Odoi-Asare v Nursing & Midwifery Council [2014] EWHC 1151 (Admin)

[2014] EWHC 1151 (Admin)

Case No CO/16690/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14 April 2014

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE

Between

JOYCE ODOI-ASAREAppellant

NURSING & MIDWIFERY COUNCILRespondent

Ms Caoimhe Daly (instructed by Royal College of Nursing Legal Services) for Appellant

Ms Helen Fleck (instructed by Nursing & Midwifery Council RLT) for Respondent

Hearing Hearing dates: 27 March 2014

Judgment

Mr Justice Supperstone :

Introduction

[1]This is an appeal by Ms Joyce Odoi-Asare, a registered nurse, (“the Appellant”) against the decision of the Nursing and Midwifery Council who, through its Conduct and Competence Committee (which I shall refer to as “the Panel”), on 28 September 2013 found that the Appellant’s fitness to practise is impaired and imposed a caution order for a period of 30 months.

The factual background

[2]The Appellant was employed as a Band 6 Health Visitor for Ealing Hospital NHS Trust (“the Trust”). She was based at the Perivale Children’s Centre and, on occasions, at the Grand Union Village Health Centre, Northolt. Her role involved conducting child and maternal health needs assessments, developmental reviews, healthy child clinics, group work, safeguarding and child protection work.

[3]Health visitors are required to record interactions, observations and health assessments as well as any other relevant information on the child’s progress notes as contained in the Trust’s computer database system, (known as “the RiO system”).

[4]Children can either be classified by the Trust as “enhanced” or “universal”. An enhanced child was defined for the Panel by Ms Chingwaru of the Trust, who gave examples such as child protection cases known to social services, other children known to social services, and children with some additional needs, for example, feeding, developmental and behavioural. All other children were referred to as universal. Enhanced children were assigned to a named health visitor whereas universal children were the responsibility of the team. This case concerns Child A. The Panel determined that Child A was universal up until the point that the Appellant was made aware of an allegation of domestic violence on 23 December 2011. From that point Child A became enhanced and therefore as his named health visitor, the Appellant had a duty of care to Child A from 23 December 2011.

[5]Child A was born on 25 December 2010. On 31 January 2012 the Appellant attended a child protection case conference (“the Conference”) in relation to Child A. During the Conference the Appellant stated that she had recently visited Child A and his mother, and that during the visit, Child A’s mother told her that she was “fed up with the social care system” and that she would “take her child to Romania”. The Appellant stated that she had not reported the incident to Children’s Services as she thought that the mother was unlikely to take Child A to Romania. Further, she stated that “[she] knew how it felt to be victimised by Social Services”.

[6]Following the Conference an investigation was conducted on behalf of the Trust in which further concerns were raised about the Appellant in regard to her responsibilities for Child A’s care. After a comprehensive review of the RiO system it was found that some of Child A’s documentation was incomplete. The Appellant had allegedly failed to record a number of incidents that had occurred with Child A and specifically she had failed to record any interactions, observations or risk assessments which would have been conducted during home visits on 23 and 30 January 2012. In addition there were further allegations against the Appellant regarding her failure to take adequate steps to ensure that Child A received his BCG vaccination and bloodspot screening test before he reached the age of 1.

[7]The Trust conducted a disciplinary hearing on 4 May 2012, after which it was decided that the Appellant would be issued with a final written warning and would be down-graded from a Band 6 Health Visitor, to a Band 5 Community Nurse. A Professional Development Plan (“PDP”) was put in place for the Appellant to address areas of concern in her practise.

[8]Following a complaint made by Ms Chingwaru, relating to the care provided to Child A between 7 January 2011 and early February 2012, the allegations made against the Appellant were referred to the Panel. The fact-finding hearing, in respect of the charges laid against the Appellant, took place between 22 and 26 July 2013. The hearing was then adjourned to 28 September 2013. The Panel gave its decision orally on 28 September and a written copy of the decision was sent to the parties on 7 October 2013.

The Charges

[9]The Appellant was charged that, whilst employed as a Band 6 Health Visitor by the Trust, she: “1. Between 7 January 2011 and 24 December 2011, failed to take adequate steps to ensure that Child A received his BCG vaccination before Child A reached the age of 1 year 2. Between 7 January 2011 and 24 December 2011, failed to take adequate steps to ensure that Child A received his bloodspot screening test before the age of 1 year 3. Between 22 January 2012 and 31 Janaury 2012, failed to notify Child A’s Social Worker that Child A’s mother, Mrs A, had threatened to take Child A to Romania during a home visit. 4. Failed to record the incident as set out charge [3] above on the Trust’s computer database system, RiO (‘the RiO system’) 5. Failed to put an alert on Child A’s record on the RiO system, to notify colleagues that on or around 23 December 2011, an incident of domestic violence had occurred in Child A’s home 6. Failed to record the details of child A’s father, Mr A, in the appropriate section on Child A’s record on the RiO system 7. Failed to record any interactions with Child A during home visits conducted on or around the following:7.1

