Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor

The charges against the Registrant stated as follows:

“1.

On or around 11 March 2020 while Patient A was restrained on the floor:

a)

thrust a chair at Patient A’s head;

b)

Kicked patient A in the head one or more times.

2.

Failed to disclose on an application form to Homerton University Hospital dated 30 April 2020 that you had been employed by Cygnet Health Care.

3.

On 19 May 2020, during an interview at Homerton University Hospital, failed to declare that you had been dismissed from your employment with Cygnet Health Care.

4.

Failed to disclose on a declaration form dated 21 May 2020 that you had been dismissed by Cygnet Health Care.

5.

Worked on 4th and/or 5th July 2020 as a registered nurse in breach of an interim order (IO) in that you:

a)

worked for Day Webster when your practice had been confined to working for Trust Care Solutions Ltd and Pertemps Medical Professionals;

b)

failed to ensure that you were supervised whilst working as a nurse.

6.

Breached your conditions of practise order in that you failed to disclose your conditions of practise immediately, or at all, to:

a)

Day Webster Group;

b)

Homerton University Hospital.

7.

Your conduct in Charges 2, and/or 3 and/or 4 and/or 6b was dishonest in that you deliberately sought to mislead Homerton University Hospital by withholding this information.

8.

Your conduct in charge 6a was dishonest in that you deliberately sought to mislead Day Webster Group by withholding this information.

AND in light of the above, your fitness to practise is impaired by reason of your misconduct.”

The hearing before the Committee took place on 7 days between 9 and 17 January 2023. The fact-finding stage took 5 days. The Committee considered documents and statements filed by both parties. The Committee received written and oral evidence from the Registrant and oral evidence from five witnesses called by the NMC, including from “Mr 1”, a healthcare support assistant at the Hospital who was present during the incident on 11 March 2020.

On 13 January 2023 the Committee handed down its decision on the facts. On 16 January 2023 the Committee heard submissions, and handed down its decision on misconduct and impairment. On 17 January 2023 the Committee heard submissions, and handed down its decision on sanction. The Decision document itself contains the Committee’s determinations on the facts, and on misconduct and impairment and on sanction.

In her oral evidence, the Registrant described Patient A hitting her. She said it was her responsibility to coordinate the restraint to make sure that the patient was safe. She expressly denied that she had thrust a chair at Patient A’s head and that she at any time kicked Patient A in the head. She denied stamping on Patient A. She confirmed as true her evidence, given earlier at the investigation meeting on 6 April 2020, that she had not touched the patient and that she had not kicked. She added that she was frightened and she was traumatised because she had already been attacked by a chair. In cross-examination in relation to Patient A’s letter, she said that the handwriting was not his and the letter was written for him for the investigation. When pressed she said “yes he was making it up because he was spoon-fed by the staff”. In re-examination she maintained her claim that there were staff behind the letter.

As regards the suggestion that at the time of the incident, the question of giving medication to Patient A arose, Mr 1 had said in his evidence in chief that once the patient was on the floor it would be the other team - the nursing team - which would decide whether the patients require medication to manage the agitation, and decide whether to offer oral or intravascular injection.

The Registrant provided evidence of training by way of certificates. She attended and completed a one-day refresher programme on restraint techniques on 5 October 2020 and on basic life support and moving and handling on 6 October 2020. She attended and completed a one day refresher course on restraint techniques again on 2 October 2021 and again on 30 September 2022. She provided “reflection” statements on a number of occasions, the last being dated 20 November 2021.

The Decision is in a number of parts. First, the Committee set out its findings of fact in relation to the allegations.

In summary, the Committee found as follows:

In relation to charge 1(a) the Committee recorded that at the investigatory meeting the Registrant had said that she was giving the chair to another nurse and denied using it to thrust at Patient A. That evidence was repeated before the Committee. Her explanation was inconsistent with the CCTV footage. The Committee concluded that “while Patient A was restrained on the floor, you thrust a chair at Patient A’s head”.

