The High Court has found that a finding of misconduct by the Professional Conduct Committee of the Nursing and Midwifery Council (the "NMC") should be quashed where the evidence that the Committee had relied upon was not reasonably capable of supporting its findings. The Court also took the opportunity to express its concern with proceedings being subject to "disgraceful delay".
R (On the application of Johnson & Maggs) v NMC (2013) EWHC 2140 (Admin)
- The Court will only interfere with the findings of a specialist disciplinary tribunal where the tribunal has "acted unfairly or irrationally or otherwise unlawfully." It is not necessary for the tribunal's findings of fact to be "perverse", but rather the Court will review the findings of fact by reference to a standard of reasonableness.
- Allowances will be made by the Court for the fact that what amounts to misconduct is a matter for the judgment of a specialist tribunal. However, decisions made by specialist tribunals will be quashed where a tribunal makes a finding of fact which has no reasonable evidential basis.
- A delay of eight years between notification of allegations and a final disciplinary hearing being concluded is unacceptable and amounts to a breach of the right to a hearing within a reasonable time under Article 6 of the European Convention on Human Rights (incorporated into English law by the Human Rights Act 1998).
The disciplinary proceedings were brought by the NMC against Ms Johnson and Ms Maggs (the "Registrants"), both of whom were registered nurses charged with misconduct. The Registrants were, respectively, the Manager and Deputy Manager of a nursing home in Twickenham (the "Home").
The Registrants were first notified that they were the subject of allegations on 25 September 2003. The NMC carried out an investigation and a hearing before the Professional Conduct Committee commenced on 30 July 2007. Following various delays to the proceedings, the hearing was finally concluded on 9 December 2011. By the time the Committee had made its decisions, the events which were the subject of the charges were between 13 and 9 years old. The NMC accepted that the delays violated the right to a hearing within a reasonable time, one of the components of the right to a fair hearing under Article 6 of the European Convention on Human Rights.
The Committee eventually found that both Ms Maggs and Ms Johnson were guilty of misconduct. The final stage of the procedure was for the Committee to decide what sanction to impose. Having considered "the circumstances particular to this case", the Committee decided to take no further action.
As the NMC decided to take no further action, under the Nurses, Midwives and Health Visitors Act 1997, the Registrants were unable to appeal against the findings of misconduct and so initiated judicial review proceedings.
Grounds of claim
The Registrants raised three grounds of claim:
- The Committee had made several errors of law in finding the Registrants guilty of misconduct.
The Administrative Court (Mr Justice Leggatt) dismissed the Registrant's primary case that the Committee had failed to understand the relevant law. The Committee had referred in its decision to the advice given by its legal assessor and made references to correctly stated propositions of law. Mr Justice Leggatt found that the Registrant's primary case, that the Committee had failed to understand the law, was merely another way of asserting that the Committee had come to a wrong decision when applying the law to the facts of the case. This is not a permissible ground for judicial review.
- The reasons given by the Committee for the findings were inadequate.
This ground was also unsuccessful. The Court found that the reasons given were sufficient to enable the affected individuals to understand what the tribunal had concluded and why.
- The Committee's findings of misconduct were irrational and/or the findings of fact which formed the foundation for the findings of misconduct were perverse.
In order to establish whether the Committee's findings of fact were irrational/unreasonable, Mr Justice Leggatt examined the evidence relied upon by the Committee in relation to two Charges in turn.
Charge 1 - The Registrants had failed to ensure that adequate nursing records were maintained.
This specifically related to a failure to keep separate risk assessment records in relation to falls by the residents of the Home.
Following examination of the evidence in respect of this charge, the Court found that the evidence did not rationally support the Committee's findings. Further, even if the evidence had supported the Committee's findings, the Committee was required to take a further step in finding misconduct. Simple negligence was not sufficient for this purpose; rather the Committee must have found "gross professional negligence" or conduct that would be seen as "deplorable" by fellow practitioners. Even when "every allowance is made for the fact that what amounts to misconduct is a matter for the judgment of the specialist tribunal", the Court held that the evidence in respect of this charge was not reasonably capable of supporting such a finding against the Registrants.
Charge 2- failure to ensure a safe system for administering medication.
This was based upon allegations that on various and unknown dates medication for five residents had, contrary to the Home's policy, been left in residents' rooms.
The Court held that the finding of misconduct failed the test of reasonableness for three reasons:
- There was no evidence that the Registrants had failed to mention the issue at the time. The allegation that the Registrants had not done so was not put to or raised with them in evidence.
- The full charge against the Registrants was "failure to ensure a safe system for the administration of medicines, more particularly, failure to ensure that medication was consumed by residents after it was dispensed". The fact that a nurse had failed to follow the system on a few occasions did not make that system unsafe, nor did it establish that the Registrants were at fault for failing to ensure that there was a safe system.
- On the Committee's findings, the Registrants had been informed of a handful of occasions where medication had been found. The evidence did not support the notion that there was a systemic problem of failing to ensure that the medication was consumed.
Mr Justice Leggatt considered that the Committee had lost a sense of perspective, and found that the finding of misconduct on this charge was "so far out of proportion to the nature of the failure found that it is not one which the Committee could reasonably reach".
Mr Justice Leggatt concluded that the findings of misconduct by the Professional Conduct Committee of the NMC against both Registrants were unlawful and should be quashed.
This case has been described by Mr Justice Leggatt as "a case study for how a disciplinary case should not be conducted". Whilst the Courts are generally reluctant to interfere with the decisions of specialist tribunals, this case is a notable example of such a decision being found to be unlawful. The Court in this case was willing to re-consider the evidence in considerable detail to make a judgment as to the reasonableness of the Committee's findings. The catalogue of failures by the Committee were heavily criticised by the Court throughout the judgment and included procedural errors such as failing to put allegations to the witnesses appropriately and mischaracterisation of evidence. This illustrates the importance of following procedures to the letter to ensure that disciplinary cases end in secure and defensible decisions.
The Court described the length of time that the proceedings had taken as being the subject of "disgraceful delay" for which the NMC was at least partly responsible. It is unusual to see the Courts accepting that there has been a breach of the Article 6 reasonable time requirement. Often regulators are given considerable latitude by the Court and lengthy proceedings are justified by the complexity of the case or lack of resources on the part of the public body. This judgment is a warning to regulators that they will not always be able to convince the Court with such explanations, and that they will need to demonstrate that efforts have been made to avoid excessive, unfair and unjustified delay.