Lasting Powers of Attorney: recent key developments
Hannah Eales considers the recent appeal of The Professional Standards Authority for Health and Social Care v The Nursing and Midwifery Council, Ms Winifred Nompumelelo Jozi  EWHC 764 (Admin). She explores the role of the panel when faced with insufficient evidence, and the consequences of undercharging.
Insufficient evidence and the role of the panel
It has been said that a disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it, per Lord Phillips MR in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo,  EWCA Civ 1356. However, a careful balance must be struck between ensuring the case is properly presented and identifying ‘under-prosecution’ and avoiding an appearance of bias.
In the recent case of Jozi, Singh J focused on the decision of the Court of Appeal in Ruscillo and in particular paragraph 80:
‘The procedures for disciplinary proceedings under the various statutes referred to in section 29(1) of the Act are not identical. In general they involve a preliminary investigation of conduct of the practitioner of which complaint has been made. If it is decided to bring disciplinary proceedings, a charge will be proffered which alleges the facts relied upon as demonstrating professional misconduct. Admissions may be made by the practitioner, facts may be agreed and evidence may be called. The disciplinary tribunal will be faced with an act or omission, or more typically a course of conduct, which it is alleged constitutes professional misconduct. The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it.’
The Appellant, the Professional Standards Authority for Health and Social Care (“PSA”), appealed to the High Court against the decision made by the Conduct and Competence Committee of the Nursing and Midwifery Council (“NMC”) to suspend the Registrant, Ms Jozi registration for a period of 2 months.
The Registrant was employed as a general nurse at a residential nursing home. During the night shift from 4 to 5 December 2012, the Registrant was the sole nurse on duty along with five healthcare assistants. Patient A was a resident at the home. During the morning of 5 December 2012, the Registrant was alerted by a healthcare assistant to concerns in relation to Patient A’s condition. The Registrant attended Patient A and identified that she had passed away.
Due to the concerns of the healthcare assistant about the steps taken by the Registrant in relation to Patient A’s death, she telephoned 999 and was advised to commence CPR. Paramedics arrived a short time thereafter. They attempted CPR but to no avail and Patient A was pronounced dead.
The Registrant was subsequently referred to the NMC. The allegations in relation to her practice in respect of Patient A were threefold. First, it was alleged that the Registrant had failed to administer CPR to Patient A; secondly that the Registrant failed to dial 999 following her discovery that Patient A had passed away and, thirdly, that she did not complete an incident report or any documentation in relation to the incident.
A hearing before the NMC’s Conduct and Competence Committee was convened in November 2014 and the Committee found all three charges to be proven.
The Committee then went on to consider whether the Registrant’s fitness to practise was impaired by reason of misconduct and concluded, in relation to the first and second charges, that the Registrant’s actions did not amount to misconduct. In relation to the third charge, the Committee found that the Registrant’s conduct did amount to serious misconduct and that her fitness to practise was currently impaired. The Committee went on to impose the two month suspension order.
In their decision, the Committee stated that the Registrant’s actions constituted a single instance of misconduct which was not fundamentally incompatible with her continuing to practise as a nurse. Further, that the public interest could be satisfied by a less severe outcome than permanent removal from the register. They concluded that temporary removal from the register would be the most appropriate sanction in order to protect patients and satisfy the wider public interest.
PSA Appeal – unduly lenient
An appeal was brought by the PSA on the basis that the decision was unduly lenient. There were six grounds advanced on behalf of the PSA, the fundamental submission being that the NMC failed to bring the real burden or substance of what had gone wrong in the case to the attention of the panel. It was submitted that the failings by the Registrant were not adequately encompassed within the charges that had been brought against her by the NMC.
The decision of Singh J was to allow the appeal and to quash the decision and remit the matter back to the NMC’s Conduct and Competence Committee for redetermination. The appeal found that the NMC had failed to bring to the attention of the Panel to the real substance of the Registrant’s failings and that the ‘full charges that should have been brought in this case were never brought’. Specifically, there was no charge that the Registrant had failed to examine or assess Patient A before deciding not to commence resuscitation or to call 999. As such the full extent and severity of the Registrant’s conduct was neither pleaded nor presented to the panel as part of the allegation and the case ‘went off on a fundamentally misconceived footing’ [paragraph 23, Jozi]. Consistent with the analysis in Ruscillo Singh J went on to observe that the Court could in appropriate cases regard ‘undercharging’ as being a serious procedural irregularity justifying the allowing of an appeal.
A second ground of appeal was advanced in the alternative that related to two pieces of evidence which were submitted not to have been placed appropriately before the panel. The first was the nursing home’s policy on unexpected deaths. A witness from the home purported to produce the policy as an exhibit to her statement, however the relevant pages were not before the panel. The panel expressly considered itself to be restricted by the absence of the relevant pages. The second piece of evidence which was missing on the submission of the PSA were the accounts obtained through the disciplinary investigation from healthcare assistants at the home at the time in question. They were not called to give oral evidence and consequently the Committee gave limited weight to their written statements which were admitted as hearsay.
Singh J held that the panel, having seen that the evidence to support a serious charge was insufficient to support a finding of misconduct, ought to have intervened, by adjourning to allow that evidence to be produced, rather than allow the charge to fail. It was also found that the panel erred in its decision to attach limited weight to the evidence contained within the witness statements of the healthcare assistants on the basis that they had not been tested within the hearing, as there was no good reason why the makers of those statements could not attend and provide oral evidence. It was confirmed by Singh J that, if the Panel had come to the view that the evidence of these witnesses was important and needed to be tested at the hearing, it should have made a direction requiring the witnesses to attend the hearing in person to give evidence. As an aside Jozi highlights the need for Panels to consider carefully the admission of hearsay evidence on key issues on the basis that is relevant and fair to do so, only to (effectively) dismiss it by attaching minimal weight to it because they believe that the regulatory body ought to have called those witnesses to give live evidence.
Singh J went on to reiterate that the Committee itself failed to intervene, despite the insufficiency of the evidence and reminded himself of what the Court of Appeal said is the role of a disciplinary tribunal in cases of this kind in Ruscillo. He reiterated the need for proactivity by a professional panel.
Both Ruscillo and Jozi will be key authorities for panels to consider where it appears that there is a lack of clear evidence to support a serious charge which the panel ought to consider, or where a serious charge has been missed.
In applying such consideration panels need to be mindful that their behaviour does not proclaim an evident bias. The essence of the doctrine of apparent bias is that justice must be seen to be done. The crucial question is whether the fair minded and informed observer, having considered the facts, would conclude there was a real possibility of bias (Porter v Magill  UKHL 67;  AC 357, , per Lord Hope) and the panel’s behaviour must not suggest such that the decision maker may seem to ‘shed his robe as judge and take on the mantle of an advocate’. (See Roylance v General Medical Council  1 A.C. 311)
This case reinforces the need for disciplinary panels to play a more active role than a judge presiding over a criminal trial in order to ensure that a case is properly presented, that the charges adequately reflect the real mischief of the case and that the relevant evidence is placed before it. This case also acts as a reminder to regulators that charges brought against a Registrant must be sufficiently particularised, so as to avoid undercharging and in order to ensure that a panel is able to reach a fully informed decision on each charge. Yet throughout, a careful balance must be struck and the panel must be careful not to give the appearance of bias or unfairness.
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