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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nursing and Midwifery Council, R (on the application of) v Rojas [2007] EWHC 1727 (Admin) (19 June 2007)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1727.html
Cite as: [2007] EWHC 1727 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
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| THE QUEEN ON THE APPLICATION OF THE NURSING AND MIDWIFERY COUNCIL | (CLAIMANT) | |
| -v- | ||
| VICTORIA ROJAS | (DEFENDANT) |
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(Official Shorthand Writers to the Court)
Dr P Marks (instructed by Gans & Co) appeared on behalf of the Defendant
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- This is an application by the Nursing and Midwifery council under Article 31(8) of the Nursing and Midwifery Order 2001. The Council requests an extension of 12 months to be made to an order of interim suspension, which itself was made on 14 February 2006. That order was for a period of 18 months and is thus due to expire on 13 August 2007.
- The application for an extension has been resisted by counsel appearing on behalf of the respondent. The two central issues which have been raised and which I have to consider are, first of all, whether any basis has been shown to exist for concluding that she is not fit to practise; secondly, whether there are any other reasons why an extension should not be granted: for example, by reason of unfairness, procedural failings or under the Convention of Human Rights.
- The points that have been made on her behalf can be summarised. First of all, it is suggested that the allegations, which occurred long ago in 2004 in the Republic of Ireland, are capable of being characterised as banter and are not serious. Allied to that, but also crossing the bridge to the procedural unfairness arguments which have been advanced, it is said that at an initial hearing on 29 November 2004 at a hearing in the High Court, when both sides were heard and significantly on this occasion the respondent was present, the respondent was permitted to continue to work. She was at that time employed at a home other than the one where she had been employed at the time of the conduct the subject matter of the allegations. The nature of the order was that she could continue working where she was then employed, but that she was required to notify the authorities in the Republic when she was going to take up other employment. It is therefore said on her behalf that, first of all, there has been a long passage of time since the conduct in question is alleged to have occurred. There has been, it is submitted, a favourable hearing on 29 November 2004, to which is added, by way of characterisation, a further investigation labelled as "full", which produced the favourable result from the prosecution authorities in the Republic of Ireland, namely a decision not to prosecute her.
- The points which I have endeavoured to summarise are, in my judgment, wholly misconceived. The clear position, as I see it on the papers, is that what one has to have regard to is that on 12 May 2005, in relation to no less than 12 allegations of what can only be regarded as serious misconduct, the relevant body in the Republic concluded beyond reasonable doubt that the allegations were proved. They heard evidence, and they had the benefit of responses to the allegations made by the respondent, but regrettably not the evidence of the respondent herself. That was because she ceased her employment towards the end of 2004. But notwithstanding the clear requirements of the order made by the High Court, there is an issue as to whether or not she gave any notice of her movement, and movement involved moving to the United Kingdom, namely to England, where she remained and was present, on her account, apparently unaware that there was to be a full hearing on 12 May 2005. For the purposes of this application, there is absolutely no evidence before me -- and counsel has only given matters on instructions -- but there is no evidence before me firstly as to the nature of the notice she did give (because it is contended she did give notice) and why it is that she was not at least professionally curious as to the potentiality that the allegations which had been made against her would be pursued, and apparently made no enquiries about it. Thus it is to be regretted that she was not present at the hearing in May 2005. It is impossible at this stage to conclude other than that she, by her conduct, contributed to her absence.
- More importantly, however, there was full consideration of the material before the Council. The Council treated it as though it was under contest, considered both sides and heard evidence. I am not in any doubt that, by reason of those findings, there is material available for the conclusion to be reached that she is unfit to practise.
- As a result also, and arising out of what I have already said, it is plain to me that there can be no contention that her Article 6 rights are not being met. On an occasion when she had the opportunity of attending, she was not there, and so far as the United Kingdom is concerned and the Council here, whilst it would have been desirable that they could have got on with it within the period of the 18 months initial suspension, they have laboured under the difficulty that they asked for the papers in November 2005, but the Irish authorities did not produce them until December 2006. The position is that now that they have the papers available, I have little doubt that the matter will proceed expeditiously.
- In my judgment, this is plainly a case in which there should be an extension and an extension of 12 months, which is hereby granted.
- MR ARNOLD: Thank you, my Lord.
- MR JUSTICE NEWMAN: Any other applications?
- MR ARNOLD: No, I do not make an application for costs.
- MR JUSTICE NEWMAN: Thank you very much.
MR JUSTICE NEWMAN: