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EXTRA DIVISION,
INNER HOUSE, COURT OF SESSION
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Lord Wheatley
Lord Mackay of Drumadoon
Sheriff Principal Bowen QC
XA71/07
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[2008] CSIH 45
OPINION OF THE COURT
delivered by LORD WHEATLEY
in Appeal under section 12 of the Nurses, Midwives
& Health Visitors Act 1997
in the cause
Fiona Mary Graham
Appellant
against
a decision of the Professional Conduct
Committee of the Nursing and Midwifery Council dated 27 February
2007
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Act; Lindsay, Anderson Strathern (APPELLANT)
Alt; Webster, Balfour + Manson (RESPONDENT)
22 July 2008
[1] The appellant
is a registered practitioner nurse and was employed as such by the Scottish
Prison Service at Her Majesty's Prison Glenochil between 1997 and 13
April 2005. She had been a registered practitioner nurse
since 1967. She remained on the register
until her name was ordered to be removed therefrom by decision dated 27
February 2007
of the Professional Conduct Committee ("the Committee") of the Nursing and
Midwifery Council ("the respondent"). That decision followed on a hearing on 12 February
2007
conducted by the Committee
[2] When the
appellant appealed to this court, against the decision dated 27 February
2007, her
grounds of appeal set out the factual background to the disciplinary
proceedings taken against her. They did so along the following lines. On 24
March 2004,
the appellant was on duty with another practitioner nurse, (Nurse A). Both nurses were responsible for the
administration of the afternoon drug round at the prison, which included the
delivery of insulin pens to three diabetic patients for self administration of
their evening dose of insulin. Each
insulin pen consisted of a syringe containing the insulin, and a cap. Nurse A was required to deliver two insulin
pens, and the appellant had one. Two of
the patients were due to receive the same type and dosage of insulin, which
meant that the contents of their syringes were identical. Of these insulin pens, Nurse A had one to
deliver (for prisoner B), and the appellant had the other (for prisoner A). The syringes were intended for repeated use
by the patient, and so it was essential that each patient received the same
syringe on each occasion that an injection had to be administered, to protect
against the risk of contamination. At
that time, the name of the patient was written on the cap of the insulin pen,
but there was no identification on the barrel of the syringe.
[3] When the
appellant was preparing the medication for all three syringes prior to the drug
round, she inadvertently attached the wrong caps to the two syringes which
contained the identical dosages of insulin.
She did not then check the names on the caps, but delivered what she
believed to be the correct syringe to her patient.
[4] After the
insulin pens had been distributed and the two patients with identical dosage
had self administered their medication, one of the patients (prisoner A) advised
the appellant that his insulin pen cap displayed the name of the other patient.
The appellant and Nurse A became aware that the caps had been mixed up. The
appellant was satisfied in her own mind that only the caps had been mixed up,
and that each of the two patients had received not only the correct dosage as
to type and amount of insulin, but also by implication, that each had used the
correct syringe. In these circumstances
the appellant (and Nurse A) failed to follow the standard procedures and practice
for what are called needlestick injuries, which consist of carrying out a
series of tests and precautions which should be applied when a patient uses a
needle belonging to someone else. In
addition both nurses failed to report the incident or to make enquiries into or
make provision for any consequences that may have befallen their patients. The appellant and Nurse A decided to take no
action along these lines because the appellant felt that the correct doses of
insulin had been administered to the correct patients in their own syringes,
and that there was therefore no incident which required to be reported. However, Nurse A felt uneasy about what had happened
and so both syringes were changed for new ones.
The matter came to light about three days later, following persistent
complaints by prisoner A, and the respondent then investigated what had
happened.
[5] Following
this investigation, the respondent preferred three charges against the
appellant. In the Notice of Inquiry
issued by the Committee on 9 January 2007, which included a Statement of Facts
containing details of these charges, there was first of all a brief general
statement concerning the appellant's professional circumstances, followed by
what are described as allegations. The three
allegations each take the form of a paragraph (a), which describes the
essential factual basis on which the allegation is founded, and a paragraph (b),
which is a claim that the factual statement constitutes a finding of
misconduct. These two paragraphs are followed
by a narrative of events in support of the particular allegation.
