Council for the Regulation of Healthcare Professionals v Nursing and Midwifery Council

The appellant, whom I shall refer to as the CRHP, was established by Part 2 of the National Health Service Reform and Health Care Professions Act 2002 (the 2002 Act). Its general functions as set out in s.25(2) of the 2003 Act, are:-

“(a)

to promote the interests of patients and other members of the public in relation to the performance of their functions by the bodies mentioned in subsection

(3)

.. (…referred to as regulatory bodies), and

(b)

to promote best practice in the performance of those functions,

(c)

to formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to them, and

(d)

to promote co-operation between regulatory bodies, and between them, or any of them, and other bodies performing corresponding functions”.

The regulatory bodies cover most professionals who work in health care including nurses. Because of a reorganisation of the bodies responsible for the regulation of nurses, there are complicated transitional arrangements, but at the material time, the first respondent was the relevant regulatory body and is included in s.25(3) of the 2002 Act.

The CRHP was set up because of public concern that the arrangements for self regulation and the carrying out of their functions by the regulatory bodies did not always provide sufficient protection for the public. On occasions, it seemed that the interests of the professionals were put above those of the patients. The existence of the CRHP owes much to the recommendations of Professor Sir Ian Kennedy in his report on the inquiry into children’s heart surgery at the Bristol Royal Infirmary.

Section 26(1) of the 2002 Act confers general powers to do ‘anything that may be necessary or expedient for the purposes of, or in connection with, the performance of its functions’. Section 26(2) gives some examples covering investigating the performance and practices of a regulatory body and reporting and making recommendations about those matters. This is subject to a limitation that nothing can be done in relation to the case of an individual in respect of whom disciplinary proceedings have been or may be brought. This limitation is subject to s.26(4) which provides:-

“Subsection (3) does not prevent the Council from taking action, under section … 29, but action … may be taken only after the regulatory body’s proceedings have ended”.

This section also applies to-

The powers conferred extend very widely and enable not only the measure taken against the individual to be reconsidered if it is believed to be too lenient but also a decision not to take any measure whether or not it is too lenient. That is the clear combined effect of s.29(1), (2) and (4) and so the power extends to reconsideration of failures to take a measure set out in s.29(1) which must include a decision to acquit an individual of any disciplinary charge he may have faced. No doubt this is a power which must be most carefully and sparingly exercised, but, having regard to the public concerns about the effectiveness of self regulation which led to the enactment of Part 2 of the 2002 Act, it is a power which Parliament clearly intended to confer.

The disciplinary systems of the regulatory bodies will usually if not always involve what can be referred to as a prosecution by a person instructed by or a member of that body. That person will have a discretion as to how the case is presented and will only be able to act on material which is put before him. It may be that in a particular case relevant material which would or may have affected the result is made known to the CRHP and it is apparent that that material was not put before the committee. In such a case of what can be described as ‘under prosecution’, I have no doubt an appeal could be brought under s.29(4). The reference in s.29(4)(a) to the undue leniency of any finding of professional misconduct and the combination of s.29(4)(b) and 29(2) where there has been no relevant measure against an individual makes that clear. Having regard to the purpose behind Part 2 of the 2002 Act, it is hardly surprising that these wide powers should exist.

The grounds of appeal are stated thus:-

“The appellant considers that the decision was unduly lenient as to the penalty imposed in relation to the finding of misconduct made within the meaning of s.29(4)(a) of the [2002 Act] and that it would be desirable for the protection of members of the public for this case to be referred to the court”.

