Acting to stop harm: the FCA and Appointed Representatives
Hindmarch v Nursing and Midwifery Council  EWHC 2233 (Admin)
This was a statutory appeal to the High Court in relation to a decision of the Conduct and Competence Committee (the Panel) of the Nursing and Midwifery Panel Council (NMC). The appellant, Ms Hindmarch (Ms H), appealed against a number of the findings of the Panel, including impairment and sanction.
Ms H was registered with the NMC as a nurse. She was employed by Care UK at Stanley Park Centre in their Dementia Unit (the Unit). On 9 July 2013 the Unit received a delivery from the pharmacy of patient medications. On 14 July 2013 Ms H was checking this medication against the administration records. Due to the treatment room, which was also used for the storage of medicine, being too small, Ms H checked the medication in bedroom 61.
After checking the medication, Ms H had to transfer all the medication to the treatment room, this included a bottle of Lorazepam containing 14 tablets. Lorazepam is used to treat anxiety.
At some stage on 14 July 2013, Patient A, who was not intended for the Lorazepam, got hold of the bottle and ingested 11 out of the 14 tablets. Patient A was found unresponsive. Ms H attempted to arouse Patient A but was unable to do so. Patient A had to be taken to hospital. Patient A suffered no long-term effects and was discharged from hospital the following day.
Ms H did not attend the hearing because of a family bereavement and the Panel considered that she had voluntarily absented herself and proceeded in her absence.
The following allegation was considered by the Panel:
“That you, a registered nurse, whilst employed by Care UK
(i) on 14th July 2013 failed to ensure that medication, namely a controlled drug (Lorazepam) was stored securely resulting in a resident obtaining and ingesting the said medication.
In light of the above your Fitness to Practise is impaired by reason of your misconduct”
The Panel determined that Ms H’s fitness to practice was impaired and imposed a 12 month suspension order.
Ms H lodged an appeal against the decision made by the Panel. Her grounds of appeal were as follows:
The Panel was misdirected on the laws to the legal status of Lorazepam as a controlled drug
The first part of Ms H’s appeal was in relation to the impression that the case presenter for the NMC gave to the Panel in the initial stages of the hearing. This was that Lorazepam, as a controlled drug, was subject to certain obligations.
Mr Justice Gosnell noted, having considered the transcript, that the case presenter was not aware which regulations applied to Lorazepam and had to conduct legal research into this point on the third day of the hearing. This was after the finding of fact but before the decision had been made on impairment and sanction. After the adjournment, the case presenter set out that there was “no legal requirement on the care home to treat [Lorazepam] any differently from any other drug as far as storage is concerned”.
Mr Justice Gosnell found that this information could only be relevant to misconduct or impairment as the guidance for the safety and security would not matter at the fact finding stage. As such the Panel had been in possession of accurate information in relation to the regulatory regime of Lorazepam when they made their decision on misconduct and impairment, and as such the mistake by the case presenter had no causative effect. This ground of appeal failed
The Panel gave too much weight to the findings of the investigation
Ms H relied on the decision of Holman J in Enemuwe v NMC to the effect that if the Panel relied on the investigation of the sole witness, Miss F, then it was an unfair procedure.
Mr Justice Gosnell determined that although the Panel relied on the evidence of the Miss F and her statement, they did not rely on any findings of fact in her investigation report. Therefore, this ground of appeal also failed.
The Panel erroneously concluded that the drug was not stored safely
This ground was that the Panel had focused on the incorrect issue in the case and that the issue in question was not whether Ms H had securely stored the Lorazepam but whether it was transferred safely; about which there was no policy.
Mr Justice Gosnell found this ground of appeal misconceived; noting that, due to the circumstances in the care home, the necessity to transfer the medicines was part of the process of checking and storing the medication. Mr Justice Gosnell stated that, whilst this provided material that should have been taken into account by the Panel in determining misconduct, it was not a ground for granting an appeal.
The decision on impairment was disproportionate
This was a two limb criticism of the Panel by Ms H and that both the decision of misconduct and the decision on impairment were wrong. In relation to the determining misconduct, Ms H stated that a range of factors should have been taken into account including the difficult circumstances, in which she had been working, the fact that there was no satisfactory checking arrangement, there were low staffing levels and that Ms H had limited time to perform the task. In addition, Ms H had 52 years of previously unblemished service when balanced against a one off and discreet incident.
Mr Justice Gosnell noted that the Panel took into account a range of factors, including the previously unblemished service record, but noted that the Panel had noted that Ms H’s failure was particularly grave in the circumstances because there were very vulnerable patients in the Unit. Mr Justice Gosnell then considered if the Panel had given sufficient weight to the nature of the omission by Ms H and noted his concern that the context in which the omission occurred was not “given sufficient prominence in the Panel’s consideration”. He stated that whilst he would normally accord the Panel’s decision, he was concerned that whilst the Panel had “expressed the view that simple negligence was not sufficient to amount to misconduct they decided that a simple negligent omission did amount to misconduct because of the consequences of the mistake were and could have been more serious”. Mr Justice Gosnell said the Panel were wrong to criticise the single omission in an otherwise unblemished career and allowed the appeal on this ground.
Mr Justice Gosnell concluded that if he had agreed that the Panel had been correct in determining misconduct, they would have been correct to find current impairment based on Ms H’s lack of remorse, remediation or insight.
The sanction was disproportionate in all the circumstances
Mr Justice Gosnell stated that it was important for judges not to interfere with decisions on sanction “unless they are clearly wrong” and therefore, if the Panel had been correct in determining misconduct, he would not have overturned the sanction. However, he did note that the sanction was on the “harsh side”.
The Panel should have adjourned the hearing to allow the appellant to attend
Mr Justice Gosnell noted that Ms H never asked for an adjournment and therefore, the Panel could not be criticised for not granting one.
Ms Justice Gosnell allowed the appeal on the basis that the Panel were wrong to categorise the error as misconduct and, in the circumstance, substituted his decision for theirs.
Mr Justice Holman’s judgment contains a number of useful points which should be considered.
First, it confirms the position as set out in the case of Calhaem v General Medical Council that a single negligent act or omission is less likely to meet the threshold of misconduct than multiple acts or omissions.
Second, Mr Justice Holman highlighted the importance of the Panel giving sufficient prominence to the context in which the mistake occurred when considering if the threshold of misconduct had been met. He noted that when looking at the gravity of the omission, a Panel should consider all the surrounding circumstances and ask how grave the omission was. Mr Justice Holman stated that the Panel’s error may have been because Ms H was not present or represented and therefore unable to empathise this point.
In addition, Mr Justice Holman confirmed the position in relation to previous investigation documents as opposed to reliance on the findings of previous investigations.
Emma Andrews, Legal Assistant, Regulatory
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