In relation to charge 1(b), the Committee recorded that, in oral evidence, the Registrant denied kicking or stamping in the direction of Patient A’s head and said that she was pulling her leg away from Patient A. In relation to the first alleged kick, the Committee could not see from the CCTV whether the Registrant’s foot impacted Patient A’s head. However in relation to the slightly later footage, the Committee concluded that the Registrant can be seen kicking in the direction of Patient A’s head. It found that the Registrant’s explanation was inconsistent with the CCTV footage and preferred the evidence of Mr 1 (namely, that the Registrant had kicked or stamped Patient A in the head). The Committee concluded that it was clear that the Registrant had propelled her foot towards Patient A’s head and it was immaterial whether it was a kick or a stamp. Patient A would not necessarily have been able to register what type of impact it was. Further the Committee was satisfied that the Patient A’s letter of complaint broadly supported the evidence of Mr 1 and the CCTV footage. The Committee concluded that “while Patient A was restrained on the floor, you kicked Patient A in the head one or more times.”

In relation to charge 6(a), the Committee concluded that the Registrant had not sent the Interim Order to Day Webster when she had received it but had attempted to send it one week later. Whilst typing the email address for Day Webster incorrectly was understandable, the Committee considered that the Registrant had a responsibility to inform Day Webster and that she had not done this. There was no evidence that the Registrant made a further attempt to inform Day Webster of the Interim Order. However, in relation to charge 8, the Committee found that this failure to inform Day Webster was not intended to mislead and thus was not dishonest.

In relation to charge 6(b), the Committee concluded that, because of the precise terms of condition 6(a) of the Interim Order, the Registrant was under no obligation to inform the Trust rather than Day Webster on the basis that she was working bank shifts with the Trust through her agency, Day Webster. On that basis this charge was found not proved.

In relation to charge 7, and charge 2, the Committee “was satisfied that your intention was to mislead Homerton Hospital in order that you could secure a bank position” and that the Registrant was dishonest. Similarly, in relation to charge 4 (the Declaration Form) the Committee did not accept the Registrant’s explanation that she had drafted the form before receiving the letter of dismissal. The Committee was of the view that “you intentionally attempted to mislead Homerton University Hospital to secure a bank position” and that her actions were dishonest.

Following the further hearing, on 16 January 2023 the Committee made the determination on misconduct and impairment.

The Committee addressed misconduct at pages 33 to 36 of the Decision. It concluded that charges 1, 2, 4 and 7 (in respect of charges 2 and 4) amounted to misconduct. However, the Committee found that charges 5(a) and 6(a) were not sufficiently serious to amount to misconduct. It considered the errors to be “administrative mistakes and misunderstandings”. However its consideration of charge 5(a) was confused and, in my judgment, erroneous. The Committee appeared to consider that charge 5(a) related to condition 6 of the Interim Order, rather than breach of condition 1. As a result the Committee did not expressly consider whether the admitted breach of condition 1 (i.e. confining practice to working for the two named agencies) amounted to misconduct.

The Committee found that the Registrant’s actions fell significantly short of the standards expected of a nurse and that her actions amounted to a breach of “The Code: professional standards of practice and behaviour for nurses and midwives” (“the Code”). After referring to paragraphs 1, 20 and 23 of the Code the Committee noted that there were three areas of concern, namely the incident with Patient A; dishonesty relating to the job application; and breaching of the Interim Order.

In relation to the incident with Patient A, the Committee stated:

“It bore in mind that Patient A had struck you prior to the hospital staff restraining him and consider that your reaction, in the fast moving events covered in charges 1 (a) and 1 (b) was a reaction to this. However, the panel considered that there still would have been an expectation for a nurse of your standing and experience, to control your reaction and remain professional.”

The Committee pointed out that the Registrant was the nurse in charge during the incident and concluded that “your actions in this case were deplorable and a serious departure from the standards expected of a registered nurse”.

