The Professional Standards Authority for Health and Social Care v The Nursing and Midwifery Council, Ms Winifred Nompumelelo Jozi [2015] EWHC 764 (Admin)

The Appellant, the Professional Standards Authority for Health and Social Care (PSA), appealed to the High Court against the decision made by the Conduct and Competence Committee of the Nursing and Midwifery Council (NMC) to suspend Winifred Nompumelelo Jozi’s registration for a period of 2 months.

Background

The Registrant was employed as a registered general nurse at a residential nursing home.  During the night shift from 4 December 2012 to 5 December 2012, the Registrant was the sole nurse on duty at the home along with five healthcare assistants.

Patient A was a resident at the home and, during the night in question, she had been ill with a suspected urinary tract infection.  During the morning of 5 December 2012, the Registrant was alerted by a healthcare assistant to concerns in relation to Patient A’s condition. The Registrant attended Patient A and identified that she had passed away.

Due to the concerns of the healthcare assistant about the steps taken by the Registrant in relation to Patient A’s death, she contacted the home manager who was not on site. She subsequently telephoned 999 and was advised to commence Cardiopulmonary Resuscitation (CPR).  The paramedics arrived at the home a short time thereafter. They attempted CPR but to no avail and Patient A was pronounced dead.

The Registrant was subsequently referred to the NMC. The allegations in relation to her practice in respect of Patient A were threefold.  Firstly, it was alleged that the Registrant had failed to administer CPR to Patient A.  Secondly that the Registrant failed to dial 999 following her discovery that Patient A had passed away and, thirdly, that she did not complete an incident report or any documentation in relation to the incident. 

Fitness to Practise Hearing

A Fitness of Practise Hearing before the NMC’s Conduct and Competence Committee was convened in November 2014 and the Committee considered the three charges in relation to the Registrant’s conduct.   The Committee found all three charges to be proven. 

The Committee then went on to consider whether the Registrant’s fitness to practise was impaired by reason of misconduct. The Committee concluded, in first to the first and second charges, that the Registrant’s conduct did not amount to misconduct.  In relation to the third charge, the Committee found that the Registrant’s conduct did amount to serious misconduct and that her fitness to practise was currently impaired.  The Committee went on to consider what sanction, if any, to impose. It concluded that the appropriate sanction to impose was a Suspension Order for a period of two months.

In their decision, the Committee stated that the Registrant’s actions constituted a single instance of misconduct which was not fundamentally incompatible with her continuing to practise as a nurse. Further, that the public interest could be satisfied by a less severe outcome than permanent removal from the register.  They concluded that temporary removal from the register would be the most appropriate sanction in order to protect patients and satisfy the wider public interest.

Appeal by the PSA

An appeal was lodged by the PSA in relation to the decision made by the Conduct and Competence Committee on the basis that the decision was unduly lenient.  The primary ground of the appeal was that the failings by the Registrant were not adequately encompassed within the charges that had been brought against her by the NMC.

It was submitted that there was evidence that the Registrant had made a decision not to attempt to resuscitate Patient A or to call an ambulance without conducting a proper examination or assessment of the patient’s condition.  It was submitted that the charges that were brought did not properly include this serious concern in relation to the Registrant’s practise.  As such, it was submitted that the NMC failed to bring the full gravity of the Registrant’s conduct to the attention of the panel.

It was also submitted on behalf of the PSA that the NMC had failed to place appropriate evidence before the panel.  In particular, two of the healthcare assistants had indicated that they would be prepared to give oral evidence before the Committee but they were not called to provide such evidence.  The statements of these healthcare assistants that were prepared as part of the disciplinary investigation were admitted as hearsay evidence, however, the Committee gave limited weight to their written statements.

Appeal decision

The decision of Mr Justice Singh was to allow the appeal and to quash to decision of the Conduct and Competence Committee. 

It was found by Mr Justice Singh that the NMC had failed to bring to the attention of the Panel the real substance of the Registrant’s failings and that the‘full charges that should have been brought in this case were never brought’. Specifically, there was no charge that the Registrant had failed to examine or assess Patient A before deciding not to commence resuscitation or to call 999.  As such the full extent and severity of the Registrant’s conduct was neither pleaded nor presented to the panel as part of the allegation.

It was also found that the panel erred in its decision to attach limited weight to the evidence contained within the witness statements of the healthcare assistants on the basis that they had not been tested within the hearing, as there was no good reason why the makers of those statements could not have been required to attend and provide oral evidence. It was confirmed by Mr Justice Singh that, if the Panel had come to the view that the evidence of these witnesses was important and needed to be tested at the hearing, it should have made a direction requiring the witnesses to attend the hearing in person to give evidence.

All of the grounds of the appeal by the PSA were upheld and the matter was remitted back to the NMC’s Conduct and Competence Committee for redetermination.

This case reinforces the need for disciplinary panels to play a more active role than a judge presiding over a criminal trial in order to ensure that a case is properly presented, that the charges adequately reflect the real mischief of the case and that the relevant evidence is placed before it.  This case also acts as a reminder to regulators that charges brought against a Registrant must be sufficiently particularised in order to ensure that a panel is able to reach a fully informed decision.