A Question Of Motive?
In remitting for reconsideration by a differently constituted panel a decision of the NMC’s Conduct and Competence Committee to impose a nine-month Conditions of Practice Order, the Administrative Court made trenchant observations about the drafting of charges so as to include assertions as to reasons or motives behind the alleged behaviour: Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council (Duncan Gerald Macleod)  EWHC 4354 (Admin).
So could this decision and the direction made by Mrs Justice Andrews DBE change the approach taken by regulators when considering the formulation of allegations brought by a whole host of disciplinary tribunals?
The Administrative Court was, in this instance, being asked to determine an appeal by the PSA on the alternative basis that there was a serious procedural irregularity as the charges brought against the nurse, M, did not properly reflect the gravity of his conduct or alternatively, that the sanction imposed by the CCC on M was unduly lenient or, alternatively, that the CCC gave inadequate reasons for imposing a CPO rather than suspension or erasure from the register.
In a robustly reasoned judgment, Mrs Justice Andrews DBE concluded that the root cause of the problems which had arisen in this case was that the charges laid for the CCC panel to consider did not adequately reflect the seriousness of M’s conduct. The way that the charges had been laid, she ruled, meant that the CCC panel did not investigate the reasons for M’s failure to report an apparent assault by a fellow nurse on a vulnerable mental health patient, to which M had been the key witness.
It emerged that M had not reported the full details of the incident to his superiors, and his complete account of what had happened only began to emerge when a police investigation was instigated into an assault by the patient on the nurse. Only then did M reveal the extent of what he had witnessed – a delay which appeared to mean that the hospital Trust was unable to gather sufficient evidence to justify disciplinary proceedings against his nurse colleague.
At para 49 of her judgment, Mrs Justice Andrews DBE identified that as a result of the under-charging of the misconduct alleged against M, the CCC panel was necessarily limited in its approach. The panel, she said, “was obliged to investigate the reasons for M’s failure to report the matter for five months” and that it did not do so was because it was not directed to do so – this was unnecessary to find the charges, as formulated, proved, or M’s fitness to practice impaired on the basis of those charges.
The clear issue for the court was that the reasons for M’s failure to report the incident for five months were crucial in the ultimate evaluation of the true seriousness of M’s behaviour and what the appropriate sanction should be. A deliberate failure to report out of misguided loyalty to a colleague who had apparently committed an assault would plainly be of greater seriousness than a simple failure to escalate concerns to management in a timely fashion.
Does the ordered requirement in this case, to draft charges so as to include M’s motives, have the potential to shift the goalposts as far as the professional disciplinary bodies are concerned? That remains to be seen – but careful exercise of judgment will be required in order to balance the significance of any identified motives within the regulator’s case theory as a whole.