23 January 2012

7.2 30 January 2012 8. Failed to record any observations of Child A during home visits conducted on or around the following:

8.1

23 January 2012

8.2 30 January 2012 9. Failed to conduct a risk assessment of Child A on or around the following:

9.1

23 January 2012

9.2 30 January 2012 10. Failed to conduct a health review of Child A:

10.1 When he was aged between 8 and 12 months

10.2 On or around 23 January 2012

10.3 On or around 30 January 2012 11. On or around 31 January 2012, failed to put an alert on Child A’s record on the RiO system, to notify other professionals that Child A was subject to a child protection plan 12. Failed to document a care plan on Child A’s record until 9 days after the Child Protection Case Conference held in respect of Child A on 31 January 2012 AND in light of the above, [the Appellant’s] fitness to practise is impaired by reason of [her] misconduct.” 7.1 23 January 2012 7.2 30 January 2012 8.1 23 January 2012 8.2 30 January 2012 9.1 23 January 2012 9.2 30 January 2012 10.1 When he was aged between 8 and 12 months 10.2 On or around 23 January 2012 10.3 On or around 30 January 2012

[10]The Panel found Charge 1 not proved. The Panel did not accept that the Appellant had a duty to follow up on Child A’s BCG. The Panel considered that the Appellant discharged her limited duty to ensure that Child A received his BCG at the newborn visit conducted on 7 January 2011 when she advised Child A’s mother on the immunisation and left her with the leaflet to make the appointment.

[11]Charge 2 was found not proved. The Panel considered that up until 23 December 2012 the Appellant was not aware that Child A’s bloodspot screening results had not been returned. From 23 December the Appellant had a responsibility to ensure that his needs were met, however in the Panel’s view she could not have done anything more and it was an endemic service failure that led to Child A’s bloodspot screening test being missed.

[12]The Appellant admitted Charges 3, 4, 5 and 6.

[13]Charge7.1 was found proved. The Panel considered the entry recorded in the RiO system dated 23 January 2012 in which the Appellant recorded “no health concerns”. The Panel did not accept that this constituted recording an interaction. The Panel considered that the Appellant should have at least recorded the child’s interactions with his mother and how he was acting after the alleged domestic violence incident which led to him being re-classified as enhanced. As for Charge

7.2 the Appellant admitted this charge on the fourth day of the hearing.

[14]Charge 8.1 was found not proved. The Panel considered that in writing that there were no health concerns, the Appellant was effectively documenting an observation and that she had discharged her duty in that respect. As for Charge 8.2, the Appellant admitted that charge, also on the fourth day of the hearing.

[15]Charge 9 was found not proved. The Panel reached the conclusion that as a health visitor the Appellant did not have an obligation to conduct a risk assessment.

[16]Charge10.1 was found not proved. The Panel concluded that in the two days that the Appellant was responsible for Child A, until he reached the age of 1, she could not have been expected to conduct a full health review. However the Panel found Charges

10.2 and

10.3 proved. The Panel considered that the Appellant could have conducted a health review of Child A on either of the two dates, particularly in the light of his recent status change to an enhanced child and the fact that the Conference was scheduled for 31 January 2012. The Panel then went on to consider whether the Appellant had a duty to conduct a health review of Child A on 23 or 31 January 2012. It concluded that she did. She failed to do so on either occasion.

[17]Charges 11 and 12 were admitted by the Appellant.

Misconduct and Impairment of Fitness to Practise

[18]At the conclusion of the fact-finding decision the hearing was adjourned part-heard to another date. On 28 September 2013 the Panel considered whether, in the light of their findings of fact, the Appellant’s fitness to practise was at that date impaired by reason of misconduct.

[19]The Panel directed itself as follows: “The Panel heard and accepted the advice of the legal assessor. The legal assessor advised that the Panel adopt a two-stage approach; first, to consider whether or not the findings of fact amount to misconduct and then if so, proceed to consider whether or not [the Appellant’s] fitness to practise is currently impaired, having regard to all of the information available to the Panel. The Panel was referred to the 2008 Edition of the NMC code of professional conduct: Standards for conduct, performance and ethics (‘NMC Code’) and the cases of Roylance v General Medical Council(No.2)

[2001] 1 AC 311

, Council for Healthcare Regulatory Excellence v(1) Nursing & Midwifery Council

(2) Grant

[2011] EWHC 927 (Admin)

, Cohen v GMC

[2008] EWHC 581 (Admin)

and Meadow v GMC

[2006] EWCA Civ 1390

. The Panel was additionally referred to the Fifth Shipman Report, as endorsed in the case of Grant”.

