Author: Alexandra Marks
Last saved by: BAILII
Company: Merrill Communications, LLC

CO/5257/2014 
Neutral Citation Number: [2014] EWHC 4090 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 19 November 2014
 
B e f o r e: 

ALEXANDRA MARKS
(Sitting as a Deputy Judge of the High Court) 

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Between: 
NURSING AND MIDWIFERY COUNCIL 
Applicant

v 

LAGAH-BONA 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Miss H Stephenson (instructed by the Nursing and Midwifery Council) appeared on behalf of the Applicant

The Respondent did not attend and was not represented
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J U D G M E N T
1.	THE DEPUTY JUDGE:  This is an application under Article 31(8) of the Nursing and Midwifery Council order 2001.  The application is made by the Nursing and Midwifery Council, which I will refer to from now on as the NMC, and the respondent, is Miss Sarah Lagah-Bona, a registered nurse.
2.	The application is for an extension to an Interim Suspension Order (“ISO”) of 18 months originally made against this respondent by a panel of the NMC's Practice Committee on 27 September 2012.
3.	As counsel has explained, at a review hearing as soon as 29 October 2012, just a month later, the ISO was replaced with an Interim Conditions of Practice Order. This state of affairs continued for some 14 months until 5 December 2013 when again, an ISO was imposed, triggered by the receipt of a further referral in respect of this respondent.
4.	The ISO has been extended twice previously by this court for a period of 4 months: first on 20 March 2014, and then again on 18 July 2014.  The ISO is now due to expire on 24 November 2014.
5.	The ISO has been reviewed on 6 occasions, most recently on 9 June 2014.  The respondent has not requested an oral hearing of any such review, nor has she therefore attended on the occasions of such review, which have taken the form of a meeting rather than a hearing; nor has the respondent sought to challenge the necessity for the order to continue.
6.	Nor, I should mention, is the respondent present today or submitted any submissions but, in fairness to her, counsel has pointed out that the respondent was only sent papers on this matter as recently as 13 November 2014.  Although that is within the rules, it may have given her inadequate time either to make arrangements to attend here today or, indeed, to submit anything in writing.  Counsel, in fairness to the respondent, has pointed out that on previous occasions this respondent has consented to such extensions.
7.	As I have said, the application is to extend the ISO (as previously extended) for a further 4 months from 24 November 2014, on the grounds that such is necessary for protection of the members of the public and is otherwise in the public interest.  
8.	The respondent faces allegations of dishonesty, in failing to disclose to a subsequent employer her referral to the NMC and an Interim Conditions of Practice Order, as well as allegations which led to the first referral that she force‑fed an elderly vulnerable patient. 
9.	This matter is therefore, as Miss Stephenson has explained, a little complex in terms of chronology because the first referral  - which related to the inappropriate forced administration of fluids - preceded the second referral by some considerable time and was therefore incapable of being joined with the second referral, which was dependent on the first, because of course it related to the failure to disclose the first referral.
10.	That second referral was received from Jubilee Nursing Home, where the respondent was then working, on 14 November 2013.  The allegation is that the respondent did not disclose her first referral to the NMC, nor that she was subject, as she then was, to an Interim Conditions of Practice Order.  In fact, as I have said, it was the second referral which led the NMC's panel to replace the then Interim Conditions of Practice Order with an ISO.  
11.	As has been explained by counsel, due to difficulties of witness availability for hearing of the first referral, it was concluded only as recently as 1 October 2014.  I have recently received the decision of the Conduct and Competence Committee hearing on that date, from which it is clear that the Interim Conditions of Practice Order was replaced with a substantive Conditions of Practice Order.  
12.	The appeal period has passed without any appeal being made, and in the meantime, in any event, in view of the existence by then of the second referral, an ISO continued.
13.	As Miss Stephenson has explained the ISO was to protect members of the public and was otherwise in the public interest; it was not appropriate, or practicable in fact, for the second referral to be considered substantively at the  hearing of the first referral, yet the second referral was serious, relating as it did to allegations of dishonesty, failure to disclose, and breach of an existing Interim Conditions of Practice Order.  The second referral also revealed, as Miss Stephenson has suggested, attitudinal concerns: perhaps this respondent was putting her own interests above those of patients and, indeed, those of her employers and the public.
14.	As I have said, the second referral was not ready when the first referral was heard in June and then adjourned until October 2014. The second referral was scheduled for hearing as recently as 22 to 24 October 2014. However, as Miss Stephenson has explained, due to a misunderstanding in the communications between the NMC and the respondent,  the respondent's barrister was in fact available only on the first day of that hearing, so it was adjourned and it has been rescheduled now to 16 to 18 February 2015.  
