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The Professional Standards Authority for Health and Social Care v (1) NMC  (2) Anne Ndlovu   9 May 2019 EWHC 1181 (Admin)  judgment here

It is rare that healthcare staff are seriously dishonest in their evidence to an inquest, although sadly such conduct does at times happen.  Even when criminal prosecutions  are not subsequently pursued, this recent appeal is a strong reminder of the seriousness with which such conduct should be taken and the professional consequences for those who seek to dishonestly hide their errors.

 “Honesty, integrity and trustworthiness are ‘the bedrock’ of any nurse’s professional practice”.

As this case makes clear, courts will not look lightly upon dishonesty to a Coroner: it runs the risk of prejudicing an inquest which is flatly against the public interest.

The Facts

The respondent mental health nurse, along with a more senior colleague, had assessed a suicidal patient with a longstanding history of mental illness for admission to hospital. When they determined the patient should be offered home treatment instead the patient had refused to leave and had been escorted out of the hospital by security guards.   The next day the patient was found dead on a railway track.

The nurse was interviewed for the Trust’s internal investigation and later confirmed that a record of her interview was accurate. She subsequently prepared a report for the Coroner giving a similar account.

Some months later, it was discovered that the patient had covertly recorded the mental health assessment on a mobile telephone.  The phone recording revealed that the nurses' records of interview and their reports to the Coroner gave a misleading impression of the assessment. There were at least eight instances of incorrect information provided which could not reasonably be said to be anything other than serious dishonesty.

Indeed the respondent had impliedly sought to blame the patient for the inadequate assessment – knowing that the patient was no longer alive to contradict her account.  She had suggested the patient did not want to tell the nurses anything, when the recording showed the patient responded reasonably to questions. She had said the patient had agreed to home treatment when this had not been the case.

Both nurses were referred to the NMC. Ms Ndlovu admitted that she had failed to ensure that an adequate assessment of the patient had been carried out and she also admitted that this failure had contributed to the loss of a material chance to prevent the patient's death. However, she denied that she had dishonestly provided incorrect information about the assessment to the internal investigation and to the Coroner.  The NMC panel did not accept this and found that Ms Ndlovu had known that the assessment of the patient was inadequate and had attempted dishonestly to cover this up.  Moreover, even in the face of overwhelming evidence that her accounts were incorrect, she had not been prepared to accept the inconsistencies when giving evidence to the NMC panel.

Unsurprisingly the NMC panel determined that the respondent's fitness to practise was impaired by reason of her misconduct undermining public confidence in the nursing profession. However, it determined that there was no impairment on public protection grounds: a three-year caution order was then imposed. 

The Appeal

In an appeal to the High Court the Professional Standards Authority for Health and Social Care challenged the NMC panel's decision on a number of inter-related grounds, principally contending (i) given the dishonesty, it was wrong to conclude that a finding of impairment was not necessary on public protection grounds and (ii) that a caution order was insufficient sanction for the protection of the public.[1]

The Court noted that references had been provided to the panel which spoke about the respondent's good character, high standard of practice and other professional strengths. It had been said that she had “insight" into her clinical failures and there was a low risk of her clinical errors being repeated.  Her current manager had said he had no reason to doubt her integrity and honesty over the period he had been working with her.

Nevertheless Mrs Justice Farbey was not persuaded that the NMC’s decision was correct.

 "Nurses must be open and honest, act with integrity and uphold the reputation of the nursing profession"

The NMC guidance sets out how nurses must "be open and honest, act with integrity and uphold the reputation of [the nursing] profession".   As the judge put it “honesty, integrity and trustworthiness are ‘the bedrock’ of any nurse's professional practice”. Whilst not all dishonesty is equally serious, deliberate dishonesty concealing clinical issues, particularly those causing harm to patients, is likely to call into question whether a nurse should be allowed to remain on the register.   Furthermore said the judge, dishonesty to a Coroner runs the risk of prejudicing an inquest which is flatly against the public interest.

The judge held that the NMC panel had imposed a sanction which could not reasonably reflect the seriousness of the misconduct.   The respondent's remediation did not extend to facing up to her dishonesty at the NMC hearing.

The judge did not decide upon the penalty but remitted the case back to the NMC Fitness to Practise panel to consider sanctions in the light of the Court’s decision.    However, such serious dishonesty coupled with a continued denial of dishonesty must surely merit a period of suspension at very least?

 

 

 

[1] The senior nurse had already conceded an appeal regarding the NMC’s finding in respect of their own conduct and a six-month suspension order had been imposed.