Jalloh, R (on the application of) v Nursing & Midwifery Council of Great Britain

MR JUSTICE SILBER: The Nursing and Midwifery Council of Great Britain ("the respondent") brought regulatory proceedings against Miss Kadiatu Jalloh ("the appellant"), which culminated in a final hearing before the Conduct and Competence Committee ("the committee") and which concluded on 16 January 2009.

The charges against the appellant, who is a psychiatric nurse, were as follows:

The facts alleged in charges 1 and 2c were admitted and findings of fact in respect of those charges were made. The facts in charges 2d and 2e were denied by the appellant, but they were found proved. No appeal is made against those findings that those charges were proved. The committee then went on to find that the appellant's fitness to practise was impaired and it then made, against the appellant, conditions of practice orders for 18 months. The conditions were that:

The appellant appeals against the decisions, first, that her fitness to practise has been impaired and, secondly, against the imposition of the conditions of practice order, which I have just recorded. The terms of those conditions are not challenged on this appeal, but merely the fact that conditions were opposed as a sanction for the appellant's behaviour.

For the purpose of completeness I should add that similar charges were made against another nurse, Miss Nongauza, who was a shift coordinator on the day in question. She faced an additional charge which was that she had filled in a risk assessment in patient B's medical record after the incident on 3 September 2004, and that she had predated it for 3 September 2004. The charges against her and the appellant were tried together. Miss Nongauza did not attend the hearing and she was not represented. The charges were found proved against her. The committee made a finding of impairment of fitness to practice against her. Her name was struck off the register. She has not participated in this appeal.

Before dealing with the grounds of appeal, it is appropriate to deal with the basis upon which an appeal can be brought. Article 38 of the Nursing and Midwifery Order 2001 provides that appeals may be brought in respect of any decision of the committee not being an interim order to the High Court. Paragraph 21 of the Practice Direction to CPR 52 provides that such appeals be by way of rehearing. There is no requirement for permission to appeal. Part 52(11) of the CPR provides that the appeal court will allow an appeal where the decision appeal was "wrong". Pursuant to Article 38 of the Nursing and Midwifery Order 2001 the court may not only allow the appeal and quash the decision appealed against, but substitute for the decision any other decision which the Practice Committee could have made, or may remit the case back to the Practice Committee.

It is common ground that the case of Azzam v General Medical Council [2008] EWHC 2711 sets out the relevant principles as to how a court should approach such appeal, because in paragraph 55 it is recorded that:

The first challenge that is made relates to the finding of an impairment of fitness to practise. It is appropriate to consider how the courts have regarded the way that a disciplinary body should approach these matters, because fitness to practise is not defined by the Nursing and Midwifery Order 2001, nor under the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended by the Nursing and Midwifery Council (Fitness to Practise) (Amendment) Rules Order of Council of 2007). The Nursing and Midwifery Council has defined "fitness to practise" in its internal guidance documents as follows:

(I should explain that both counsel in this case implicitly accept that authorities relating to doctors are equally applicable to this appeal before the court today.)

I must now summarise the facts of the cases. On the night-shift in question the appellant was one of the staff of four who were working in an acute mental health ward. She and Miss Nongauza were the only two registered nurses on duty and there were also two health care assistants. There were approximately 18 patients on the ward and it was at full capacity. The patient, who is the subject of the complaint, was admitted on the previous night when the appellant had been on duty. He had been admitted by his general practitioner because of suicidal tendencies and he was on 15-minute observation.

In respect of charge 1, on the evening in question, patient B went into the office and he asked the staff for his bottle of cough medicine which he brought into the ward the night before, and which had been put away by the staff in accordance with the procedure. This was correctly refused because patients should not be given medication which was unprescribed by doctors on the ward. Patient B became angry and hostile at the refusal and said that he wanted to discharge himself. The appellant managed to calm him down. Not long afterwards patient B appeared again at the office, again demanding his cough mixture and again he was hostile and angry. Ms Nongauza then told the Appellant to give patient B the bottle and it was agreed between the appellant and Miss Nongauza that the doctor would be called. The appellant gave the patient his bottle of cough medicine.

Moving now to charge 2C, which related to the failure to ensure that basic life support measures were taken in support of patient B prior to the arrival of the crash team, the facts are that a short time after the events relating to the cough mixture bottle, the appellant and Miss Nongauza were beckoned to a smoking room by a health care assistant where they saw a patient hanging from the ceiling by a ligature around his neck. The alarm was pressed and the two women tried to lift the body upwards to relieve the strain. They could not lift him and had to release him.

