The Court of Session has dismissed an appeal brought by a nurse (PB) against a decision of the Nursing and Midwifery Council’s Fitness to Practise Committee which made a finding of incompetence against her. A 12 month suspension order was imposed by the committee.
As a postscript to its decision, the court made observations about the appearance of unfairness in an unsuccessful appeal in the situation where an interim suspension order of up to 18 months to cover the period of any appeal was then followed by the original 12 month suspension order.
The appearance of unfairness would arise from the time spent on interim suspension pending the outcome of the appeal but which did not count towards the period of suspension originally imposed by the committee as a sanction.
The court was also concerned that a nurse with a valid appeal point may be discouraged from making an appeal in case doing so prolonged their absence from work.
The concerns about PB’s nursing practise first arose in 2015 while she was working at Liberton Hospital, Edinburgh. PB was placed on a capability assessment programme. However, before completion of her assessment, PB resigned from her post with NHS Lothian and her employer made a referral to the NMC based on its concerns regarding her competency to work as a nurse. This led to the NMC referring the complaint to a Fitness to Practise hearing with charges relating to PB’s failure in her clinical competencies, recognition of her limitations, manual handling techniques, awareness of risk and administration of medication.
The case was heard by a NMC Fitness to Practise Committee on 31 January 2018. PB did not attend the hearing, however, she had submitted written representations denying the charges, contradicting witness statements and explaining her position. PB had been advised to obtain legal advice but responded to say that she would not be attending the hearing and would not be represented at it. The hearing therefore went ahead in her absence. All but one charge was found proved, PB’s fitness to practise was found to be impaired and a suspension order of 12 months was imposed. An interim suspension order for a maximum of 18 months was additionally imposed, pending any appeal PB may make.
Acting as a party litigant, PB appealed against the decision of the NMC’s finding and the sanction. The basis of her appeal was that there was insufficient evidence for the committee to find the charges proved, that there was no evidence of incompetence, that the NMC had not been fair and that the witnesses had given inaccurate, unfair and untrue statements. She further submitted that the NMC had been unfair to impose a suspension order on her.
When considering the scope of the appeal, the court again referred to the well-known principle in professional regulation appeals that it should be slow to interfere with findings of credibility and reliability of witnesses and findings in fact based on such assessments.
PB submitted to the court that there had been procedural unfairness in the conduct of the hearing which had gone ahead in her absence. However, the court was satisfied that PB had corresponded with the NMC in the lead up to and during the course of the hearing. Based on that, the court held that the committee was entitled to proceed in her absence. Thereafter, the court was satisfied that the committee’s reasoning and conclusions for the findings in facts, and also its decision that PB’s fitness to practise was impaired, could not be criticised. The court held there was no procedural unfairness that could be identified.
The court then considered the 12 month suspension sanction imposed by the committee. It held that, when considering lack of insight shown by PB and the risk of repetition, the decision on sanction could not be criticised. This was due to the need to maintain professional standards and provide adequate protection to the public.
The court also concluded that it was reasonable for the committee to consider it necessary to impose an interim suspension order for up to a maximum of 18 months, to allow for the possibility of PB appealing the committee’s decision.
The appeal was dismissed on all grounds.
Although the appeal was dismissed, the court made some interesting observations on the relationship between an interim suspension order pending an appeal and a substantive suspension order in the event that any appeal made was unsuccessful.
If a nurse wishes to appeal a substantive decision of the committee, then an interim suspension order will often be imposed pending the conclusion of the appeal or for a period of 18 months, whichever is earlier.
In the event that an appeal was unsuccessful, this could lead to an interim suspension order being followed by an original sanction, which, for instance, may be a 12 month suspension order. However, when added to the time taken for the appeal in the court process, this could ultimately mean the nurse being suspended for longer than the period deemed appropriate by the original disciplinary committee.
The court observed that although the rationale behind this approach could be accepted given the need to protect the public, this could lead to an appearance of unfairness.
Firstly, the time spent on interim suspension does not count towards the period of suspension. Secondly, a nurse with a valid appeal point could be discouraged from raising an appeal due to a fear that doing so would prolong their absence from work.
In order to alleviate those concerns, the court suggested that the NMC may wish to consider the question of whether time spent on interim suspension should count towards any period of suspension imposed as a sanction. It observed that there are other areas in law where an interim order is imposed pending completion of procedural steps. In those circumstances, the underlying principle is that reasonable procedural steps taken by a party, such as a right of appeal, should not have an effect on the total sanction which has been imposed.
Although the substantive decision in this appeal adds little to the jurisprudence of professional regulation in Scotland and the UK, the observations of the court will give the NMC some food for thought on the relationship between interim suspension orders and substantive suspension order. It will be interesting to see if the NMC take heed of these observations and factor into their guidance for Fitness to Practise Committees the time spent on interim suspension in any period of suspension imposed as a sanction.
For further information on professional regulation please contact Gary Burton.