Professional Standards Authority for Health and Social Care (PSA) v Nursing and Midwifery Council (NMC), Duncan Gerald Macleod, [2014] EWHC 4354 (Admin)

The facts

On 22 April 2011 the Registrant witnessed Nurse X goading a vulnerable mental health patient, Patient A. He then saw Nurse X place Patient A in a headlock in contravention of appropriate restraint procedures. As a result of Nurse X’s actions, Patient A struck Nurse X with a hairbrush and caused a laceration above Nurse X’s eye. Nurse X went to Accident and Emergency for treatment and on her return completed a Serious Incident Report (SIR) in respect of Patient A’s assault on her.

On the day of the incident, the Registrant completed an entry in the patient record which set out the details of Patient A assaulting Nurse X, but not his account of Nurse X’s actions towards Patient A.  The Registrant did not raise any safeguarding referral or discuss his concerns about Nurse X’s behaviour to his colleagues or superiors, in line with his employer’s policy for which he had received training 12 months before the incident took place.

It was not until over three months after the incident and after at least two explicit invitations from management, that the Registrant revealed the full extent of what he had witnessed during the incident and that Patient A was not the initial aggressor.

In January 2012, when the Registrant was interviewed by P the employer’s investigator, he confirmed that at the time of the incident he did consider Nurse X’s actions to be an assault on a vulnerable patient. The Registrant told P that it was the first time he had seen a member of staff assault a patient.  He explained that his motive/reason for not escalating what he saw was to protect Nurse X as felt obliged to support team members. The other witnesses interviewed by P were reluctant and/or provided inconsistent evidence which led P to conclude that there was a ‘conspiracy of silence’ among the team.

The charges

The NMC’s factual charges against the Registrant were that he had:
1 (a) Failed to complete a serious incident report in relation to an allegation that Patient A had assaulted charge nurse X
1 (b) Failed to immediately report that you had witnessed charge nurse X acting inappropriately towards Patient A
And as a result of the above your fitness to practise is impaired by reason of your misconduct.

The appeal

The PSA appealed against the NMC’s Conduct and Competence Committee (CCC) decision to impose a Conditions of Practice Order of nine months against the Registrant’s registration.  The three grounds of appeal were:

  1. There was a serious procedural irregularity in that the charges of professional misconduct laid against the Registrant did not sufficiently reflect the gravity of his conduct;
  2. Alternatively, the sanction imposed upon the Registrant by the CCC was unduly lenient;
  3. Further or alternatively to (2) the CCC gave inadequate reasons for its decision to impose a Conditions of Practice Order on the Registrant instead of suspension or erasure from the Register.

The NMC and the Registrant sought to uphold the decision and urged the appeal court to reject all three grounds of appeal. 

The appeal

The PSA argued that this was a case in which the NMC should have alleged dishonesty.  The Registrant made a record in the patient notes which gave a misleading account as to what had occurred on the day in question.  The omission to mention Nurse X’s provocation, inappropriate restraint/headlock and verbal abuse, misrepresented Patient A as the aggressor.  In addition, the PSA contended that the Registrant’s motive to protect Nurse X should have been included in the charge as the impact of this was to prefer Nurse X’s interests over that of Patient A which also led to an actual risk of harm to patients.
The NMC relied on the case of Uddin v General Medical Council [2012] in EWHC 2669 (Admin) and argued that it was reasonable not to charge dishonesty where there is an obvious alternative explanation as to the Registrant’s behaviour for example, innocent mistake or negligence.

No real prospect of dishonesty

Mrs Justice Andrews DBE held that this was not an obvious case of dishonesty.  She concluded that the Registrant had not provided a positively false account of events on the day in question at any stage.  She considered that the Registrant’s misplaced sense of loyalty was wholly inconsistent with the idea that he had deliberately included a skewed account of the incident in the patient records. She considered that because Registrant did voice his concerns to his superiors eventually, the Registrant was not dishonest.  Indeed, she commended him for not being part of the ‘conspiracy of silence’ noted by the investigator. She drew a distinction between an intention to mislead and the Registrant’s conduct which she considered to be reluctance to whistle-blow on a colleague.

In light of this, Mrs Justice Andrews DBE concluded that there was ample evidence that the Registrant was seriously misguided and that he had wrongly and intentionally put the interests of the colleague before those of a vulnerable patient.  However, it did not amount to evidence from which it could reasonably be inferred that he was dishonest, nor was there a real prospect of persuading the disciplinary panel that he was dishonest.

Reason/motive falling short of dishonesty should be included in charge
Whilst Mrs Justice Andrews DBE was uncritical of the NMC’s decision not to charge dishonesty, she was critical of the failure of the charges to clearly assert that the reason or motive for the Registrant’s failure to immediately escalate his concern was to protect Nurse X. In failing to take into account the reasons why the Registrant failed to report his concern sooner, Mrs Justice Andrews DBE held that the CCC failed to take into account factors that were of supreme importance in determining what the sanction should be. Particularly given that they would need to determine whether the Registrant’s actions could be rectified by further education or whether there was a deep-seated attitudinal problem.

Outcome

Mrs Justice Andrews DBE upheld the first ground of appeal, the decision was quashed and the matter was remitted for consideration by a differently constituted CCC Panel with a direction to the NMC that it must amend the charges so as to clearly assert that the Registrant’s reason (or motive) for failing immediately to escalate safeguarding concerns was to support or protect his colleague. 

Comment

This case is not good authority for the proposition that an omission (rather than a positive untruth) in patient notes should not never be pleaded as a dishonest act; whether dishonesty should be pleaded will always depend on what evidence exists of a registrant’s motives for failing to include relevant detail in clinical notes. Some may feel that, contrary to the view of the court, because the effect of the Registrant’s conduct was to mislead those reading the patient notes as to the identity of the aggressor and because the omission may well have been made deliberately out of a sense of loyalty to Nurse X, that such conduct was capable of leading the committee to the conclusion that it was dishonest.
The requirement to plead motives (other than dishonesty and sexual motivation) in the way suggested by the court in this case represents a considerable change to the current practice of most regulatory authorities; such matters are usually considered at impairment stage only without being included in the allegation. Before including such particulars, regulators should consider how significant the reasons/motives are and whether a positive finding on those particulars is likely to lead to an alternative outcome for impairment and sanction.