England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		9 December 2010

1. MRS JUSTICE THIRLWALL: This application is to extend an interim conditions of practice order. The application is made pursuant to Article 31 (8) of the Nursing and Midwifery Order.
2. I have been taken helpfully this morning through the statutory framework which governs the application and in particular to the whole of Article 31 insofar as it is relevant. Article 31 (2) provides that if the Practice Committee of the Nursing and Midwifery Council (NMC) -

"(2) ..... is satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the registration of that person to be suspended or to be made subject to conditions, it may —

(a) make an order directing the Registrar to suspend the person's registration (an 'interim suspension order'), or

(b) make an order imposing conditions with which the person must comply (an 'interim conditions of practice order').

..... "

3. Article 31 (6) states:

"(6) The Committee which made the order or, if the matter has been referred to another Practice Committee, that Committee, shall, in a case coming within paragraph (1) (a), review an order made under paragraph (2) —

(a) within the period of six months beginning on the date on which the order was made, and shall thereafter, for so long as the order continues in force, further review it before the end of the period of three months beginning on the date of the decision of the immediately preceding review;

..... "

There is also provision for review (see Section 31 (6) (b)).

4. In relation to an interim suspension order or interim conditions of practice order, the Practice Committee which made the order may -

"(a) revoke the order or revoke any condition imposed by the order;

(b) confirm the order;

(c) vary any condition imposed by the order;

(d) if satisfied that to do so is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, replace an interim conditions of practice order with an interim suspension order having effect for the remainder of the term of the former;

(e) if satisfied that the public interest, including the protection of members of the public, or the interests of the person concerned would be adequately served by an interim conditions of practice order, replace an interim suspension order with an interim conditions of practice order having effect for the remainder of the term of the former."

Paragraph (8) is the application to the court which I have already referred. Paragraph (9):

"(9) On ..... an application [to the court] the court may extend (or further extend) for up to 12 months the period for which the order has effect."

5. In this case the original interim order under Article 31 (2) was imposed on July 8, 2009 for a period of 18 months which is the maximum. It is due to expire on January 7, 2011.
6. I should say that this application is opposed by the respondent, Miss Raji. There has been some discussion and dispute as to when the opposition became known, but I am quite satisfied that Miss Raji is perfectly entitled to oppose the application. I am quite satisfied that the delay in production of the skeleton argument in this case had nothing to do with Mr Lynch, who appears on her behalf today as he did at a hearing on 22 November 2010. That was a review hearing at which Mr Lynch was submitting that rather than have a suspension order, which was the position at that state, the appropriate order was a conditions of practice order. He was successful in that submission.
7. I turn briefly to the chronology which is set out as an appendix to the witness statement of Louise Obi who is employed by the NMC as a case officer in the Fitness to Practise Directorate. I do not accept, as was submitted to me, that this is a perfunctory witness statement. It seems to me that it does descend to a reasonable amount of detail, and certainly I found it helpful when considering the issues to which I must have regard in relation to this application.
8. In brief, the NMC received an allegation from Southern Cross Healthcare in September 2008 that the respondent had not provided adequate care at the Alton Centre where she was employed. The Alton Centre provides care for adults with physical and learning disabilities. When the matter came before the Panel on July 8, 2009 the respondent was still employed by Southern Cross, albeit in a different care home. Before that occurred the case had been considered by an Investigating Committee on 25 February 2009 and referred, as is often the procedure, to the NMC's external solicitors for investigation on 27 February 2009. On 8 July 2009 the Panel imposed an interim conditions of practice order on the respondent for a period of 18 months.
9. There were a number of conditions which are set out in the chronology, which I will not repeat. According to the chronology - which I read in conjunction with the witness statement - there were a number of extensions for the investigation because the solicitors were encountering difficulties in recovering documentary evidence from the home involved and contacting necessary witnesses.
10. On 22 January 2010, in accordance with the interim order, a Panel was scheduled to review the interim order. It was adjourned at the request of the respondent's representative. In the meantime new information had been received by the NMC in December 2009 - which, as Mr Lynch for the respondent observes, was 12 months ago - which related to the respondent practising unsupervised in violation of her interim order and this required further investigation. It is apparent now from what I am told by counsel on behalf of the applicant that the respondent had been suspended by her employer before March 2010 and the new allegations were taken into account at that hearing. Whilst it is right to say that that particular piece of information is not explicit in the witness statement or in the chronology, it is of course, and was always, known to the respondent. In any event, the interim conditions of practice order was replaced by an interim suspension order for the remainder of the original term.
11. Further extensions were obtained for the investigation between March 2010 to August 2010, apparently to finalise witness statements and to complete the report to the Committee. The completed investigation file was returned to the NMC on 4 October 2010. It had therefore taken a very significant and, in my view, far too long a period for that investigation to be completed, from 27 February 2009 to 4 October 2010.
12. The case was reviewed speedily thereafter on 29 October 2010 and, in accordance with the interim order in any event, the matter came, as I said earlier, before committee on 22 November 2010. On that occasion, in response to the submissions made by Mr Lynch, the interim suspension order was revoked and replaced with the interim conditions of practice order which is the subject of this application. The conditions are:

(1) You must inform your employer or potential employer that you are subject to these conditions whether for paid or unpaid work.

