When is the right time to question a medical decision?
Wisniewska v Nursing Midwifery Council (NMC)  EWHC 2672 (Admin)
This was an appeal against a decision of the Nursing and Midwifery Council (NMC) Conduct and Competence Committee (‘the Committee’) to impose a striking off order, following a finding that Ms Wisniewska’s (‘the Appellant’) fitness to practice was impaired. This appeal was made pursuant to Article 38 of the NMC Order 2001 (‘the Order’).
In accordance with Rule 52.21(3) of the Civil Procedure (Amendment No.3) Rules 2016, an appeal may be allowed where the decision of the committee was ‘wrong’ or ‘unjust’ as a result of a series of procedural or other irregularities
In October 2012, the Appellant’s previous employer, Hertfordshire and Essex NHS Trust (‘the Trust’), referred her to the NMC. The first allegation was that on nine occasions she had not attended work at the Trust having reported sick, but had attended shifts as a bank nurse at St Elizabeth Centre. The two remaining allegations were that she had failed to apply a dressing and failed to conduct an electrocardiogram, despite having been asked to do so on both occasions.
The Committee heard the allegations between 22 and 25 July 2014. During the hearing, the Appellant accepted that she had attended work elsewhere instead of attending her scheduled shifts at the Trust. Further, the Appellant accepted that, as she had not mentioned this during her return to work interview, her actions were dishonest. The allegations concerning the dressing and the electrocardiogram were contested, however, they were both found to be proved. The Committee did not consider that the failure to carry out the electrocardiogram as requested amounted to professional misconduct.
The Appellant was suspended from the nursing register for a period of six months. The Appellant subsequently returned to the register on 28 February 2015 having served her suspension period.
Prior to the suspension, on 8 November 2013, the Appellant applied for a job at the Princess Alexandra Hospital NHS Trust. On the application form, the Appellant stated that she was not currently the subject of fitness to practise proceedings. During the interview, the Appellant did not mention the proceedings, nor did she mention it when she began working at the Princess Alexandra Hospital on 24 March 2014. Upon completing a Human Resources (HR) questionnaire, the Appellant omitted her previous employment at the Trust.
The Princess Alexandra Hospital Trust initiated disciplinary proceedings. The Appellant subsequently resigned from her role.
At a hearing in April 2016, the Appellant faced six allegations, including providing misleading information on her application form, not informing the Princess Alexandra Hospital NHS Trust during her interview that she was under investigation by the NMC, failing to declare her previous employment at the Trust and the reasons for leaving that employment.
The Committee took into account that the Appellant had recognised the importance of honesty to the nursing profession and that the facts of the case did not give rise to concerns regarding the Appellant’s clinical skills. However, the Committee found that the Appellant’s actions had the potential to put patients at risk of unwarranted harm. The Committee also found that the Appellant’s dishonesty was prolonged and that by reason of her dishonesty, the Appellant had brought the profession into disrepute.
The Committee imposed a striking off order.
The Appellant appealed the sanction on three grounds.
The first ground relied upon by the Appellant was that the decision to strike her off was wrong on the basis that the Committee had not properly considered all mitigation when assessing the suitability of a suspension order.
In considering the first ground of appeal, the court considered the case of O v NMC  EWHC 2949 (Admin) and the Indicative Sanctions Guidance (‘the guidance’) prepared by the NMC. The guidance sets out that where there are only two available options for sanction, i.e. striking off or suspension, it is critical that the available mitigation is applied not only when considering striking off, but also when evaluating the proportionality of a suspension. The court considered that the danger of the approach set out in the guidance not being followed is that the Committee rejects suspension and only evaluates fully the mitigation when considering striking off. The Appellant submitted that this had occurred at her hearing and therefore the decision was logically and irretrievably flawed.
The court concluded that it was ‘impossible to evaluate what weight’ the Committee gave to the mitigating factors present and in agreement with the Appellant, stated that ‘the assertions and conclusions are no substitute for the requisite reasoning’.
The second ground of appeal was that on determining the issue of current impairment, the Committee were wrong to conclude that the Appellant posed a risk to patients and by relying on that wrong decision when determining sanction, the Committee had invalidated the decision on sanction.
The Appellant submitted that the Committee was wrong to find that she was a risk to patients on the basis that the dishonesty admitted in the case did not occur in the course of her clinical duties and that she had practiced for over 20 years without incident.
In considering this ground of appeal, the court considered whether on the basis of the Committee’s reasoning, there was evidence that the Appellant had or would put patients at risk of unwarranted harm. The court concluded that there was no evidence to support such a conclusion and that there was uncontested evidence to indicate that the Appellant had discharged her professional duties with ‘conspicuous skill’. The court therefore concluded that, as the Committee had incorporated their conclusion in relation to harm to patients into their justification for a striking off order, the order could not be sustained.
The third and final ground was that the Committee’s decision on impairment was wrong in that they made irrational findings regarding insight and remediation.
The court considered the evidence given by the Appellant to the Committee in relation to insight and remediation. In doing so, the court found that the Committee’s conclusion that there was no evidence of remediation was ‘plainly wrong’. The Committee had stated in their decision that the Appellant appeared ‘to place [her] wellbeing above that of patients or the reputation of the profession’. The court stated that there was no evidence of this and indeed, there was compelling evidence to the contrary. The court concluded that the Committee’s reasoning in relation to this point was illogical and therefore, the reliability of the Committee’s finding and decision on sanction had been undermined.
The court allowed the appeal and imposed a sanction which they considered to be proportionate, a 12 month suspension from the register.
This decision highlights that the primary function of a sanction is not punitive, but is intended to protect the public and wider public interest. Additionally, the court’s decision makes clear that mitigation must be considered at the relevant stages; a failure to do so may amount to a serious irregularity. Further, the court noted that although offences of dishonesty are undoubtedly serious, the return to practice of a highly skilled nurse may also be in the public interest.
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