre and has had some experience in the High Dependency Unit."

She forged Ms McVicar's signature under this comment. On the Practice Placement Record of Hours, she forged the signatures of Ms McVicar and another midwife.

[5] When this dishonesty came to light, Napier University instituted disciplinary proceedings and found the appellant guilty of misconduct. She was deemed to have failed the labour ward module and was not given the opportunity of a re-assessment. That prevented her from completing the course. Napier University also referred the matter to the respondent.

[6] The respondent preferred the following charges against the appellant:

"That you as a registered nurse, while enrolled as a student midwife at Napier University, were dishonest in that you:

1. On your labour ward record card for your placement during the period 27th November 2006 to 21st January 2007:

(a) falsified the signature of your mentor, Elaine McVicar;

(b) falsified your mentor's comments.

2. On your practice placement record of hours card for your placement during the period 27th November 2006 to 21st January 2007:

(a) falsified the signature of your mentor, Elaine McVicar, for weeks 3, 4, 5 and 6 of your placement;

(b) falsified the signature of another midwife for weeks 1 and 2 of your placement.

And in light of the above your fitness to practise is impaired by reason of misconduct."

The appellant pled guilty to both charges and admitted that her fitness to practise was thereby impaired.

The Indicative Sanctions Guidance

[7] The respondent has issued Indicative Sanctions Guidance to panels of the Committee under its Fitness to Practise Rules 2004. The guidance describes the general principles to which panels should adhere, sets out the range of sanctions available, describes matters that are to be considered in relation to these sanctions and suggests criteria that panels should apply in individual cases. The guidance emphasises that because of the nature of their role, panel members must always exercise their own personal judgment; but that to ensure a consistent approach in the use of sanctions, decisions should be made within the framework of the guidance.

[8] These are the general principles:

"4 In considering what sanctions, (if any) to apply, a panel must have regard to both:

• the public interest; and

• the registrant's own interests.

5 The 'public interest' includes:

• the protection of members of the public;

• the maintenance of public confidence in the professions and the NMC; and

• declaring and upholding proper standards of conduct and performance.

6 The sanction must demonstrate in each case a considered and proportionate balance between:

• the interests of the public and the particular registrant; and

• the mitigating and aggravating factors in the particular case.

7 The panel must give reasons for its decision on sanction. The reasons should clearly explain:

• the interests and factors the panel took into consideration in arriving at its decision;

• the weight it attached to those interests and factors; and

• how the balancing of those interests and factors led the panel to its decision."

[9] The penalty of suspension may be imposed for a specified period, not exceeding one year in the first instance, and must be reviewed. The guidance on suspension is as follows:

"17 This sanction may be appropriate when most of the following factors are apparent. This list is not exhaustive:

• misconduct but not fundamentally incompatible with continuing to be registered with the NMC;

• apparently irremediable lack of competence but where striking-off is not available; and

• serious ill health but where striking-off is not available;

18 Having considered the general principles above, the panel must decide whether a suspension order is a sufficient sanction ... "

The Committee's reasons

[10] The Committee gave the following reasons for its decision:

"In reaching our decision we have had regard to the NMC Code of Professional Conduct and in particular section 7 which requires registered nurses to be trustworthy and to behave in a way that upholds the reputation of the profession. Behaviour that compromises this reputation may call your registration into question.

The panel has also had regard in general to the public interest which includes the protection of members of the public including patients, the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and performance.

In addition to the dishonesty, the panel has concerns about the potential implication for patients and colleagues with regard to falsifying a statement of competency.

In all the circumstances our concerns are sufficiently serious as to raise the question as to whether action should be taken against your registration.

Reasons for the sanctions

In coming to our decision the panel have had regard to all the evidence, both oral and documentary and the submissions made on your behalf. We have also had regard to the Indicative Sanctions Guidance. No submissions on sanction were made by the case presenter on behalf of the NMC."

[11] In view of the serious nature of the misconduct, the Committee thought it inappropriate to take no action or to impose a conditions of practice order. It then decided to impose a suspension order. These were its reasons.

"Our reasons for a suspension order are that the misconduct in this case centred around issues of trustworthiness and honesty which lie at the heart of the maintenance of public confidence in the profession and the NMC. The conduct fell far short of the standards to be expected of a registered nurse. The public have a right to expect that registered nurses will be honest and trustworthy. While we accept that the registrant expressed genuine regret and remorse her actions demonstrated a deliberate attempt to deceive professional colleagues."

