Lawyers must fix the problems with gagging orders before it is too late
Nurses who had faced allegations by NMC since 2003 finally ‘cleared’ of misconduct, following judgement by High Court.
A case was brought by the Nursing and Midwifery Council (NMC) against Sarah Johnson (J) and Lynette Maggs (M), (‘the Registrants’) alleging that they were guilty of misconduct. The misconduct was said to have occurred between 1 October 1998 and 31 January 2002 when the Registrants were, respectively, the Manager and Deputy Manager/Matron of a nursing home, Lynde House (‘the Home’).
The Registrants were both notified of general allegations on 25 September 2003, before an investigation took place by the NMC which took over two years. The case was referred to a Professional Conduct Committee (PCC) In December 2005. It was only in April/May 2007 that the Registrants were sent the charges in their final form, relating to 15 specific individuals who had been resident at the Home in the relevant period.
The hearing before the PCC commenced on 30 July 2007. The Registrants submitted at that stage that the charges lacked specificity and that the NMC had failed to obtain documents that they should have. An application made on their behalf that the proceedings be stayed was refused by the PCC. The proceedings were at this point put on hold whilst that decision was judicially reviewed. The application was refused by Beatson J in March 2008.
The substantive hearing of the case took place on various dates between 2 February 2009 and December 2011 (thus lasting 86 days over a period of two ears and nine months). The total time that had elapsed from when the Registrants were notified of the charges was over 8 years. The NMC issued a public statement on 9 December 2011 apologising for the unacceptable delays, stating that they were confident that if the case were referred today, the case wold be completed ‘much more quickly’.
It was duly accepted by the NMC in the present case that the delays violated the rights of the Registrants under Article 6 of the European Convention for the Protection of Human Rights to a hearing within a reasonable time. Before moving on to consider the substantive case, and having conducted an analysis exercise of the reasons for the delays in the case, Mr Justice Leggatt stated that ‘when every allowance is made for the extent to which the conduct of the defence contributed to the delay, the length of time which these disciplinary proceedings took remains disgraceful’.
The Findings of the PCC
The Registrants had each faced 9 heads of charge, embracing 116 particular allegations in the case of J and 112 in the case of M. The PCC found 22 allegations under 4 heads of charge proved against J and 14 particulars under 3 heads of charge proved against M.
The PCC decided that J was guilty of misconduct only in relation to 9 particular allegations under Charge 2 and Charge 7, and that M was guilty of misconduct in relation to 4 particular allegations under Charge 2.
The charge on which the PCC found both J and M guilty of misconduct was Charge 2, which alleged that the registrants ‘failed to ensure that adequate nursing records were maintained’ in respect of seven individual residents of the Home. The particular allegations found proved was concerned with the completion of care plans in relation to falls in particular residents. It was found that M should have ensured that she had been proactive in producing a care plan and assessment of the risk of falls in each case. With regard to J it was found that as Manager it was her responsibility to ensure that M was keeping appropriate records. The PCC also found that J (and not M) was guilty of misconduct in relation to Charge 7; this charge alleged that the registrants ‘failed to ensure a safe system for the administration of medicines, more particularly failed to ensure that medication was consumed by residents after it was dispensed’. The PCC found that whilst J had no direct responsibility for the administration of medicine, she had an overall responsibility for ensuring the system was a safe one.
The final stage of the procedure was for the PCC to consider sanction. Having considered the length of proceedings and the detrimental impact it had had on the registrants, in conjunction with the Registrants’ previously unblemished lengthy careers, they decided to take no further action. As it was summed up by the Court, ‘thus had the mountains laboured and brought forth a mouse’.
Given that the PCC had decided to take no further action, the Registrants had no right of appeal. The only means of challenging the findings of misconduct against them therefore, was Judicial Review, meaning the court would only interfere if it found that the PCC had acted irrationally or otherwise unlawfully.
It was argued by Mary O’Rourke on behalf of the Registrants that the PCC;
In addition, her ‘secondary case’ was that the findings of fact on which the findings of misconduct were based were ‘perverse’ and contrary to the evidence.
Counsel on behalf of the NMC disputed all arguments, suggesting there was no evidence to support the contention that the PCC misunderstood the relevant law.
The Court rejected all aspect of the Registrants’ primary case that the PCC failed to understand the relevant law. Further it was rejected that the PCC gave in adequate reasons. However, the Court did hold that the findings of misconduct made by the PCC against the Registrants were unlawful and should be quashed. This followed a detailed analysis of the evidence that was given at the hearing and findings made.
The Court considered that the evidence of Marion Moody (expert for the NMC) on which Charge 2 was based was not capable of supporting a finding that it was negligent for the nurse responsible for a residents’ care not to have compiled a separate falls assessment or care plan for the resident. The PCC had misstated various aspects of the evidence in their determination. Ms Moody had expressed her clinical opinion about what she thought (at the time of giving evidence) should have been done in the case of particular registrants. She did not state, either specifically or generally, that any reasonably competence and careful matron of a care home at the relevant time would have ensured that such an analysis was carried out. It was therefore ‘difficult to see how the Committee could reasonably have found this charge proved’.
Further, in relation to J, the PCC had found that the number of falls should have triggered an investigation by her to determine if a risk assessment needed to be completed. There was, it was held, no support for this conclusion, indeed, it was not put to J that separate risk assessments needed to be done for each resident or that she ought to have checked the records of residents to check that one had been done. J was only asked about this after the facts stage. The PCC had essentially found relevant facts proved before J was questioned about the allegation, which was unfair.
The PCC found that J had acquired knowledge of incidents involving ‘untaken’ medication being left in rooms on three occasions but had not informed M as she should have done, and that this amounted to misconduct. The Court held that this was an unreasonable. There was no evidence on which the PCC could fairly find, having reminded themselves of the standards of proof, that J had failed to pass on such information between 10 and 13 years ago. J could understandably not remember whether she had passed on such information. In addition, this suggestion was never put to or raised with J in evidence at all. Even if there was a failure to inform M of medication being left, this did not amount to the stated charge of ‘failing to ensure a safe system for the administration of medicines’. Lastly, it was held that even if this was the case, it was difficult to see how a failure to notify J on a handful of occasions where medication was found, amounted to misconduct. It appeared to the Court that ‘the Committee appears at this point in the case to have lost a sense of perspective’.
It was for the above reasons that the findings of misconduct against both registrants were unlawful and were quashed. No reasonable panel could have made the findings that were made by the PCC. And so it was said that ‘a decade after this misconceived and mismanaged case was brought against the registrants, their names are clear’.
This case highlights the plethora of difficulties that come from long and protracted litigation in the professional discipline arena. Such delays can, perhaps understandably, cause panels to lose perspective and consider the individual omissions in a vacuum. Further, it highlights how the older and more stale a case gets, the greater the dangers of hindsight creeping in to the consideration process of panels.
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