The need for fitness to practise panels to consider public protection issues when considering sanction

8 July 2011


The Council for Healthcare and Regulatory Excellence (CHRE) appealed a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council (NMC) that the registrant, Paula Grant, was guilty of misconduct but that her fitness to practise was not impaired as she had addressed the issues identified as having caused the misconduct. The CHRE, with the support of the NMC, referred the case to the Administrative Court as it considered the Committee was unduly lenient in its findings.

Paula Grant, a registered Nurse and Midwife was referred to the panel following four separate complaints regarding her conduct. The Committee found that she had failed to provide appropriate support and assistance to a junior midwife; that she had subjected the same junior midwife to harassment and bullying following a complaint made against her; that she had failed to provide adequate care to a patient admitted after her baby had died in utero; and had incorrectly recorded that a baby born at 20 weeks gestation had been born dead.

The Administrative Court allowed the appeal and emphasised the importance of giving consideration to the need to protect the public and maintain public confidence in the profession when determining the issue of impairment.

In approaching the case, Mrs Justice Cox considered that the correct question is whether the Committee arrived at a decision as to impairment which was manifestly inappropriate, having regard to Paula Grant’s proven misconduct and the interests of the public. Mrs Justice Cox referred to the judgement of Mr Justice Silber in the case of R (on the Application of Cohen) v. General Medical Council [2008] EWHC 581 (Admin) and the judgement of Mr Justice Mitting in the case of Nicholas-Pillai v. General Medical Council [2009] EWHC 1048. In these cases, emphasis was placed on the Registrant’s current fitness to practice, which will involve consideration of past misconduct and any steps taken to remedy the misconduct. However, Mrs Justice Cox went on to say that it is essential not to lose sight of the fundamental considerations emphasised by Mr Justice Silber in Cohen: that is the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession.  She further added that the panel should generally consider not only whether the practitioner continues to present a risk to the public, but also whether public confidence in the profession would be undermined if a finding of impairment were not made.

The decision in this case should encourage those who act for regulators in fitness to practise proceedings to consider both public confidence in the profession and the protection of the public when making representations as to the appropriate sanction. The wider consequences of a Registrant’s behaviour should be given as much weight by Panels as their current fitness to practise status. Regulators should not be deterred from bidding for a heavier sanction for those Registrants whose fitness to practise may no longer be impaired, but who have caused harm to the reputation of the profession.

Chris Whalley and Harriet Roberts

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