[6] The details
of these allegations are as follows:
"That you, on 24
March 2004,
whilst employed as a Registered Nurse at HM Prison Glenochil
1(a) failed to check an insulin pen
to ensure it was the correct one before handing it to a prisoner to inject
himself; and
(b) that having so failed to check
the insulin pen, you are guilty of misconduct.
2(a) failed to take appropriate
action when Prisoner A complained that he had injected himself with the wrong
insulin pen in that you;
(i)
did
not institute needlestick injury precautions
(ii)
did
not discuss the prisoner's concerns with him.
(iii) did not check the records of either Prisoner
A or Prisoner B to check if there was any indicator in respect of blood borne
viruses
(iv) did not provide the prisoner with access
to advice, support or counselling;
(b) that having so failed to take
appropriate action, you are guilty of misconduct.
3(a) failed to report and/or record Prisoner
A's complaint that he had injected himself with the wrong insulin pen incident in
that you did not
(i) make any note of the actual or
potential medication error in Prisoner A's records
(ii) complete
a local clinical incident occurrence form
(iii) inform
any senior healthcare colleague of the incident
(iv) report
the incident by any means; and
(b) that, having so failed to report
and/or record the incident, you are guilty of misconduct"
[7] The
respondent considered the appellant's case on 25 October
2005 and
advised the appellant by letter of 31 October 2005 that they had referred the three
allegations to the Professional Conduct Committee. By letter dated 4 October
2005, the Professional
Officer of the Royal College of Nurses, Lynn Masson, who by this time
represented the appellant, conveyed to the respondent the appellant's response
to these allegations at that time. In respect of the first allegation, the
appellant claimed that she did ascertain that prisoner A had the correct
syringe but accepted that it was the wrong top with prisoner B's name on
it. She did not accept that she had been
guilty of misconduct as she had administered the correct medication to the
correct prisoner. In respect of the
second allegation she maintained that she did not take any action thereafter as
she had not given prisoner A the wrong pen, and again did not accept that she
had been guilty of misconduct. In
respect of the third allegation, she accepted that she should have reported that
the wrong top was on the pen in the notes of both prisoners A and B, and that
by failing to do so she was guilty of misconduct. However, when it came to the hearing on 12
February 2007 (at which, for reasons of ill health, the appellant was not
present), Ms Masson, who continued to represent the appellant, was instructed
to admit the facts contained in allegation 1(a) and that consequently the
appellant also admitted misconduct in terms of allegation 1 (b); that in
allegation 2 she admitted the facts described in paragraphs 2 (i) and (iii),
but did not admit the facts in 2 (ii) and (iv); and did not admit to misconduct
in terms of allegation 2 (b); and that she admitted the facts and allegations
of misconduct in terms of charge 3. The
respondent's representative accepted the appellant's position on grounds (ii)
and (iv) in allegation 2 and did not pursue the subject matter of those
complaints further. The only dispute
before the committee therefore was whether the facts described in paragraphs 2
(i) and (iii) (which the appellant admitted) amounted to misconduct.
[8] The hearing
proceeded on the basis of the agreed Statement of Facts, the transcript of an
interview with the appellant on 6 April 2004 (some considerable time prior to
the hearing on 12 February 2007), and the expert evidence of a witness who had also
participated in and spoke to the interview with the appellant, who made some
reference to an interview of Nurse A and who spoke in general terms to the
practices and procedures relative to the incident. A transcript of the hearing before
the Committee on 12 February 2007 was before us.
[9] During the
hearing before the Committee ( and before us), it was accepted on behalf of the
appellant that it was proper practice for her to have checked the names on the
caps before delivering the medicine to the patient, but she did not do so. The basis for her belief that she had
delivered the correct syringe to the correct patient was found in the way in
which she had laid the syringes out on a table while checking the insulin
levels, which she was satisfied was identical to their position both before and
after she had been distracted.
[10] At
the conclusion of the hearing the Committee found the appellant guilty of
misconduct in terms of charge 1 (which the appellant had earlier admitted),
guilty of misconduct in charge 2 in respect of the facts contained in
paragraphs 2 (a) (i) and (iii) (the factual basis of which the appellant had
already accepted) and guilty of misconduct in terms of charge 3 (which again
the appellant had admitted prior to the hearing). There was therefore no finding made that the
wrong syringe had in fact been used by either prisoner; the essence of the
appellant's misconduct lay in a failure to recognise that a mistake might have
been made. In these circumstances the Committee
decided to remove the appellant's name from the Nursing Register without
specification of time. It is against
that disposal that the present appeal is taken.
