PSA v NMC & Joselo Silva [2016] EWHC 754 (Admin)

The PSA appealed against a decision of the NMC Conduct and Competence Committee made on 5 November 2015. The Committee had found that a failure by the Registrant to refer to the Safeguarding authorities complaints of abuse made by elderly patients with dementia amounted to misconduct. The Registrant had admitted the failure to refer the complaints. The Committee determined that although the Registrant's fitness to practise had been impaired at the time of the incidents, the Registrant had shown insight and remediation which meant that his fitness to practise was not currently impaired. Therefore no further action was required.

The PSA argued that the NMC committed a procedural irregularity because no allegations were made which shed light on the reasons for the failure to refer complaints to the Safeguarding authorities. The PSA submitted that there were relevant to the seriousness of the misconduct and the Registrant's fitness to practise. The three allegations that the PSA claimed had been omitted from consideration were that the Registrant had (a) ordered a member of staff reporting allegations of abuse to stop doing so (b) made derogatory comments about residents who were making allegations of abuse and (c) had written unrelated notes on a written note left for him by a member of staff concerning alleged abuse of residents which itself might have needed to be needed to be referred to Safeguarding.

The court agreed that the three allegations were obviously important and shed light on the reasons for Mr Silva's failure to act. Consideration of the allegations would have provided the Committee with assistance in deciding whether there was a serious underlying attitudinal problem on the part of Mr Silva which could affect his ability to care for the elderly, particularly those with dementia. The court found that the absence of consideration of these allegations by the Committee meant that it could not have properly considered the issues of remediation and current fitness to practise, as it had not established the reasons for the acknowledged past unfitness to practise. The court quashed the decision of the Committee and remitted it back to a differently constituted Committee for rehearing.

This case is a reminder of the importance of drafting charges that cover not only the behaviour that may amount to misconduct, but also any allegations that support broader concerns about the attitude of the Registrant and the motivation for the behaviour. The reason behind behaviour that amounts to misconduct is often crucial in establishing current impairment of a Registrant.

The court did accept that it may not be absolutely necessary to specify every allegation in a charge and that it may be appropriate at times to proceed on the basis of a more general charge under which several allegations would fall. However, it was clear that in such cases it would be important for each allegation to be pro-actively put to the Committee. The court in this case relied upon the transcripts from the Committee hearing and the wording of its decision to reach the conclusion that although it had been provided with evidence relating to the three allegations, it had not taken them into account when reaching its decision. If the Committee's attention had been drawn to the three allegations or it had explicitly referred to them in reaching its decision, the court's decision may have been different.