In relation to the dishonesty, the Committee considered this to be a serious failing. It concluded that “your actions fell significantly short of the conduct and standard expected of a nurse to amount to serious misconduct”.

The Committee addressed impairment at pages 36 to 41 of the Decision. In summary, in respect of charges 1(a) and (b), the Committee decided that a finding of impairment was not necessary on grounds of public protection. However, in respect of charges 2, 4 and 7 a finding of impairment was necessary on public protection grounds. Further in respect of all the charges found to be misconduct, a finding of impairment was required to promote and maintain public confidence in the profession and uphold professional standards for members of the profession. In this way the Registrant’s fitness to practise was found to be impaired by reason of each of the established charges.

The Committee commenced by stating as follows:

“Nurses occupy a position of privilege and trust in society and are expected at all times to be professional. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients’ and the public’s trust in the profession.”

As regards the assault, the Committee concluded that the Registrant had in the past acted so as to put Patient A as an unwarranted risk of harm. In its judgment, the public did not expect a nurse to act as she did as they require nurses to adhere at all times to the appropriate professional standards and to safeguard the health and well-being of patients. Then, as regards dishonesty, the Committee was satisfied that confidence in the nursing profession would be undermined if its regulator did not find charges relating to dishonesty extremely serious.

The Committee continued that it had to make a current assessment of fitness to practise and that involved taking account of what had happened since the misconduct, and whether the concerns identified were capable of remediation, whether they had been remedied and whether there was a risk of repetition in the future. The Committee had therefore considered both the nature and extent of both elements of misconduct and whether the Registrant had provided sufficient evidence of insight and remorse.

Turning to the assault, the Committee stated:

“Regarding insight, in relation to [the assault], the panel took account of your reflective statements. It noted that you have expressed remorse for the incident, have undertaken relevant training and have had no repetition in the more than two years of work since the incident as shown by numerous testimonies from colleagues and line managers. The panel also noted that you stated, in your reflective statement, that your GP has referred you to cognitive behavioural therapy. You stated:

“… I engaged with the service and have found it very useful especially as that you have engaged with this and found it useful and it gives me a registered practitioner an opportunity to see treatment from the patient’s perspective. I feel I am in a much better position now to deal with patients if I found myself in a similar situation…”

The panel was satisfied that you demonstrated sufficient insight into these failings.”

On this basis the Committee concluded that the concerns arising from the assault were capable of remediation. In considering whether or not she had remedied her practice, it took account of the training certificates and the numerous testimonials which attested to her professionalism, her willingness to lead, to support staff and her kindness towards patients. The Committee continued as follows:

“The panel is encouraged by your professional development since the incident on 11 March 2020. The panel is satisfied that you have taken steps to address your failings and have demonstrated strengthened practice. The panel also took into account that you have been working since these incidents occurred and it was satisfied that there is no evidence to suggest that your misconduct will be repeated.

In light of your steps taken to strengthen your practice through training and clinical supervision, the positive feedback from colleagues and the fact that you are currently working without incident, the panel decided that a finding of impairment is not necessary on the grounds of public protection with regards to charges 1 (a) and 1 (b)”.

In this way, the Committee appears to have concluded that it was satisfied that there was no substantial risk of a repetition of the assault.

The Committee then turned to consider the issue of remediation in relation to dishonesty, stating that dishonesty is often said to be less easily remediable than other kinds of conduct. The Committee stated:

“While the panel found two instances of dishonesty relating to your job application, it noted that it had no evidence before it to suggest that this had happened before or since. The panel was satisfied that this was a one-off incident.”

In relation to insight, the Committee noted that the Registrant’s reflective statement did not address the impact that her dishonesty had had on colleagues and in bringing the nursing profession into disrepute. “As a result, the panel determined that you had demonstrated insufficient insight on this matter”. The Committee continued:

“Although the panel did not find a deep-seated attitudinal problem in your case, the lack of sufficient insight into your dishonesty indicated that there is a risk of repetition. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection.”

