Two bites of the apple- limitation in professional negligence cases
Judgement date: 8 August 2012
When can a healthcare professional appeal against procedural irregularities?
The applicant worked as a police station custody nurse. In 2009, she was presented with a detainee who had taken 10 millilitres of methadone. The applicant administered 20 millilitres of methadone to the detainee, in breach of her employer’s policy which stated that medication should only be administered in the presence of a forensic medical examiner. The applicant recorded that the detainee had taken 30 millilitres of methadone prior to the arrest, failing to document that she had in fact administered 20 millilitres.
The matter was referred to the Nursing and Midwifery Council (NMC). In response to the notice of allegation, the applicant stated that she would not attend the hearing on the basis that she did not consider her presence would influence the Panel’s decision. She also stated that she did not have the financial means to travel to the hearing venue, despite being informed that the NMC would assist with this. The applicant admitted the facts, but denied that she had acted dishonestly, claiming that she had made a genuine error when completing the detainee’s medical form.
On 1 May 2012, a Panel of the NMC’s Conduct and Competence Committee held a hearing in the applicant’s absence, on the basis that she had voluntarily absented herself. No inference was drawn from the applicant’s absence. The Panel found the facts, concluded that the applicant had acted dishonestly and ordered erasure from the NMC register.
The applicant submitted the following grounds of appeal:
The court ruled that there had been no serious procedural irregularity by the Panel. The applicant was given every opportunity to seek an adjournment of the hearing on medical grounds but never sought to do so and did not submit any medical records to support this. She had consistently stated that she would not attend the hearing. Towards the end of the appeal hearing, the applicant admitted that she had acted dishonestly when she completed the detainee’s medical form. As a result the second, third and fourth grounds of appeal were not pursued.
This case once again underlines the importance of registrants engaging with the regulatory process and submitting evidence which is as full as possible to the Panel where they do not intend to attend a hearing. In the circumstances outlined above, the NMC had correctly followed pre-hearing procedure for regulatory bodies and their solicitors. Most particularly in relation to service of the notice of allegation and affording the registrant the opportunity to respond, this had insulated them against a successful appeal.
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