The Professional Standards Authority for Health and Social Care v Nursing & Midwifery Council & Ndlovu [2019] EWHC 1181 (Admin)

In The Professional Standards Authority for Health and Social Care v Nursing & Midwifery Council & Ndlovu [2019] EWHC 1181 (Admin), the High Court allowed an appeal by the Professional Standards Authority and remitted the matter to a differently constituted panel, holding that a three-year caution order was an inadequate sanction for a nurse who had been dishonest when covering up serious clinical failings that contributed to a patient’s death.

Mrs Ndlovu, a mental health nurse employed at Leicestershire Partnership NHS Trust, had conducted a mental health assessment of Patient A in the early hours of 28 March 2015, alongside a more senior colleague named Registrant C. Patient A had a long history of mental illness, had expressed suicidal ideation upon arriving at hospital, and stated “I will kill myself if I am not put somewhere safe.” The two nurses determined that Patient A did not require admission and he was escorted from the hospital by security guards after refusing to leave voluntarily. Because neither nurse had recorded Patient A’s telephone number, the Crisis Resolution and Home Treatment Team was unable to make telephone contact with him and received no answer when attempting a home visit on 29 March 2015. Later that day, Patient A was found dead on a railway track.

The Trust conducted a Serious Incident Investigation in which Mrs Ndlovu was interviewed. She confirmed in May 2015 that the record of interview was accurate. She prepared a report for the Coroner in June 2015. In December 2015 the Trust became aware that Patient A had recorded his assessment on his mobile telephone without the knowledge of the nurses. When the recording was checked against the nurses’ accounts given to the Serious Incident Investigation and to the Coroner, inconsistencies were identified. The case was referred to the Nursing and Midwifery Council.

Before a Fitness to Practise panel, Mrs Ndlovu admitted five of seven alleged clinical failings relating to the adequacy of the mental health assessment, including failures to obtain sufficient information from Patient A to enable a comprehensive risk assessment and to put in place an adequate plan to manage the risk of suicide. She further admitted that her failings had contributed to the loss of a material chance to prevent Patient A’s death. The panel found charges relating to two other clinical failings not proved. Mrs Ndlovu also admitted that she had failed to ensure that the documentation adequately reflected the assessment and Patient A’s presentation. The panel found proved that she had provided incorrect information in at least six instances during the Serious Incident Investigation interview and in at least eight instances to the Coroner, and that she had been dishonest in doing so, intending to give a misleading impression of the assessment. Despite oral evidence in which Mrs Ndlovu denied dishonesty and stated that she had done her best during the investigation and conveyed her recollection truthfully to the Coroner, the panel rejected her account and was satisfied that she knew the assessment was inadequate and was attempting dishonestly to cover this up. Even in the face of overwhelming evidence, the panel noted, Mrs Ndlovu had not been prepared to accept the inconsistencies when giving evidence.

The panel concluded that both the conduct of the assessment and the subsequent dishonesty amounted to serious misconduct. In determining whether fitness to practise was currently impaired, the panel accepted that Mrs Ndlovu had learned a great deal from the incidents, which by the time of the hearing were three years old. It noted comprehensive performance reports and references which spoke to her good character, high standard of practice and professional strengths. Her current line manager, who gave both written and oral evidence, had said that her record-keeping had been of good quality, that she recognised her duty to provide comprehensive assessments, and that he had no reason to doubt her integrity or honesty over the period he had worked with her. Another senior mental health nurse who worked closely with Mrs Ndlovu gave a similarly strong reference. The panel concluded that Mrs Ndlovu had demonstrated an “extremely good level of insight” into her clinical failures and that those failures had been remediated. The panel found that there was a low risk of the clinical errors being repeated. Given that the clinical errors had been remediated, the panel concluded that a finding of current impairment was not necessary on public protection grounds. Nevertheless, it took into consideration that there had been two serious incidents of dishonesty such that public confidence in the nursing profession would be undermined unless a finding of current impairment was made on public interest grounds. The panel imposed a three-year caution order. It stated that this would mark the importance of maintaining public confidence in the profession and the seriousness of the misconduct found proved, and would send the public and the profession a clear message about the standards required of a registered nurse.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 on the ground that the decision was not sufficient for the protection of the public. The Nursing and Midwifery Council conceded the appeal and made no submissions before Mrs Justice Farbey. Mrs Ndlovu resisted the appeal but accepted that she would be content for the court to reconsider sanction or to remit the matter to a fresh panel.