Finally, turning to consider the overriding objectives of the NMC and in particular public confidence and upholding professional standards, the Committee made a finding of current impairment on grounds of upholding proper professional standards and public confidence in respect of both the assault and the dishonesty. It concluded that:

“Your fitness to practise is currently impaired by reason of misconduct on public interest grounds”.

At pages 41 to 51 of the Decision, the Committee then proceeded to the sanction stage. After recording the parties’ submissions, at pages 44 to 49, it set out its “Decision and reasons on Sanction”.

The Committee started by stating that it had had careful regard to the Sanctions Guidance and that the decision was a matter for the panel independently exercising its own judgment. The Committee went on:

“The panel took into account the following aggravating features:

•

Your conduct placed a vulnerable patient at a risk of harm whilst they were under your authority as the Nurse in Charge;

•

There was a personal interest by not declaring your most recent employer on your application form.

With regards to the dishonesty found in this case, the panel had regard to the NMC Guidance “Considering sanctions for serious cases” (Reference: SAN-2), which stated:

“…In every case, the Fitness to Practise Committee must carefully consider the kind of dishonest conduct. Not all dishonesty is equally serious…”

The panel noted that your dishonesty in this case placed patients and colleagues at indirect risk. It considered that by depriving your employers of important information, they were unable to put mechanisms in place to support you and protect patients.

However, the panel reminded itself that while it had found two instances of dishonesty relating to your job application, it noted that it had no evidence before it to suggest that this had happened before or since. It noted that this was not a longstanding deception and bore in mind that the numerous testimonials you provided suggest that this was out of character for you.

In light of the above, the panel determined that your dishonesty in this case was not at the upper end of the spectrum of seriousness.

The panel also took into account the following mitigating features:

•

A 30-year unblemished career in healthcare;

•

A single instance of dishonest conduct;

•

Positive steps taken to remediate the concerns pertaining to the March 2020 incident;

•

Your insight into the March 2020 incident demonstrated an ability to reflect that can be applied to the outstanding issues;

•

Numerous testimonials from colleagues, your current line manager and supervisor;

•

You have worked with the same employer for a year with no concerns raised;

•

No previous regulatory history.

The panel also took account of the personal mitigation raised by Mr Buxton in his submissions pertaining to the financial aid you provide for the care of your son, although noted that personal mitigation carries less weight in regulatory than in criminal cases.” (emphasis added)

The Committee then, in turn, considered as possible sanctions: no action, a caution order, a conditions of practice order. It rejected each. The Committee then continued.

“The panel then went on to consider whether a suspension order would be an appropriate sanction. The SG states that suspension order may be appropriate where some of the following factors are apparent:

•

No evidence of harmful deep-seated personality or attitudinal problems;

•

No evidence of repetition of behaviour since the incident;

•

The Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour;

The panel found no evidence of harmful deep-seated personality or attitudinal problems in your case. There has been no repetition of the behaviour since the incident and the panel was satisfied that you demonstrated remorse into your misconduct and evidence of reflection that the likelihood of repetition is low. While you have not yet demonstrated insight into the dishonesty, the panel decided that you show potential to do so if given an opportunity.

In light of the above, the panel considered that your misconduct was not fundamentally incompatible with your remaining on the register and that the public interest could be marked by a suspension order.

The panel did go on to consider whether a striking-off order would be proportionate but, taking into account all the information before it, and of the mitigation provided, the panel concluded that it would be disproportionate. Whilst the panel acknowledges that a suspension may have a punitive impact, it would be unduly punitive in your case to impose a striking-off order.

Balancing all of these factors the panel has concluded that a suspension order would be the appropriate and proportionate sanction.

The panel noted the hardship such an order will inevitably cause you. However, this is outweighed by the public interest in this case.

The panel considered that this order is necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse.

The panel determined that a suspension order for a period of 12 months is appropriate and proportionate in this case to mark the seriousness of your misconduct. It also considered that this period of suspension would allow you time to sufficiently reflect on the impact your dishonesty had on patients, colleagues and the nursing profession.

