Michelle Jane Margaret Harford v Nursing and Midwifery Council [2013] EWHC 696 (Admin)

Ms Harford (H), a nurse, appealed against a decision of a panel of the NMC’s CCC that she was guilty of misconduct and that her fitness to practise was impaired.

H had raised concerns with her employer regarding a colleague against whom she claimed to have heard a number of patients complain. H had subsequently been asked to provide a list of names of patients who had complained to assist the investigation. However, she failed to do so - and did not provide an explanation as to why she would not make the disclosure. The allegation against H was, therefore, failure to cooperate with an internal investigation - a duty set out under the NMC code.

At the hearing, H claimed that she had not made the disclosure as the patients had said they did not wish to make written complaints and that disclosing their names would constitute a breach of confidence.

The panel found that H’s failure to cooperate could have potentially caused harm to patients, as their complaints could not be properly investigated. Furthermore, that H’s conduct could have diminished these patients’ trust and confidence in the nursing profession.

Applying the test in Roylance v General Medical Council (No. 2) [2000] 1 AC 311, that misconduct can be defined as ‘a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances [and that the] standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed [by the particular professional in the particular circumstances]’(per Lord Clyde at 331), the panel found H guilty of misconduct with impaired fitness to practise and imposed a conditions of practice order for six months. In its reasons, the panel found that, whilst it did not dispute H’s explanation, patient safety was, and had to be, the principal concern.

The appeal was advanced on two grounds. Firstly, that the obligation to cooperate with investigations under the NMC code applied only in relation to investigations into H’s own conduct, and that the panel had therefore applied the wrong test for misconduct. Secondly, that the panel had been mistaken in finding H’s fitness to practise impaired in that it had failed to give proper regard to her explanation and to evidence that she now recognised the importance of patient safety.

The court rejected both arguments. It held that it could see no reason why H’s narrow interpretation of the NMC code should apply. The panel had duly considered whether H’s failure to cooperate could amount to misconduct and, having applied the correct test from Roylance, the court was satisfied that the decision had been both reasonable and justified.

The court further held that the task for the panel had been to make an assessment of H’s fitness to practise at the time of the hearing. It noted the panel’s conclusion that it had not been satisfied that H appreciated the relationship, and possible tensions, between patient confidentiality and patient protection and that it had provided sufficient reasoning for its decision of impairment.

The appeal was, therefore, dismissed.