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Cite as: [2010] EWHC 150 (Admin)

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		Neutral Citation Number: [2010] EWHC 150 (Admin)
		Case No. CO/59/2010

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2A 2LL

19th January 2010

B e f o r e :

MR JUSTICE KENNETH PARKER
____________________

Between:

	THE QUEEN ON THE APPLICATION OF NURSING AND MIDWIFERY COUNCIL	Claimant
	v
	SHAKIRAT OPEYEMI AKINLEYE	Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Ms Elizabeth Forbes (instructed by the Nursing and Midwifery Council Legal Team) appeared on behalf of the Claimant
The Defendant appeared in person
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE KENNETH PARKER: This is an application under section 31(8) of the Nursing and Midwifery Order 2001 for an extension to the interim suspension order made by a panel of the Council's practice committee on 23rd July 2008 and reviewed on 25th March 2009, 22nd July 2009 and 12th October 2009 to suspend Ms Akinleye's registration for 18 months. An extension of the interim suspension order for a further 12 months is sought.

The circumstances briefly are that an allegation was made against Mrs Akinleye, dated 27th March 2008, of misconduct. The allegation arose out of an incident which occurred on 7th August 2007 when a patient presented herself in labour to the Queen Elizabeth Hospital in Woolwich and provided her antenatal casenotes in a red book to the midwife who was looking after her that day. The midwife noted that there were no test or scan results in the red book, as is usually the case, and decided to contact the Royal London Hospital, which was named as her treating hospital in the red book, in order to get those test results.

The midwife made enquiries and was told by staff at the Royal London Hospital that they did not hold any details for this particular patient. The midwife noted that the casenotes in that patient's red book stated the patient's midwife was Ms Akinleye and she also noted that, while the patient was on the labour ward, she was visited by a woman, a midwife, who later was identified as Ms Akinleye. Because of her queries and then concerns, the midwife at the Queen Elizabeth Hospital spoke to Ms Akinleye's manager at the Royal London Hospital, who recognised her handwriting, and an investigation took place.

An investigation was launched and Ms Akinleye was interviewed by the National Health Service Counter Fraud Team in November 2007. In that interview, Ms Akinleye admitted falsifying the notes, stating that the patient was under the care of a GP and a consultant at the Royal London Hospital. However, she denied that this was to assist the patient to get access to NHS treatment she was not entitled to. She said that she had simply got carried away and was just trying to help a woman that she met through her church.

A disciplinary hearing was held on 31st January 2008. At that hearing, again, Ms Akinleye admitted falsifying the records but could give no explanation for why she had done this other than she was trying to help a patient.

On one view, this could be seen as a deliberate attempt to defraud the National Health Service but there is also an aspect of protection of the public. The patient only received partial midwifery care throughout her pregnancy. There was no comprehensive antenatal care, no scans, no blood test or any other of the checks that would normally be expected.

On 30th April 2008, a panel of the Council Investigating Committee considered the allegations, which the Panel decided to investigate further by instructing lawyers to take statements and obtain the relevant documentary evidence. The case was also referred for an interim orders hearing. On 9th May 2008, the NHS Counter Fraud Service informed the NMC that they were in the process of preparing a prosecution case in order to take criminal proceedings against Ms Akinleye. The NMC investigation was therefore put on hold until the conclusion of the criminal proceedings.

On 23rd July 2008, a panel of the IC considered the case at an interim orders hearing. I have before me a transcript of that hearing and I note that a solicitor appeared on Mrs Akinleye's behalf. She herself attended and gave evidence and the solicitor made representations on her behalf. The representative made no effort to deny that the allegations were well founded but sought to put the case on the basis of a humanitarian plea of leniency in the circumstances and invited the IC to consider the issue of alternative measures.

The panel decided to impose an interim suspension order of 18 months duration. It was considered necessary for the protection of the public and in the public interest. On 31st October 2008, the NMC was informed by the NHS Counter Fraud Service that the case was yet to be passed to the London regional team and that they would let the NMC know as soon as a date came up for a prosecution.

On 23rd March 2009, in accordance with the interim order panel, the IC reviewed Ms Akinleye's suspension and the panel decided to continue the order. Again, I have before me a transcript of that hearing and it is noted in the decision that no new information was passed to the panel that would have led it to do other than continue the order.

On 16th June 2009, the NMC was informed through a telephone call that the NHS Counter Fraud Service had recently reviewed Ms Akinleye's file and had decided not to proceed with the prosecution and that they would send a letter confirming this. On 22nd July 2009, in accordance with the interim order, the panel of the IC reviewed Ms Akinleye's suspension and the panel decided to continue the order. On 29th September 2009, the NMC sent a letter to the NHS Counter Fraud Service requesting written confirmation that they were not proceeding with the prosecution against Ms Akinleye. The NMC also requested copies of the documents from their investigation. On 12th October 2009, the NHS Counter Fraud Service informed the NMC through an email that they would send the requested documentation through recorded delivery at the end of the week. On 15th October 2009, in accordance with an interim order, a panel of the IC reviewed Mrs Akinleye's suspension and then a panel decided to continue the order. On 12th November 2009, the NMC received the requested documentation from the NHS Counter Fraud Service. The NMC, I am told, will now investigate the allegation further and, if necessary, take statements and obtain relevant documentary evidence.

The principles that this court must apply when considering the application for extension are well-known. They are set out in General Medical Council v Dr Stephen Chee Cheung Hiew [2007] EWHC Civ 369. In particular, this court must have regard to the gravity of the allegations, the seriousness of the risk of harm to patients and the reason why the case has not been concluded.

In my judgment, this is a case where the continuation of the interim suspension must be continued for the protection of the public. As I have recited, the circumstances of the alleged misconduct are very serious indeed in that Mrs Akinleye was purporting to treat a particular patient on the basis that that was an official treatment under the NHS and was in fact being supported by a GP and consultant. That was not the case at all, as far as I can see from the evidence and according to her own admissions made at various stages in the disciplinary process. Mrs Akinleye appears not only to have falsified documents but she did follow a course of conduct that put the particular patient's health at risk. Therefore it appears to me that it is necessary for the protection of the public that this order be maintained.

I do take account of the representations that Mrs Akinleye has made that her family circumstances are difficult; she is now unemployed; her partner apparently is also not working, she has five children, ranging in age from 19 to two; she is living on benefits, although she is in good health. She makes the very valid point that these proceedings have already taken a very considerable time, particularly having regard to the apparent simplicity of the issues with which the Council is confronted. However, the explanation for that is that, as I have explained, the NHS Counter Fraud, who were initially investigating, themselves took a very considerable time to complete their investigations. That cannot be laid at the door of the Council. They must address the situation as is presented to them. It was in the interests of Mrs Akinleye that those criminal proceedings be completed one way or another before these disciplinary proceedings would continue. That has now happened but there has been again significant delay in my judgment in reactivating these proceedings and moving on with them expeditiously. In my judgment, it is now time that the Council address this matter with urgency and proceed to set a hearing date for what appears to me to be a relatively straightforward case as soon as reasonably practicable. I should also note that, if the Council seeks a further extension of this order, the matter will be remitted to me for consideration and I can say at this stage that I am unlikely to be sympathetic at all to any further application for an extension in this case, unless there are overwhelming reasons, that do not at the moment appear, why such an extension should be given. However, I make the order in the terms applied for.

MS FORBES: I am obliged.

MR JUSTICE KENNETH PARKER: Thank you very much.