Court declines to narrow scope of principles laid down by Cox J in Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927

The appellant registered nurse (O) appealed against the decision of the Conduct and Competence Committee (the Panel) of the Nursing and Midwifery Council (NMC), that her fitness to practise was impaired and that a 30 month Caution Order be imposed.

O was employed as a Band 6 Health Visitor for Ealing Hospital NHS Trust (the Trust), her role being to conduct child and maternal health needs assessments, developmental reviews, health child clinics, safeguarding and child protection work.  O became Child A’s named health visitor on 23 December 2011, due to an allegation of domestic violence on that date. 

The facts that were either found proved or admitted by O were that she had;

  • failed to notify Child A’s social worker that Child A’s mother had threatened to take Child A to Romania during a home visit, and further that she had failed to make a note of this
  • failed to put an alert on Child A’s record that an incident of domestic violence had occurred at Child A’s home
  • Failed to record the details of Child A’s father on the appropriate section of Child A’s record
  • Failed on 23 January and 30 January to record any interactions with Child A during home visits conducted, or to conduct a health review
  • Failed to put an alert on Child A’s record to notify other professionals that Child A was subject to a child protection plan
  • Failed to document a care plan.

The Panel went on to find that O’s omissions amounted to misconduct and that her fitness to practise was impaired.  They found that O’s conduct had brought the nursing profession into disrepute and breached elements of the NMC Code; Child A was in need of protection and the public would have expected a nurse of her level to have ensured his interests were safeguarded.

O challenged the decision on a number of grounds, namely that;

  1. The Panel failed properly to apply the test for impairment.   The principle in Grant which asked Panels to consider whether public confidence in the profession would be undermined if a finding of impairment was not made in the circumstances, did not apply equally to clinical cases as it did non-clinical.
  2. The panel was wrong to conclude on the facts that O was impaired
  3. The panel failed to provide adequate reasons
  4. The Panel incorrectly concluded that O was still receiving weekly supervision and that the practise had not yet been tested in a stressful situation
  5. That the panel’s decision on impairment failed to pay sufficient weight to oral evidence about the current work environment, testimonials, insight, remorse and her 30 year unblemished career.

In relation to Ground 1 above, Counsel for O attempted to argue that O’s case was factually distinguishable from Grant, which had included both clinical and non-clinical misconduct and where the misconduct extended over a long period of time.   Counsel drew the Court’s attention to paragraph 100 of Cox J’s judgement, where she describes the misconduct as being ‘more analogous to misconduct of the type found in Yeong v GMC [2009] EWHC 1923  rather than that identified in Cohen v GMC [2008] EWHC 581’.

Counsel for O submitted that O’s cases was plainly distinguishable as it was a serious error of professional judgement over a limited period (more akin to that described in Azzam v General Medical Council [2008] All ER (D) 149). 

Counsel on behalf of the NMC submitted that the Panel’s reasons made it plain that it viewed O’s clinical failings to be so serious that even the accepted remediation was not enough to enable it to uphold public interest without a finding of impairment. 

The Court rejected O’s appeal on this point.  It was held that;

‘In Grant Cox J is giving general guidance (see para 76).  The approach to be applied in each case is the same.  It is the act of misconduct which has to be considered, not whether the misconduct is clinical or non-clinical.  The wider public interest is engaged in each case’ [47].

All other grounds of appeal were rejected.

Here the Court refuses to narrow the scope of the principles laid down by Cox J in Grant; public confidence considerations apply equally to clinical matters as they do to non-clinical matters.