PSA appeal upheld in PSA v NMC & Anor [2024] NIKB 33

The PSA has won an appeal against a lenient sanction for a nurse accused of dishonesty and lack of competency.

In Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor [2024] NIKB 33 (29 April 2024), the second respondent, a registered nurse, was employed as an agency Registered Mental Health Nurse at a brain injuries rehabilitation unit run by the West London.

On 17 September 2015 a female colleague, known as registrant B attended for a night shift at the unit, which was understaffed. A patient at the unit, known as patient A required checks to be carried out on him every 15 minutes. Registrant B carried out a check on the patient at 9:15pm, noting that he was alive at that time.

The second respondent came on duty that evening, and at approximately 9:45pm was informed by a support worker that, during routine checks, she had found patient A hanging in his room. The second respondent entered patient A’s room, released him from the ligature around his neck, and placed him on the floor. He did not immediately commence cardiopulmonary resuscitation (CPR), but went to a nearby office, called 999 and asked for the police. He was overheard saying that there had been a death at the unit. Registrant B took over the call and was asked by the 999-operator if resuscitation had commenced. Registrant B asked others if resuscitation had commenced, and then informed the operator that it had not.

Paramedics attended the unit, but their attempts to resuscitate the patient were unsuccessful and he was pronounced dead.

The second respondent, registrant B and the support worker all told police and the coroner that CPR was commenced on the patient as soon as he was found, and before calling 999. Police were suspicious, as these accounts differed from what was said to the 999-operator, and commenced an investigation. The second respondent in interview and statement reiterated his account that resuscitation had commenced on the patient before the 999 call was made.

This version of events was initially supported by registrant B and the support worker. However, a few days later, registrant B contacted police and asked to be reinterviewed. During this interview, she told police that CPR had not been attempted prior to the 999 call being made and that her previous account was untrue. She told police that she had lied at the request of the second respondent, as he feared the consequences for him and his family if it was discovered that he had not immediately attempted to resuscitate the patient.

The second respondent was charged with perverting the course of public justice and convicted after a trial at Swindon Crown Court on 26 February 2020. He was sentenced on 21 July 2020 to 21 months imprisonment, suspended for 24 months, with 270 hours of unpaid work.

A three-member panel of the Nursing and Midwifery Council (“NMC“) imposed a sanction of 9 months suspension, that the Professional Standards Authority for Health and Social Care argued was too lenient. 

Seven grounds of appeal are relied upon — inter alia, that the sanction imposed is insufficient for the protection of the public, the maintenance of public confidence and the need to uphold and declare standards in light of the gravity and seriousness of the charges; that the panel failed to consider that such was the nature of the misconduct and the conviction that they were incompatible with his continued registration; and that the panel took a flawed and perverse approach to aggravating and mitigating factors.

The NMC has no power to appeal a decision by the panel but did not contest the PSA’s appeal, saying “”in broad terms agrees with the submissions made in the skeleton argument submitted on behalf of the PSA”.

Mr Justice Simpson, sitting in the High Court of Justice in Northern Ireland King’s Bench Division, agreed with the PSA, saying:

“On the face of the panel’s determination there was, in my view, a failure to engage with the important guidance. In my view, further, if the panel had properly considered those questions in paragraph [35] above in light of all the circumstances of this case, the only appropriate answers would have been ‘Yes’, ‘No’ and ‘Yes.’

“I also consider that some of the matters which the panel took into consideration as mitigating factors were fundamentally wrong. First, the panel found it to be a mitigating factor that the incident occurred “almost eight years ago.” However, while the incident involving patient A occurred eight years previously, the dishonest stance which underlay charge one was maintained by the second respondent for a period of five further years. The reference to an emergency situation, the absence of a handover and lack of staffing cannot be relevant to, or any mitigation of, the charge involving dishonesty. Neither can the reference to adequate training.

“In addition, in arriving at its decision that the sanction should be suspension the panel identified the following matters: a single incident of misconduct; no evidence of deep-seated personality or attitudinal problems; no evidence of repetition since the incident; satisfaction that the second respondent had insight. In my view the dishonesty maintained by the second respondent could not, in any circumstances, be described as a single incident. It involved lying to a number of agencies — police, coroner, Crown Court and then the probation service — over some five years. It was wholly wrong of the panel to characterise this as a single incident. In my view, also the panel was wrong, in light of the systematic lying, to find that there was no evidence of a deep-seated personality or attitudinal problem. While there was no evidence of a repetition of the behaviour, the panel did find that there was no real insight into the impact of his behaviour on colleagues and felt that there was a risk of repetition. In the circumstances, I consider that the panel was wrong in its approach to consideration of suspension as the appropriate sanction to impose.”

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