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
		19 February 2013

1. THE DEPUTY JUDGE: This is an application by the Nursing and Midwifery Council under Article 31.8 of the Nursing and Midwifery Order 2011 seeking to extend the period of conditions imposed on practice by the applicant on the respondent nurse, whose latest conditions by an interim orders panel are due to expire on 20 February 2013.
2. Since the defendant does not appear and is not represented, I must first be satisfied that he has been validly and effectively served with notice of this application. Service, as required by Civil Procedure Rules Part 54.7, must be on the defendant but does not have to be personal service. Therefore, CPR Part 6.3 applies and permits service by first class post. Nurses who are registered are required to provide up to date addresses to the registration authorities and I am, therefore, entitled to assume that the address registered in this case remains the correct address for the defendant. Service by appropriate and compliant postal means to that address is established by the documents that I have been provided with this afternoon and, therefore, I am satisfied that he has been validly served.
3. The relevant history is that allegations of misconduct concern sleeping on duty during a night shift in May 2010 and failing to provide appropriate care towards a patient, in that he failed to administer a prescribed dose of insulin, did not seek medical advice regarding that prescription and failing to record his actions or decisions in the resident's care notes. The matter came before an interim orders panel of the investigating committee on 22 December 2010 and an interim conditions of practice order was made on that date for 18 months. It has since be reviewed on six occasions, the last being on 29 January 2013, and, as is required under the rules, an interim order was extended previously by this court on 14 June 2012. The order is due to expire, as I have said, on 20 February 2013. The substantive hearing before the Conduct and Competence Committee commenced as long ago as 17 September 2012. Unfortunately, the case went part heard following a determination of the facts and it is material to this hearing that, as regards the findings on the facts, all but one aspect of the case was found proved on the balance of probabilities at that substantive hearing. The panel determined at the substantive hearing that the respondent had slept on duty, failed to provide appropriate care to a patient, in that he on three separate occasions decided not to administer insulin to the patient. The panel determined that the respondent had a clear duty to seek medical advice if he was not going to administer medication prescribed to the patient in his care and that this failure amounted to a failure to provide appropriate care to the patient. The panel determined that the respondent failed to discharge his duty to make accurate records of the care he gave to the patient and found that there were no records in patient's records of the insulin being omitted on three separate occasions and that some of the comments made on the records that had been completed were misleading.
4. As regards my jurisdiction, this application is made under Article 31.8 of the Nursing and Midwifery Order and Article 31.9 says that, on such an application, the court may extend or further extend for up to 12 months the period of the order in question. The general provisions of Article 31 provide that the Practice Committee can make an interim order, and therefore I can extend an interim order, only where satisfied that such an order 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.
5. In this case the original interim order was made by the investigating committee for a period of 18 months and the reasons were communicated to the respondent. The principles for me to apply when considering the application for grant of an extension are those set out in the similar regulatory regime of the General Medical Council in the decision of the Court of Appeal in General Medical Council v Hiew [2007] EWCA Civ 369. The criteria to be applied, according to that decision, are the same as for making the interim order itself by the regulatory body and the relevant factors include the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded, the prejudice to the practitioner if an interim order is continued and the onus of satisfying the court that the relevant criteria for the imposition of conditions is satisfied, but it is not the function of the court to make findings of primary fact about events that led to suspension or the imposition of conditions.
6. It always dismays me that it takes so long for the regulatory process to take its course, although it is right that I should take into account the fact that the defendant failed to attend on 17 September 2012, or indeed engage with this court in the current process. Well documented and well founded serious concerns about risk for safety of patients necessitated the imposition of conditions of practice in this case and were found to be proven at the hearing that went part heard. There is no evidence to show that those concerns have abated. Those concerns are so serious that I am also satisfied that imposition of conditions is both proportionate and justified until both the part heard fitness to practice hearing has concluded and any possible consequences of the factual findings have been imposed, but the evidence suggests that the process possibly, it is put no higher than that, will not be completed until June 2013, but no serious indication is given to me as to why the process need take any longer than that and, after allowing for an appropriate period for reflection and consideration of appeal, it seems to me that an appropriate extension is not the eight months sought in the application but six months and, therefore, I extend the order to 19 August 2013.
7. Anything else, Ms Scarbrough?
8. MS SCARBROUGH: Not in relation to that matter, my Lord.