High Court Orders Striking Off Nurse Who Assaulted Patient and Lied: PSA Appeal Successful

Citation: [2023] EWHC 3331 (Admin)
Judgment on

Introduction

The Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor [2023] EWHC 3331 (Admin) is a High Court case concerning an appeal against a disciplinary sanction imposed by the Nursing and Midwifery Council’s Fitness to Practise Committee. The appeal was brought by the Professional Standards Authority for Health and Social Care (PSA) under the National Health Service Reform and Health Care Professions Act 2002 section 29. The appeal was conceded by the NMC, while the Registrant resisted the appeal, appearing in person.

Key Facts

The appeal stemmed from a decision by the Committee to suspend Kadiatu Jalloh’s nursing registration for misconduct due to an assault on a patient and subsequent dishonesty when applying for a new position. The PSA argued this sanction was too lenient and not enough to protect the public, requesting a striking-off order instead. The NMC agreed with the PSA. In contrast, Ms. Jalloh pointed to her remorse, training undertaken, and no repeated incidents as the basis for the sufficiency of the suspension.

This case traverses several legal principles central to healthcare regulation and disciplinary proceedings:

  1. Protection of Public: The paramountcy of protecting public interest, including public confidence in the profession and upholding professional standards (National Health Service Reform and Health Care Professions Act 2002, section 29(4)).

  2. Nature of Sanctions: Disciplinary sanctions aim not to punish practitioners but to maintain professional standards and reputation (bolstered by cases like Bolton v Law Society [1994] and Council for the Regulation of Healthcare Professionals v GMC and Ruscillo [2005]).

  3. Remediation and Insight: Consideration of the practitioner’s remedial actions and insight into their misconduct, acknowledging that denial of misconduct is not an absolute bar to finding insight (Sayer v General Osteopathic Council [2021]).

  4. Honesty and Integrity: The significance of honesty and integrity in the healthcare profession, where a sustained breach can warrant erasure from the medical register (GMC v Theodoropoulos [2017]).

  5. Guidance and Sanction Severity: When determining sanctions, panels are guided to consider sanctions in ascending order of severity with consideration of the Sanctions Guidance that disciplinary bodies provide (reflected in cases like GMC v Khetyar [2018]).

  6. Review vs. Rehearing: The High Court approach to an appeal under section 29 is that of review, not rehearing, examining whether the original decision was wrong or unjust due to procedural irregularity (CPR 52.21).

Outcomes

The court determined several errors committed by the Committee:

  1. Underestimation of Misconduct Severity: The assault was not merely reactionary and placed the patient under actual, not the just potential, harm. The Committee’s evaluation was inconsistent with evidence and the inherent responsibilities of a nurse.

  2. Misjudged Remediation and Insight: The Committee incorrectly concluded that sufficient insight into the assault was demonstrated, overlooking the Registrant’s denial of the assault and lack of substantive reflection or remediation.

  3. Wrongfulness in Assessing Dishonesty: The Committee erred in assessing the seriousness of the repeated dishonest actions and their impact on public confidence in the profession.

  4. Incorrect Findings on Charges: The Committee incorrectly found one charge as not proved due to misinterpretation, and failed to recognize that breaches of an interim order amounted to misconduct.

  5. Substitute of Sanction: Considering the errors and the gravity of misconduct, the court opted to substitute a striking-off order for the NMC’s suspension order.

Conclusion

The High Court’s intervention in Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor [2023] EWHC 3331 (Admin) clarifies the paramountcy of upholding public confidence and the integrity of the nursing profession. It underscores that sanctions that fall short of addressing the gravitas of a healthcare professional’s misconduct will be scrutinized and corrected to protect the public. This case reflects the courts’ supervisory role in ensuring disciplinary tribunals apply the correct principles in safeguarding public interests and maintaining professional standards.