Emeka Umerah v The Nursing and Midwifery Council

Mrs Justice McGowan DBE: Introduction

1. On 23 May 2024 the Nursing and Midwifery Council, (“the council”) through its Fitness to Practise Committee (“FtPC”) determined that the Appellant, Emeka Umerah, should be struck off the UK register of nurses. The council found that his fitness to practise as a nurse was impaired by reason of his misconduct. He now appeals under Article 38(1) of the Nursing and Midwifery Order 2001 (SI 2002/253) against that determination. He submits that the committee erred and asks that this court reverse that decision, or in the alternative, remit the case for a full rehearing.

2. The council heard the case against the Appellant on 13 to 24 November 2023 and 21 to 22 May 2024. The adjournment of proceedings meant that there was an unusually long break between the committee reaching its findings and deciding the sanction. The Charges

3. It was alleged that whilst working as a registered nurse on 6 September 2020 his conduct in dealing with a resident’s fall, (“A”), gave rise to concerns, further that his behaviour towards paramedics responding to the incident fell below the minimum standard required. The FtPC found, That, as registered nurse, the Appellant, 1) On 6th September 2020, failed to record and communicate Resident A’s fall as required: a) Failed to record in the ‘discussion with significant others’ section of the care plan that family had been contacted and at what time. b) Failed to contact Resident A’s family for at least 3 hours. c) Failed to make accurate records at the time of the incident. 2) On 6th September 2020, after colleague 1 informed you of Resident A’s fall, you failed to provide leadership; a) By failing to direct the carer to remain with Resident A after her fall. b) By delaying calling an ambulance.

4. The panel found that the Appellant’s conduct fell seriously short of the standard expected of a registered nurse and that failure amounted to misconduct. At a subsequent hearing the panel found that this misconduct impaired the Appellant’s fitness to practise, and the appropriate sanction was an order striking him from the register. History

5. Resident A was an elderly patient who suffered from Huntingdon’s Disease, she had a fall which was not witnessed and therefore unexplained, and which caused a visible head injury. The fact of the fall was reported to the Appellant by a care assistant.

6. The committee asked itself the correct and relevant questions as suggested by Dame Janet Smith in the 5 th Shipman Report and as endorsed by Cox J in Council for Healthcare Regulatory Excellence v NMC and Grant [2011] EWHC 927 (Admin) .

7. It was found as fact by the committee that the Appellant did not, i) Record in A’s care plan the conversations he had had with A’s family, ii) Contact A’s family for at least 3 hours, iii) Record the fact of the fall, iv) Provide leadership in that he did not ensure that a care assistant remained with A until the paramedics attended and v) Call paramedics to attend in good time.

8. The committee found that the Appellant’s misconduct had placed A at an unwarranted risk of harm, brought the profession into disrepute and breached fundamental tenets of the profession.

9. There is no challenge to those findings of fact, nor is it disputed that the failings amounted to misconduct. It is the finding that his fitness to practise is currently impaired as a result of that misconduct which is the subject of the appeal.

10. Having reached those conclusions the committee had then to decide if his misconduct was capable of being remedied, in principle it concluded that it was. However the committee found that there were concerns about the Appellant’s willingness to accept challenge and respond to feedback. It was their conclusion that he had failed to demonstrate any reflection or insight which might support the contention that there had been remediation of his misconduct. That position was not improved even though a further adjournment was necessary before the final determination hearing.

11. Rather the production of training certificates, some of which had expired, and evidence of visits to care homes was relied on to show any remediation. In the committee’s view such material did not support the necessary willingness to remedy the previous misconduct.

12. In determining the appropriate sanction the FtPC followed guidance and considered all the aggravating and mitigating factors, i) As aggravating the panel found a “Failure to act in a position of leadership; You were in a leadership role but failed to give appropriate guidance or act in any way which demonstrated a willingness to take responsibility in a serious situation Consistent lack of insight into failings; Your insight is limited with a reflective piece confined to considering the events of 6 September 2020 in only general terms and restated the facts as you see them Deep seated attitudinal issue; You demonstrated an attitudinal disregard towards Patient A’s wellbeing and the need for your staff to be properly led, adopting an almost ‘bystander role’ throughout Concerns relate to basic aspects of nursing care Not being open and transparent by attempting to deflect the blame elsewhere” ii) In mitigation the panel accepted that the Appellant had undergone relevant online training, and heard personal mitigation in private.

13. The FtPC then considered every level of sanction, in ascending seriousness, from taking no action up to striking off. The decision is set out over approximately 50 pages. Whilst the length of a judgment does not determine its correctness, it cannot be said that this was not a through consideration of the issues. Legal Framework

14. To succeed in his appeal the Appellant needs to show that the decision about sanction was wrong within the meaning of CPR 52.21(3), namely that the decision was (a) wrong, or (b) unjust because of a serious procedural or other irregularity. It has to be shown that it fell outside the bounds of what the FtPC could properly and reasonably decide. It is not sufficient that I disagree.

