Kudelska -v- An Bord Altranais. High Court Judgment was given by Mr Justice John Hedigan on February 10th, 2009.
Judgment
The Fitness to Practise Committee of An Bord Altranais was right in its decision to erase the name of the applicant from the register of nurses.
Background
The case concerned a Polish nurse who came to Ireland in November 2005 and was entered on the register of nurses on September 1st, 2006.
On June 18th, An Bord Altranais, the regulatory body for nurses, decided to erase her name from the register. She took judicial review proceedings seeking her reinstatement.
Ms Kudelska was employed as a staff midwife in the Rotunda Hospital on September 17th, 2007, starting at the top of the relevant pay-scale, as she had some 30 years’ experience.
She underwent an induction programme and a course to improve her English. However, her colleagues became concerned about her basic levels of skills and competence and her level of both written and spoken English.
The hospital has considerable experience of recruiting nurses from other countries, including Poland, where midwifery practice may be considerably different from in Ireland, and has a policy of giving such nurses support in adapting to their new working environment.
The applicant obtained additional support, including further English language tuition.
Two clinical skills facilitators dealing with Ms Kudelska concluded that her level of medical knowledge and comprehension of the fundamentals of clinical practice were extremely low. She also lacked awareness of her own deficiencies.
Her knowledge of English did not improve during the course of their assessments.
They concluded that if left to work alone, she would pose a substantial risk to the safety of mothers and babies.
A formal assessment was carried out between November 5th and 7th, 2007.
Fiona Hanrahan of the community midwifery services department of the hospital concluded that Ms Kudelska did not provide safe and effective care. In particular, she was unable to verbalise the steps she would take in two of the most common post-natal emergencies.
A number of further formal assessments took place. Her understanding of English was found to be poor.
In December, two further assessments of her clinical knowledge concluded that she continued to represent a danger to women and babies. These assessments were carried out after 10 weeks of practice, nine of them in the delivery suite under supervision.
A meeting took place between the director of nursing and midwifery at the hospital, Pauline Treanor, and Ms Kudelska, on December 19th, 2007, where she was told that her employment would have to be terminated on January 19th, 2008. Ms Treanor said she was advised to inform An Bord Altranais of her concerns.
Ms Treanor made a formal complaint to An Bord Altranais on January 2nd, 2008. On February 26th, 2008, the High Court granted an interlocutory injunction suspending the applicant from the register of nurses pending further order.
On April 7th, Ms Kudelska was informed of the intention of the Fitness to Practise Committee of An Bord Altranais to hold a fitness to practise inquiry into her clinical skills and English language competence. This took place on May 8th and 9th, hearing evidence from Ms Treanor, Ms Hanrahan and others involved in her supervision and assessment in the Rotunda.
Ms Kudelska was provided with an interpreter there and before the High Court in these proceedings. It was decided to recommend the erasure of her name from the register of nurses.
An issue arose as to whether the High Court should deal with the case on affidavit alone, or have a full rehearing. Given the seriousness of the issue at stake and the fact that the applicant had a limited understanding of English, the court decided to rehear the matter.
In her application to the court, Ms Kudelska submitted that the findings of the Fitness to Practise Committee were wrong and that the sanction recommended was disproportionate. She claimed that most of the problems arose from her difficulties with English and that she was not given sufficient opportunity to adapt to the differences between processes in Ireland and in Poland.
Decision
“It is clear as a matter of law that gross incompetence or negligence may amount to professional misconduct in certain circumstances,” Mr Justice Hedigan said, citing Perez -v- An Bord Altranais .
“Applying these principles to the present case, I am satisfied that the applicant’s misconduct amounted to professional misconduct, in particular having regard to her refusal to accept that her clinical skills and knowledge were so far below that which was reasonably expected of her.”
Had she continued to work unsupervised, she would have, he said, posed a considerable danger to both mothers and babies.
He had to reject her allegations that the hospital staff had behaved towards her in a prejudiced manner.
He also rejected her claim that she was denied her rights to natural and constitutional justice, as she had been afforded every possible opportunity to make her case throughout the related proceedings.
He was satisfied that the findings of the Fitness to Practise Committee were a true and accurate assessment of the evidence before it, and that the respondent was entirely correct in its decision to erase Ms Kudelska’s name from the register of nurses.
The applicant represented herself; Nicholas Butler SC and Gabriel Gavigan BL, instructed by Arthur Cox Co, for An Bord Altranais