Before going to the facts, I should deal with an argument put forward by Mr de la Mare as to the approach I should adopt in viewing this appeal. He submits that the unduly lenient and desirable for the protection of members of the public tests set out in s.29(4) are purely internal and that the appeal is to be determined as if it were an appeal under CPR 52.11(3). If it is to be said that the CRHP should not have decided that there was undue leniency, an application for judicial review will have to be made. That submission was to my surprise not resisted by Mr Lawson. In my judgment it is clearly wrong. Since an appeal comes before a judge of the Administrative Court, it would be somewhat absurd and an unnecessary incurring of costs if judicial review to the same tribunal were needed. But, more importantly, the general rule is that an appeal in aggravation of penalty will only be allowed if it is shown that the original penalty was unduly lenient: see Lomas v Parle [2004] 1 All E.R. 1173. I see no reason to doubt that the true construction of s.29 requires that the Court will only allow the appeal if satisfied that undue leniency and desirability for the protection of the public is made out. If undue leniency is established, it will only be in the rarest of cases that a different view to that of the CRHP is likely to be appropriate in respect of desirability.

I see no reason not to apply mutatis mutandis the same test as the Court of Appeal applies in deciding whether a sentence in a criminal case is unduly lenient. That is whether the penalty falls outside the range of penalties which the Committee, applying their minds to all the relevant factors, could reasonably consider appropriate: see AG’s Reference No.4 of 1989 (1990) 90 CAR 366 at p.371.

As I have said, there are complicated transitional provisions which govern the powers of the Committee. I shall not burden this judgment with them since it is common ground that, having found misconduct proved, the Committee could have removed the second respondent from the register, issued a caution as to his future conduct or taken no action. There was at the material time no power to suspend; that has now been or perhaps is about to be bestowed.

Mr. Truscott is a nurse specialising in paediatric care. In March 2002, when the misconduct occurred, he was employed as a staff nurse at the Middlesex Adolescent Unit in University College Hospital in London. That Unit is a multi-speciality ward with 14 beds caring for adolescents of both sexes aged between 13 and 19. They were often suffering from long term complex life-threatening illnesses. Apart from the usual medical staff, the Unit was attended by teachers and youth and social workers. Computers were provided in a schoolroom attached to the Unit. One of these was moved shortly before Mr Truscott started work in the Unit to a treatment room in the Unit. It was his use of this hospital computer while he was on duty in the Unit overnight on 6 nights in March 2002 that led to the charge against him.

Mr Truscott admitted the facts and, later, that what he had done amounted to misconduct. The Committee in due course imposed a caution which would remain on his record for 5 years. That penalty is said by the CRHP to be unduly lenient and nothing short of a removal from the register would have been appropriate in the circumstances. The reasons given by the Committee for imposing a caution were stated thus:-

“The Committee has reached its decision. This was serious misconduct, there was abuse of trust and you generated completely inappropriate material on a hospital ward. You have lost your job through the disciplinary hearing and we have considered whether we should remove your name from the register in order to protect the public. The case has not been put on the basis that your conduct demonstrates a risk to patients and there is no evidence of direct harm to patients. You have been working and such testimonials as we have are favourable. Furthermore, the police did not find reason to pursue prosecution in your case. We accept that there was an element of cascading but, nevertheless, we are of the view that you deliberately accessed pornographic sites and are not completely satisfied that you have shown full insight into the seriousness of your actions.

We therefore think it necessary to issue you with a caution on your behaviour. You should appreciate that this is a very serious matter to be found guilty of misconduct by the Council’s Professional Conduct Committee. You must understand that the committee does not condone your actions in any way.

The Committee asks you to study the NMC’s Code of Professional Conduct. The Code sets out the standards of conduct that the NMC requires of its registered practitioners. The Committee expects you to consider it carefully and to follow its standards in your future practise and conduct.

The NMC will keep a record of the caution for five years. During this time anyone who enquires about your registration will be told that you have a caution on your record. If you are found guilty of further misconduct by the Preliminary Proceedings Committee or the Professional Conduct Committee within this five year period the Committee will be told about that caution on your record and may take it into consideration when deciding what action to take in future”.

The extent of his accessing of the various sites was shown in a large bundle of over 200 pages which contained a detailed record of all the ‘hits’ on particular sites and coloured print outs of what appeared on them. This material was not given to the Committee in advance and so they were particularly dependent on the manner in which the prosecutor presented the case and the specific matters to which he referred. They had an opportunity to consider the material when they retired to consider the appropriate penalty. The transcript shows that they retired from 1.10pm until 3.15 p.m. During that time they had lunch.