Mrs Justice Farbey stated that the court would be reluctant to interfere with a regulatory decision unless there had been an error of principle in carrying out the evaluation or the evaluation fell outside the boundaries of what the regulatory body could properly decide. The court would place weight on the panel’s expertise, particularly where issues of technical competence or clinical practice arose, though it would defer less where the case concerned behavioural issues such as dishonesty. She emphasised that the over-arching objective of the Nursing and Midwifery Council under article 3(4) of the Nursing and Midwifery Order 2001 is the protection of the public, which includes protecting health and well-being, maintaining public confidence in the professions, and promoting proper professional standards. Where a health professional violates a fundamental rule of conduct, she observed, efforts at remediation may be of far less significance than in cases involving clinical errors or incompetence. She noted that a nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register, though the appropriate sanction must be determined on the facts of each case. She referred to the Nursing and Midwifery Council’s guidance on dishonesty which specifies that honesty, integrity and trustworthiness are “the bedrock” of professional practice and that deliberate dishonesty to conceal clinical issues, particularly those causing harm to patients, is likely to call into question whether a nurse should remain on the register.

Mrs Justice Farbey held that the panel’s decision was plainly flawed. The panel had found that the mental health assessment was wholly inadequate and fell seriously short of the standards expected of a registered nurse, and that Mrs Ndlovu’s clinical failings contributed to the loss of a material chance to prevent Patient A’s death. When the Trust investigated this serious situation, Mrs Ndlovu was dishonest and would have been able to cover up her dishonesty but for Patient A’s recording. The purpose of the Serious Incident Investigation was to learn lessons from Patient A’s death so that steps could be taken to avert similar problems in the future, and it ought to have been obvious that those giving evidence to the investigation should be candid. Anything other than candour would undermine the purpose of the investigation. The panel had noted that in her interview record Mrs Ndlovu stated that Patient A did not want to tell the nurses anything when they were asking him questions, but the panel concluded that Patient A had responded reasonably to questions. The implication was that Mrs Ndlovu sought to blame Patient A for the failure of the assessment, knowing that Patient A was no longer alive to contradict her account. Furthermore, she had said in interview that Patient A seemed in agreement with the idea of home treatment, which the panel found was incorrect. It could not reasonably be said that these two instances of dishonesty were anything other than serious. Although the panel noted Mrs Ndlovu’s inexperience at the time, her strong clinical remediation, and the lack of evidence of any further dishonesty, the panel had also noted the respondent’s failure to take responsibility for serious dishonesty even at the hearing. Given those concerns, Mrs Ndlovu’s fitness to practise should have been regarded as impaired on public protection grounds, and the panel was wrong in principle to take a different view.

Mrs Justice Farbey held that Mrs Ndlovu was again dishonest in her report to the Coroner and that public protection was engaged for the same reasons. Dishonesty to a Coroner runs the risk of prejudicing an inquest, which is flatly against the public interest, and Mrs Ndlovu failed to appreciate the consequences of her dishonesty or its serious nature. It followed that the panel had sanctioned the respondent on an inadequate assessment of the extent of her impairment and imposed a sanction which could not reasonably reflect the seriousness of her misconduct. The panel’s decision to impose a caution order was outside the boundaries of what it could reasonably determine. Mrs Ndlovu was dishonest on two different occasions to conceal her clinical failings, which was bound to aggravate the seriousness of her misconduct. The dishonesty guidance made clear that a nurse who is dishonest to conceal clinical failings is likely to receive a severe sanction.

Mrs Justice Farbey considered whether to reconsider the sanction herself or to remit the matter to a differently constituted panel. She concluded that the appropriate course was to remit the case so that a Fitness to Practise panel could reach a decision about the appropriate sanction on all the relevant evidence, including any argument about parity with Registrant C, who had been subject to concurrent proceedings and whose caution order had been replaced by a six-month suspension order by consent in separate proceedings.

In short, the High Court allowed the appeal and remitted the matter to a fresh panel on the ground that a nurse who had been dishonest to cover up serious clinical failings which contributed to a patient’s death should have been found impaired on public protection grounds and that a caution order was an inadequate sanction.

Bawa-Garba v General Medical Council [2018] EWCA CIV 1879, [2019] 1 WLR 1929, [2019] 1 All ER 500
Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2005] 1 WLR 717
Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council, (2) Grant [2011] EWHC 927 (Admin), [2011] ACD 72
Ghosh v General Medical Council [2001] 1 WLR 1915, [2001] UKPC29
Yeong v General Medical Council [2009] EWHC 1923 (Admin)
Parkinson v NMC [2010] EWHC 1898