Contentious Trust and Probate Quarterly Round-Up: Q2 2020
PSA v NMC and Another  EWHC 1181 (Admin)
The High Court has quashed a three year caution imposed on a registered nurse who dishonestly covered up her failings in relation to a suicidal patient, including in the inquest into the patient’s death, following a successful appeal by the Professional Standards Authority (PSA) for Health and Social Care.
The case is an illustration of the importance of being candid in investigations, and the seriousness of attempts to cover-up of clinical failings, even where those clinical failings have subsequently been adequately remediated.
In March 2015, the Registrant and a colleague carried out a mental health assessment of a patient, Patient A, who had been brought to hospital by a support worker who had concerns about Patient A’s suicidal ideation.
The Registrant and her colleague concluded that Patient A did not require admission to hospital and offered her treatment at home; the Patient refused to leave but was removed by security. The Registrant had not taken her telephone number and as a result, the team were not able to contact Patient A by telephone. Two days later, Patient A was found dead.
The Trust carried out a Serious Incident Investigation (SII) into the conduct of the assessment. The Registrant and her colleague were interviewed; the Registrant confirmed the accuracy of the interview record in May 2015.
In June 2015, the Registrant prepared a report for the Coroner who was undertaking an inquest into Patient A’s death.
In December 2015, the Trust became aware that Patient A had recorded the mental health assessment on a mobile telephone; the recording was checked against the Registrant’s record of interview and reports to the Coroner, and a number of material inconsistencies were identified.
In due course, fitness to practise proceedings were brought before a panel of the Nursing and Midwifery Council’s Fitness to Practise Committee (the Committee). The Registrant faced allegations relating to:
The Registrant admitted a number of the alleged clinical failings; however, she denied dishonesty, claiming that she had “done her best” during the SII interview and had conveyed her recollection to the Coroner in a truthful way.
The Committee rejected her account. They were satisfied that she knew her assessment of Patient A was inadequate and that she was attempting dishonestly to cover this up. They found that the conduct of the assessment and the Registrant’s subsequent dishonesty amounted to serious misconduct, and a finding of current impairment was made so as to maintain confidence in the profession and to mark the seriousness of the misconduct found proved. However, the Committee was satisfied that no finding was required to protect the public, as the Registrant had put forward extensive evidence of her good character, high standard of practice and other professional strengths, which indicated that she had learned a great deal from the incidents and could display “an extremely good level of insight” into her clinical failures.
On the basis of their findings, the Committee imposed a caution order for three years.
The PSA challenged the decision of the Committee to the High Court, using its powers under s.29(4) of the National Health Service Reform and Health Care Professions Act 2002. The PSA argued that the Committee was wrong to conclude that a finding of impairment was not needed on public protection grounds, and the context of the Registrant’s dishonesty could hardly have been more serious.
Farbey J, hearing the appeal agreed stating that the Committee’s decision was “plainly flawed”. The Registrant’s misconduct was grave as she had then been dishonest during the investigation designed to learn lessons from Patient A’s death so that steps could be taken to avert similar problems in the future, and again during the Inquest. At the Fitness to Practise hearing, she had not faced up to her dishonesty, when honesty is the “bedrock of the profession” (para 40). The Committee was wrong to take the view that she was not impaired on public protection grounds, and the sanction imposed was inadequate:
“It follows that the panel sanctioned the respondent on an inadequate assessment of the extent of her impairment and imposed a sanction which cannot reasonably reflect the seriousness of her misconduct” (para 42).
The duty of candour among healthcare professionals is not only enshrined in law, but is also a feature of guidance for the respective healthcare professions.
In recent years, there has been an increasing recognition among panels and the High Court that there is a ‘spectrum of seriousness’ in dishonest behaviour, and that it is not a foregone conclusion that dishonesty will lead to suspension, let alone erasure.
However, Farbey J’s judgment sends a very clear message that where a practitioner seeks dishonestly to cover up clinical failings, their actions will be considered to fall at the higher end of the spectrum of seriousness. This reflects the fact that the purpose of an investigation is not just to identify root causes, but “to learn lessons from [the] death so that steps could be taken to avert similar problems in the future”; as Farbey J noted, “it was therefore critical (and ought to have been obvious) that those giving evidence to the investigation should be candid. Anything other than candour would undermine the purpose of the investigation” ([para 38]). In relation to the Inquest, Farbey J wrote: “Dishonesty to a Coroner runs the risk of prejudicing an inquest which is flatly against the public interest”.
This was compounded in this case because “the respondent’s remediation did not extend to facing up to her dishonesty at the hearing” and she “failed to appreciate the consequences of her dishonesty or its serious nature”.
In Misra v General Medical Council  UKPC 7, the Privy Council questioned the GMC’s decision to include allegations of dishonesty alongside clinical failings, arising from the doctor’s denials of those clinical failings during a local investigation. In that case, the judgment includes the obiter observation that these allegations of dishonesty “were unnecessary and oppressive” and “added nothing to what would have been shown to be the degree of culpability of Dr Misra if the substantive allegations that he had declined to admit were found proved against him” (para 17). In light of the change in climate and the increased prominence of candour, it may be increasingly difficult for practitioners to argue that obstruction of an investigation does not increase their culpability.
Finally, the judgment also reminds us that the sufficiency of a sanction is case-specific, but that the sanction imposed on co-registrants is a relevant consideration (presumably in gauging what is required to mark the public interest). Farbey J was invited to consider the question of sanction herself, when the caution order had been quashed, and reference was given to the sanction imposed on the Registrant’s nurse colleague as a potential benchmark. However, Farbey J declined, citing the lack of information about why the colleague received a six-month suspension. It was better for the question of sanction to be remitted to a freshly-constituted panel which can “reach a decision about the appropriate sanction on all the relevant evidence, including any argument about parity with Registrant C”.
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