Mr. Truscott was interviewed by the matron and was dismissed by the Trust. That is hardly surprising and he could not have and has not made any complaint about it. The record of the interview was in the prosecutor’s possession and some of Mr Truscott’s answers were referred to in opening. The whole record of the interview was not put before the Committee and, I was informed to my amazement by Dr. Johnson who also appeared for Mr. Truscott at the hearing, was not in her possession. It seems his initial reaction was to say that he had accidentally accessed a site and that he could not get out because ‘once you get in it goes to different sites, you can’t get out of it’. That was hardly frank.

In due course, he admitted deliberately accessing at least three pornographic sites. The main one, which was visited on 4 nights, contained a warning on its cover in these terms:-

“This web site contains sexually explicit adult orientated material that is intended only for individuals 18 years of age or older … The material on these pages is ADULT ORIENTATED SEXUALLY EXPLICIT and related to XXX material. This site provides access to images of NUDE ADULTS possibly engaging in SEXUAL ACTS and other material of adult nature …”

He also admitted visiting two other sites. One contained the name ‘lolita’. This is said by CRHP to be of some importance since the word ‘lolita’ suggests images of underage girls. The cover of that site is copied. Under an illustration describing what is on offer, this is said:-

“ABSOLUTELY SHOCKING VIDEOS! Only on our site you will find really unique cases concerning loss of virginity. You must see this … More than 2Gb of Hardcore teenagers video. More than 20,000 of high quality photos! Take a .. tour right now”

Below this appears the following:-

“All models appering (sic) on the website are 18 years or older”.

The other website’s cover has a number of photographs of naked models in various poses. It appears to be a Dutch based site. It boasts the ‘hottest bookmarks’ and ‘more hot girls’.

Mr. Truscott claimed that many of the hits (and all of those which contained pictures of under age girls: there are a number of these) resulted from ‘cascading’. Each hit can generate up to 30 or 40 images on a single page, each being commensurately small in size and it would, as the prosecutor said, be physically impossible to have looked at the number generated in the time scale shown by the records. Cascading occurs when visiting one site results in the opening of a number of other sites. In the case of pornographic sites, this is done deliberately by the operators to lure the visitor into entering other sites which may take his fancy. It was accepted that there may well have been some cascading, but not that it happened with the frequency alleged. The case against Mr. Truscott was put in these terms:-

“… it is accepted that Steven Truscott may not have set out initially to deliberately access each and every one of these sites, to which we mean that there must be an element of some cascading but only some, the fact is that he did repeatedly and deliberately visit [some pornographic websites]. He, further, continued to go back, again and again, night after night, surfing the net accessing the images you see in your bundle at a time when he was supposed to be the nurse in charge of the Adolescent Unit. We say … he was deliberately setting himself adrift on the sea of internet porn … and that he did deliberately and repeatedly put himself into a position where he knew he was going to be accessing sexually explicit and offensive material”.

Later, the prosecutor said this:-

“What one does not have evidence of in this case is evidence of downloading of images to a separate file. This is in no way a suggestion in relation to Mr. Truscott, the case is not put on this basis, but with a professional paedophile one would expect to find those images in specialist files on their computer away from prying eyes”.

The circumstances and the records were put to the police. After investigation by the Vice Squad, it was decided that no further action should be taken as it was considered that the material was of an adult pornographic nature. It was accepted by the matron and the geography of the Unit confirmed that, so long as Mr. Truscott was at the computer, he could see if any of the patients sought to enter the treatment room and in any event they were forbidden to do so. None of the patients were at risk of seeing any of the material and there was no evidence that any had been directly harmed. There were some good testimonials and evidence was given by a nursing sister who had known Mr. Truscott for some two years and had worked with him when he was employed as an agency nurse awaiting the disciplinary hearing and who had been informed by him of what he had done of his excellence as a nurse. But there was a matter in aggravation in that he had been given a final written warning by his employer because he had taken prescription pain-killers from the hospital for his own use. He said that that had happened because he had a painful toothache and a phobia of dentists. The finding of an internal disciplinary body was that he had stolen drugs.

