Insight and ‘conduct fundamentally incompatible with continued registration’: PSA v NMC and Kadiatu Jalloh [2023] EWHC 3331 (Admin)

In PSA v NMC and Kadiatu Jalloh [2023] EWHC 3331 (Admin), the Administrative Court allowed the PSA’s referral of the NMC’s decision only to suspend the Registrant, a psychiatric nurse.  The proceedings in the High Court were, essentially, an appeal against sanction on the ground that it was too lenient.

In March 2020, Patient A, a psychiatric in-patient, started to behave aggressively towards staff and became violent towards the Registrant, slapping and punching her.  While Patient A was fully restrained on the floor by six members of staff, CCTV captured the Registrant thrusting a chair at him in two distinct jabbing motions and then, twice, returning to the restrained patient and kicking out at or stamping on him with her feet.

It was not possible to say whether any of the Registrant’s movements connected with Patient A’s body but they were directed at his head area and he complained of having been kicked in the face three times.  The Registrant was suspended and, after an investigation by the hospital, summarily dismissed.

The charges before the NMC Fitness to Practise Committee (the Committee) alleged misconduct in relation to those events (assault) but also to dishonestly:

• Making an application for employment while the hospital investigation was ongoing by deliberately omitting any reference to her employment at the hospital;
• Declaring, after her dismissal from the hospital, that she had never been dismissed from employment by reason of misconduct;
• Breaching the conditions of an Interim Order by failing to declare, to an employment agency and to the Trust in which she was then placed, the fact of her conditional registration.

The Registrant denied misconduct but went further and said not only that Patient A had lied but also that his account had been fabricated with the connivance of her former colleagues.  The Committee found most of the charges proved and determined that the Registrant should be suspended from practice, in part due to her previously unblemished record and in part due to ‘insight’ and remediation.

The Administrative Court reviewed a number of authorities including those relating to the denial of charges and its relevance to ‘insight’ (see paragraphs 24 to 26 and, in particular, the extracts of Sayer v GOP [2021] EWHC 370 (Admin) and Sawati v GMC [2022] EWHC 283 (Admin)).

In Sayer, the court held that:

1. Insight is concerned with future risk of repetition [and] is to be distinguished from remorse for the past conduct.
2. Denial of misconduct is not a reason to increase sanction.
3. It is wrong to equate maintenance of innocence with lack of insight. Denial of misconduct is not an absolute bar to a finding of insight. Admitting misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it.
4. However, attitude to the underlying allegation is properly to be taken into account when weighing up insight. Where the registrant continues to deny impropriety, that makes it more difficult for him to demonstrate insight.
5. Insight requires that motivations and triggers be identified and understood, and if that is possible at all without there first being an acceptance that what happened did happen it will be very rare.
6. The assessment of the extent of insight is a matter for the tribunal, weighing all the evidence and having heard the registrant. The Court should be slow to interfere.

In Sawati, the court considered Sayer and clarified that:

“… before a Tribunal can be sure of making fair use of a rejected defence to aggravate sanctions … it needs to remind itself … that doctors are properly and fairly entitled to defend themselves, and may then find it helpful to think about four things:

1. How far state of mind or dishonesty was a primary rather than second-order allegation to begin with (noting the dangers of charging traps) – or not an allegation at all.
2. What if anything the doctor was positively denying other than their own dishonesty or state of knowledge.
3. How far ‘lack of insight’ is evidenced by anything other than the rejected defence.
4. The nature and quality of the defence, identifying clearly any respect in which it was itself a deception, a lie or a counter-allegation of others’ dishonesty.”

Great swathes of the NMC’s Sanctions Guidance were recited by Morris J. who was very critical of the Committee, finding that it made a number of errors of principle and of evaluation in its decision – both in its findings on sanction and in its underlying findings of misconduct and impairment upon which the decision on sanction was based (§76). In respect of insight the judge noted the Registrant had not only denied the allegation, but provided an account which flew in the face of the CCTV, and sought to blame others. These were relevant considerations listed in Sawati when considering if the denial of an allegation may demonstrate a lack of insight. Her reflective statement, moreover, continued to deny the offence, provided no explanation of her actions, or how such an assault impacts on public confidence.

Having found that the Committee’s decision, “fell outside the bounds of what it could properly and reasonably have decided”, importantly, Morris J. went on to set out the proper approach to sanction in cases where a registrant’s conduct may be fundamentally incompatible with continued registration.  Having ruled out lesser sanctions, the Committee had turned to consider a suspension order. When it did so it went straight to the checklist of factors in the Sanctions Guidance.  Having identified three such factors as applicable to the Registrant, only then did it consider whether the misconduct was fundamentally incompatible with continued registration.

“… [W]hen the Committee turned to consider a suspension order, it should have considered, first, whether this was a case of fundamental incompatibility. The Guidance provides, at the outset, that suspension may be appropriate “in cases where the misconduct isn’t fundamentally incompatible”. This suggests that prior to considering the checklist of factors favouring suspension, fundamental incompatibility should be considered first” (86).

Consequently, the order of suspension in relation to a nurse with a forty year ‘unblemished record’ (irrelevant in the circumstances), who had worked for more than two years in compliance with her Interim Order of conditions and obtained positive references for her work during that period (essentially irrelevant and, anyway, to be balanced with the breach), was replaced with an order for strike-off.

Gavin Irwin