The panel determined that a suspension order, unlike a striking off order, would also provide the opportunity to return an otherwise experienced nurse with a previously unblemished record to practice. It considered that it is in the public interest to return nurses to the Register where possible.

At the end of the period of suspension, another panel will review the order. At the review hearing the panel may revoke the order, or it may confirm the order, or it may replace the order with another order.

…” (emphasis added)

The PSA puts forward five grounds of appeal as follows:

The NMC supported the PSA’s position, pointing out that the assault involved the use of a foot and a chair, as a weapon, and emphasising the fundamental incompatibility of the Registrant’s conduct.

The Registrant in oral argument, made an emotional address to the court. She explained that she has been in the profession for 40 years. She is a mental health nurse, partly because she herself has a child in care, which is challenging. She has loved her job; it was her passion. She asked the Court to show mercy and give her another chance. Striking her off would make her destitute. She had made her reflective statements and has had training. She was practising since the incident between 2020 and 2023 and nothing untoward had occurred; the hospitals where she worked had given her references. She was working at Barnet and Enfield until 16 January.

As regards the incident on 11 March 2020, she told the Court that she was on shift and in charge. There had already been a serious incident with Patient A on the day. She seemed to suggest that in the de-escalation room in the CCTV footage, Patient A was being given medication. However when I pressed her about this she did not answer my question about whether that happened in the course of the CCTV footage or after. In fact the evidence is that medication was dealt with later, after the incident. I found her to be evasive on this subject; she appeared still not to accept or be able to explain the kick or what happened with the chair. I have also considered in detail her reflective statements and the many testimonials which speak highly of her and her practice.

In oral argument, Mr Mant for the PSA put ground (2) ahead of ground (1).

The PSA submits that the Committee were wrong to find that the Registrant’s conduct was not fundamentally incompatible with continued registration and that striking off would be disproportionate (even accepting its findings on insight and mediation). The Committee made two errors.

First, the Committee mischaracterised the conduct, failing to identify key aggravating features and erring in its identification of mitigating features. As regards the assault, the Committee’s descriptions of the assault significantly underplayed the gravity of the Registrant’s actions. Moreover the Committee made no mention of other features of the assault. As regards the dishonesty, the Committee’s reasons for finding that the dishonesty was not at the upper end of the spectrum of seriousness are flawed. Further the Committee erred by treating the assault and dishonesty as separate. Only one of the mitigating factors related to the inherent seriousness of the conduct. The other mitigating factors were all personal mitigation, which should have been given limited weight.

Secondly, the Committee failed to appreciate the profound impact that such conduct has on public confidence. The conduct was likely significantly to harm public confidence in the profession. The Committee failed to address whether suspension was sufficient. The Committee wholly failed to address the guidance at FTP-3a. Where conduct has an impact on public confidence, matters of personal mitigation should be given limited weight. The Committee’s stated reasons indicate a clear failure to follow these principles. None of its stated reasons touch on the inherent seriousness of the underlying conduct or its impact on public confidence.

The PSA submits that the Committee’s assessment of the Registrant’s attitude and insight was manifestly wrong. Contrary to the finding of no evidence, there was at least some evidence of a deep-seated personality or attitudinal problem. Further, the finding that the Registrant had sufficient insight was unsustainable. The Court can and should interfere because there are basic flaws in the Committee’s logic. First, insight requires that motivations and triggers are understood; secondly, there was no evidence that the Registrant had reflected on, or understood, what caused her to assault Patient A; and thirdly, the Committee was wrong to place reliance on: the Registrant’s expressions of remorse; the annual refresher courses; and her cognitive behaviour therapy.

The PSA submits that the Committee was wrong to find that the Registrant did not breach the Interim Order by failing to disclose the conditions immediately to the Trust. The interim order required her to disclose the conditions to any organisation for whom she worked and not limited to the agency.

