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Nurses sought to cancel erasure

23 Mar 2017

Ed Madden, BL

Ed Madden looks at a recent High Court case in which two nurses brought an application seeking to cancel a decision that their names be erased from the register of nurses.

In January 2017, the High Court delivered its judgment in a case in which two nurses brought an application under section 39(3) of the Nurses Act, 1985, seeking to cancel a decision of An Bord Altranais (“the Board”) that their names be erased from the register of nurses. The decision of the Board followed an inquiry by a Fitness to Practise Committee (“the Committee”) into allegations of professional misconduct. The allegations arose in connection with the death of a highly dependent patient at the Heatherside Hospital in Cork in 2006.

The plaintiffs, Nurse Margaret Marian (Rita) Dowling and Nurse Ellen Teresa Anne Carroll, did not challenge the findings of the Committee that they were guilty of professional misconduct. Rather, they contended that the Board failed sufficiently to take account of mitigating factors when considering the appropriate sanction.

When the matter came on for hearing, the Court was told that Hannah Comber died in the early morning of June 22, 2006, while the two nurses were on duty. Apparently, she slipped down in a chair, which had a restraint belt, resulting in her being asphyxiated.

The Court was told that some hours prior to Ms Comber’s death, she was in bed and became agitated. The two nurses took her from the bed and placed her in a chair in the day room under the supervision of a care assistant. It seems the care assistant fell asleep while “supervising” Ms Comber and that the accident occurred while the patient herself was asleep.

At about 5am, the assistant raised the alarm. Nurse Dowling arrived on the scene and made some efforts to resuscitate the patient using CPR; shortly afterwards, she discontinued those efforts in the belief that the patient was already dead. Nurse Carroll arrived shortly after Nurse Dowling. They transferred Ms Comber to her bedroom, “laid her out on her bed and changed her clothes”.

Before going off duty at approximately 8am, Nurse Carroll completed two documents: ‘The ‘Heatherside Hospital night report’ and the ‘Communication Sheet’. The documents contained the following entries regarding Ms Comber: “remained restless, out to commode at 1.30am”, “requested to get dressed and get up. Dressed and sat on chair in dayhall. Continued to talk loud until 4am. Dozed in chair until 5am. Slipped off chair. Unresponsive. Put back to bed. Vital signs absent RIP.”

Nurse Dowling was fully aware of the entries made by her colleague. Significantly, there was no suggestion that Ms Comber’s death might have been caused by the restraint belt, or indeed that she died from anything other than natural causes.

A nurse who came on duty at 8am was told that Ms Comber had “slipped down or slumped in her chair”. She passed the information to a doctor, who attended the hospital at the request of the matron on duty. Because the death was unexpected, the doctor decided that the matter should be referred to the coroner, and contacted the gardaí.

Later that day the pathologist, Dr Margaret Bolster, tele-phoned the doctor to inform him that the cause of death was consistent with asphyxia. The gardaí arrived at the hospital to interview relevant members of staff and later took statements from those concerned.

The garda investigation did not result in any criminal charges. However, the circumstances surrounding the death of Ms Comber led to the holding of a coroner’s inquest in April 2007, which returned a verdict of death by misadventure. The HSE commissioned its own investigation, which reported in 2008 but apparently has not yet been published.

In her judgment, Ms Justice Ní Raifeartaigh said it was a striking feature of the case that a period of nearly nine years elapsed between the death of Ms Comber and the decision of the Board on sanction.

While the regulatory body did not take any formal steps to suspend the nurses from the register, or prevent them from working, they were suspended from their employment shortly after the events in question and have not worked since. There was medical evidence that each of them had suffered from stress and anxiety since the death of Ms Comber.

Dealing with the issue of delay as a mitigating factor when deciding on sanction, the judge said the only delay that should be considered was on the part of the disciplinary body. The only period where the Board’s conduct of the case could be described as unreasonably long was the first four years; thereafter, a variety of factors caused delay. These included the bringing of judicial review proceedings by Nurse Dowling, and a request by Nurse Carroll that the Board not proceed with her own case until her colleague’s application was decided.

The judge referred to the fact that the Board, in its correspondence with the nurses, dated March 25, 2015, in which it outlined its reasons for imposing the sanction of erasure, made no specific reference to delay (and only referred in a generalised manner to mitigation). It should have been made clear whether the Board was taking into account any period of delay and, if so, the extent to which that influenced the ultimate decision on sanction. The delays that occurred in the first four years of the proceedings before the Board should have been considered as a mitigating factor.

The judge next turned to three mitigating factors identified in the Report of the Fitness to Practise Committee, which had influenced that Committee’s decision to recommend to the Board that the two nurses be censured: (1) it was a once-off incident; (2) the lack of a stated policy in the hospital to deal with unexpected deaths; and (3) the insight displayed by both nurses at the Inquiry “as regards the inadequacy of the documentation drawn up in the aftermath of Ms Comber’s death”.

The Board, in its correspondence with the nurses dated March 25, 2015, did not refer explicitly to any of the factors identified by the Committee. The fact that the nurses’ conduct was “at the upper end of the scale” did not necessarily dictate that the penalty imposed had to be the most severe available.

Overall, the Court was not satisfied that the Board had properly approached the matter of sanction with adequate regard to mitigating factors. Having taken that view, the Court was faced “with something of a conundrum” in terms of how best to proceed. It did not have power to substitute its own sanction for that imposed by the Board. Neither would it be appropriate for the Court to quash the sanction, leaving the misconduct unpunished.

The Court went on to quash the decision imposing sanction and directed that the Board reconsider the matter in the light of the Court judgment, with particular regard to the issue of mitigation.

Reference: [2017] IEHC 62

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