Evidence must prove existence of duties where a registrant’s ‘failure’ to act is alleged

  • Insight

01 August 2018

The court has emphasised that where the actions of a professional are alleged to amount to a “failure”, it is necessary for the regulator to lead sufficient evidence to establish specifically what the actual duties on that professional were.

The appeal to the Inner House of the Court of Session of Jacqueline Daly v the Nursing and Midwifery Council was brought by a nurse who was suspended from the nursing register for six months after a finding of misconduct for failures in her professional practice.

In its decision, the court said that the regulator – in this case the NMC – needed to present evidence of the procedure which was required in order to demonstrate that any failure to do something amounted to misconduct.

Background

Ms Daly was a senior registered staff nurse with twenty years’ experience. She was employed at HMP Bullingdon, Norwich and faced three allegations from her time working at the prison in 2015:

• A failure to complete a Prisoner Escort Record (PER) for a prisoner (charge 1);
• Discharging a prisoner without referring him to an Assessment, Care in Custody and Teamwork review (charge 2.1);
• Inadequately and/or inappropriately conducting an Assessment, Care in custody and Teamwork review for a prisoner (charge 2.2)

The case was heard at the Nursing and Midwifery Council in October 2017 where a Fitness to Practise Committee found all the charges proved. The committee also found these amounted misconduct and that Ms Daly’s fitness to practise was impaired. She was suspended from practising for six months.

The appeal on the facts

Ms Daly appealed the decision to the Court of Session. While the court acknowledged it must be slow to interfere with findings in fact made by the committee which heard the actual evidence, it nonetheless carried out a detailed analysis of the evidence which the NMC had led.

Evidence led at the original committee

The court heard that the evidence before the committee was that it was necessary to complete a PER record where a prisoner is transferred to court or to another prison and that Ms Daly had been on relevant nightshift on 2 February 2015.

The committee had ultimately found it proved that another staff nurse had handed a PER form relating to a prisoner to Ms Daly and had told her that their line manger had instructed that the prisoner be assessed in a face-to-face interview. This interview was to allow Ms Daly to complete the PER form, which was necessary as the prisoner had killed his wife and was assessed as a risk to himself and others. 

One of Ms Daly’s colleagues had given evidence she ought to have carried out the face-to-face interview between 7am and 7.30am on 3 February 2018 which was when the prisoner was brought from his cell in the secure wing to reception.

Ms Daly, however, had given evidence to the Committee that it had not been possible for her to carry out a face-to-face interview with the prisoner. She stated that she had not attempted to do an interview overnight and had not found or interviewed the prisoner during that busy thirty minutes period on that morning at the reception area.

Appellant’s submission at the appeal

Appearing on her own at the appeal, Ms Daly advised the court that it was her understanding the prisoner had not been brought to the reception until after 8am, i.e. after the 7am-7.30am timeframe. Counsel for the NMC confirmed to the court that the prisoner’s transfer had been delayed, but he did not have any other details.

During the appeal, the court asked to be referred to any findings-in-fact or any evidence relating to the way in which the prisoner was, in practical terms, to be made available to Ms Daly to allow her to conduct the face-to-face interview. No such evidence or findings-in-fact were provided.

Opinion of the court on the facts

Delivering the opinion of the court, Lady Paton said that the absence of any such findings-in-fact and/or evidence resulted in a no case to answer in respect of that charge (charge 1). Her Ladyship continued, saying that in order to establish Ms Daly had “failed” to carry out the relayed instruction to complete the face-to-face interview, there would need to be proof of a recognised procedure whereby a prisoner could be located and safely interviewed. There would also need to be proof that Ms Daly knew of the procedure and failed to operate it. Alternatively, there would need to be proof of particular arrangements which could realistically have been made in respect of the prisoner, and that Ms Daly knew the arrangements could have been made but failed to avail herself of them.

No ‘failure’

The court held that no reasonable committee could have concluded, as a question of mixed fact and law, that Ms Daly “failed” to complete a PER form for the prisoner. The court therefore quashed the committee’s findings in respect of charge 1. Charges 2.1 and 2.2 were upheld.

The appeal on sanction

As charges 2.1 and 2.2 remained in place but charge 1 had been quashed, the question of the misconduct found and the sanction imposed overall was considered by the court. While the court took no issue with the view that charges 2.1 and 2.2 amounted to misconduct, it was not satisfied that this all amounted to a finding that Ms Daly’s fitness to practise was impaired.

Opinion of the court on sanction

Delivering the Opinion of the court, Lady Paton commented: “We consider that the conduct in question falls at the lower end of the range of possible short-comings, errors, negligence or deliberate wrong-doing by a registered staff nurse…Ultimately we concluded that the sanction imposed was excessive”. 

The court therefore quashed the suspension order and substituted a conditions of practice order which requires Ms Daly to undertake a recognised return to practice course.

Commentary

This judgement reiterates the importance of the regulator presenting sufficient evidence to a disciplinary committee to prove all parts of an allegation. It is not sufficient merely to establish what actions a registrant did or did not take. Where certain actions or inaction are alleged to amount to a “failure” by the registrant, it is necessary for the regulator to lead sufficient evidence to establish specifically in what way the actions can be said to amount to that alleged failure. 

While the courts will continue to respect the professional judgement of a panel and be slow to interfere with findings-in-fact, they will consider submissions where it is said there was a lack of evidence led in respect of the findings in fact made.

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