Judgment date: 10 April 2013
High Court consider approach to ‘misconduct’ in fitness to practice proceedings
The Appellant (H) was a nurse, registered since 2005, appealing a decision made by the Conduct and Competence Committee of the Nursing and Midwifery Council (NMC) (the Respondent) on 19 October 2012. The Respondent had found that H’s fitness to practise was impaired by reason of misconduct. HHJ Wyn Williams considered whether the original question of misconduct and impairment of fitness to practise had been correctly decided. The appeal was dismissed.
Since 2010 H had been employed by Dr Sharples as a Practice Nurse in his GP surgery in Bristol (the Practice). Also employed at the Practice was a Practice Manager and a phlebotomist, referred to in proceedings as “A”. The substance of the original allegation before the Respondent can be summarised as a failure on H’s part to cooperate with internal investigations by Dr Sharples into concerns H had raised with him into the clinical skills of “A”. H alleged that she had received various oral complaints from patients about A’s venipuncture skills. Shortly after raising these concerns with Dr Sharples, H was able to provide one written complaint from a patient to this effect.
Dr Sharples wrote on two separate occasions to H, requesting she provide a list of patients who had allegedly raised concerns with her about the clinical skills of “A”. H failed to comply with this request in that she did not supply a list of names or a list of the particulars of their complaints. No explanation was provided by H to Dr Sharples regarding her decision to withhold this information.
It was apparent that given the small roster of staff employed at the Practice, emotions had run high throughout the period during which the facts rehearsed above took place.
During the course of the original hearing, H gave oral evidence, explaining that she had taken a decision not to supply a list of patients’ names because the patients in question had told her they did not wish to make written complaints. She judged that she had her “registration to protect” and that to provide such a list would breach her duty of confidentiality towards those patients.
In finding misconduct, the Respondent considered the definition put forward in the case of Roylance v General Medical Council (No 2)  1 AC 311 quoting in particular the definition of misconduct as follows:
…. [a word of] general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standards of propriety may often be found by reference to the rules and standards ordinarily required to be followed by [medical] practitioners in the particular circumstances.
The Respondent cited the NMC’s Standards of Conduct, Performance and Ethics of May 2008 (the Code) in particular (but not exhaustively) those paragraphs that refer to: protecting and promoting the health and wellbeing of those in the registered nurse’s care; the requirement to act as an advocate for those in the nurse’s care; acting without delay where it is believed that a colleague or other may be putting someone at risk, and cooperating with internal and external investigations.
The Respondent noted that in H’s professional judgement, she had deemed colleague “A” to be unfit to practise and considered patients were at risk. The Respondent found that H had struck the wrong balance when weighing up the duty of confidentiality towards patients with the responsibility to ensure patient safety. The Respondent recognised that a failure to comply with any provision of the Code should not in itself be taken to establish that a nurse’s fitness to practise was impaired. However, in the instant case they confirmed that her actions “were a significant departure from the standards expected of a registered nurse and amounted to misconduct which is serious”.
HHJ Wyn Williams found that although the Respondent had not specifically quoted in its decision that passage of Roylance, which confirms that only serious misconduct will qualify as professional misconduct, he was satisfied that the Respondent had correctly directed itself on this question.
In relation to the finding of impairment, the Respondent considered Cohen v General Medical Council  EWHC 581 (Admin). The Court found that in demonstrating limited insight into the tension between patient confidentiality and wider responsibilities to protect patients from harm, H had not been able to reassure the Respondent that the risk of repetition was low. The Respondent also considered the need to maintain and uphold proper standards of behaviour, as amplified in CHRE v NMC and Grant  EWHC 97.
Turning to the question of impairment of fitness to practise, H submitted that the Respondent had fallen into error by finding that although the conduct complained of was capable of remedy, the risk of repetition was not low. It was put on behalf of H that the Respondent had not attached sufficient weight to H’s evidence that since the facts complained of, she had properly come to recognise that patients’ safety was a “paramount consideration”.
HHJ Wyn Williams accepted that the Panel had not rejected this evidence in terms, however, this was not sufficient to find that the exercise of the Panel’s judgment on the question of impairment was wrong where it had provided cogent reasons as to its conclusions on the level of insight demonstrated by H. Although HHJ Wyn Williams accepted that a differently constituted Panel may have drawn different conclusions, it could not be said that the Respondent had exercised its judgment incorrectly.
This case re-confirms the judicial approach to “misconduct” and other similar terms recurring within the medical and dental professions’ regulatory schemes, as reviewed in Spencer v General Osteopathic Council  EWHC 3147. In particular, the necessity for “seriousness” to feature before misconduct can be made out. A disciplinary panel should refer to this explicitly in their reasoning in order to insulate the decision from appeal on that basis. The case also re-affirms the deference due by the appellate body to the tribunal of first instance on questions of oral evidence where the appeal tribunal has not had the benefit of re-hearing the same. In particular, it is suggested that it will always be rare for an appellate judge to overrule the first instance panel’s findings in respect of matters such as insight, where the original panel have had the benefit of observing a registrant give evidence.