Dishonesty does not always mean impairment in professional disciplinary cases

  • Insight

10 May 2017

Scotland’s highest appeal court has upheld a decision of the Nursing and Midwifery Council’s Conduct and Competence Committee that a nurse who was found to have been dishonest was not currently impaired in terms of her fitness to practise.

The Inner House of the Court of Session refused the appeal brought by the Professional Standards Agency (PSA) where the PSA said that the decision of the NMC’s committee was ‘not sufficient for the protection of the public’ and was ‘manifestly wrong’.   

Background

The case involved admitted dishonesty by a nurse, SM, in respect of a drug error made by her. She had given the wrong drug in error to a patient which led to him not having required pain relief for a 24 hour period. In an initial attempt to cover up the error which the nurse had then identified, she had disposed of two vials of morphine, made incorrect entries in the controlled drugs and failed to report the drugs error to her manager. She admitted the dishonesty to her employer and was issued with a first and final written warning and was demoted from a Band 7 nurse to a Band 5 nurse.

At the Conduct and Competence Committee hearing the charges were all admitted but SM denied her fitness to practise was currently impairment by reason of her misconduct. The committee heard evidence from SM and a number of other witnesses. It was argued on behalf of SM that despite the admitted dishonesty she was not currently impaired. The committee agreed and found although there was misconduct, there was no current impairment.

Decision of the Conduct and Competence Committee

The committee found that SM’s dishonesty breached fundamental tenets of the profession and brought it into disrepute. However the committee made reference to the case of PSA v GMC and Uppal [2015] EWHC 1304 Admin, an appeal brought by the PSA against a decision of the GMC’s panel. It found that there were exceptional circumstances.

In the present case of SM, the committee had had regard to the key issues, in terms of the test for current impairment, of insight and remediation, and also of the particular circumstances of the case. The panel also took account of documentary evidence of health issues at the time, two reflective statements by SM, what it described as her honest and candid evidence, the impact the incident had on her including demotion, the number of training courses she had attended since the incident, the testimonials provided by colleagues, the isolated nature of the incident, the lack of risk of repetition and the significant period of time that had passed without further incident. The committee then asked itself whether or not the public interest required a finding of impairment nevertheless. It recognised its primary function was to protect patients and the wider public interest.

The committee came to the conclusion that “a right minded member of the public, in hearing all of the circumstances of the case, would not require a finding of impairment.” Rather they said “the public interest was best served by returning a capable, competent and caring nurse to unrestricted practice.”.

In the absence of impairment, under terms of the Nursing and Midwifery Order 2001, the committee had no power to impose any sanction in respect of the misconduct.

Grounds of appeal

In its appeal the PSA argued that given the nature and gravity of the misconduct which involved dishonesty, the failure to make a finding of impaired fitness to practise was ‘manifestly inappropriate’. It was contended that the decision did not maintain public confidence in the profession or proper professional standards and conduct and was not sufficient for protection of the public. It was submitted that the committee misdirected itself to the decision in Uppal. It had failed to have regard to paragraph 75 of that case where it was noted in the case of a nurse a finding of no impairment should be scrutinised because it amounted to complete acquittal. It was argued the decision was a “wholly inadequate response “ to the seriousness of dishonesty. The court was asked to quash the decision, make a finding of impairment and impose an appropriate penalty or at least remit the case to a committee to dispose of the case in accordance with the court’s directions.

The NMC conceded the appeal and submitted that a disposal amounting to an acquittal was not appropriate. The NMC adopted the submissions for the PSA. It agreed there should be a finding of impairment and submitted that if that was the case then a caution order should be imposed. The NMC argued that current impairment could be found simply because a right minded member of the public would expect the imposition of a sanction of some kind.

Submissions for SM

It was submitted by Roddy Dunlop QC on behalf of SM that:

  1. The decision was made by a specialist tribunal best placed to consider what is necessary to protect the public and the reputation of the profession.
  2. The committee produced a fully reasoned decision based on the evidence, including from the nurse herself. The decision was correct or at least, not “plainly wrong”. The court should not interfere.
  3. The assessment of the evidence and the weight to be attached to it were entirely matters for the committee.
  4. The insight demonstrated by the nurse was key to the issue of impairment.
  5. The test for impairment was inherently forward looking. The nurse had worked for many months since the incident without any issues.
  6. With regard to Uppal, the committee did not misdirect itself. It was not for the tribunal to test the evidence. As a specialist tribunal it would be familiar with the different regimes between doctors and nurses. In any event there is no reason why a finding of impairment should be easier in respect of a nurse than a doctor.

Decision

The court refused the appeal and rejected the submissions put forward on behalf of the PSA or NMC. The court made it clear that it is well established that the determination of a specialist tribunal is entitled to respect. There must be a serious flaw in the process or reasoning before the court will interfere. The decision must be plainly wrong or manifestly inappropriate for the court to interfere. This is because the tribunal is experienced and has had the benefit of seeing and hearing from the witnesses. The court rejected the suggestion that the court should be more willing to quash a committee’s decision which was challenged by the PSA as opposed to the practitioner. The court also rejected the submission by the NMC that if misconduct is proved, the tribunal should consider penalty, and if a sanction is thought to be appropriate then impairment must follow. It made it clear that a finding of impairment is a prerequisite to any sanction.

The court held that in this case, the committee clearly had in mind and weighed up all material factors including the various public interest issues. There was no clear mistake. There was no material flaw.

The court went so far to say that not only was the committee entitled to reach the decision they made, they could ‘find no compelling reason to disagree with it’. The court also echoed the comments in Uppal to the effect that professional standards and public confidence have been upheld by a rigorous regulatory process which resulted in a finding of misconduct.

Comment

The appeal court again makes it clear that it will only interfere with specialist tribunal decisions where there is a clear error in the process or with the reasoning. Providing the committee has considered all relevant factors and applied their mind to them, the court will not interfere. The decision must be plainly wrong. The weight to be attached to the various factors is a decision for the committee.

This decision emphasises the three stage process involved in cases involving nurses and midwives and that the decision on impairment is not informed in any way as to the possible sanctions available or the need for a sanction, which is considered only if and when impairment of fitness to practise is found. We would suggest that the decision of the court also emphasises the need for each case to be considered on its own merits and, that while dishonesty is serious, it does not always lead to a finding of impairment on public interest grounds.

Each case requires to be considered individually. The impairment test is takes account of the past conduct but is also a current and forward looking one. That assessment will depend on the individual facts and circumstances of each case, which the committee is best placed to assess. It is also interesting to note the court’s comments that a finding of misconduct can be enough in some cases to uphold public confidence in the profession and professional standards. For a court to interfere with any decision by a specialist tribunal, the decision must be plainly wrong. In other words, no right minded person could come to the decision. It is suggested that this is a high test to overcome.

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