This concerns the finding that the Registrant worked for Day Webster when under the Interim Order she was required to work only for two other agencies; and secondly the finding that she failed to disclose her conditions of practice immediately to Day Webster. The PSA submits that the Committee was wrong to find that these breaches did not amount to misconduct. A breach of an interim order is a serious matter whether it is dishonest or not. The Committee failed to address the inherent seriousness of a breach of interim conditions. Working for Day Webster in breach of the Interim Order was a deliberate breach. The Registrant must have known she was only permitted to work for two agencies. These breaches should have been considered by the Committee as part of an overall course of conduct which reflected an attitudinal failing and added to the overall seriousness of the case. They should be taken into account as additional reasons why suspension was not sufficient.

The PSA submits that the Committee failed to provide adequate reasons for its decisions that (1) the Registrant had sufficient insight; (2) there was no evidence of deep-seated personality or attitudinal issues; (3) the misconduct was remediable and not fundamentally incompatible with continued registration; (4) the public interest could be sufficiently marked by a suspension order; (5) that it was appropriate to depart from the relevant guidance.

In my judgment the Committee made a number of errors both of principle and of evaluation in the Decision - both in its findings on sanction, and in its underlying findings of misconduct and impairment upon which the decision on sanction was based. Whilst the PSA has helpfully sought to identify distinct grounds of appeal arising from these errors, I consider the points raised in Grounds (1) to (4) compendiously. (In light of my conclusions, I do not address Ground (5) distinctly).

By way of general observation, in its consideration of impairment, whilst referring to the need for honesty and integrity, the Committee failed to mention the duty of a nurse to ensure that patients do not come to harm, whilst in their care. In what is a fundamentally caring profession, for a nurse deliberately to cause harm to a patient is antithetical to the pursuit of the profession. Public confidence in nurses relies not just on honesty and integrity, but on their commitment to caring for, and not deliberately harming, vulnerable patients. The Committee’s analysis of impairment and sanction omitted reference to this aspect of public confidence in the profession.

First, as regards the assault, the Committee’s description of the nature of the misconduct, as being a reaction in response to fast moving events, misrepresents the true position and understates its seriousness. It is clear from the CCTV that the assault was not a reaction in the heat of the moment. At the point of the assault, Patient A had been fully restrained by six male members of staff (other than the Registrant) and was lying prone on the ground. He presented no threat to the Registrant. The Registrant first deliberately took a chair from a colleague to use it against Patient A and secondly, after standing away for a time, walked around his body and went back to kick him for a second time. The Committee failed to take account of these facts. Moreover, the Committee erred in referring to, and relying upon the Registrant’s “standing and experience” as a reason for characterising the assault as misconduct. It was irrelevant. Any nurse, however inexperienced, would have known how to control his/her reactions and to remain professional. Furthermore, this was not a case of merely placing Patient A “at risk of harm” (see paragraph 82 below). These assessments of the Committee were evaluative judgments, which, on the evidence, no reasonable tribunal could properly have reached.

Secondly, as regards the assault, the Committee’s finding of no impairment on grounds of public protection is flawed for two reasons. First, the Committee’s distinction between public protection, and other “grounds” of impairment is confused and wrong in principle. “Public protection” is the over-arching objective (see Article 3(4), section 29(4) and the Sanctions Guidance); the other “grounds” of public confidence and professional standards are sub-aspects of public protection (see Article 3(4A) and section 29(4A)). Secondly, and more significantly, the finding itself was based the Committee’s finding of sufficient insight into the assault, “capable of remediation” and thus no risk of repetition. However this finding failed to take account of the following facts:

Whilst this Court will be slow to interfere with a tribunal’s findings on insight, in my judgment, these flaws in, and omissions from, the Committee’s assessment and reasoning are so fundamental that no reasonable tribunal could have concluded that the Registrant has sufficient insight into the assault.