The evidence as to what occurred next does not appear to be very clear. The nurses seem to have run for scissors to cut the ligature. The other health care assistant on the ward was fetched to help and also the two male patients on the ward were fetched in order to hold up the body. Miss Nongauza telephoned the bleep holder and then the crash team. One person was able to climb around a ledge at the edge of the room and, while the two patients were holding up the patient, the ligature was cut and the patient was put on the floor.

At some stage a health care assistant from another ward answered the initial alarm and went into the smoking room. She watched the patient being cut down by Donald and two patients then left the room. She helped Donald remove the ligature whereupon Donald left the room, leaving her alone with the patient. At some stage another nurse called Ula from another ward arrived answering the initial alarm. The health care assistant Daniel and the nurse, both in different wards, were thus alone with the patient. They made some attempts to start the resuscitation but since they could not clear his mouth, they were unable to do so.

The appellant's evidence was after the initial flurry of activity, she waited for the crash team at the door to the ward in order to let them in. There is no precise evidence as to when the crash team arrived, but one of the doctors on the crash team, Dr Harker, said that the crash call had been made at about 10pm and she would have taken about four minutes to arrive. Another of the doctors on the crash team, Dr Plymen, said that the crash call had been made about 10.15pm and she took about two minutes to arrive. At some stage shortly before the crash team arrived, or as the crash team were arriving, the appellant took the resuscitation trolley into the smoking room.

Moving to charge D, which relates to the failure to respond adequately to requests for information from the crash team. The position was that when these two members of the crash team asked questions of the people in the smoking room as to who the patient was, whether he had been on medication, when he had been admitted and the information which was provided to them was apparent, they only received one word answers or inadequate responses. The crash team asked who was in charge of the ward and someone fetched Miss Nongauza. The evidence was that it was only when Miss Nongauza was brought into the room that anyone told the crash team that the patient had been found hanging, although the crash team had, it seems, suspected that from seeing the ligature.

The appellant's evidence was that she answered any request for information that she heard from the crash team, but that she was in and out of the smoking room, in part trying to keep the remaining patients on the ward, who were curious, out of the way, and she was in part trying to ring security and obtain things such as a sample bottle for blood which the crash team had requested.

As to charge 2e, two members of the crash team gave evidence that they asked for items of equipment off the crash trolley, such as suction, a laryngoscope, an ambubag, but that no one had given them to them and so the Senior House Officer, who was part of the crash team, had taken over the role of getting the equipment. There was some evidence about the trolley being inadequately stocked with part of the laryngoscope being missing. There were gloves on it, suction was present on the trolley, but it had not been appreciated by those present that it was not the usual style. The appellant's evidence was that she did not recollect being asked for such matters such as a laryngoscope, an ambubag and that she had been out of the room.

It seems that the findings of fact against the appellant in respect of charges 2d and 2e were mainly on the basis that the appellant had, during a subsequent investigation, written an account in which she said that when the crash team were in the smoking room she had stayed there. Her evidence to the committee was that she had written that account in response to a section that she had not been on the ward at the time at all, such that when writing the document she was not concentrating upon the precise movements. Rather she gave an overall impression that she stayed in the area. As I have explained, charges 2d and 2e were proved and they are not subject of appeal.

The appellant accepts that in spite of mitigating circumstances, charge 1 shows that the appellant ought not, contrary to procedure, to have given the patient a glass bottle which had cough mixture in it and ought to have given it with authorisation from a doctor, and under no other circumstances. As to charge 2, it seems that in spite of mitigating factors, the appellant ought to have ensured that her priority, once the patient was cut down, was to commence or delegate basic life support on the patient and then to assist the crash team once they had arrived.

The approach of the committee was that it considered that on the basis of the allegations found fitness to practise was impaired by reason of misconduct. They explained in page 3 of their reasons that:

The first ground of challenge is that the committee failed to consider any of the mitigating factors relating to the particular event which led to the charge, or if it did consider those factors it did not explain why they were irrelevant. In respect of count 1 it is said that the mitigating factors were that the patient was hostile and angry, that the appellant was told to give the patient the bottle by the shift coordinator and that the giving of the bottle to the patient was an attempt to stall him leaving the ward.

It is true that the patient was hostile and angry, but this must be a reasonably common occurrence on an acute admissions ward. The task for the appellant was to use legitimate techniques to deal with the situation. It is also accepted that the appellant was told to give the patient the bottle by her colleague, who was the shift coordinator, nevertheless the appellant was an experienced nurse and the shift coordinator of the same grade as her colleague. In other words, the person who gave the appellant the bottle had no authority over her and so the appellant was accountable for her own actions.

