August 15, 2019

Patient’s secret recording reveals nurse’s lack of candour

When a medical professional is repeatedly dishonest about their interactions with a patient, is their fitness to practise impaired on public protection grounds, as well as on public interest grounds? Can this dishonesty be mitigated by subsequent remediation?

In Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council and Ndlovu [2019] EWHC 1181 (Admin) the court addressed these issues. Ms Ndlovu was a mental health nurse. In March 2015 she assessed a patient at Leicester Royal Infirmary. She and a colleague determined that the patient did not require admission to hospital and sent the patient home. Shortly afterwards, the patient was found dead.

The Trust carried out a serious incident investigation (SII) and interviewed Ms Ndlovu. She checked the record of the interview and confirmed it was accurate.

A coroner's inquest then took place. Ms Ndlovu prepared a report for the coroner.

The Trust then discovered that the patient had secretly recorded the assessment on a mobile phone. Ms Ndlovu's SII interview record and her report to the coroner were not consistent with the mobile phone recording.

Ms Ndlovu was referred to the NMC. She admitted that she had failed to perform an adequate assessment but denied dishonesty in relation to her subsequent accounts. She stated that she had "done her best" and had not intended to mislead. The panel held that Ms Ndlovu had dishonestly provided incorrect information about the assessment, during both the SII investigation and the coroner's inquest. They determined her fitness to practise was impaired on the grounds that public confidence in the profession would be undermined, and imposed a three year caution. The PSA appealed.

The court held that the panel's decision was flawed. By being dishonest Ms Ndlovu had jeopardised both the internal investigation and the coroner's inquest. These were both essential in preventing similar events occurring in the future and there was the additional risk of prejudicing an inquest. Such dishonesty was clearly contrary to the public interest. She twice breached her duty of candour. As such, Ms Ndlovu's fitness to practise must have been impaired on public protection grounds.

The panel had also placed too much emphasis on her remediation. She could not have fully remediated when she was still denying dishonesty at the FTP hearing.

In light of this, the sanction imposed was inadequate. It failed to reflect the seriousness of the misconduct. The panel's decision to impose a caution was "outside the boundaries of what it could reasonably determine". The case was remitted to a fresh panel to determine the appropriate sanction.

It is axiomatic that the duty of candour extends beyond patient interactions and covers subsequent investigations. Here, the professional was dishonest to the internal investigation then again to the coroner. She compounded it by denying that her behaviour amounted to dishonesty. What could have been a clinical error was then compounded by her response. In hindsight, Ms Ndlovu may reflect that had she been candid from the start she was unlikely to have found herself in this position and, perhaps, to have been before the NMC at all.