15. The seminal guidance on sanction in professional conduct cases was given by Sir Thomas Bingham MR in Bolton v Law Society The panel determining such cases is [1994] 1 WLR 512 . “best placed for weighing the seriousness of professional misconduct”. Again, in Ghosh v GMC he made it clear that this court must accord appropriate respect to the expertise of the panel in reaching a judgment about the sanction necessary to maintain professional standards and provide adequate protection to the public. This court does not have that expertise. In [2001] 1 WLR 191 Ghosh it was recognised that panel, tribunal or committee decisions to strike off attract the protection of Article 6 of the European Convention on Human Rights. The process must be conducted fairly, the subject must understand the reasons and the adjudication must be capable of appeal.

16. It is obvious that the duty to give reasons required those reasons to be sufficiently clear to explain the findings reached so that the parties can understand the finding, and the court on appeal, can decide whether the decision is “sustainable”, as per James Mumby P in Re F (Children) at {22}. [2016] EWCA Civ 546

17. The decisions reached by such committees and tribunals have been described as “an evaluative, multifactorial decision involving a mixture of fact and law”, Bawa-Garba v GMC . This court can only interfere if there was an error of principle or the determination falls outside the bounds of what a tribunal could properly and reasonably decide. [2018] EWCA Civ 1879

18. The principles are clear, this court cannot interfere simply because it would not have reached the same conclusion or finds the decision harsh. Grounds of Appeal

19. Ground 1 submits that the panel was wrong, unfair and or erroneous because, “1. The committee failed to properly evaluate the mitigating features of the case when considering the sanction options that were available to the committee. And in particular, the alternative sanction options to their making a striking off order.

2. The committee did not consider all of Mr Umerah’s mitigation when considering the suitability of alternative available sanctions options to a striking off order.

3. The NMC have contravened Article 23.1 of the Universal Declaration of Human Rights in that Mr Umerah is unable to obtain favourable employment and has suffered financially as a result of the striking off order.”

20. Ground 2 argues that the committee was wrong to conclude that the Appellant posed a risk to patients in determining the issue of current impairment, and further, that in relying on that erroneous finding in determining sanction it reached an invalid decision. It is said that the findings on insight and remediation were irrational, again that it acted erroneously in relying on those conclusions in determining sanction.

21. Ground 3 argues that the decision to strike off was disproportionate, inappropriate and punitive. Submissions

22. This appeal starts from the fact that the Appellant accepted the committee’s findings of fact. The written grounds and skeleton argument were amplified in oral argument. It was pointed out all the events found proved had occurred on the same day and within a fairly short compass of time. The Appellant was a relatively newly qualified nurse and had taken remedial steps.

23. It was argued that having found that the misconduct was capable of remediation the FtPC was wrong to find that such remediation had not been achieved by attendance on the training courses, even if they had been completed during an adjournment of the proceedings after the findings had been reached. It was said that this court should ask itself if an order striking the appellant off was the only solution.

24. The Respondent argues that the finding of a failure to remediate was clearly made out, further that the Appellant failed to take advantage if the “gift” of the adjournment in the proceedings which had given him an opportunity to tackle the list of things that needed to be addressed and show the FtPC that not only was remediation theoretically possible but he had demonstrated that it was happening to some practical effect. It was submitted that the completed courses did not demonstrate an awareness of the problem or a willingness to tackle the issue.

25. The personal difficulties of financial loss and family ill-health were unfortunate but the duty and responsibility of the committee was the protection of the public, both from harm to patients and also from damage to public confidence in the nursing profession as a whole. The committee does not set out to impose punitive sanctions but if the public protection requires a strike off then the fact that it has a punitive effect does not preclude such an outcome. Discussion

26. It is accepted that the findings of fact are unimpeachable. The appeal, in reality, is a rehearing on sanction, in the hope of a different result. The Appellant knew the findings of fact after the committee had given its judgment but either did not accept them or did not accept that they obliged him to demonstrate that he was capable of remediation. He had not demonstrated that fact sufficiently before the hearing and clearly did not see the requirement to do more that was effective during the additional time allowed by the adjournment. A failure to recognise the seriousness of the findings and the weaknesses in his conduct as a nurse is a falling below the required standard. It is also a worrying aspect that notwithstanding the findings, the Appellant was not sufficiently inspired or motivated to demonstrate acceptance and a willingness to improve.

27. It is the function of a committee such as the FtPC to assess conduct and to gauge willingness to improve and progress. This court does not have that expertise and should only interfere if the committee has made an obvious error of principle or procedure. Neither is present in this case and accordingly, the appeal is dismissed.