The appellant seeks to challenge only the sanction imposed by the Committee
but does not dispute the findings of misconduct.
[11] The statute
and case law which applies to the present case were in substance agreed. In terms of the relevant legislation it is
sufficient to refer to section 10 and 11 of the Nurses, Midwives and Health
Visitors Act 1997, where the relevant penalties following findings of
misconduct are found, and to section 12 for the right to appeal to this court
(which survives by virtue of paragraph 5 of the Nursing and Midwifery Order
2001 (Transitional Provisions) Order of Council 2004/1762; and also to Regulation
18 of the Nurses, Midwives and Health Visitors (Professional Conduct) Rules
1993 Approval Order 1993(SI 893) for the procedure of enquiries into cases of
alleged misconduct and for the various disposals open to the Professional Conduct
Committee. In particular it is clear
from the terms of section 12 that the appellant's right of appeal is
unrestricted, and is not confined to supposed errors of law on the part of the Committee,
but in effect can amount to a rehearing before the appellate court. In practice, the options on disposal
available to the Committee in the present case were to make no order, to issue
the appellant with a caution, or to remove the appellant's name from the
Nursing Register, with or without specification of time.
[12] The starting
point, in considering an appeal of this kind, is to recognise that the
appellate court will generally be reluctant to interfere with a decision made
by a professional conduct committee.
That reluctance will be particularly marked when the subject of the
appeal is restricted to the question of the sanction imposed. It has long been accepted that a professional
conduct committee will possess particular qualities of relevant experience and
expertise and will normally be in a position to determine what is the
appropriate disposal. To such experience
proper regard should be paid, and also to the professional conduct committee's
view as to what is required in the way of the protection of the public and the
reputation of the profession. Accordingly,
the appeal court should not interfere with the decision of a professional conduct
committee if it comes to the view that another disposal might in the
circumstances have been preferable, or that, given a free hand, it would have
imposed a different penalty. It is well
settled that the appropriate test which must be applied in an appeal of this
kind if the disposal is to be set aside is that the penalty imposed can
properly be described as excessive and disproportionate in all the
circumstances of the case (see Ghosh v
General Medical Council [2001] 1WLR 1915 para [34]).
[13] Against that
background it is necessary to consider the purposes of disposal, following a
determination by a professional conduct committee, particularly in the case of
health care professionals. These
purposes will in broad terms include consideration of matters such as the punishment
of the practitioner, the protection of the public, and protection of the
reputation of the profession (see Gupta v
General Medical Council [2002] 1WLR 1691,
per Lord Rodger of Earlsferry at para [21]).
It is clear from that passage, following the opinion of Sir Thomas
Bingham MR (as he then was) in Bolton v
The Law Society [1994] 1WLR 512 at
517-519), that the principal purposes of the disposal in a case before a
professional conduct committee are concerned with the protection of the public,
and the protection of the reputation of the profession. The need to impose punishment on the
individual practitioner is, comparatively, of lesser importance. One consequence of this is that matters personal
to the practitioner which would normally be prayed in aid in mitigation of
sanction have less significance than in other forms of disposal.
[14] The question
which arises before us in this appeal therefore is whether, having regard to
the overarching need to protect the public and the reputation of the nursing
profession, and to a much lesser extent the need to impose some appropriate
measure of punishment on the offender, the disposal selected by the Committee
in the present case can in all the circumstances be described as excessive and
disproportionate. To examine this
question it is necessary to look at the plea in mitigation and the Committee's reasoning in support of the disposal, against
the background of the agreed statement of facts and the other information
before the Committee.
[15] The appellant
did not appear at the hearing before the Professional Conduct Committee on 12
February 2007,
but, as indicated earlier was represented by Ms Masson. Ms Masson made submissions concerning the
appellant to the committee which do not appear to have been disputed in any
material sense, and which the Committee were therefore required to accept as
accurate and to take into account. These
submissions were accompanied by a list of bullet points, which we understand
was also tendered to the Committee. Again
these points were not contested or commented upon by the Presenter at the
hearing or by the Committee itself. For
ease of reference, we summarise the points made in the list and Ms Masson's
submissions as follows. The appellant
had been employed by the Scottish Prison Service since 1997 and had been a
registered nurse since 1967. She had
never been disciplined during that period.