One matter of real concern lies in the observation of the Committee that they were ‘not completely satisfied that you have shown full insight into the seriousness of your actions’. When he gave evidence, Mr. Truscott said he was only aware in hindsight that he had been doing anything wrong because it would be distressing to a child if he had seen what was going on. When asked why he had not turned the computer off if he was unwillingly being cascaded with porn, his answer was ‘stupidity’. But he said he had learnt from what had happened and appreciated his responsibility to his patients. But he does not seem to have appreciated that he may require some help or counselling if he has a need to go to hard porn sites. He must presumably have got some sort of pleasure from what he was doing.

The director’s report to the meeting held by CRHP to decide whether to make a reference under s.29 of the 2002 Act is in the bundle. After citing the passage from the Committee’s reasons stating that the case had not been put on the basis that Mr. Truscott’s conduct had posed a risk to patients and the reference to the failure of the police to prosecute, he says:-

“This seems to ignore the fundamental point that this was a Paediatric Nurse with professional access to adolescents in the course of his everyday work who while on duty was accessing pornography which it can be seen included what I would consider to be a significant proportion of explicit images of girls (many apparently but some obviously) under the age of puberty far less the age of consent….There are about twenty images [of naked female children] amongst those supplied to us. We and the PCC have only been provided with a sample of probably more than a thousand images that were on the computer used by Mr. Truscott. If the images of naked children have been intentionally accessed then this is obviously worrying”.

At the meeting of the CRHP, legal advice was given that caution should be exercised in giving weight to allegations or arguments that had not been raised at the hearing before the PCC and on which Mr. Truscott had therefore not had the opportunity to make representations. Concern was expressed that the PCC had not considered whether the material accessed might show a proclivity for behaviour which would make it inappropriate for Mr. Truscott to work with children and adolescents. He had shown little insight into his misconduct and a lack of judgment in accessing the images when on duty in the Unit. The conclusion was expressed thus:-

“The meeting concluded that there was a risk that the images accessed by Mr. Truscott did evidence an unhealthy sexual interest in young people and that this might subsequently be reflected in Mr. Truscott’s work since he remained free to work with children and adolescents. It was recalled in this regard, and separately, that Mr. Truscott had already shown himself to have poor judgment in the workplace and little insight into the wrongfulness of his own actions. The meeting could not safely reach any conclusion on whether or not Mr. Truscott had intentionally accessed the images of young people. It considered, however, that the material before it disclosed a real risk and that it would be desirable to take action to protect the public if it were agreed that the sanction imposed was unduly lenient.

The meeting considered whether the sanction imposed by the PCC was unduly lenient. It noted that a more severe sanction was available and that Mr. Truscott remained eligible to practise. Indeed, Mr. Truscott had continued to practise in the field of paediatrics and this caused the meeting considerable concern in the circumstances of this case. Mr. Truscott had not shown any or sufficient insight into his admitted misconduct.

Attention was drawn to the fact that the web pages accessed by Mr. Truscott included a number that used the descriptions ‘teens’, ‘pre-teens’, ‘lolita’ or ‘barely legal’. Looking at the transcript, Mr. Truscott had also apparently admitted to visiting a site called ‘videololita’. There was no evidence as to whether Mr. Truscott had intentionally visited these sites and it was accepted that most of the sites with these descriptions were visited in one short period and that these visits might be explained by the concept of ‘cascading’ that Mr. Truscott had relied on at the PCC hearing. The meeting considered, however, that the PCC should have specifically addressed its mind to the risk implied by the presence of these web pages in the list supplied and to the existence of images of naked children or young people. In the circumstances where it was not clear precisely how and why Mr. Truscott came to access these images and where the PCC had not addressed itself to the risk that an interest in such images on the part of a paediatric nurse implied, it could not be said that the caution imposed afforded adequate protection to the public. Mr. Truscott remains free to work with children (and did so pending his disciplinary hearing before the PCC) and it could not be assumed that future employers would learn of the caution or of the facts underlying it”.