(2) You must work under the direct supervision of another nurse at all times.

(3) You will not administer drugs unless under the direct supervision of another registered nurse.

(4) You will not practise management and infection control unless you have been assessed and deemed competent by a registered nurse of at least three years' standing.

(5) You will provide a report from your employer on your record keeping, general performance and conduct [reading to words] at least seven days before the next review.

13. The chronology also includes the charge; of course that charge may indeed change.
14. The case continues. It is not ready for the relevant committee as it requires what is described as urgent post-investigation work. That - as explained to me this morning - arises out of the information which came to light a year ago. That is apparently being worked on at the moment, and the estimated completion date is 23 December 2010.
15. Because of the cumbersome nature of the NMC's procedures, it is necessary, I am told, for any extension to be 12 months to ensure that all proper procedures are gone through before the final hearing. It is anticipated that this matter will go to a hearing.
16. In Mr Lynch's skeleton argument I am referred to the leading cases in respect of applications such as these. Both cases refer to decisions in respect of the GMC, but I am confident that the same principles apply in relation to the actions of the NMC in a case of this sort. I have been taken to and have taken into account the principles that are set out in paragraph 7 of the decision in GMC v Lauffer [2009] EWHC 3497 (Admin), a decision of His Honour Judge Pelling sitting as a Judge of the High Court. It contains a helpful resume of the decision of the Court of Appeal in GMC v Hiew [2007] EWCA Civ 369:

"7 The principles that apply to an application of the sort I am now considering are well established, having been stated authoritatively by the Court of Appeal in GMC v Hiew [2007] EWCA Civ 369. The points of principle that arise from that judgment in summary are these: (1) the court is the primary decision-maker, and the question to be decided is whether any, and if so what, extension beyond the initial period is appropriate; (2) in deciding the question, the court has to have regard to (a) the protection of the public, (b) the public interest, and (c) the practitioner's own interests; (3) in weighing these at least potentially conflicting considerations, the court has to have regard to (a) the gravity of the allegation, (b) the nature of the evidence, (c) the seriousness of the risk to patients, (d) the reasons why the case has not been concluded, and (e) the prejudice to the practitioner if an interim order is continued; (4) it is for the GMC to satisfy the court that the order it seeks should be made, and the evidential standard that applies is the balance of probabilities; (5) full regard must be accorded to the previous decisions of the relevant panel, not least because the statutory framework makes clear, by implication at least, that the GMC is likely to be better placed to investigate and evaluate. However, the court is not bound to follow or to defer to the opinion of the GMC panel. Finally, if a judge can clearly see that the case has little merit, then he may -- although these will inevitably be extremely rare -- take that factor into account in arriving at his or her decision."

17. Judge Pelling went on to say:

"8 In my judgment, applying the considerations mentioned above, the court is required to approach an application of this sort by asking itself two questions, being: (a) do the allegations justify the prolongation of the suspension; and (b) whether in the circumstances any suspension ought to be extended for the period sought by the GMC or for some lesser period ..... Each case has to be considered on its merits, and, particularly where a medical practitioner [as here] has been suspended for the maximum period at the outset, any extension must be the minimum necessary, and requires justification by the GMC" -

and, I interpose, the NMC.

18. Mr Lynch does not seriously argue, having heard the rather more developed submissions on behalf of the NMC today, that the allegations of themselves do not justify the prolongation of the conditions of practice order. It seems to me that realistic acknowledgement is entirely appropriate. I do not accept all of the criticisms that he makes of the original witness statement; not all the detail is included in the witness statement itself, a great deal is contained in the exhibits to the witness statement which form part of the witness statement and are part of the material that I can rely on in respect of this application.
19. Having considered the matters set out in paragraph 7 of Judge Pelling's judgment, I am quite satisfied that the allegations justify the prolongation of the conditions of practice.
20. So far as the length of time that is contended for, it seems to me that 12 months, in the light of what is conceded to be unacceptable delay (that concession was realistically made at the outset by counsel on behalf of the NMC), it seems to me to allow this matter to continue for a further 12 months is unacceptable.
21. I have listened with care to the various procedural stages that need now to be gone through by the NMC, given that the investigations are expected to be concluded within the month, notwithstanding the number of stages that are required, in my judgment the appropriate, necessary and proportionate order is an extension of six months. I am told by counsel on behalf of the applicant that it would be very difficult for the whole process to be completed within that timeframe. I do not accept that that is necessarily the case. If it is necessary for this matter to come back before the court by way of a further application for a further extension, then I would expect an extremely detailed justification for any further need for further time from the NMC. This matter has been outstanding for two years. It will be at least two and a half years by the time it is heard even on my analysis of how long it should take to reach a final hearing.
22. In those circumstances, that is the order I make. Is that clear?
23. MISS McDONALD: I will draft the order. I was waiting to see what the application was. So far as costs are concerned, I am going to invite the court to make no order for costs. It seems to me that I have succeeded with my application but I have not succeeded to the full extent. That is my position on costs.
24. MR LYNCH: My position is the same.
25. MRS JUSTICE THIRLWALL: I agree. No order as to costs.