[20]In its decision the Panel stated that it had exercised its own judgment in determining whether the facts in this case amount to misconduct and, if so, whether the Appellant’s fitness to practise is currently impaired. It stated that it kept in mind the need to protect the public, to maintain public confidence in the nursing profession, and to uphold proper standards of conduct and behaviour.

[21]The Panel took into account the evidence that it heard during the fact finding stage of the proceedings. Mr Kieley, the Trust’s Clinical Services Manager, Universal Children’s Services Central Ealing and Hanwell Quadrant, told the Panel that the Appellant had moved to his team after November 2012 and that she was placed under a PDP. He stated that she had the necessary supervision and that she had been assessed and signed off as being competent. When asked about her current fitness to practise, he told the Panel that he had no concerns with her practise and that he would like to offer her a position in the future. The Panel was aware that since Mr Kieley gave his evidence he had offered a position to the Appellant and that the Appellant was working as a Health Visitor at Band 6 level.

[22]Ms Okoro, the Appellant’s mentor at the Trust for the purposes of completing the PDP, told the Panel that she considered that the Appellant had reflected upon the incidents and that she had insight into her capabilities. She stated that the Appellant continues to have meetings with her whilst these proceedings continue.

[23]The Panel noted that apart from the matters that led to these proceedings, the Appellant has otherwise enjoyed an unblemished nursing career spanning some thirty years.

[24]With regard to Charge 3, the Appellant admitted that she should have told Child A’s social worker that Child A’s mother had threatened to take them to Romania. On reflection, the Appellant stated that she should have escalated the matter. She told the Panel that she had learned from that mistake and that she realised that she handled the situation incorrectly. She stated that she was under a significant amount of stress at the time which may have impacted upon her judgment. She was also dealing with difficult personal circumstances. The Appellant told the Panel that with regard to her record keeping, she had been updated on how to operate the RiO system and she felt more confident and competent in using it. She said that she always checked her documentation now and that she had learned from this experience. She had undergone a PDP and a period of supervision. She stated that she had insight in that she reflected more on her practise.

[25]Ms Daly, who appears on behalf of the Appellant, as she did before the Panel, conceded that the Appellant’s actions in this case are sufficiently serious as to amount to misconduct. The Panel stated that it “has borne in mind that not all conduct that falls short or every breach of the NMC code will necessarily amount to misconduct. However, in this case, it finds that [the Appellant’s] acts and omissions, taken both individually and collectively, are sufficiently serious so as to amount to misconduct.”

[26]The Panel continued in its decision at pages 16-18 as follows:

“The Panel noted that Child A was a particularly vulnerable patient and that you had a duty to safeguard their interests. In not disclosing to your colleagues that there was a potential for Child A to be removed from the country, you placed Child A at risk of harm. In addition, in not ensuring that Child A’s records were up to date and that all interactions had been recorded, you failed to safeguard Child A’s interests. The Panel is of the view that the public would expect a nurse of any level to ensure that all interactions with regard to Child A were completed on RiO in order to ensure that your colleagues were properly advised of any potential risk to Child A. Although the Panel acknowledges that the misconduct occurred within a relatively short period of time, involved a single patient and was in the context of a stressful and poorly supported work environment, it considered that your actions and omissions had the potential to put Child A at risk of harm and at risk of being removed from the country. Having regard to all the circumstances, the Panel concluded that your conduct falls well below the standards expected of a registered nurse and that, through your failings, you have breached the preamble and a number of standards of nursing practise set out in the provisions of the 2008 Edition of the NMC Code. … Accordingly, the Panel was satisfied that the facts admitted and found proved in this case do amount to misconduct which was serious.”

[27]The Panel then went on to consider whether by reason of the Appellant’s misconduct, her fitness to practise is currently impaired. The Panel heard submissions from Ms Hartley on behalf of the NMC and from Ms Daly. At pages 18-20 of its decision the Panel summarised those submissions. Ms Daly submitted that in light of the evidence before the Panel, it can reach the conclusion that there are no public protection issues in this case. With regard to public interest, she submitted that this case involves an isolated incident of misconduct, which the Appellant has addressed. She submitted that the Appellant has shown remorse and insight, she has remediated her conduct and has continued to have the support of the Trust. Accordingly Ms Daly submitted that the public’s trust and confidence would not be undermined if a finding of no impairment were made. She submitted that the evidence suggested that the Appellant is a respected nurse and an asset to the profession. For all these reasons Ms Daly submitted that the Appellant’s fitness to practise is not currently impaired by reason of her misconduct.

