High Court concludes that dishonesty in covering up inadequate clinical care required a finding of impairment

High Court concludes that cover up of inadequate clinical care required a finding of impairment

Summary

In the case of Professional Standards Authority for Health and Social Care (PSA) v Nursing and Midwifery Council (NMC) and Ndlovu [2019] EWHC 1181, mental health nurse Ndlovu was working with a more experienced colleague on a mental health unit Crisis Resolution and Home Treatment Team. Their role was to assess whether community-based patients presenting in apparent mental crisis, were such a risk to themselves or others that they required admission to the unit.

A patient was brought for assessment by a case worker concerned about ‘suicidal ideation’. Nurse Ndlovu and her colleague concluded, following assessment, that admission was not necessary. The patient was offered home treatment, but refused to leave and eventually had to be escorted from the building by security guards. No record was made of the patient’s current telephone number so the unit was unable to call for follow-up. A home visit was instead arranged for the following day, but there was no answer. Later that day the patient was found dead on a railway track.

Details

Nurse Ndlovu and her colleague were interviewed for the subsequent hospital trust investigation and provided statements to the coroner, giving an account of their assessment. However, it later transpired that the patient had recorded the assessment on a mobile telephone and when this was interrogated, the nurses’ account was revealed to be false. In the subsequent NMC proceedings, six instances of incorrect/false information were found to have been provided at trust interview and eight instances in the written report to the coroner. Some of these in effect blamed the patient suggesting, falsely, for example that the patient had not answered questions and had agreed with the home treatment decision.

The Committee found proven (mostly by admission) a number of clinical allegations. These included:

  • That there had been an inadequate mental health assessment.
  • Failure to obtain sufficient information to undertake an adequate risk assessment and documentation failures, all of which were said to have contributed to the loss of a material chance to prevent the death.
  • In addition the Committee found proven the allegations of dishonesty (denied by Ms Ndlovu) in relation to the account given of the assessment. She had known the assessment had been inadequate and had, dishonestly, attempted to cover up that fact with her colleague by providing a misleading account.

The Committee found impairment on the basis of the need to uphold standards and maintain public confidence in the profession, but not on public protection grounds. In relation to this the Committee accepted that she had learned a great deal from the incident and noted her strong record during the intervening three years. It held that she had an extremely good level of insight, had remediated her clinical failures and was at a low risk of repeating the errors. It imposed a caution order for 36 months.

The PSA challenged, amongst other matters, the Committee’s failure, given proven dishonesty, to make an impairment finding on public protection grounds. The PSA also challenged the caution order as failing to reflect the seriousness of the misconduct involved. The NMC’s panel were too lenient in imposing a three-year caution on a mental health nurse who had admitted clinical failings in assessing a patient who subsequently killed themselves, and had dishonestly attempted to cover up her failings during an internal investigation and in a report to a coroner. She had failed to take responsibility for her serious dishonesty and her fitness to practise should have been regarded as impaired on public protection grounds.

Conclusion

The court agreed with the PSA, concluding that the panel's decision was plainly flawed. The nurse’s clinical assessment had fallen seriously short of the standard expected, and those clinical failings contributed to the loss of a chance to prevent death. Honesty is the bedrock of the profession and was essential in response to internal (and coronial) investigations seeking to understand and learn from the death. Instead the nurse sought to cover up the truth (including by blaming the patient, a particularly serious aspect of her dishonesty) and would have succeeded, but for the patient's recording.

Despite remediation of her clinical failings, she had not faced up to, fully appreciated and taken responsibility for her dishonesty, and hence her fitness to practise should have been regarded as impaired on public protection grounds also. Dishonesty to a coroner ran the risk of prejudicing an inquest which was also flatly against the public interest.

Quashing the caution order as not reflecting the seriousness of the misconduct, the court noted that the NMC’s dishonesty guidance indicated that a nurse who dishonestly concealed clinical failings was likely to receive a severe sanction. The court noted that Ms Ndlovu’s colleague had received a six-month suspension ‘as opposed to a more serious sanction’ and remitted the issue of sanction in Ms Ndlovu’s case back to a fresh fitness to practise panel, for reconsideration.

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