Nursing Panel’s Flawed Analysis

23 May 2023

A decision of the Fitness to Practise Committee of the Nursing and Midwifery Council (PSA) to suspend a nurse for a period of 12 months was challenged in the High Court by the Professional Standards Authority for Health and Social Care (PSA) on the basis that it was insufficient to protect the public and that the nurse should have been struck off the register: Professional Standards Authority for Health and Social Care (PSA) v Nursing and Midwifery Council & Anor (Namusisi) [2023] EWHC 1230 (Admin)  Thornton J

In relation to impairment, the panel found:

• the nurse’s actions in sleeping on duty whilst caring for a vulnerable patient and, whilst doing so, deliberately placing his bed at a 45-degree angle so that his head was below his feet, leaving him uncovered and at risk of aspiration were deplorable, unprofessional and put the profession into disrepute;
• that the nurse selfishly placed her own interests over the needs of a highly vulnerable patient and her actions in rolling up blankets into pillows and setting up chairs into a makeshift bed, were deliberate and planned leaving the patient at a serious risk of severe harm as she placed him in a position that enabled her to sleep;
• the patient was put at risk of unwarranted physical and emotional harm as a result of the nurse’s misconduct;
• the nurse had not appropriately demonstrated an understanding of how her actions put the patient at risk of harm;
• there was a significant risk of repetition as the misconduct was not remediated;
• public confidence in the profession would be undermined if a finding of impairment were not made, and such a finding was also made on public interest grounds.

The Nurse admitted some but not all of the allegations.  For the NMC, the suggested sanction was 6-8 months suspension but it was said to be a matter for the Panel whether a more severe sanction was appropriate. The nurse’s advocate proposed no further action or a caution order or a conditions of practice order.

The court concluded that it was apparent that the findings of the Panel in relation to impairment were apposite to the Guidance on striking off. What was relevant to impairment was equally relevant to sanction. Yet all the Panel said in relation to striking the nurse from the nursing register was that it would be disproportionate to do so on the basis that she had been working without regulatory concern for three years since the incident in question.

That finding appeared wholly inconsistent with the Panel’s findings in relation to impairment that the nurse had “very limited insight” and there was a significant risk of repetition of the misconduct. The apparent inconsistency was not explained, and the Panel’s reasoning was too generalised in the circumstances.

The Panel’s findings in relation to impairment did not carry through into the assessment of the sanction with the result, in her Ladyship’s view, that the Panel failed to grapple with the seriousness of the incident itself, beyond listing the several aggravating features and then adequately engaging with them.

Despite referring to the guidance on seriousness of misconduct, the Panel did not engage with the proposition that the misconduct in play in the present case may be less easy to put right when considering suspension/strike-off. The outcome was that disproportionate weight was afforded by the Panel to the fact that the misconduct took place in a single incident and there had been no regulatory concerns since.

The PSA’s appeal was upheld on the grounds that the Panel misapplied the relevant guidance and its decision on sanction was wrong on the basis of its findings in relation to the Nurse’s misconduct/impairment. The decision on sanction was quashed and the court substituted an order for strike-off.