[28]The Panel’s conclusions on the issue of impairment are set out at pages 20-22 of its decision.

[29]At page 20 the Panel stated as follows:

“The Panel considered that your actions and omissions put Child A at risk of harm and at the risk of being removed from the country. You failed to record your interactions with Child A and update the records on RiO. In addition, you failed to notify Child A’s Social Worker that Child A’s mother had threatened to take Child A to Romania. You did not safeguard Child A’s interests and in addition, you put Child A at risk. The Panel took into account that Child A was a vulnerable patient in need of protection. In the Panel’s view, the public would have expected a nurse of your level to have ensured that Child A’s interests were safeguarded. Accordingly, the Panel concluded that your actions and omissions brought the nursing profession into disrepute and breached elements of the NMC Code.”

[30]The Panel then considered the issue of current impairment. In considering whether the Appellant would be liable in the future to put patients at unwarranted risk of harm, to bring the profession into disrepute, and/or to breach one of the fundamental tenets of the profession, the Panel had regard to the issues of insight and remediation and noted the evidence before it in relation to these matters (see page 21 of the decision). The Panel stated that although it was satisfied that the Appellant was working at the Trust as a Band 6 Health Visitor and there are currently no issues with her clinical performance, “it is concerned that you are currently receiving a significant amount of support from your employer and that you are still receiving weekly supervision meetings. Accordingly, your clinical practise has not been tested in a stressful, high-pressure and less supported work environment which is the setting in which the incidents which led to these proceedings occurred.”

[31]The Panel continued: “The Panel was required to ask itself whether in all the circumstances of the case the need to uphold proper professional standards and public confidence in the profession would be undermined if it did not make a finding of impairment of fitness to practise on the grounds of the public interest. It noted that your misconduct was of a particularly serious nature and that it involved the care of a vulnerable child. You did not safeguard that child’s interests and through your actions and omissions, you placed them at risk of harm. Although the Panel has already accepted that you were working in difficult circumstances and that you were unsupported and overworked at the Trust, it considered that as a nurse, you are professionally accountable for your actions and must be able to justify them. You failed in your duty of care to Child A and the consequences of such could have been more serious. Although the Panel recognises there are no public protection issues in this case, it has concluded that public trust and confidence in the profession would be seriously undermined if a finding of no impairment were to be made. The matters found proved in this case are of a serious and wide-ranging nature and involve a particularly vulnerable patient. For these reasons, and taking into account the guidance provided in the case of Grant, the Panel has concluded that your fitness to practise is currently impaired by reason of your misconduct.” (At pp21-22).

[32]Finally, having determined that the Appellant’s fitness to practise is impaired by reason of her misconduct, the Panel considered what sanction, if any, it should impose. The Panel stated that it had regard to all the oral and documentary evidence before it, submissions made by Ms Hartley and Ms Daly, and that it took account of the Indicative Sanctions Guidance (ISG). Further the Panel stated it had regard to the need to uphold proper professional standards and to maintain public trust and confidence in the nursing profession and in the NMC as its regulator.

[33]In reaching its decision on sanction, the Panel considered the aggravating and mitigating factors in this case (see pp23-24 of the decision).

[34]The Panel was of the view that the misconduct in this case demanded a sanction to be imposed to mark the serious departure from the professional standards set out in the NMC Code and to maintain the reputation of the nursing profession.

[35]Having regard to the principle of proportionality, the Panel concluded (at pages 24 and 25 of its decision) as follows:

“Your misconduct was serious and had the potential to put Child A, a vulnerable patient, at risk of harm. However it noted that your misconduct was of clinical practise and poor documentation and therefore it is more easily remediable than misconduct involving attitudinal or other problems. It also noted that you have undertaken training on safeguarding and that you have completed an extensive PDP in which you were assessed as competent and you have undergone a period of supervision. You continue to have weekly meetings with your supervisor. This combination of factors, coupled with your insight and remorse, has persuaded the panel to impose a caution order in this case. The period of the order will be for 30 months.”

The legal framework

[36]The principles which govern this appellate jurisdiction are well settled.

[37]This is an appeal under Article 38 of the Nursing and Midwifery Order 2001 (“the Order”). Part 52 of the Civil Procedure Rules (“CPR”) applies to appeals under Article 38. CPR 52.11(3) states that the appeal court will allow an appeal where the decision of the lower tribunal was(i) wrong; or

(ii) unjust because of a serious procedural or other irregularity in the proceedings in the lower tribunal.