Turning to the dishonesty, it was repeated, at least to the extent that the Registrant on two occasions separated by three weeks, made false statements, each of a somewhat different nature. To this extent, the Committee’s finding that the dishonesty was one-off is open to question. Moreover the dishonesty was not subsequently repeated because it was discovered by the Trust. The Committee found that the Registrant had shown insufficient insight into her dishonesty, that there was a risk of repetition and on this basis made a finding of impairment. Moreover, the dishonesty and the assault formed part of a single course of conduct, thereby aggravating the seriousness of both elements. In these circumstances, I consider that the Committee erred in its evaluation that the dishonesty was at the lower end of the spectrum.

Before turning to specific sanctions, the Committee addressed aggravating and mitigating features. The Committee understated one of the two aggravating features it relied upon, namely that the assault placed the Patient A at “risk of harm”. This was a significant understatement. The Registrant’s assault was not negligent or reckless; it was deliberate and intended to cause actual harm. It will necessarily have caused at least some actual harm – both physical and psychological.

Further the Committee overstated the relevant mitigating features. Of the 7 mitigating features which the Committee identified, two related to insight into the assault, which for the reasons set out above, I consider to have been misplaced. Then, as to dishonesty, even if broadly related, there were two separate aspects of dishonesty. Finally three of the features amounted effectively the same thing, namely previous “good character”.

In my judgment, the Committee erred in principle in its application of the Sanctions Guidance concerning a suspension order and fundamental incompatibility with continued registration.

Having ruled out lesser sanctions, the Committee turned to consider a suspension order. When it did so it went straight to the checklist of factors in the Sanctions Guidance at SAN-3 indicating where a suspension order may be appropriate. Then, having identified three such factors as applicable to the Registrant, only then did it consider whether the misconduct was fundamentally incompatible with continued registration, and found that it was not incompatible, precisely because of the three “suspension” factors it had found. The Committee then went on to state that striking off would be disproportionate and unduly punitive. Finally, in preferring a suspension order over a striking off order, it placed reliance upon the Registrant’s “unblemished record”.

In my judgment, in adopting this approach, the Committee erred in principle. It failed to give any proper consideration to whether the Registrant’s conduct was fundamentally incompatible with continued registration. Having ruled out lesser sanctions, when the Committee turned to consider a suspension order, it should have considered, first, whether this was a case of fundamental incompatibility. The Guidance provides, at the outset, that suspension may be appropriate “in cases where the misconduct isn’t fundamentally incompatible”. This suggests that prior to considering the checklist of factors favouring suspension, fundamental incompatibility should be considered first.

Secondly, in its approach, the Committee failed to consider sufficiently the impact of the Registrant’s conduct on public confidence in the profession and failed to consider a significant part of the Guidance relevant to this issue. Whilst stating, at the outset of its consideration of sanction, in general terms that it had had careful regard to the Sanctions Guidance, the Committee failed to refer to, and there is no indication that it took account of, the highly material guidance (FTP-3a) relating to “Serious concerns which are more difficult to put right”. This guidance to which the Committee’s attention is expressly drawn in the Sanctions Guidance itself, when considering “striking off”, is set out in paragraph 31 above. Of the serious concerns identified in that guidance, three are present in this case – deliberate harm, deliberately false employment history, and practising in breach of restrictions. Such concerns are very difficult to remediate, because of the impact of such conduct on public confidence. Yet, there is no evidence that the Committee gave any consideration to this guidance and the “authoritative steer” which it gives: see Khetyar, paragraph 23(7) above. In this regard, the Committee erred in principle and that error undermines its conclusion that the misconduct in this case was not fundamentally incompatible with continued practice.

Thirdly, the three factors which the Committee relied upon to support a suspension order (and as the reasons not to find fundamental incompatibility) were matters of personal mitigation. They do not concern the seriousness of the underlying conduct or its impact upon public confidence. To rely upon matters of personal mitigation in this way was contrary to the approach identified in Bolton (paragraph 23(1) above), where the essential issue remains maintaining public confidence in the professions and where matters of personal mitigation are of less weight. Moreover the Committee failed to take into account the Guidance at SAN-1 (paragraph 27 above) that in cases of fundamental incompatibility, panels should bear in mind there will be usually be only extremely limited circumstances where the concept of a “previously unblemished career” will be a relevant consideration.