The mitigating factors which are put forward in relation to charge 2 are that the event was very traumatic and upsetting and that it was likely to cause a degree of panic in any profession. That is no doubt true, but it must be appreciated that the appellant was a trained and experienced mental health nurse who worked in the ward for a number of years. There was evidence from Dr Harker that she never experienced a response like this. Her explanation is that people usually with stress are distressed and anxious, but there will be lots of action. In her view, the proper approach to expect would be that people would be desperately trying to make things better.

Another mitigating factor is said to be the lack of any practical training or any drills as to what should occur in the case of handling. It appears that the appellant had received some theoretical training on how to respond to a hanging, but the appellant's failure was really to carry out or instruct others in respect of basic life support, and respond to requests from the crash team once the patient had been cut down. The appellant should have responded in the same way as she would have done to, for example, a cardiac or respiratory failure. Therefore, I do not consider much weight, if any, should be attached to that or the other mitigating factors. It is also said in respect of count 2 that having four staff on duty was arguably not sufficient to deal with the ward properly. Evidence was given to the committee that this was the correct staffing establishment and more staff could have been provided if the staff on duty considered it necessary. Indeed, the appellant would have been under a duty to take steps if she considered the staff levels were inadequate.

It is also said that a mitigating factor was that there was a lot of equipment on the trolley which impeded the resuscitation and that this was not the responsibility of the respondent.

This point has to be considered against the background that the appellant's case was not that she tried to find equipment and failed, but that it was really that she had failed to assist. It is said that there was a lack of communication between staff generally. The task of the appellant as a registered nurse was to communicate effectively and there was evidence about her failure to do so. A final mitigating factor is that these events occurred in a short period of time. That clearly is correct because there was some evidence given that the patient was left without resuscitation for about five minutes.

The position here is that the appellant as a trained nurse should have known the great urgency that was indeed required, and that the effect of delaying treatment could lead to the patient suffering brain damage due to lack of oxygen reaching the brain. In my view, this submission of the appellant cannot be upheld.

The next ground of challenge is that the events in question were very rare. It must not be forgotten that the nature of the unit in which these matters occurred and a suicide attempt could be a wholly unexpected event. In addition, a request by a patient for something which required a doctor's authority was also not an unexpected matter.

The third ground is that there was much evidence of the appellant's excellent conduct both before and after the event. This came in the form of a bundle of references from colleagues and former colleagues and the references were all glowing stating things such as the appellant was reliable competent, committed and knowledgeable. There was evidence as well that she had reacted well to emergency situations.

As I explained, the committee did take into account the appellant's unblemished record and they said, and there is no reason to doubt it, that they had taken into account all aspects of the evidence and the submissions that have been put before them. I have no doubt that the able submissions made on behalf of the appellant by Miss Ewins today in this hearing would have also been made below. So the committee could have been in no doubt about the significance of her references.

A fourth matter that was relied on was that there was oral evidence of the appellant's professional practice from a Dr Rao, who is a consultant psychiatrist, who is currently in charge of a team in which the appellant was working at the time of the committee hearing. He gave evidence that the appellant exhibited a high degree of professionalism, managed emergencies in a timely and effective manner, was reliable, conscientious, accountable and that she displayed a high degree of competence in all aspects of nursing practice. He regarded her as one of the most competent nurses he had worked with. He said "there was no stress in her practice" and that she was a very, very calm person. The respondents sought to belittle the value of this evidence.

In my view the only basis for limiting the value of this was significant in that Dr Rao was not the appellant's line manager or supervisor at the relevant time. It is noteworthy, as I have explained, that the committee specifically took these matters into account. The response of the respondents was that the committee had indicated in its reasons that it had taken all the evidence into account and that it reached decisions which were totally correct.

In my view there are a number of very serious aggravating features of this case. I start by dealing with the background against which the evidence has to be considered. First, the appellant was an experienced mental health worker who had worked on the same unit for nearly three years prior to the misconduct. Second, the standard to be expected of her was to be considered not only in the light of that fact, but also that she was working in an acute admissions unit. She must therefore be used to dealing with patients suffering from extreme ill health, including patients who are suicidal or harm themselves, or are likely to be suicidal or to harm themselves. Third, B was a vulnerable patient whose notes gave clear information that he was actively suicidal and had a history of serious attempts at suicide and self-harm. He was somebody who was a vulnerable person entitled to expect high care.

