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Fiona Graham v Nursing and Midwifery Council (2008) CSIH 45 The Inner House of the Court of Session has issued an important judgement in an appeal from a decision of the Nursing & Midwifery Council to remove a nurse’s name from the nursing register. The Inner House decided that this was a case where the sanction imposed was excessive and disproportionate and therefore it ought to interfere with the decision of a specialist professional disciplinary panel and substitute its own sanction. The case is a further example of the growing Scottish jurisprudence in professional disciplinary cases. SummaryIn Graham v NMC the court decided that:
FactsFiona Graham had been a qualified nurse for more than 35 years. On 24 March 2004, she was on duty at Glenochil Prison with another nurse, Nurse A. Both nurses had to deliver insulin pens to three diabetic patients for self-administration. Each pen consisted of a syringe containing the insulin and a cap. The name of the patient was written on the cap of the insulin pen as the pens were intend for repeat use by the individual patients, although there was no identification on the syringe. Ms Graham inadvertently attached the wrong caps to two of the syringes. After the insulin pens had been distributed and the patients had administered their medication, one of the patients advised Ms Graham that his insulin pen cap showed the name of another of the patients. Ms Graham and Nurse A thereafter failed to follow standard procedures for “needlestick” injuries as was required by such an incident. Ms Graham believed that the correct dosages of insulin had been administered to the correct patients in their own syringes and that there was therefore no need to report the incident. The charges before the NMC related to a failure to check that the insulin pen was the correct pen; a failure to institute needlestick injury precautions; a failure to make a note of the incident in the patient’s records and a failure to report the incident. The PCC decided to strike off Ms Graham and remove her name from the nursing register.
FindingsThe Inner House recognised that it should generally be reluctant to interfere with a decision made by a professional conduct committee, particularly when the appeal relates to the question of sanction. The appropriate test to be applied was whether the penalty imposed could properly be described as excessive and disproportionate (Ghosh v GMC [2001] 1 WLR 1915). It was necessary to consider the purposes of sanction including matters such as the punishment of the practitioner, the protection of the public and the protection of the reputation of the profession. The court found that while the PCC properly took into account the failure on the part of Ms Graham to appreciate the significance of her failure in professional duty at the time of the incident, they wrongly attributed to her a lack of remorse and approached the matter of her previous good record of professional conduct by concentrating solely on her failure to produce references and testimonials where a reason was given for this failure. The court decided that the PCC had taken into account some material which they should not have done and ignored other material which was not disputed. It also considered the issue of comparative justice in that no action had been taken against Nurse A. The court said that the disposal in Mrs Graham’s case, in the interests of natural justice, should have taken into account to some extent the failure to take any action against Nurse A, who on the face of it appeared also to have been in part similarly responsible for what occurred or did not occur after the incident. The court therefore found that the decision to strike off Ms Graham was excessive and disproportionate. The court quashed that decision and substituted a caution.
ConclusionThe judgement in Graham v NMC provides guidance on the test which must be applied when considering whether a sanction should be set aside. This case is an example of one of the rare occasions when a court decides to interfere with the decision of a professional body and substitute its own decision. The Inner House has also made clear that the conduct committee of a professional body must assess and evaluate each topic relevant to disposal from whatever source and arrive at an appropriate sentence. To access the judgement click here.
Further informationAnderson Strathern’s Regulatory, Healthcare and Public Law team acted for Fiona Graham through her professional body, the Royal College of Nursing in this appeal. The team acted for the General Medical Council (GMC) in the recent case of Dr James Swanney –v- GMC (2008 SLT 646) and also in the first case in Scotland from a decision of the GMC (Dr Julie Mallon –v- GMC 2007 SLT 3720). For further information on our professional disciplinary practice please contact Robert Carr. |
