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
		12 January 2012

1. MR JUSTICE NICOL: This is an application on behalf of the Nursing & Midwifery Council ("NMC"), pursuant to Article 31 (8) of the Nursing & Midwifery Order 2001, for an extension to the interim order suspending the respondent from practice as a nurse. The application is for the suspension to continue for a further 12-month period from the time that it would currently expire - on 13 January 2012. The respondent has not appeared although I have seen certificates of service on him, both at the address which is his registered address with the Nursing & Midwifery Council and, secondly, at the address from which he has written to the Council last month. I have been satisfied that the respondent has properly been served, and therefore I can hear this application in his absence.
2. The respondent was employed by Royal Surrey NHS Trust as a staff nurse at the Royal County Hospital from 8 April 2007 to 5 January 2009. The charges which it is proposed to bring against him relate to two incidents on 2 July 2008 when the respondent was supervising a student nurse. It is alleged that he forced open a patient's jaw so as to administer her medication. He attempted to enlist the assistance of the student nurse in that activity. Secondly, on the same occasion or the same shift, it is alleged that he stole a blister pack of medication from the Medical Assessment Unit ("MAU") and again asked the student to lend his assistance in that venture. The student in question refused both requests.
3. In due course the respondent was dismissed by the Trust and the matter was referred to the NMC. Initially, the Interim Orders Panel Investigating Committee of the NMC decided that the matter could be dealt with appropriately by imposing interim conditions of practice. That was done. However because the respondent did not appear to co-operate or engage in the process, in due course the Investigating Committee determined that the Interim Conditions of Practice Order should be replaced with an Interim Suspension Order. That was done because the committee considered it necessary for the protection of the public and that it was otherwise in the public interest.
4. The respondent, until very recently, has not engaged with the proceedings of the Investigating Committee but it is apparent from his correspondence of last month that he accepts that he did steal some of the medication from the MAU. He says that he was depressed at the time and he was seeking to accumulate medicine in order to attempt to commit suicide. He denies that he forced a patient to take medication or that he attempted to enlist the assistance of the student nurse in relation to either matter. He has also said in his most recent correspondence that his current intention at least is not to return to the profession of nursing.
5. The initial incident took place in 2008. There was a period of delay which the NMC accepts or considers was due to a combination of causes. In part, it was because of the lack of co-operation from the respondent. It was thought that it might be appropriate to deal with this matter on medical grounds but, with the non-co-operation of the respondent, the attitude changed. The NMC does accept however that, at least in part, the delay was due to a lack of its sufficient vigour in following up correspondence with the respondent.
6. The NMC has power to make interim orders for a maximum period of 18 months, and it did so. After that, an application needs to be made to the court. The NMC did so almost exactly a year ago. It was on 12 January 2011 that Mr Justice Lindblom agreed to an extension of the interim suspension order for a period of 12 months. When he did so, he said that he considered that period to be a generous extension and ample to complete the proceedings.
7. There has been progress since then. The matter has been investigated by the outside solicitors. Draft charges have been prepared. The next stage is for the case to be referred to the Council's Conduct and Competence Committee to decide whether it should be dealt with by way of a hearing or by way of a meeting. A meeting is normally considered a suitable method of disposal only when all matters are agreed. It will be clear from what I have said so far that is not likely to be the case here because the respondent contests the allegation that he forced a patient to take her medication or that he sought to enlist the help of the student nurse. It would appear therefore that the next stage will be something of a formality and almost inevitably lead to the requirement for a hearing.
8. I am told by Mrs Thompson, on behalf of the NMC, that it is unlikely that a substantive hearing could take place before July.
9. The test to be applied - both by the council when it makes interim orders or by the court when it is asked to make such an order - is whether or not that is necessary for the protection of the public or otherwise in the public interest. In General Medical Council v Hiew [2007] EWCA Civ 369, the Court of Appeal gave guidance as to how this jurisdiction should be exercised. The court is to have regard to -

" ..... the gravity of the allegations ..... the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and any prejudice to the practitioner if an interim order is continued. The onus of satisfying the court that the criteria are met [is on the regulatory body]."

Importantly -

" ..... it is not the function of the [court] ..... to make the findings of primary fact about the events that have led to the suspension or to consider the merits of the case for suspension."

But the -

" ..... court is [required] to ascertain whether the allegations ..... rather than their truth or falsity, justify the prolongation of the [interim order]. In general, it need not look beyond the allegations."

10. In this case I am satisfied that the allegations are grave, that a risk of repetition would create a risk of serious harm to patients, that the respondent's indications that he has no present intention to continue in the profession of nursing means that the prejudice to him is more limited than it would otherwise be. Mr Justice Lindblom predicted that a further 12 months from January 2011 would be ample to complete the proceedings. That prediction has not been fulfilled. However, the NMC has progressed the matter since then with sufficient timeousness for me to consider that I am not satisfied that delay would be a reason for refusing the present application.
11. I do however - and overall - consider that it would be necessary for the protection of members of the public, and would otherwise be in the public interest, for the interim suspension order to be continued for a period. I am not satisfied however that it would right to grant the full extension which the NMC has sought. A further 12 months would, in my view, be excessive and disproportionate. I appreciate that the NMC has to deal with a number of these cases and there are pressures on its time, but the delays in this case are such that it will need to be given an element of priority and possibly a rather greater element of priority for it up to now than has been planned.
12. I will extend the interim suspension order for eight months from when it would otherwise expire. Although that leaves a smaller margin than counsel would have hoped, that is a period within which they will have to work.
13. To that extent, the application is granted.