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
		18 November 2014

1. MR JUSTICE COBB: By application dated 11 November 2014, the Nursing and Midwifery Council seeks an extension of the interim suspension order made initially on 21 November 2012. This application is made under Article 31(8) of the Nursing and Midwifery Order 2001. The Nursing and Midwifery Council seeks the extension of the suspension for a period of 5 months from 19 November 2014, that is from tomorrow.
2. The application has been served on the respondent by means of recorded delivery and first class post. The respondent, in circumstances which I shall discuss in a moment, has not attended this hearing, nor has she submitted any written documentation in respect of the same.
3. I am advised that a paralegal in the regulatory legal team has discussed the application with the respondent's solicitor, who had indicated that a signed consent would be forthcoming for this hearing, although no consent has in fact been supplied.
4. The suspension order has previously been extended by the High Court on 13 May 2014. The application is supported by a statement of Natalia Fedotova which I have read, together with the exhibits.
5. In short summary, the respondent was employed as a registered nurse by the Nottingham University Hospital. In October 2012, she was arrested and charged with various offences of dishonesty, including obtaining a pecuniary advantage by deception, obtaining nursing employment on false credentials, and using a forged passport.
6. On 27 September 2013, following a trial she was convicted of those offences and sentenced to a term of imprisonment of 18 months. I am advised, although I have not in fact seen the sentencing remarks of Her Honour Judge Butler QC, that during the trial the respondent told "lie after lie."
7. It is now understood that the respondent is seeking to appeal those convictions, albeit that she is significantly out of time for doing so, the grounds of appeal and notice of appeal having been submitted to the Criminal Appeal Office only I believe in or about July 2014.
8. The respondent's disciplinary hearing was due to have taken place in August 2014, which would have fallen within the period of the last period of suspension. However, this was postponed in the light of the indication from the respondent's representatives that the appeal had been lodged against conviction.
9. The further period of suspension is designed, says Mr Amesbury, to cover the period in which any appeal against conviction is heard, giving time then for the NMC to conduct its own disciplinary process. It is envisaged that a conduct hearing can be listed and dispatched quickly, particularly in the event that the appeal against conviction is dismissed.
10. The respondent's case is, however, likely to be, so it appears, that while she admits the convictions, she denies that her fitness to practise has been impaired. The respondent is, it appears, currently in a detention centre as a result of investigations now raised in relation to her immigration status. That explains in large part, I apprehend, why she has not been able to attend court today, no production order having been, as I understand it, sought or applied for.
11. It will be apparent from the short chronology which I have given in this judgment that there have been regrettably serious delays in the resolution of this disciplinary process, but I am satisfied that these have not been attributable to any want of prosecution on the part of NMC in the resolution of its disciplinary process; but have been instead caused, or materially contributed to, by the inability of NMC to obtain relevant materials from the police during the course of their investigation and prosecution and ultimately awaiting the outcome of the criminal trial.
12. In considering whether to grant the extension of the interim suspension order, I follow the guidance of the Court of Appeal in General Medical Council v Hiew [2007] EWCA Civ 369. In that case, the Court of Appeal indicated that the relevant factors in considering whether to grant an extension include:

1) The gravity of the allegation.

2) The serious of the risk of harm to patients.

3) The reasons why the case has not been concluded.

4) Prejudice to the practitioner if an interim order is continued.

13. While satisfied that any extension of an interim order restricting a nurse's ability to practise has the inevitable potential to cause prejudice, in this particular case and by virtue of the fact that the respondent is currently detained as a result of immigration issues to which I have earlier alluded, the actual prejudice to the respondent is not in the circumstances great.
14. In any event, I am of the clear view that any potential prejudice caused to the respondent in continuing the interim order, particularly for the relatively short time prior to the ultimate resolution of the disciplinary process, is clearly outweighed by the risk to the public were she allowed to return to practice unrestricted at this time.
15. The allegations which form the basis of her convictions are indeed extremely grave and her proven dishonesty creates in my judgment very significant potential for risk of harm to patients. I am satisfied as I have earlier indicated that the fact that this disciplinary process has not yet concluded is not attributable to any default on the part of NMC.
16. For these reasons, I accede to the application by the NMC for an extension of the interim suspension and I make the order for a period of 5 months. Thank you.
17. MR AMESBURY: My Lord, I have a draft order I can hand up, if it is of assistance.
18. MR JUSTICE COBB: Thank you very much. (Handed) Yes, I will make the order in the terms drafted.