15.	I remind myself that the jurisdiction of the court in this matter is pursuant to Article 31(8) of the NMC Order 2001, which permits application to be made to the High Court for extension of an order.  Article 31(9) of the NMC Order permits further extension of an Interim Order for up to 12 months.  
16.	Miss Stephenson has not referred to it on this particular occasion but I remind myself that the principles to apply when considering such matters were set out by the Court of Appeal in the case of General Medical Council v Hiew [2007] EWCA Civ 369, namely the gravity of the allegations; the seriousness of risk of harm to patients; reasons why the case has not been concluded; and prejudice to the practitioner of the interim order being continued.
17.	The Court also pointed out in that case that the onus is on the regulatory body to satisfy the court of these criteria but it is not for the court to make findings of fact or consider the merits of the case. Instead, the Court is to ascertain whether the allegations that have come before the NMC, not whether they are true or not, themselves justify prolongation of the Interim Order.
18.	On the basis of everything I have heard, I am satisfied that the allegations in this case are sufficiently grave, and that there is a serious risk of harm to patients because of the non disclosure of the existing order when this respondent took up her new employment.  
19.	It has been explained to this court why the case against the respondent has not been concluded by the NMC, and that is unfortunate but do I note that adjournment of the hearing in October of this year was to enable the respondent to be represented as she intended.  While it is noted that there will of course be prejudice to the practice of the respondent due to the ISO, that has to be balanced with the public interest that the court must take into account.
20.	The applicant submits that the subsisting Conditions of Practice Order (that is the substantive one, that was imposed as a result of the hearing of the first referral at the beginning of October 2014) is insufficient to protect the public; and that there is a risk of harm to the public, and public confidence in the profession and in the NMC, because that particular sanction was imposed in respect of different allegations and different findings.  
21.	There are also concerns that in the light of previous history, this respondent will not comply with Conditions of Practice Order.  Indeed, one of the allegations she is now facing is that she failed to do just that, and instead puts her own interests first.  
22.	Given the fact that there is the allegation of dishonesty against her, and that that dishonesty pertained for a period of some 9 months while working for her new employer, that is suggestive of harmful underlying attitudinal issue.
23.	There is also of course a flagrant disregard of the previous NMC order, albeit an interim one, but nevertheless it required the respondent to notify employers of the referral and the existence of the Interim Conditions of Practice Order, neither of which she allegedly did.
24.	It is of course possible that continuation of this ISO will cause hardship to the respondent, but the seriousness of the allegations against her means that the public interest in having restrictions in place outweighs the interest of the respondent.  
25.	The extension now sought is to cover a period up to the scheduled substantive hearing of the second referral in February 2015 and slightly beyond, to allow for further application to the court to extend that order if the hearing (for unforeseen reasons) is adjourned.  
26.	There have been no submissions from the respondent on this occasion, as I have already mentioned, but I do note in passing that it is over 2 years since this particular respondent first came  before a NMC panel when the ISO was originally imposed.  
27.	As I have already observed in another context, the statutory limit on the duration of an ISO of 18 months (unless extended by order of the court) is clearly made with a view to matters being concluded within that period.  However, for the reasons I have explained, I am prepared to accept in the unusual circumstances of this case that it could not be concluded desirably within that period, or indeed within the period for which it has now twice already been extended by the High Court.  
28.	All of this, however, does need to be weighed in the balance when deciding whether or not to grant an extension of the ISO.  I note in that context that the hearing against this respondent has now been scheduled, as I have said, for 16 to 18 February 2015.  
29.	Given the evident difficulties in scheduling hearings by the NMC, I think, realistically, if the hearing does not take place during that period, or has to be further adjourned, there is no great likelihood of the hearing being completed without a further extension by the court.  
30.	I therefore propose an extension only slightly beyond the final date of the resumed hearing to give the NMC rapid opportunity to apply for further extension to this court at that stage, if necessary, and I therefore now grant an extension until Wednesday 18 March 2015.  
31.	Thank you very much.  I accept the other usual terms of the order, namely the respondent being given an opportunity to apply and no order for costs at this stage.  Thank you.
32.	MISS STEPHENSON:  I will hand up the draft order, I have put the dates on.

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