The Nursing and Midwifery Council was “unduly lenient” in a case against a mental health nurse who failed to report an “assault” on a patient by a colleague, a High Court judge has ruled.
The case only came to light recently following intervention by the Professional Standards Authority for Health and Social, the organisation that oversees the NMC and other professional regulators.
In April 2011, band 5 nurse Duncan Macleod observed a colleague “goading” a vulnerable mental patient and then “assault” the individual by jumping on her back and placing her in a headlock. The patient subsequently hit the charge nurse with a hairbrush, injuring her.
“In the light of the judge’s comments, we will be considering the way we charge such misconduct in the future”
While Mr Macleod noted the attack on the band 6 nurse in patient records, he only revealed the full extent of the incident – which took place on a specialist acute psychiatric ward – five months later when it was being investigated by police.
He reported the patient had first been verbally abused and threatened by the nurse, who then used an inappropriate method of restraint.
Mr Macleod appeared before an NMC conduct and competence committee for failing to complete a serious incident report and not immediately raising safeguarding concerns about his colleague’s conduct. He was given a nine- month conditions of practice order.
But the PSA appealed, arguing that the NMC had been too lenient in its sanctions. The PSA also claimed the regulator had failed to draft charges that reflected the gravity of the misconduct in the case and that “dishonesty” should also have been a factor.
High Court judge Ms Justice Andrews ruled in the appeal case that followed that the NMC’s original decision could not stand because of a “serious procedural irregularity”.
The NMC’s charges should have reflected the fact he had failed to raise concerns immediately because he had put the interests of a colleague first, she said.
However, it was not obvious Mr Macleod had been dishonest when he did not report his colleague’s inappropriate conduct at the time, she said. Instead, she concluded he was “seriously misguided” and motivated by a misplaced sense of loyalty and a “reluctance to whistleblow”.
The initial NMC decision was overturned and the case will be heard again. The regulator said it would review its procedures as a result.
“We accept the court’s decision in the Macleod case,” said an NMC spokeswoman. “In the light of the judge’s comments, we will be considering the way we charge such misconduct in the future.”