[38]In Azzam v General Medical Council

[2008] EWHC 2711 (Admin)

McCombe J said, at paragraphs 25-26, with regard to an appeal from a decision of a practise committee of the GMC: “25. … [The] principles are well established and appear most recently from GMC v Meadow

[2007] QB 462

, Raschid and another v GMC

[2007] 1 WLR 1460

and Gupta v GMC

[2007] EWHC 2918 (Admin)

. The principles are:(1) The Panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;

(2) The judgment of the Panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practise and the measures necessary to maintain the standards and reputation of the profession;

(3) The Panel’s judgment shall be afforded particular respect concerning standards of professional practise and treatment;

(4) The court’s function is not limited to review of the Panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it. 26. To this list one can also add that the Panel is entitled and bound to consider aspects of the public interest that arise in any case: see e.g. R (Harry) v GMC

[2006] EWHC 2050 (Admin)

.” (1) The Panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors; (2) The judgment of the Panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practise and the measures necessary to maintain the standards and reputation of the profession; (3) The Panel’s judgment shall be afforded particular respect concerning standards of professional practise and treatment; (4) The court’s function is not limited to review of the Panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it.

[39]The statutory scheme for misconduct by nurses and midwives is set out in the Nursing and Midwifery Council (Fitness to Practise) Rules 2004.

[40]The term “impairment of fitness to practise” is not defined in these rules. Judicial guidance as to how the issue of impairment of fitness to practise should be approached appears in a number of authorities. In Grant Cox J reviewed the authorities at paragraphs 66-73 of her judgment. At paragraphs 74-76 Cox J continued as follows:

“74. … In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. 75. I regard that as an important consideration in cases involving fitness to practise proceedings before the NMC where, unlike such proceedings before the General Medical Council, there is no power under the rules to issue a warning, if the committee finds that fitness to practise is not impaired. As Ms McDonald observes, such a finding amounts to a complete acquittal, because there is no mechanism to mark cases where findings of misconduct have been made, even where that misconduct is serious and has persisted over a substantial period of time. In such circumstances the relevant panel should scrutinise the case with particular care before determining the issue of impairment. 76. I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor’s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes. ‘Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future.’ The value of this test, in my view, is threefold: it identifies the various types of activity which will arise for consideration in any case where fitness to practise is in issue; it requires an examination of both the past and the future; and it distils and reflects, for ease of application, the principles of interpretation which appear in the authorities. It is, as it seems to me, entirely consistent with the judicial guidance to which I have already referred, but is concisely expressed in a way which is readily accessible and readily applicable by all panels called upon to determine this question.” ‘Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future.’ The value of this test, in my view, is threefold: it identifies the various types of activity which will arise for consideration in any case where fitness to practise is in issue; it requires an examination of both the past and the future; and it distils and reflects, for ease of application, the principles of interpretation which appear in the authorities. It is, as it seems to me, entirely consistent with the judicial guidance to which I have already referred, but is concisely expressed in a way which is readily accessible and readily applicable by all panels called upon to determine this question.”

Grounds of appeal

[41]The Appellant challenges the decision of the Panel on six grounds:(1) The Panel failed properly to apply the test for impairment as set out in various decisions of the Administrative Court;

(2) The Panel was wrong to conclude on the facts that the Appellant’s fitness to practise is impaired;

(3) The Panel in its findings on impairment failed to provide sufficient reasons as to why public trust and confidence in the profession would be seriously undermined if a finding of no impairment were to be made;

(4) The Panel in its findings on impairment incorrectly concluded that: (i) the Appellant was continuing to receive weekly supervision meetings; (ii) the Appellant’s clinical practise had not been tested in a stressful and high pressure environment and (iii) that the misconduct was ‘particularly serious’ having previously stated that the facts found proven were ‘not at the higher end of the spectrum of seriousness’.

(5) The Panel in its findings on impairment failed to pay sufficient or any weight to the following factors and in so doing was wrong to find the Appellant’s fitness to practise impaired: (i) oral evidence of Ms Okoro, Mr Kiely and the Appellant in relation to her current work environment; (ii) the numerous testimonials provided; (iii) insight shown by the Appellant; (iv) remorse shown by the Appellant and (v) approximately 30 years of an otherwise unblemished career.

(6) The sanction imposed by the Panel was excessive and disproportionate in the circumstances. I shall deal with each in turn. The Parties’ Submissions and Discussion Ground 1: the Panel failed properly to apply the test for impairment

The Parties’ Submissions and Discussion

[42]Ms Daly submits that the Appellant’s conduct is clinical and where, as in the present case, the clinical errors are not so egregious that they could not be remedied and have in fact been remediated the Panel was wrong to make a finding that her fitness to practise is currently impaired.

