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

An appeal from a professional disciplinary decision is by way of rehearing. The court must decide whether the decision was wrong, while giving appropriate respect to the specialist tribunal’s assessment of professional standards and public protection.

Fitness to practise is directed principally to present and future suitability, rather than punishment for past misconduct. Past conduct remains relevant to the risk of repetition and present impairment. A finding of impairment may be justified by a series of serious failures, even where the practitioner has an otherwise good record and has taken remedial steps. Conditions of practice are proportionate where they address a continuing risk in a particular working environment.

The Nursing and Midwifery Council’s Conduct and Competence Committee found that a psychiatric nurse had committed misconduct by giving a patient unprescribed cough medicine, failing to commence or delegate basic life support after the patient was found hanging, and failing adequately to respond to the crash team. It found her fitness to practise impaired and imposed an 18-month conditions of practice order restricting her work to an NHS community mental health team for older adults.

The nurse appealed to the Administrative Court against both the finding of impairment and the sanction. The terms of the conditions were not challenged. The issues were whether the Committee had properly considered mitigation and whether the finding and sanction were wrong.

1. Appeal dismissed. The court dismissed the appeal against both the finding of impaired fitness to practise and the conditions of practice order. Costs were ordered in the sum of £1,700.
2. Under Article 38 of the Nursing and Midwifery Order 2001, read with paragraph 21 of the Practice Direction to CPR 52 and Part 52(11) of the CPR, the appeal was by way of rehearing. The court could allow the appeal where the Committee’s decision was wrong, quash it, substitute another decision, or remit the case. The court’s function was not limited to review, but the Committee’s specialist judgment deserved respect, particularly on professional standards and public protection. The principles in Azzam v General Medical Council [2008] EWHC 2711 were applied.
3. Fitness to practise is primarily forward-looking and protective, rather than punitive. Past misconduct must nevertheless be considered with present skills, subsequent conduct, training, references and other relevant evidence. The approach in Meadows v General Medical Council [2007] QB 462 and Cohen v General Medical Council [2008] EWHC 581 was applied.
4. The Committee was entitled to find impairment. The nurse was experienced, worked in an acute mental-health setting, and knew that the patient was actively suicidal. The misconduct comprised several serious failures: supplying unprescribed medication, failing to commence or delegate basic life support, and failing adequately to communicate with and assist the crash team. Her good record, references, current competence and further training were considered, but the Committee was entitled to remain concerned about repetition in an acute setting.
5. The conditions of practice order was proportionate. The Committee reasonably concluded that the nurse could work safely in a one-to-one community setting but that there was an unresolved risk in an acute inpatient environment. A caution or no action would not adequately address the seriousness of the misconduct and potential consequences of a future failure.

• Conduct and Competence Committee: found misconduct, impaired fitness to practise and imposed an 18-month conditions of practice order.
• High Court (Administrative Court): dismissed the appeal and ordered costs of £1,700.