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Where it had found allegations of serious misconduct against a midwifery sister to be proved, the Nursing and Midwifery Council had committed a fundamental error in failing to address the need for substantial weight to be given to the protection of the public, the maintenance of public confidence in the profession and the upholding of proper standards of conduct and behaviour when approaching the question of whether the practitioner's fitness to practise was impaired.
The appellant council appealed against a decision of the first respondent Nursing and Midwifery Council (N) that the second respondent (G), a registered nurse and midwife, was guilty of misconduct but that her fitness to practise was not impaired. G worked as a midwifery sister in a hospital. Following an investigation into complaints about G's conduct, a hearing was held by N's Conduct and Competence Committee. The charges against G included that she had, over a period of some 20 months, failed to provide assistance to a junior colleague and subjected that colleague to bullying and harassment for reporting her; failed to provide appropriate care to a patient admitted for delivery of her baby who had died in utero; and failed properly to record that a baby born at 20 weeks gestation had been born alive. The Committee found that the charges were proved and amounted to misconduct. However, by reference to the judgment in Cohen v General Medical Council (2008) EWHC 581 (Admin), (2008) LS Law Medical 246, it found that G's attitude had improved and that she had addressed her poor performance, so that her fitness to practise was unimpaired. The council appealed under the National Health Service Reform and Health Care Professions Act 2002 s.29 (4)(b) on the basis that the Committee's decision was unduly lenient. The council contended that the Committee had misinterpreted the decision in Cohen; had failed to direct itself as to the need to have regard to public interest considerations when determining whether G's fitness to practise was impaired; and had erred in concluding that G's fitness to practise was unimpaired in the face of evidence as to misconduct which was prolonged, serious and not easily remediable.
HELD: (1) Section 29(4) of the 2002 Act was sufficiently broad to include both unduly lenient findings of fact and unduly lenient sanctions; by parity of reasoning, that provision also applied to an unduly lenient failure to find impairment of fitness to practise. In the instant case, the question was whether the Committee had arrived at a decision as to impairment of G's fitness to practise which was manifestly inappropriate, having regard to her proven misconduct and the interests of the public, Council for Health Care Regulatory Excellence v General Medical Council (2005) EWHC 68 (Admin), Times, February 7, 2005 and Council for the Regulation of Health Care Professionals v General Medical Council (2004) EWCA Civ 1356, (2005) 1 WLR 717 applied. It was essential, when deciding whether fitness to practise was impaired, not to lose sight of 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. The panel should consider not only whether the practitioner continued to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made, Yeong v General Medical Council (2009) EWHC 1923 (Admin), (2010) 1 WLR 548 considered. The test formulated by Dame Janet Smith in her fifth report from the Shipman enquiry was equally applicable to practitioners other than doctors who were governed by different regulatory schemes (see paras 54, 56, 59, 71, 73-74, 76 of judgment). (2) The Committee had not referred in its reasons to the importance of wider public interest considerations or to the need for substantial weight to be given to the protection of the public, the maintenance of public confidence in the profession and to the upholding of proper standards of conduct and behaviour. Nor was there anything in the reasons to suggest that it had in fact had regard to those wider considerations without making any express reference to them. The Committee had misinterpreted the decision in Cohen as establishing a three-fold test in relation to conduct, rather than identifying relevant factors to be considered, the weight of which would vary from case to case depending on the facts. Accordingly, it had addressed the question of impairment of fitness to practise on an incorrect basis, Cohen considered. Given the serious and persistent nature of G's misconduct, which raised issues of attitude or behaviour rather than clinical competence, that was a significant error (paras 90, 93-96). (3) On the evidence as a whole, it was difficult to see how the Committee could have found that G had demonstrated a profound change in attitude. She had continued to deny the charges throughout and had accepted the allegations only to the extent that they had been found proved against her and not through her own recognition that her behaviour was unacceptable. Absent evidence of G's recent performance in a clinical setting, her failure to clearly acknowledge her failings was a matter of serious concern. Accordingly, the Committee's decision as to impairment of fitness to practise was manifestly inappropriate and was unduly lenient under s.29 (paras 102, 115-116).