As the court noted in Hindmarch v NMC  EWHC 2233 (Admin) to a patient does not make every failure “misconduct”
It is trite to observe that misconduct in regulatory proceedings must be serious misconduct. Nonetheless, it is a distinction panels sometimes forget.
In this instance, the appellant worked at Care UK caring for dementia patients at Stanley Park Centre. She checked a delivery of medication which had arrived. The storage room was too small to do so and she used a bedroom instead. She then transferred the medication back to the storage room. At some stage in this process Patient A got hold of a bottle of lorazepam and ingested 11 tablets. He was found unresponsive and had to be taken to hospital. No long term harm was caused.
Before a panel of the Conduct and Competence Committee, the panel found the Registrant’s failure constituted misconduct, she was impaired and suspended her registration. On appeal the court addressed the issue of misconduct.
The panel had noted this was a single negligent omission. It noted staff numbers were low and she was under pressure. However, as a consequence of the Registrant’s failure a vulnerable patient had ingested medication and needed hospitalisation. Although no permanent harm resulted, there was the potential for Patient A to suffer very serious harm. The failure was
“particularly grave in the circumstances because the setting was such that there were very vulnerable patients around.”
The judge summarised the position:
“It seems to me looking at the way that the Panel expressed their decision they decided that it was the Registrant’s responsibility to store the goods securely. Secondly, she is accountable for her actions and omission and thirdly, the consequences of a failure in this duty were and can be serious.”
However, it was not clear that the Panel gave sufficient weight to the nature of the omission. She had not given the wrong medication or given the patient an overdose, rather she had lost control of a bottle somehow during a difficult shift. She could simply have dropped it unbeknownst to her:
“Whilst I must give considerable respect to the decision of the specialist Tribunal with regard to a matter of professional standards I am concerned that the context in which the mistake occurred was not given sufficient prominence in the Panel’s consideration.”
The medication storage procedures in place were poor. The Registrant was under pressure and the only nurse on the unit when she should not have been:
“While it was a duty which had to be taken seriously it is the sort of mistake which can occur with a moment’s inattention, particularly if the patient concerned was proactive in obtaining the medication, about which I accept there is no evidence either for or against… In the present case, whilst there was a clear need for care in the whole process, it would be unfair, in my view, to say that a moment’s inattention automatically means that a nurse is guilty of gross misconduct if a patient is placed at risk of serious harm as a consequence. In my judgment, the Panel were wrong to criticise this single omission in the long and unblemished career of this dedicated nurse as misconduct.”
A failure, which results in patient harm, does not necessarily constitute misconduct. The circumstances of the failure are key – all the more so where this is a single, isolated failure.