Fourthly, in rejecting a striking off order, the Committee made further errors. It did not give clear reasons for its conclusion that striking off would be disproportionate: see SAN-1 and paragraph 23(7) above. Moreover its express reliance on the “overly punitive” effect on the Registrant of striking off again ran contrary to the proper approach identified in Bolton.

The Committee found that there was no evidence of harmful deep-seated personality or attitudinal problems. In the light of the foregoing, this is a finding which no reasonable Committee could properly have reached on the evidence before it. There was at least some such evidence - namely: the circumstances of the assault itself; the Registrant’s response to the initial investigation; the subsequent dishonesty; her response to the clinical manager’s discovery of the breach of the Interim Order; and her denial of the allegations before the Committee. Moreover the Committee’s own findings in relation to the dishonesty (insufficient insight and risk of repetition) is at odds with this finding of “no evidence” of such problems. Despite this finding of insufficient insight, the Committee went on to rely on “potential for insight” as a reason not to impose a striking off order. In my judgment, the Committee erred in not placing greater reliance upon the then current absence of insight (despite the passage of time) as a factor indicating a more severe sanction, as opposed to relying upon possible future insight as a reason not to impose that sanction. Further, for the reasons given above, in so far as the Committee relied upon the Registrant’s insight into the assault as a basis for favouring a suspension order, its findings on insight were flawed.

Finally the Committee made two further clear errors. First, in my judgment, its finding that charge 6(b) was not proved was wrong, as a matter of pure construction of paragraph 6(a) of the Interim Order. Even though she may have been directly “employed” by the agency Day Webster, she was “working for” the Trust. She was therefore required to, but did not give, a copy of the Interim Order to the Trust. Secondly, the Committee completely failed to consider whether charge 5(a), which the Registrant had admitted, amounted to misconduct. Charge 5(a) concerned working for Day Webster, rather than Trust Care or Pertemps in breach of paragraph 1 of the Interim Order. In its consideration of misconduct in the Decision, the Committee wrongly confused this charge with the charges relating to paragraph 6 and notification of Day Webster and the Trust (i.e. charges 6(a) and 6(b)). But for these two errors, the Committee could, and in my judgment, should have gone on to find two further instances of misconduct. (As regards charges 6(a) and 8 and not notifying Day Webster immediately, I am not satisfied that the Committee’s finding was wrong). Breach of conditions of practice is expressly identified in FTP-3a as another of the serious concerns which are more difficult to remediate. These two further findings of misconduct, not accounted for by the Committee, provide additional reasons why the sanction of suspension was not sufficient in this case.

In the light of the foregoing analysis, in concluding that a suspension order was the appropriate sanction and in finding that striking off order was disproportionate, the Committee made errors of principle in its evaluation of the material and its decision fell outside the bounds of what it could properly and reasonably have decided in the present case. Taking account of the cumulative effect of these errors, the Decision was not sufficient for the protection of the public within section 29(4) of the 2002 Act. Accordingly, the Decision was wrong and will be quashed.

I have considered whether, in these circumstances, the appropriate order is to remit the case to dispose of the case in accordance with the Court’s directions. However, since the suspension order imposed by the Committee was for the maximum period of 12 months, in my judgment no purpose would be served by remitting the matter to the Committee. In my judgment, the only appropriate sanction is a striking-off order. Accordingly, the appropriate remedy is for this Court to substitute the sanction of striking-off.

For all the foregoing reasons, this appeal is allowed. The Committee’s sanction determination dated 17 January 2023 is quashed and I substitute for it an order directing the registrar to strike the Registrant off the register.

I shall hear the parties as to the form of the order, costs and any other consequential matters that may arise.