[43]In support of this submission Ms Daly referred, in particular, to the following passages in the authorities:(1) Meadow, per Sir Anthony Clarke MR at para 32;

(2) Cohen v GMC

[2008] EWHC 581 (Admin)

, per Silber J at para 72;

(3) Azzam, per McCombe J at paras 50-54;

(4) Cheatle v GMC

[2009] EWHC 645 (Admin)

, per Cranston J at para 63;

(5) Yeong v GMC

[2009] EWHC 1923 (Admin)

, per Sales J at para 40;

(6) Grant, per Cox J at paras 84, 90 and 96-101; and

(7) Ige v NMC

[2011] EWHC 3721 (Admin)

, per King J at para 27.

[44]Ms Daly submits that the Panel failed to have proper regard to the relevant authorities “where the approach taken on impairment differs depending on whether the misconduct is clinical or non-clinical and with that whether it is capable of being remedied” (see Appellant’s skeleton argument, para 37). In finding that the Appellant’s fitness to practise is impaired the Panel, Ms Daly submits, failed correctly to apply Grant.

[45]Ms Daly submits that the Appellant’s case is factually distinguishable from Grant which included both clinical and non-clinical misconduct and the misconduct extended over a prolonged period. At paragraph 100 of her judgment Cox J refers to the misconduct as being “more analogous to misconduct of the type found in Yeong, rather than that identified in Cohen”. Ms Daly submits that the Appellant’s case is plainly distinguishable from Grant. It was, as was Azzam, “a serious error of professional judgment over a limited period” (para 51).

[46]I reject the submission that the Panel failed properly to apply the test for impairment as set out in Grant (and in the earlier authorities). The Panel followed the correct approach in relation to impairment by adopting the required two-stage process (see para 19 above). In assessing the issue of current impairment the Panel considered the guidance provided by Dame Janet smith in her Fifth Report from the Shipman Inquiry, referred to with approval in Grant at paragraph 65, and asked itself whether the Appellant had acted so as to put a patient or patients at unwarranted risk of harm, had brought the nursing profession into disrepute and/or had breached one of the fundamental tenets of the nursing profession. I accept Ms Fleck’s submission that the Panel’s reasons make plain that it viewed the Appellant’s clinical failings to be so serious that even the accepted remediation was not enough to enable it to uphold the public interest without a finding of impairment.

[47]In Grant Cox J is giving general guidance (see para 76). The approach to be applied in each case is the same. It is the act of misconduct which has to be considered, not whether the misconduct is clinical or non-clinical. The wider public interest is engaged in each case. Ground 2: the Panel was wrong to conclude on the facts that the Appellant’s fitness to practise is impaired

[48]Ms Daly submits that this is not a case where the clinical error was so grave that there must be a finding that the Appellant’s fitness to practise was impaired, otherwise the nursing profession would be brought into disrepute.

[49]When considering the issue of impairment the Panel stated that the Appellant’s misconduct was of a “particularly serious nature” (page 22), whereas earlier in the proceedings when considering whether to impose an interim order on the Appellant’s registration the Panel decided it was not necessary because it considered that “the facts in this case are not at the higher end of the spectrum of seriousness” (page 14). Again, when considering sanction, the Panel merely described the Appellant’s conduct as “serious” (page 24). Ms Daly submits that the Panel’s description of the misconduct at both the interim order stage and when considering the imposition of sanctions does not indicate that the misconduct was so serious as to require a finding of impairment.

[50]In any event Ms Daly submits an examination of the actual facts of the case does not lead to the conclusion that the misconduct was so serious as to warrant public interest concern. This was what Ms Daly describes as a “wrong judgement call” in what the Panel accept were difficult working circumstances for the Appellant. She volunteered the information and explained how she made the error she did. As for the other findings they were essentially errors of a documentary nature and as such were not so serious concerns as to warrant the public interest ground being invoked.

[51]In my view the Panel had regard to all relevant matters at pages 20 and 21 of its decision (see paras 29 to 31 above). It considered that the Appellant’s misconduct was serious and had the potential to put Child A, a vulnerable patient, at risk of harm (page 24). On the evidence the Panel was, in my view, entitled to conclude that the misconduct was “of a particularly serious nature such as to conclude that public trust and confidence in the profession would be seriously undermined if a finding of no impairment were to be made”. The observations of the Panel that the case was not “at the higher end of the spectrum of seriousness” were made when considering the decision on interim order when the test is a different one of whether there is a risk of harm to patients or to the public interest if the Appellant were allowed to continue to practise (page 14).

