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 November 2014

1. THE DEPUTY JUDGE: This is an application by the Nursing and Midwifery Council, to which I shall refer from now on as the NMC, and the respondent is Grace Arkoh-Ankrah, a registered nurse.
2. The application is made under Article 31(8) of the NMC Order 2001 for extension to an Interim Suspension Order ("ISO") made by a panel of the NMC's Practice Committee on 26 September 2012 for a period of 18 months, that ISO having been extended once already by the High Court on 24 March 2014 for a period of 8 months. The ISO is now due to expire, I have been told, on 20 November 2014. (I have written down here the 25 November 2014 but, in any event, within the next few days).
3. The ISO has been reviewed on seven occasions at (I have just been informed) meetings of the NMC, a procedure that enables the matter to take place in private, unless the respondent has requested a hearing or wishes to attend.
4. No hearing has been requested for any review hearing, nor has the respondent attended, nor has there been new material which has caused the NMC itself to refer the matter to a hearing. At each such review the ISO has continued.
5. This application is to extend the ISO (which has already been extended once for a period of 5 months), on the grounds that it is necessary for protection of members of the public and is otherwise in the public interest.
6. The respondent in this case faces allegations of lack of basic competence in wide-ranging areas of nursing practice, including communications; medicines; management; record-keeping; undertaking observations; delivering and receiving handover, over a lengthy period of time stretching from February 2011 to June 2012. These allegations arose despite the respondent having been subject to formal action plans and significant support measures for over a year during that period.
7. The NMC considered two separate referrals against the respondent while she was working at Warrington and Halton's Hospitals NHS Trust ("the Trust"), where the respondent worked during the relevant period. One referral in August 2012 was made by the Trust; the second, in December 2012, was made by a patient's relative while investigation of the first referral was underway.
8. It is said that one allegation relates to the failure to escalate the deteriorating condition of a patient who later died following a cardiac arrest. Although I cannot find reference to that particular allegation in the lengthy charges that I have seen, it is clear that the numerous charges - by their number, range and dates, and indeed over the period during which they allegedly occurred - are serious.
9. The respondent resigned from the Trust on 4th June 2012 before completion of the final stage of the Trust's capability process. It is said by the NMC there is no evidence that concerns about the respondent's practice have since been addressed.
10. Due to the number of allegations - and the fact that there were two referrals and a large number of NMC witnesses - the NMC's investigation of the allegations has taken some time. I am informed that the NMC's investigation was, however, completed in June 2013. The hearing has been difficult to schedule - again because the number of witnesses - but eventually took place from 4 to 14 August 2014, when the respondent attended, gave evidence and was represented (albeit not by a legal representative).
11. Unfortunately, that hearing had to be adjourned part heard, due to the large number of witnesses and the time taken to hear the evidence. The resumed hearing dates, due to issues of panel availability (it was clearly essential that the same panel sat at the resumed hearing,) have now been scheduled for 10 to 20 February 2015.
12. The jurisdiction which I am required to exercise is under NMC Order 2001, Article 31(8) which permits application to the High Court for extension of an interim order. Article 31(9) of that same order permits extension or further extension of such an order for a period of up to 12 months.
13. Counsel has helpfully referred me to the case of General Medical Council v Hiew [2007] EWCA Civ 369, where a similar regulatory regime applied. In that case, the Court of Appeal gave guidance on the principles to be applied in such cases, namely, that the court should consider the gravity of the allegations; seriousness of the risk of harm to patients; reasons why the case has not been concluded, and the prejudice to the practitioner of the interim order being continued.
14. By very late submission today received on behalf of the respondent, it is clear that she objects to the extension although she does not refer specifically to prejudice.
15. The Hiew case also made clear that the onus is on the regulatory body to satisfy the court of the criteria. It is not for the court to make findings of fact or consider the merits of the case for suspension, but to ascertain whether the allegations (not their truth or falsity) justify prolongation of the interim order.
16. The applicant, the NMC, submits that given the range, number and seriousness of the allegations and persistence of poor practice (despite prolonged and significant measures of support) pose significant risk of serious harm to patients, were she to practise unrestricted.
17. Secondly, the NMC submits that the seriousness of at least one allegation means that an ISO is required to maintain public confidence in the NMC as regulator, and in the nursing profession generally.
18. Thirdly, it is submitted that the respondent has not at any time requested that the ISO be reviewed at a hearing, or otherwise challenged the ISO, suggesting that there is no significant prejudice to her in it continuing.
19. Finally, even if there were prejudice to her, it is submitted by the NMC that the seriousness of the allegations and the risk to patients means that the public interest in having restrictions in place outweighs the respondent's interests.
20. As I say, I have this morning received submissions on behalf of the respondent in a letter dated 18 November 2014, addressed to the NMC, from a gentlemen called Thomas Montford. This makes clear that the respondent does not consent to the ISO being extended. Indeed, she appeals to the presiding judge to "drop" the ISO.

As Miss Stephenson for the NMC has pointed out, the rest of the letter sets out disputes on matters of fact arising from the hearing which was adjourned part heard in August 2014, and raises other objections to the way that this respondent has been treated during the course of the process.

The letter written on behalf of the respondent does not specifically address the issue of the extension of the ISO save to object to it, nor does it specify any prejudice to the practitioner should the ISO be continued.

It is of course clear that there is a limit on the length of time for which an ISO can be imposed for good reason: that is why applications for extension must come before this court.

It is also clear that a significant period of time has elapsed since the allegations against this respondent were first raised, and indeed, this matter first came before a NMC panel. If I have the chronology correct, it is now nearly two years since the NMC considered the two referrals that were made to it against this respondent. It is clearly in the interests of justice that this matter be brought to a conclusion as swiftly as is reasonably practicable.

This of course needs to be weighed in the balance when deciding whether to grant an extension of the ISO and, if so, for how long. I am, however, satisfied on the basis of everything I have heard that the criteria in Hiew have been met. I note that this case is part heard, as I have already mentioned, and that the resumed hearing has been scheduled for 10 to 20 February 2015.

Miss Stephenson has helpfully informed the court this morning that in fact all the evidence in the matters has already been given. Of course it will take some time for the panel to consider that evidence, no doubt hindered to some extent by the time that has elapsed since that evidence was given which will, by February 2015, have been some 6 months or so.

However, Miss Stephenson assures the court that the period scheduled for the resumed hearing is what she describes as "generous", in the anticipation and expectation that this will provide ample time for the panel not only to consider the matters of fact and their findings but also if necessary to consider and conclude the remaining parts of the process.

It appears to me that given the difficulties that have already become apparent in terms of scheduling this hearing and the availability of the panel, were the hearing not to be concluded during the window already scheduled in February 2015, there would be no realistic prospect of further hearing dates taking place without a further extension of the ISO.

For that reason, I propose an extension only slightly beyond the final date of the resumed hearing, thus giving the NMC opportunity rapidly to apply for such further extension then if necessary, rather than attempt, as I think is unrealistic, to schedule a further hearing during the currency of any extension I now grant.

For that reason, I am going to grant an extension until Friday 20 March 2015. I invite the NMC, if it is impossible for it to conclude this matter by then, to be alerted to the need to apply rapidly to the court for a further extension at that time.

21. MISS STEPHENSON: My Lady, I have a copy of the draft order.
22. My Lady will see it includes terms that the respondent has permission on giving 3 days' notice to the applicant to apply to the court to vary or discharge the order, and makes no order for costs. That is standard wording for any order of the NMC. I have also added the date of the extension.
23. THE DEPUTY JUDGE: Thank you.