Professional Standards Authority v Nursing and Midwifery Council [2017] CSIH29

The Fitness to Practise process is not intended to punish Registrants for past misconduct. Its function is to protect patient safety and the public interest, including the public interest in maintaining public confidence in the profession.

There are broad similarities between the Fitness to Practise regimes for the various healthcare professions. It is common that Tribunals considering Fitness to Practise cases are required to determine the factual allegations before then determining whether the proven facts establish misconduct and whether such misconduct establishes current impairment of the Registrant’s fitness to practise.

It is well established that ‘misconduct’ in this context connotes serious professional misconduct. A finding of misconduct does not automatically lead to a finding of current impairment. In assessing current impairment, Tribunals look forward as well as backwards. They assess whether the established misconduct is easily remediable and whether it has been remedied. In discharging their duty to protect patient safety, they consider the risk of repetition of misconduct by the Registrant in the future.

There is an established line of authority which supports the proposition that where the risk of repetition is remote, serious misconduct may nonetheless require a finding of current impairment. In other words, all misconduct is serious but there is a subset of cases where the misconduct is so grave that the public interest may require a finding of current impairment, despite the absence of a risk of repetition.

The question of what the public interest requires in any given case is somewhat vexed and there has been limited empirical research.[1] It is a matter for the professional judgment of the Tribunal dealing with the case. The courts afford considerable deference to the exercise of that professional judgment.

The decision of the Court of Sessions in the case of PSA v NMC [2017] CSIH 29 demonstrates the importance of recognising that the decisions in respect of misconduct, and that in respect of current impairment, are discrete decisions and confirms that public confidence may be maintained without the imposition of sanction.

The particular case in question involved a challenge by the PSA to the decision of the Conduct and Competence Committee of the NMC in respect of a Registrant who had inadvertently made two errors in the administration of medications to patients, and had subsequently acted in a dishonest manner in an attempt to conceal her error. The Committee made findings of dishonesty and determined that misconduct was made out. They accepted that the risk of repetition of that conduct was low, having regard to the Registrant’s insight, her previous character and the overall circumstances of the incident. The Committee determined that a finding of current impairment was not required to uphold public confidence. That decision was challenged by the PSA. In dismissing the PSA’s appeal, the three Judge court made the following observation:

[30] Returning to the question posed by Cranston J, given the whole circumstances, and for the reasons explained by it, we are of the view that the committee was entitled to conclude that, notwithstanding her admitted dishonesty, SM’s fitness to practise was not impaired. … We do not agree with the submission that a perceived need for a penalty means that a finding of current impairment must be made. Whether to make such a finding is a discrete exercise to be addressed on its merits. In any event, in the circumstances of the present case, we would echo the comments of the learned judge in Uppal[2] to the effect that professional standards and public confidence have been upheld by a rigorous regulatory process which resulted in a finding of misconduct.

Conclusion

The decision is an important reminder that, in an appropriate case, a rigorous regulatory process resulting in either a finding of misconduct alone without the need for the imposition of a sanction.