R (Ibrahim) v Nursing and Midwifery Council [2024] EWHC 2991 (Admin) is a case which shows how the Deprivation of Liberty Safeguards are still not well understood. It concerned an appeal by a Registered Mental Health Nurse against the decision of the Nursing and Midwifery Council imposing a 12-month Conditions of Practice Order with a review. The NMC imposed this after an event 2017 when he was prevented a patient from leaving her room at University College London Hospital. The patient in question, ‘Patient A’, had CNS lymphoma, suffered from paranoid schizophrenia and was on a palliative care pathway. The nurse “accepted that he prevented Patient A from leaving her room for 1-2 minutes somewhere between 2:45am and 4am. He did so because Patient A had thrown a yoghurt at him and was moving towards him in anger” (paragraph 31). The NMC found that the appellant’s actions accounted to misconduct, and that his fitness to practice was impaired.
The submissions made to the High Court on the appeal attacked the NMC’s order on the basis that:
a. The patient was a proven physical risk to herself and others and was at risk of absconding;
b. The patient was subject to a Deprivation of Liberty Safeguards (“DOLS”) assessment that permitted deprivation of liberty under the Mental Capacity Act 2005;
c. The DOLS order required 2:1 care as a condition of that order;
d. Shortly before the Registrant’s shift, Colleague C unilaterally downgraded Patient A’s care to 1:1 without adherence to the proper procedures;
e. The patient had no care plan;
f. The Registrant was informed of (a) and (b), but not of (c), (d), or (e) when he came on shift;
g. The Registrant was therefore in a position where he could not leave the patient in order to remedy any of the above matters, had little support from other overworked staff. He prioritised the safety of his patient and of those around her.
In reaching his conclusion that the NMC panel erred, Richard Kimblin KC (sitting as a Deputy High Court Judge) noted that:
39. It is also of obvious significance that the Appellant was placed in the sole care of Patient A, contrary to the level of provision which had been signed off by an experienced and expert body of medical professionals in the DOLS. In my judgment, this is a circumstance of such clear materiality that it had to be fully grappled with in the Panel’s decision. The DOLS is a carefully considered and reasoned document which has a statutory basis. While this case is not directly concerned with a departure from the DOLS in that the charges do not allege that any party was in error for allowing circumstances to exist in which the care provision was reduced from 2:1 to 1:1, it is an authoritative statement which plainly should have been followed unless and until it was varied. The Appellant was correct to rely on it.
40. Still further, it is relevant that the Appellant was new to the ward and had no care plan from which to work. These matters show that the Appellant was put into a challenging situation with arguable systemic failings which were not of his making.
41. Arguments arising from the above were clearly and cogently articulated on the Appellant’s behalf via written submissions, as I have set out, and were supplemented orally. Given that the Appellant recorded absconding behaviour in the clinical notes and that is consistent with the similar absconding behaviour referred to the DOLS notes, which the Appellant had not seen when he made his entry, the Panel had to engage with the reality of what the Appellant faced and the extent to which that was a situation which, arguably, he should not have had to face, alone.
42. It is a matter of fact that the Panel did not mention these arguments in their findings section. The Panel had to grapple with them. The Appellant is entitled to know why such important arguments, on which his defence rested, were apparently rejected.
43. In order to find the NMC’s allegations proved, the Panel was required to decide whether the Appellant had clinical justification for keeping the patient shut in her room. I find that it is not possible to see how the Panel could have made a fair and rational decision while omitting to address the terms of the DOLS order, the inadequacy of staffing, and the patient’s history of dangerous and aggressive behaviour.
The factual findings were therefore quashed; Richard Kimblin KC also found that the panel had failed to grapple with the appellant’s case as regards impairment. He declined to remit the case for reconsideration and quashed all the material parts of the order, as well as ordering the NMC to pay the appellant’s costs.
Comment
The case provides a revealing snapshot of what life is all too often like on wards in acute hospitals. The reference in the appellant’s case (then picked up by the High Court) to the DoLS making 2:1 care a ‘condition’ of the DoLS authorisation is, however, more than a little unlikely – what is much more likely is that the authorisation was recognising that, at the point that the authorisation was sought, the hospital considered that 2:1 care was necessary. That is very different to a requirement that 2:1 care be imposed. Indeed, earlier in the judgment was a reference noting that the DoLS authorisation provided that “the Managing Authority (UCLH) was to consider lessening the care to 1:1 ‘if Patient A becomes more settled’” (paragraph 32). The local authority granting the authorisation was expressly recognising that it was a matter for clinical judgment as to whether Patient A could be cared for in a less restrictive way. Indeed, it would also be a matter for the hospital whether Patient A could or should be discharged altogether; the hospital would not need to go back to the local authority to release her from the authorisation.[1] In other words, and as should always be remembered, a DoLS is not a warrant to detain which must be obeyed by the care home or hospital, but rather a recognition that a set of circumstances amount to a deprivation of liberty which is permissible for so long it is necessary and proportionate.
[1] Separate questions would arise as to whether other bodies would need to be involved in the discharge decision, depending on where Patient A would have gone to next: see further here.
