A ‘deep-seated attitudinal problem’ could be the difference between a suspension and a strike-off

PSA v NMC & Judge [2017] EWHC 817 (Admin)

The Professional Standards Authority for Health and Social Care (“the PSA”) brought an appeal against the decision of a Conduct and Competence Committee (“the Committee”) of the Nursing and Midwifery Council (“NMC”) to suspend Philomena Judge (“the Registrant”) contending that the sanction was insufficient for the protection of the public. The Committee suspended the Registrant for a period of twelve months on 23 June 2016. 

Facts

In October 2013, the Registrant was employed as a nurse at a short-term assessment and treatment service for adults with learning difficulties, who also have mental illness or present serious behavioural challenges. She had been in this role for approximately ten years. Patient A was a patient at the unit and had been diagnosed with autistic spectrum disorder, severe mental impairment, and challenging behaviour.

At a hearing in April 2016, the Committee expressly accepted the NMC’s case. The NMC’s case was that the Registrant had been seen “poking” Patient A numerous times in the chest and hitting him on the side of the head with a broom or mop handle. Patient A became increasingly distressed. The Committee accepted that the Registrant’s conduct was deliberate and emotionally abusive. The Committee held that the Registrant's actions amounted to misconduct noting that they involved emotional distress to an extremely vulnerable patient.

Sanction

At sanction stage the Committee noted that the Registrant had no previous referrals to the NMC, and it had no information about any other issues raised in respect of her practice. The matter before them was a single occasion involving a single patient; there was no physical harm to Patient A, the Registrant had thirty years of previously unblemished service and she had engaged with the NMC process giving oral evidence before the Committee.

The Committee rejected both a caution and conditions as appropriate sanctions in the circumstances. The Committee imposed a suspension order on that basis that it would provide public protection and mark the seriousness of the misconduct such that the public interest would be satisfied.

The Committee considered a striking off order but recognised that the Registrant had thirty years of unblemished service; that she had provided supportive testimonials of her nursing practice at the time, and she had shown commitment to wishing to continue working with patients with learning difficulties and challenging behaviour. It was concluded that a striking off order would be marginally disproportionate in the Registrant’s case.

Appeal by the PSA

The PSA advanced seven grounds of appeal:

• The Registrant’s conduct had been fundamentally incompatible with continued registration;
• The Committee failed to have due regard to the public interest in declaring and upholding standards and maintaining public confidence in the profession;
• The Committee had failed to consider all relevant parts of the indicative sanction guidance;
• The Committee's finding that it could not conclude that there was evidence of a harmful deep-seated attitudinal problem was perverse;
• The conclusion that the Registrant should have the potential to develop insight was illogical and had no grounding;
• The Committee erred in its approach to the aggravating and mitigating factors;
• The Committee failed to give adequate reasons for its decision in relation to the matters set out in the other grounds.

The NMC as the first respondent in the appeal did not wish to uphold the decision of its Committee. Counsel on behalf of the second respondent, the Registrant, argued that:

• A striking off order was not the only sanction that could have reasonably been imposed;
• The Committee was entitled to find that her behaviour had not been consciously designed to cause physical harm;
• The Committee was entitled to say that they could not conclude there was evidence of deep seated attitudinal problems;
• The Committee’s  conclusion that the Registrant should have the potential to develop insight in the future was entirely reasonable given the length of her career and in the light of her oral evidence;
• The long career and the evidence attesting to the Registrant's positive qualities as a nurse were highly relevant to the choice of sanction;
• The Committee had discretion as to how it applied the indicative sanctions guidance and was entitled to approach each case on a fact specific basis.

Decision

Mr Justice Garnham upheld the appeal on the grounds that the Registrant’s conduct was fundamentally incompatible with continued registration and the suspension was plainly inadequate. He also noted that there was nothing to support a conclusion that there was sign of any insight emerging from the Registrant. On the subject of a deep-seated attitudinal problem, Mr Justice Garnham noted that it was demonstrated by “the mere fact of this deliberate abuse of a patient, without any adequate explanation, points plainly to such a conclusion”. He also said that the Registrant “had demonstrated no insight, no remorse and no remediation. There was a risk of repetition”.

Mr Justice Garnham deemed it appropriate to make an order to quash the decision of the Committee and substitute it with an order that the Registrant’s name be struck off the register of the NMC.

Commentary

The PSA does not readily use its power of appeal, and in this case, the Courts agreed that it was an entirely appropriate exercise of its power. This case demonstrates that length of service and the fact that something is out of character, does not mean that the Committee cannot find that a Registrant has deep-seated attitudinal problems. In this case, the nurse abused a patient with no apparent explanation. This case also highlights the importance of matters such as insight, remorse, remediation, and the risk of repetition, as to the appropriate sanction in the circumstances.