Case - (1) Sarah Elizabeth Johnson (2) Lynette Maggs v. Nursing & Midwifery Council

(2013) 133 BMLR 151, Administrative Court - Mary O’Rourke QC, Nadia Motraghi
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The Nursing and Midwifery Council's professional conduct committee had erred in finding two registered nurses, who were the manager and deputy manager of a nursing home, guilty of misconduct. There was insufficient evidence to find the allegations against them proved, and even if the findings had been correct, they were incapable of amounting to misconduct, and the length of time the disciplinary proceedings had taken violated their right to a hearing within a reasonable time contrary to the European Convention on Human Rights 1950 art.6.

The claimants (J and M) applied for judicial review of the defendant NMC's professional conduct committee's finding that they were guilty of misconduct.

J and M were registered nurses who had been the manager and deputy manager of a nursing home. In 2003, the NMC notified them that they were the subject of allegations of misconduct. The NMC's subsequent investigation took over two years. A hearing before the professional conduct committee started in July 2007 and finally concluded in December 2011. The committee found both J and M guilty of failing to ensure that adequate nursing records were maintained because no risk assessment or care plan in relation to residents' falls had been kept on four occasions. J was found guilty of failing to ensure a safe system for the administration of medicines by failing to ensure that medication was consumed by residents after it was dispensed, and failing to report to M that medication had been found in residents' rooms which should have been consumed. Despite the findings of misconduct, the committee took no further action.

J and M contended that in finding them guilty of misconduct, the NMC's committee had made several errors of law, including failing to understand the correct test for misconduct. They submitted that the committee's findings of misconduct were not justified by its findings of fact and/or that the reasons for its findings were inadequate. J and M argued further that the findings of fact on which the findings of misconduct were based were perverse and contrary to the evidence. They made a subsidiary complaint that the delays in the proceedings made them unfair.

HELD: (1) The disciplinary hearing had lasted 86 days spread over two years and nine months. By the time the committee made its decision, the events that were subject of the charges were between 9 and 13 years old. The total time which elapsed from when J and M were notified of the allegations until the disciplinary proceedings' conclusion was over eight years. The length of time the proceedings took was disgraceful and the delays violated the rights of J and M to a hearing within a reasonable time contrary to the European Convention on Human Rights 1950 art.6 (see paras 8-11 of judgment). (2) The committee had not failed to understand the relevant law. It had expressly noted that misconduct had to be "serious" and as such would be seen as "deplorable" by fellow practitioners. J and M's complaint that the committee had misunderstood the law was merely another way of asserting that it came to a wrong decision when applying the law to the facts of their case: such an argument was not a permissible ground of judicial review (paras 32-33, 35). (3) In a disputed case where a person was charged with professional misconduct, procedural fairness required reasons to be given for any adverse finding. It was not necessary for such reasons to be elaborate, but they had to be sufficient to enable the person affected to understand what the tribunal had concluded on the principal important controversial issues in the case and why it had reached that decision. The committee's reasons met the purposes for which they were required (paras 36, 38). (4) A court would only intervene with factual findings if the evidence or tribunal's reasoning was not reasonably and rationally capable of supporting its findings. It was difficult to see how the evidence could support a finding that it was negligent for a nurse responsible for a resident's care not to have compiled a separate falls risk assessment for the resident. It was, therefore, difficult to see how the committee could reasonably have found the charges against J and M proved. Simple negligence was not sufficient: "gross professional negligence" or "deplorable" conduct was required. The finding against J suffered from an additional flaw in that the allegations found proved against her in respect of inadequate nursing records were never put to her before she had given evidence. Accordingly, the first set of misconduct findings made against M and J were unreasonable, unfair and unlawful (paras 40, 51, 87-90). (5) In respect of the findings that J had failed to administer medicines safely, there was no evidence on which the committee could have fairly found that J had failed to pass on to M that medication had been found in residents' rooms. Even if there was such evidence, it was not capable of proving the charge of misconduct. The committee had, at that point, lost a sense of perspective. Its finding of misconduct against J was so far out of proportion to the nature of the failure found that it was not one that the committee could reasonably reach. Accordingly, the findings of misconduct made against J and M were unlawful and had to be quashed. Their names were clear (paras 99, 102, 104-107).

Application granted

Counsel for the claimants: Mary O'Rourke QC, Nadia Motraghi

 

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