NMC's regulator appeals against FtP ruling in Winterbourne View nurse case

Professional Standards Authority takes case to High Court after NMC rules nurse acted in self-defence when he punched a vulnerable patient

The decision to clear a learning disabilities nurse of misconduct after he punched a patient and fractured his jaw has gone to appeal in the High Court.

Maxwell Nyamukapa denied punching the man but accepted he might have made contact with him in a ‘hitting way’.

Reasonable force

The Nursing and Midwifery Council ruled in October that Mr Nyamukapa used reasonable force in dealing with Patient S at Winterbourne View private hospital near Bristol in 2009. The nurse had said he used the ‘pushing-in technique’ to prevent the patient from being able to ‘bite out a chunk of skin’. 

But the NMC’s own regulator, the Professional Standards Authority (PSA), believes the ruling is ‘insufficient to protect the public’ and has lodged an appeal.

Possible appeal outcomes

PSA director of scrutiny and quality Mark Stobbs explained: ‘The judge can reject our appeal, quash the decision, substitute a new decision or send the case back to the regulator’s final fitness to practise committee to reconsider. By scrutinising decisions, we make sure professionals who are not fit to practise do not slip through the net.’

Papers outlining the nurse’s defence stated Patient S ‘aggressively jumped up’ and was ‘coming to attack’ during the incident. The nurse claimed he used the ‘active palm’ technique learned in conflict management training. He said Patient S bit hard on his right hand.

'Nurse was not to blame'

The FtP panel found charges of punching, dislodging two teeth and causing an alveolar fracture proved. However, it concluded: ‘Any reasonable person… would not find your actions either deplorable or blameworthy.’ It ruled Mr Nyamukapa’s actions did not constitute serious professional misconduct and that he had acted lawfully.

Patient abuse was exposed at Winterbourne View in 2011 when a BBC Panorama investigation filmed staff repeatedly abusing vulnerable adults. The hospital closed in 2011, with 11 people admitting charges of neglect or abuse. Six of them were given prison sentences.

Mr Nyamukapa, who was not implicated by the BBC programme, was made redundant as a result of the hospital’s closure.

An NMC spokesperson said it would be inappropriate to comment while High Court proceedings were pending.

Further information

Maxwell Nyamukapa Fitness to Practise hearing

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