She was not dismissed following this incident but in effect retired
through ill health in April 2004. Her
health was at that time deteriorating and she suffered from Addison's disease
and hyperthyroidism, which had subsequently deteriorated significantly. The case had caused her feelings of anxiety
and deep distress, which had made it impossible for her to attend the hearing
or address the committee personally, or even to open correspondence from the respondent. She had declined to approach anyone for a
testimonial to her good character and previous exemplary record although she
had access to persons at very senior level, because of her feelings of remorse
and "deep shame". She had offered to
remove her name from the appropriate register, although this had not proved to
be possible. She was now in receipt of
her pension and had no intention of resuming her nursing career. She had a long and unblemished career as a
nurse and some of her years of nursing had been at a very senior level. There was no evidence that she had tried
deliberately and with pre-meditation to conceal the incident, no patient was
harmed as a result of what had taken place, and she was not a risk to the
public. She had admitted two of the
charges of misconduct, and the factual basis for the remaining charge. In these circumstances Ms Masson urged the Committee
to caution the appellant. Nonetheless
the Committee elected to remove the appellant's name from the Nursing Register
with immediate effect, and without specification of time.
In coming to their decision, the Committee
gave their reasons as follows:-
"As a registered nurse you are
personally accountable for your practice, and as such have a duty of care to
your patients who are entitled to receive safe and competent care. The evidence we have heard today has not
indicated to us that you have shown any insight into potential repercussions
that may have resulted from the incident before us today.
In addition the panel noted that
there had been no personal expression of regret or apology and that there were no
relevant references or testimonials put before the panel that could be taken
into account.
While we the panel have some sympathy
with your personal difficulties, the protection of the public is
paramount. We have therefore determined
that in all of these circumstances your name should be removed from the
register"
[16] Having considered
the clear and helpful submissions from both sides of the bar, we have come to
the conclusion that in certain respects the Committee's decision on disposal
can be described as flawed. It is
correct to say that the potential risk to patients which the Committee was
considering could be described as serious.
If the patient who complained had been given a needle belonging to
another patient, there was a risk of some form of contamination which could
have had major consequences. Although
the appellant was certain this had not happened because of the way in which the
insulin pens were lying on the desk before she was distracted, there can be no
doubt that in not taking any action to report or check for potential
consequences she was guilty of misconduct.
The appellant of course had accepted this. It was therefore correct for the Committee to
consider that, at the time, she showed no insight into the possible repercussions
of what happened, no matter what she believed.
However, we consider that the Committee was wrong to find that there had
been no personal expressions of regret or apology from the appellant. On the contrary, Ms Masson clearly indicated
that the appellant felt "deep shame" at what had happened; also in her opening
remarks in mitigation she specifically attributed the non-appearance of the
appellant before the committee to her remorse over the incident. We find it impossible to construe this in any
other way than to indicate an appropriate level of regret and contrition. For the Committee to take the view that the
appellant had not tendered an apology seems to us to be artificial and
potentially unfair. Further, the
appellant gave a convincing reason why she had not sought references or
testimonials in the circumstances, which we believe was to her credit. In any event, the purpose of such references
and testimonials would be to assess the appellant's character and work record,
and there was a significant amount of evidence on these matters (particularly
concerning the appellant's many years of service without incurring any serious
disciplinary attention), which the Committee could have taken into account and
apparently did not. We also noticed that
the Committee only relied on the need to protect the public rather than the
reputation of the profession, but we do not consider that that is of any
particular significance. More
importantly, the appellant instructed that full admissions be made before the Committee. She admitted the factual background and the
allegations of misconduct in terms of charge 1.
She admitted the factual basis on which allegation 2 was based and
rejected two of the other allegations.
