Perez v an Bord Altranais

• Jurisdiction: Ireland
• Judge: Mr. Justice Diarmuid B. O'Donovan
• Judgment Date: 29 November 2005
• Neutral Citation: [2005] IEHC 400
• Docket Number: [2005 No. 85 Sp]
• Court: High Court
• Date: 29 November 2005

[2005] IEHC 400

THE HIGH COURT

[No. 85 SP/2005]

PEREZ v BORD ALTRANAIS

BETWEEN/

GLORIA PEREZ

APPLICANT

AND

AN BORD ALTRANAIS

RESPONDENT

NURSES ACT 1985 S38

NURSES ACT 1985 S39(1)

NURSES ACT 1985 S39

NURSES ACT 1985 S6

NURSES ACT 1985 S38(1)

NURSES ACT 1985 S13(2)

O'LAOIRE v MEDICAL COUNCIL UNREP KEANE 27.1.1995 2000/21/7913

MEDICAL PRACTIONERS ACT 1978 S46(1)

DOUGHTY v GENERAL DENTAL COUNCIL 1988 AC 164 1987 3 WLR 769 1987 3 AER 843

MCCANDLESS v GENERAL MEDICAL COUNCIL 1996 1 WLR 167

NURSES ACT 1985 S39(9)

EMPLOYMENT:

Disciplinary procedures

Nurses - Professional misconduct - Whether applicant's conduct fell short of standard of conduct expected among nurses - Whether such conduct constitutes professional misconduct - O'Laoire v Medical Council (Unrep, HC, 27/1/1995) and Doughty v General Dental Council [1988] AC 164 followed - Nurses Act 1985 (No18), s 39 - Decision to remove from register upheld (2005/85Sp - O'Donovan J - 29/11/2005) [2005] IEHC 400; [2005] 4 IR 298

Perez v An Bord Altranais

Facts: The Fitness to Practice Committee of An Bord Altranais found that the applicant was guilty of professional misconduct. The applicant appealed to the court pursuant to s. 39 of the Nurses Act 1985 against the decision to erase her name from the register.

Held by O'Donovan J. in confirming the decision of the Fitness to Practice Committee that he was satisfied that the applicant was an incompetent nurse and did not take appropriate measures to develop and maintain the competence necessary for professional practice.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 29th day of November, 2005.

2 In a report dated the 29th day of July, 2004, following an inquiry held pursuant to the provisions of s. 38 of the Nurses Act, 1985, the Fitness to Practice Committee of An Bord Altranais found that the applicant, Gloria Perez, was guilty of professional misconduct in respect of several of the allegations detailed in the said report. Given that those allegations were considered in detail in the course of the hearing of these proceedings and that each of them is the subject of an adjudication herein, it is unnecessary, I think, that I should review them at this stage.

3 Following the said report and in consequence thereof, it was decided by the said Committee at a meeting held on the 10th day of February, 2005, that the name of the applicant be erased from the register of nurses pursuant to the provisions of s. 39(1) of the Nurses Act, 1985.

4 The applicant has challenged the said decision of An Bord Altranais on the grounds ( inter alia) that the said Committee erred in law and/or in fact in its conduct, determination and finding that the applicant was guilty of professional misconduct and has appealed to the court pursuant to the provisions of s. 39 of the Nurses Act, 1985 against the decision to erase her name from the said register.