Ground 3: the Panel in its findings on impairment failed to provide sufficient reasons

[52]The Panel asked itself whether in all the circumstances on the case the need to uphold proper professional standards and public confidence in the profession would be undermined if it did not make the finding of impairment of fitness to practise on the grounds of the public interest. In answering this question the Panel noted that the Appellant’s misconduct was of a particularly serious nature and that it involved the care of a vulnerable child. The Panel continued: “You did not safeguard that child’s interests and through your actions and omissions, you placed them at risk of harm. Although the Panel has already accepted that you were working in difficult circumstances and that you were unsupported and overworked at the Trust, it considered that as a nurse, you are professionally accountable for your actions and must be able to justify them. You failed in your duty of care to Child A and the consequences of such could have been more serious.” (Page 22).

[53]The Panel expressly stated that it was for these reasons, and taking into account the guidance provided in the case of Grant, that it concluded that the Appellant’s fitness to practise is currently impaired by reason of misconduct.

[54]In my view the Panel provided proper and adequate reasons as to why public trust and confidence in the profession would be seriously undermined if a finding of no impairment were to be made. Ground 4: the Panel in its findings on impairment incorrectly concluded that(i) the Appellant was continuing to receive weekly supervision meetings;

(ii) her clinical practise has not been tested in a stressful and high-pressure environment; and

(iii) that the misconduct was “particularly serious”.

(i) : weekly supervision meetings

[55]Ms Daly referred to the evidence of Mr Kieley that the supervision was part of the PDP and that the PDP was “signed off” (Transcript for 24 July 2013 at pp71-73). The evidence of Ms Okoro who supervised the Appellant’s work was to the same effect. She said: “We worked through all the supervision that was aimed against all these areas or concerns that [the Appellant] had to achieve competency, so we worked through it and as we went, in fact this needed to be signed three times to make sure everything was done and we did sign it off three times and [the Appellant] completed it completely.” (Transcript, 24 July 2013 at page 79). Ms Okoro confirmed that the Appellant had completed all her training (transcript, 24 July, page 88).

[56]Ms Daly submits that Ms Okoro’s evidence, considered as a whole, clearly evidences that any additional support provided to the Appellant was as part of her PDP and that the PDP was completed and signed off in July 2013. However in an attempt to clarify Ms Okoro’s evidence the Chair twice asked her whether she considered the Appellant required any additional support to that given to any other health visitor (see transcript Day 3, p83, lines 28-29 and p84 lines 1-2). On neither occasion did she actually answer the question. The Case Presenter tried again. She asked Ms Okoro whether she had weekly meetings with every health visitor that she was in charge of (transcript Day 3 p87 lines 12-19). Again, Ms Okoro’s answer was unclear, so she put the question a second time (transcript Day 3, p87, lines 26-29). Precisely what the Panel understood by the answer she then gave is not known.

[57]However in a detailed document entitled “A Report summarising the progress made to date by Nurse Joyce Odoi-Asare in completing a bespoke ‘Health Visitor Development Plan’”, dated July 2013 Mr Kieley recommended, inter alia, “that a timetable of similar intensive supervision and support be put in place for the first six months of her new post.”

[58]Further, in a letter dated 16 September 2013, that was before the Panel at the adjourned hearing, Ms Okoro stated “My meeting and observation of [the Appellant] is weekly now.”

[59]At the outset of the hearing before me Ms Daly applied to adduce fresh evidence in the form of a letter dated 14 March 2014 from Mr Kieley in relation to the findings in Ground 4(i) and Ground 4(ii). This application was opposed by Ms Fleck.

[60]In my judgment the fresh evidence that the Appellant seeks to adduce does not satisfy the Ladd v Marshall

[1954] 1 WLR 1489

principles, which although not determinative, are still relevant. Neither Russell v GMC

[2008] EWHC 2546

, nor Ansari v General Pharmaceutical Council

[2012] EWHC 1563

, to which Ms Daly referred, assist. If the Appellant had wished to clarify any matter that arose out of the report of Mr Kieley or the letter of Mrs Okoro then that could have been done at the hearing in September 2013.

[61]I accept the submission made by Ms Fleck that on the basis of Mr Kieley’s report of July 2013 and Ms Okoro’s letter of 16 September 2013 the Panel was entitled, having regard to the evidence of Mr Kieley and Ms Okoro as a whole, to find that the Appellant was continuing to receive weekly supervision meetings.

[62]In any event I accept Ms Fleck’s submission that the finding of fact that is challenged in this Ground is not a material finding of fact as the Panel made its finding of impairment, not on public protection grounds, but because it “concluded that public trust and confidence in the profession would be seriously undermined if a finding of no impairment were to be made” (see para 31 above).

Ground 4(ii): Appellant’s clinical practise not tested in a stressful and high-pressured environment

[63]Ms Daly submits that after the Appellant had completed the PDP the setting in which she was then employed was the same setting as where the problems that led to the charges arose, albeit she was in a different quadrant.