The issues in the appeal
Adequacy of reasons

[12] Counsel for the appellant submitted that the Committee had failed to give adequate reasons for its decision and that it had failed in its duty to narrate and evaluate every matter relevant to the disposal (Graham v Nursing and Midwifery Council 2008 SC 659) and to say why it ruled out the option of a caution. On a correct reading of paragraph 11 of the guidance (supra), a caution was the appropriate disposal.

[13] In my opinion, this criticism is entirely undeserved. The guidance is clear and concise. In my view, the Committee adhered meticulously to the overriding general principles set out in paragraphs 4 to 7 (supra). Its reasons are clear. The Committee reviewed each of the possible disposals and set out its conclusions on each. In following the guidance, it correctly assessed the relevant factors in the light of the nature and gravity of the misconduct. It gave full weight to the mitigating factors on which the appellant relied. It concluded its well-drafted decision by explaining concisely why it considered that suspension was appropriate. In my opinion, the appellant can be in no doubt as to the Committee's reasons.

Sanction

[14] Counsel for the appellant submitted that the decision to suspend was excessive. He addressed us in detail on the mitigating factors on which the appellant relied. All of these were put before the Committee and I need not repeat them. Counsel invited us to take a more lenient view bearing in mind that the primary purpose of professional disciplinary proceedings was the protection of the public and of the profession's reputation (Bolton v Law Society [1994] 1 WLR 512; Gupta v General Medical Council [2002] 1WLR 1691) rather than the punishment of the registrant, and that the Committee had a duty to take account of the registrant's own interests. There was no evidence of harm to any patient. The disposal in this case required no specialist clinical judgment. Therefore we should be more ready to recall the decision.

[15] Counsel agreed that it was open to us in the light of the whole circumstances to review the decision and to substitute a more lenient disposal, if so advised (McMahon v Council of the Law Society of Scotland 2002 SC 475, at paras [13]-[16]). The question in this case is whether it is appropriate that we should do so.

[16] I agree that in the context of disciplinary proceedings of this nature, punishment of the registrant is not the predominant consideration; but that means that matters personal to the registrant that would normally be relied on in mitigation are of less immediate significance (Graham v Nursing and Midwifery Council, supra, Lord Wheatley at para [13]). The Committee's starting point was the appellant's duty to be trustworthy and to uphold the reputation of the profession. It assessed the appellant's misconduct in terms of the effect that it could have on the reputation of the profession and on public confidence and on the implications of it for patients and colleagues. It took into account the submissions on the appellant's behalf. That approach cannot be faulted.

[17] I do not accept the suggestion that this case did not involve any clinical judgment. The appellant's actions, which constituted common law crimes, were directed to the obtaining of a professional qualification where her competence had not been proved and where a lack of competence could have serious consequences. While no individual patient suffered harm, the potential hazard to patients arising from the appellant's gaining a qualification dishonestly was obvious. The Committee was also entitled to judge the appellant's misconduct in the light of its effect on the mutual trust and confidence that should exist among clinical staff. On these aspects of the case, the Committee had specialist knowledge and experience that it was bound to apply when deciding which sanction would be most conducive to the general objectives set out in the guidance (supra). The decision was pre-eminently a matter for the Committee's judgment (Mallon v General Medical Council 2007 SC 426, at paras [29]-[30]). I can see no reason why we should set it aside.

Disposal

[18] I propose to your Lordships that we should refuse the appeal.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Wheatley Lord Clarke	[2010] CSIH 17 XA171/08 OPINION OF LORD WHEATLEY in Appeal by EMMA RACHAEL SHELDON Appellant; against THE NURSING AND MIDWIFERY COUNCIL Respondent: Against a decision of the Conduct and Competence Committee of the Respondent dated 11 September 2008 _______

For the appellant: Lindsay; Anderson Strathern

For the respondent: Dunlop; Balfour + Manson LLP

26 February 2010

[19] I agree with your Lordship in the chair that this appeal should be refused.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Wheatley Lord Clarke	[2010] CSIH 17 XA171/09 OPINION OF LORD CLARKE in Appeal by EMMA RACHAEL SHELDON Appellant; against THE NURSING AND MIDWIFERY COUNCIL Respondent: Against a decision of the Conduct and Competence Committee of the Respondent dated 11 September 2008 _______

For the appellant: Lindsay; Anderson Strathern

For the respondent: Dunlop; Balfour + Manson LLP

26 February 2010

[20] I agree with your Lordship in the chair that this appeal should be refused.