Against that background, there were a number of serious aspects of the appellant's conduct. Dealing with them chronologically she gave a glass bottle of unidentified prescribed liquid to the patient without having exhausted the other options available to her, such as de-escalation and administration of prescribed medication or calling for assistance. She accepted the behaviour of the appellant could have been interpreted as drug seeking behaviour, nevertheless she gave him the unidentified liquid which she brought in. It is striking also that the appellant failed to comply with the NMC code of conduct which in paragraph 8.5 deals with the professional duty to provide care in an emergency and also with her employer's policy, which would have required her to give basic life support and to instruct other persons to do so. Her conduct was also worthy of justified criticism because of what happened when the crash team arrived. She failed to assist them by failing to respond adequately to requests from them for both information and full equipment. Her failure to communicate was also a matter which I have referred.

The overall picture that is given is of a series of serious mistakes by the appellant, a failure to comply on a number of occasions with proper procedures and a disregard of the interests of a vulnerable patient. This was not the case of one error, but a series of errors. Even after taking account of the mitigating factors there was a great deal of evidence which showed that because of the appellant's repeared failures her fitness to practise was impaired. I agree with the committee in reaching the decision which they did, especically as there was a risk of repetition.

If I had been in any doubt on this, which I am not, I would have reached the same conclusion by bearing in mind what McCombe J said in the Azzam case, which is that the judgment of the Panel deserved respect as the body best qualified to judge what the profession expects of its members and the measures necessary to maintain the high standards of the profession, as well as the fact that the Panel's judgment should be given particular respect concerning standards of professional practice and treatment. I should point out that the Panel consisted of three members, two of whom were nurses, one of whom had psychiatric experience, and that would be a relevant factor.

I now move on to the question of the sanctions. The way that this was dealt with by the committee was by stating that:

They then impose the sanctions, to which I have referred. The case for the appellant is that if a fitness to practise order had been found the most serious sanction which should have been imposed was a caution, although the primary case was that no action was appropriate.

The thrust of the submissions made by Miss Ewins was that there was inadequate consideration given to whether a caution would have been an appropriate sanction. She drew attention to the indicative sanctions guidance regarding whether a caution is appropriate and that the relevant factors were:

Applying those factors in this case she says that there is no evidence that the misconduct would not have caused harm to a patient. Indeed there is evidence that there was a serious risk of harm caused to the patient. As I have explained, allegations 2d and e were contested at the hearing, but it seems from what has been said by the respondents that the remaining charges were not admitted at an early stage. As to whether or not this incident was isolated, it is correct that it happened in the course of one shift, but there were a number of separate and serious failings. Whether or not the appellant showed adequate remorse or apology was a matter that only the committee could have considered. It appears that this point was drawn to their attention and they had the advantage of having seen the appellant giving evidence. There was no evidence of duress, which would have been relevant, at all. They did take into account, as I have made clear, the previous good history of the appellant and also that there had been no repetition of the misconduct, although it seems the appellant had worked in the same setting. There was also evidence in favour of the appellant that she had taken some further training. She had received some training before, but it seems she had not worked in the same field since the accident. Her strongest point was her good record and the references. These were taken into account. The committee was entitled to have concern about the appellant's ability to prioritise and how she acted on this occasion. There was, in my view, a serious failure on her part to perform essential duties, or to ensure that they were properly complied with, and the Panel could not be satisfied there was not a risk of repetition.

At the end of the day I come to the conclusion that the conditions that were imposed were a proportionate response to the proven failure to the appellant. The committee was entitled to have concern about her ability in the future to respond to a similar incident in an acute setting. It must not be forgotten that the consequences in the future of a failure to act, and to act correctly, could be very serious. At the end of the day I take the view that the imposition of conditions cannot be impugned. If I had been in any doubt, which I am not, I would have, for the reasons explained by McCombe J, given great respect to the decision of the committee.

It must be some consolation, I think, to the appellant that having listened to the way the case has been conducted by Miss Ewins she can be totally satisfied that it was done in a highly competent and very skilful way. Anybody who had listened to it would have appreciated the fairness of her approach and the diligent way in which she had prepared for it. I very much hope that once the 18-month period is up that the appellant's ability to work will not be impaired. The appeal must be dismissed.

MISS MCDONALD: My Lord, I am grateful for that. In that case I apply for my costs. There is a schedule before the court. It is a modest claim in the sum of £1,700.

MR JUSTICE SILBER: It contrasts quite sharply with yours. The reason is obviously somebody is employed.

MISS EWINS: It is not contested.

MR JUSTICE SILBER: In that case I order the costs in that sum. Can I thank you both and your predecessor very much for the very skilful way you did it and the speedily way in which the points were justified. I am particularly impressed by both the written and the oral advocacy. Can I thank you both very much for that.