[64]The findings which give rise to Grounds 4(i) and (ii) are inter related. The Panel stated that “…it is concerned that you are currently receiving a significant amount of support from your employer and that you are still receiving weekly supervision meetings. Accordingly [emphasis added], your clinical practise has not been tested in a stressful, high-pressure and less supported work environment which is the setting in which the incidents which led to these proceedings occurred.”

[65]Ms Fleck submits that at the time of the hearing in September 2013 the PDP had only recently come to an end and the Appellant was starting in a new role in which she had not been tested for a sustained period without there being any concerns expressed. I accept Ms Fleck’s submission that this was really no more than an observation made by the Panel on the findings of fact that in my view it was entitled to make.

[66]The part of Mr Kieley’s letter of 14 March 2014 that relates to Ground 4(ii) does not in my view, contain material that is admissible as fresh evidence (see para 60 above).

Ground 4(iii): the misconduct was ‘particularly serious’

[67]The test for the making of an interim order and the test for assessing the issue of current impairment are not the same. When considering the former the issue is whether there is a risk to the public interest if the professional is allowed to practise at all. At the impairment stage the issue is whether, inter alia, the misconduct has in the past brought and/or is liable in the future to bring the nursing profession into disrepute. The Panel would have expressed itself as to the seriousness of the Appellant’s conduct when considering(1) whether or not to make an interim order, and

(2) on the issue of current impairment, having regard to the test that it had to apply in relation to each distinct issue. Ground 5: the Panel in its findings on impairment failed to pay sufficient or any weight to various factors.

[68]

(1) The Panel expressly stated that it “had regard to the two references produced by Ms Daly” (page 15), and Ms Daly did not suggest that there were other references to which the Panel did not have regard (see also page 23);

(2) the Panel set out the evidence it considered in relation to the issue of insight (page 21);

(3) in the context of considering the appropriate sanction, the Panel stated that the Appellant has shown remorse for her actions (page 24); and

(4) the Panel stated that “apart from the matters that led to these proceedings the Appellant has otherwise enjoyed an unblemished nursing career spanning some 30 years (pages 15 and 23).

[69]As for the evidence of Ms Okoro, Mr Kieley and the Appellant in relation to the Appellant’s current work environment, there were no specific matters that Ms Daly referred to in her oral submissions. However it is clear that the Panel considered that evidence and the Appellant’s current work environment when considering whether she has been tested “in a stressful, high pressure and less supported work environment” (see para 31 above).

[70]I reject the submission that the Panel failed to give sufficient or any weight to these various factors. I accept Ms Fleck’s submission that the reasons given by the Panel demonstrate that it had very much in mind the evidence of the Appellant and that provided on her behalf in testimonials, and the evidence relating to insight, remorse and her unblemished career. In addition I am satisfied that the Panel gave proper consideration to the evidence, oral and written, relating to the Appellant’s current work environment.

Ground 6: the sanction imposed was excessive and disproportionate in the circumstances

[71]Ms Daly does not challenge the Panel’s decision to impose a caution order. The Appellant takes issue solely with the length of the order.

[72]The Panel, Ms Daly submits, has provided no reasons as to why a period of 30 months was appropriate in the circumstances of the case. Having regard to all relevant factors which included insight, remorse, the environment she was working in at the time, an otherwise unblemished career and the glowing testimonials provided, she submits that the imposition of a 30-month caution order was wholly disproportionate and excessive.

[73]The Panel had regard to the Indicative Sanctions Guidance for Fitness to Practise Panels (“ISG”) (page 22). Paragraph 19 of the ISG states that “In determining what sanction, if any, should be imposed, panels must act proportionately, which will involve balancing the interests of the public against those of the registrant.”

[74]Paragraphs 24-29 of the ISG are concerned with aggravating and mitigating factors. Paragraph 24 states:

“All aspects of mitigation should be considered against the backdrop of the fundamental aims of sanctions – public protection, the declaring and upholding of professional standards and the maintenance of public confidence in the professions and the regulator.”

[75]Paragraphs 63-65 of the ISG are concerned with a caution order. Paragraph 63 states that it can be imposed for a period of between one and five years.

[76]The Panel carefully considered the aggravating and mitigating factors in the case (pages 23-24), and kept in mind the principle of proportionality (page 24).

[77]It was the combination of factors, coupled with the Appellant’s insight and remorse, that persuaded the Panel to impose a caution order for a period of 30 months (page 25).

[78]In my view, having regard to the Appellant’s proven misconduct and the interests of the public, the imposition of a 30-month caution order was plainly not inappropriate.

Conclusion

[79]For the reasons I have given, none of the grounds of challenge are made out, and accordingly this appeal is dismissed.