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Cite as: [2013] EWHC 1537 (Admin)

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		Neutral Citation Number: [2013] EWHC 1537 (Admin)
		CO/5526/2013

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

Royal Courts of Justice
Strand
London WC2A 2LL

14 May 2013

B e f o r e :

NICHOLAS PAINES QC
(Sitting as a Deputy High Court Judge)
____________________

Between:

	NURSING AND MIDWIFERY COUNCIL	Claimant
	v
	MILLSON	Defendant

____________________

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____________________

Ms H Fleck (instructed by Nursing and Midwifery Council) appeared on behalf of the Claimant
The Defendant did not appear and was not represented
____________________

HTML VERSION OF JUDGMENT
____________________

THE DEPUTY JUDGE: This is an application by the Nursing and Midwifery Council to extend a suspension order in respect of one of the Council's registrants pending the conclusion of disciplinary proceedings. The respondent faces one allegation of professional misconduct allegedly occurring on 30March2011, when she was working in a home with vulnerable elderly residents. The allegation was not referred to the Council by the home untilOctober2011. It was referred along with two other allegations dating back toApril2011 which are not now being proceeded with. The respondent, Mrs Millson, denies the outstanding allegation; inNovember2011 she filed a20-page response and later filed more pages of response.

An18-month suspension order was made in respect of her by a panel of the Investigating Committee of the Council. That suspension order expires tomorrow and can only be continued by order of this court. The panel's reasons for ordering suspension included the fact that the case at that stage involved three serious allegations. The one surviving allegation is that the respondent decided to restrain a vulnerable resident who was continually resisting being washed. There is no allegation that unlawful restraint took place, it being said that the home manager intervened to prevent it. But it is said against the respondent that she had recently had training in restraint procedures and ought to have known that a key legal requirement - completion of something called a deprivation of liberty safeguard - had not been complied with, which meant that the restraint would had been unlawful.

I have also noted that the solicitors who were instructed by the Council to investigate all the allegations recommended that there was no case to answer in respect of any of them, but inOctober2012 the Investigating Committee directed that the allegation I have described should be referred to the Conduct and Competence Committee. The charge includes an allegation that the respondent was not trained in safe holding techniques, (as distinct from the legal procedures I have referred to), though the respondent has denied that.

A panel of the CCC reviewed and continued the suspension order in February of this year. They were aware that the number of charges had reduced to one, but did not, I am told, set out their reasoning in relation to continuing the order in the light of that fact. They must have considered that the outstanding allegation was sufficiently serious to justify continued suspension of the respondent in order to protect patients. The most recent decision of a panel, taken on 29April 2013, continued the suspension again on the basis that there had been no change or developments since the February decision of the panel.

Today the Council seek a 6-month extension of the suspension order on the basis that the hearing of the charge needs a two-day listing. The case has been ready for hearing since December of 2012 and was originally intended to be listed in the period between April and June of this year. I am told that, absent some re-ordering of the list of hearings, it would be likely to be heard in the period July to September; the reason given for the delay is the current casework pressures which the Council is suffering.

The application before me was made on 8May2013 and served on the respondent on 10 May 2013. She had previously been notified, by letter of 30April 2013, of the Council's intention to make the application. Although 10May was only last Friday (today being a Tuesday), I am prepared to direct under CPR 23.7 that the claimant has had sufficient notice of the application. She is not present or represented, she lives in Yorkshire and I think it improbable that she would have attended had a longer period of notice been given. She has not made any representations to the panels in respect of her suspension, though she is vigorously defending the disciplinary charge.

I have to consider the gravity of the allegations and the seriousness of the risk of harm to patients, along with the reasons why the case has not been concluded and the prejudice to the respondent. There has been a fair amount of delay which is not the Council's fault: the home delayed for 7 months before referring the incidents in late 2011. Various mishaps within the Council in the course of 2012 seem to have further delayed the decision to charge the respondent, which was made in October of last year. The prejudice to her is obvious. On the other hand, I can see that the allegation is serious. The proper treatment of vulnerable though often difficult residents of homes is an important matter and the Council have an obvious duty to minimise risk to such residents at the hands of their registrants.

I consider that, despite the lateness of this application, I should not cause the respondent's suspension to lapse; that is for reasons of protection of the public and of patients in care homes. But I am not prepared to extend it for the full 6months asked for. I consider that the Council ought to be able to fit this case in between now and the end of July. If for any reason they find themselves wishing to continue her suspension beyond the end of July, they can apply to the court and explain either why my demands were unreasonable or what has prevented them from complying with the timescale I am indicating is appropriate. I will make no order as to costs.