5 The general allegation against Gloria Perez is that, notwithstanding long training, she has persistently failed to acquire adequate knowledge of her duties and has consistent difficulty with basic nursing skills which it is alleged amounts to "professional misconduct". In this regard, by virtue of the provisions of s. 6 of the said Act of 1985, An Bord Altranais has a responsibility ( inter alia) to promote high standards of professional conduct among nurses and by virtue of the provisions of s. 38(1) of the said Act, is empowered ( inter alia) to apply to a Fitness to Practice Committee, within the meaning of s. 13(2) of the Act, to inquire into the fitness of a nurse to practise on the grounds of misconduct. The expression "professional misconduct" in the Nurses Act, 1985, is not defined in the Act. However, its meaning was considered by Mr. Justice Ronan Keane in the course of a judgment which he delivered on the 27th day of January, 1995 in a case of Sean Antoine O'Laoire v. The Medical Council (1993 No. 552 SP); a case which was concerned with the provisions of s. 46(1) of the Medical Practitioners Act, 1978, the provisions of which are analogous to those of s. 39 of the Nurses Act, 1985 and, having referred to a number of what he perceived to be relevant authorities, he concluded ( inter alia); (1) that conduct which is "infamous" or "disgraceful" in a professional respect is "professional misconduct", (2) that conduct which would not be "infamous" or "disgraceful" in any other person, if done by a medical practitioner in relation to his profession, may be considered as "infamous" or "disgraceful" conduct in a professional respect, and (3) while "infamous" or "disgraceful" conduct is conduct involving some degree of moral turpitude, fraud or dishonesty, conduct which could not properly be characterised as "infamous" or "disgraceful" and which does not involve any degree of moral turpitude, fraud or dishonesty may still constitute "professional misconduct" if it is conduct connected with his profession in which the medical practitioner concerned has seriously fallen short, by omission or commission, of the standards of conduct expected amongst medical practitioners. In that regard, Mr. Justice Keane adopted the decision of the Privy Council in England in a case of Doughty v. General Dental Council [1987] [3 A.E.R. at p. 844] which decided that serious professional misconduct denoted a serious falling short, whether by omission or commission, of the standards of conduct expected amongst dentists. In my view, the principles declared by Mr. Justice Keane in O'Laoire's case with regard to medical practitioners and by the Privy Council in Doughty's case with regard to dentists are equally applicable to the nursing profession so that "professional misconduct", so far as a nurse is concerned, is a serious falling short, whether by omission or commission, of the standards of conduct expected among nurses and it is irrelevant that such misconduct may be attributable to honest mistake. In that regard, I would adopt the statement by Lord Hoffmann in the course of a judgment which he delivered in a case of David Noel McCandless v. The General Medical Council (the Weekly Law Reports, 16th February, 1996) that "there is a duty to protect the public against the genially incompetent as well as the deliberate wrongdoers".

6 The foregoing begs the question how does one determine what are the standards of conduct expected among nurses? In this regard, An Bord Altranais has published a code of professional conduct for nurses and, by virtue of the provisions of s. 39(9) of the said Act of 1985, the court may have regard to the evidence of any person of standing in the nursing profession as to what is professional misconduct. Accordingly, when determining whether or not the allegations against Gloria Perez have been established, I propose to rely on the provisions of the said code of conduct and on the evidence of the several members of the nursing profession who gave evidence before me. In this regard, I am satisfied that the onus is on An Bord Altranais to prove every relevant fact, save those facts which have been admitted by Gloria Perez, and to establish that such facts, so proved, or admitted constitute "professional misconduct" in the light of the legal principles herein before referred to. Moreover, it has been conceded on behalf of the respondent that the standard of proof required of the respondent is beyond any reasonable doubt.

7 In their report dated the 29th day of July, 2004, following the inquiry which it held under the provisions of s. 38 of the Nurses Act, 1985, the Fitness to Practice Committee of the respondent board held that between 16th December, 2002 and the end of August, 2003, when she was a staff nurse employed at Craddock House Nursing Home and Care Centre, Craddockstown Road, Naas, Co. Kildare, the professional conduct of Gloria Perez fell seriously short of the standard of conduct expected among nurses in the following respects;

8 (i) information about patients communicated at handover reports or otherwise,

9 (ii) aseptic techniques and hygiene, particularly in the context of dressings

10 (iii) on 14th April, 2003 she gave medication to a wrong resident and, when queried, denied that she had given medication to a wrong resident, claiming that she had poured the medication down the sink, before finally admitting that she had, in fact, given that medication to the wrong resident, and

11 (iv) Placing dirty swabs on a patient's breakfast tray.

12 In the said report, the said Fitness to Practice Committee also noted that the applicant, Gloria Perez, admitted;

13 (i) that, on or about 15th January, 2003, while working with Bríd Gallagher, Director of Nursing, she failed to wash her hands after doing a dressing for one patient and before proceeding to attend to another patient,

14 (ii) that she failed to maintain clear and accurate records of the care and treatment of patients and, in particular, on the 27th day of August, 2003, she recorded that one Andy Halpin had eaten well at dinner when in fact the said Andy Halpin was away from Craddock Nursing Home on that date and, on the 27th day of July, 2003, she failed to record that Maureen Finan had been unwell, was nauseated, had vomited twice and was unable to eat her dinner, and

15 (iii) on the 27th day of July, 2003 she altered Maureen Finan's nursing notes.

16 Having regard to the foregoing, it was agreed by the parties that the issues that the court is required to decide in this case are as follows;

17 (a) Does the evidence which was led at the hearing of these proceedings prove beyond reasonable doubt the several facts which the said Fitness to Practice Committee, in their report aforesaid, considered to be conduct on the part of Gloria Perez which fell short of the standard of conduct expected among...