At the hearing this was accepted by the Case Presenter to the Committee. Having admitted the facts, it was then for
the Committee to consider whether or not the restricted admissions amounted to
misconduct. We do not think it at all
realistic to criticise the appellant in all the circumstances for not admitting
misconduct in this one restricted area at that stage of proceedings. She also admitted the factual basis and
allegations of misconduct in charge 3. Accordingly,
the appellant made substantial admissions before the Committee of her responsibility
in this matter, and we do not accept the submission made on behalf of the
respondent that her failure to acknowledge the allegation of misconduct in
charge 2 demonstrated an unwillingness to accept responsibility for her
actions. On the contrary we consider
that the substantive and substantial admissions made by the appellant on the
charges indicate a responsible and appropriate response to what happened. In addition, we note that the appellant
offered to withdraw from the Register, and resigned from her job. While therefore, it is accepted that the
appellant can be said not to have taken responsibility for her actions at the
time of the incident, we are satisfied that thereafter she unquestionably did
so, and that in considering disposal, it was appropriate for the Committee to
have taken that into account.
[17] It is perhaps
worth emphasising at this stage that both in disciplinary matters such as the
proceedings of a professional conduct committee, particular care has to be
taken over the relevant material which is presented to the disciplinary body
and which must be considered in arriving at the appropriate disposal. Clearly, factual matters or conclusions which
are established in the course of evidence can and should be considered as appropriate
and relevant. However, statements made
in mitigation following a finding of guilt or misconduct on behalf of the
person prosecuted must also be accepted as correct, and due regard must be had
to what is said, unless what is said is disputed, at the time or where there is
evidence before the committee to a contrary or different effect. If the statements made in mitigation are
considered to be irrelevant or of little consequence, that should be made
clear. In the present case, while the
Committee properly took into account the failure of the appellant to appreciate
the significance of her failure in professional duty, at the time of the
incident, they wrongly attribute to her a lack of remorse, and approached the
matter of her previous good record of professional conduct by concentrating
solely on her failure to produce references and testimonials. It is of the utmost importance in considering
disposal that any professional conduct committee should assess and evaluate
each topic relevant to disposal, from whatever source it comes and on that
basis arrive at an appropriate sentence.
It is also important that every matter which is relevant to disposal, to
whatever effect, should be narrated and evaluated. It is particularly important to recognise that
statements made concerning sentence, again from whatever source, must, if
unchallenged, be accepted as correct.
[18] Finally,
counsel for the appellant raised the question of comparative justice. When the mistake came to light, through the
persistence of the patient who had been given the wrong cap on his insulin pen,
Nurse A was, so far as we can judge, in a similar position as the
appellant. When she had became aware of
what had happened, she also required to consider the questions of reporting the
incident and carrying out the appropriate checks and procedures in respect of
her patient. The charges against the
appellant all relate to her failures to respond appropriately once the mistake
had been made. Nurse A seemed therefore
to be in a number of respects in the same position as the appellant, (although
she was not of course responsible for the initial error). She appears to have been interviewed in the
course of the investigation into the appellant's case, but whether she was the
subject of an investigation is unclear. She certainly did not give
evidence. Although there may have been
reasons for all of this, these are not disclosed, and it seems to us that her
evidence would have been extremely valuable in identifying more precisely the
nature of the carelessness or negligence with which the appellant is charged. In
these circumstances we think it reasonable that the disposal in the appellant's
case, in the interests of natural justice, should take into account to some
extent the failure to take any action against someone who on the face of it
appears also to have been in part similarly responsible for what occurred, or
did not occur, after the incident.
[19] We therefore
take the view that, in certain significant respects, in considering disposal, the
Committee took into account some material which they should not have done, and
ignored some material which was available to them, and which was not
disputed. We conclude therefore that the
disposal can properly in that sense be described as excessive and
disproportionate. As the matter of disposal
is at large for this court, we also think it entirely reasonable in considering
what disposal would be appropriate, also to take into account that following
the interview of the appellant which took place shortly after the incident, it
was then nearly three years before her case was heard. At the time of the interview it would appear
that all the relevant information needed for proffering charges against the
appellant was available to the respondent.
We accept that this matter was not discussed before us, and we do not
consider that this issue is decisive.
However, significant or excessive delay in bringing a matter such as
this before the appropriate tribunal causes considerable distress to the
subject of the proceedings, and it is normally appropriate to bear this in mind
in the question of disposal. In all the
circumstances, we therefore propose to quash the decision to remove the
appellant's name from the register and substitute a caution.
