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
		27 March 2015

1. MR JUSTICE WARBY: This is an application by the Nursing and Midwifery Council for the extension of an interim order suspending the respondent's registration as a nurse. The application is made by Ms Hall on behalf of the Council. The respondent does not appear and is not represented. The first thing that I have to consider, therefore, is whether it is right to proceed in her absence.
2. The principles are well settled, the leading case being R v Jones [2003] 1 AC 1. The key issue in a case such as this, where there is no question of ill-health, is whether the defendant knows of the proceedings and is voluntarily absent. In this case, the respondent asked as long ago as 1 October 2013 to be removed from the register. She has not attended or been represented at any of the five hearings that have taken place before the Council's investigation committee so far. She has informed the Council that she has no intention of practising as a nurse again, and I have been shown this morning a certificate of service which satisfies me that the application was served on her by recorded delivery on 19 February 2015 at the address which is registered with the Council as her address. In those circumstances, I am satisfied that it is appropriate to proceed in her absence.
3. The relevant facts can be fairly shortly stated. In May 2013, the respondent was employed as a registered nurse on the Acute Medical Unit at York Teaching Hospitals NHS Foundation Trust. On 1 May, Patient A attended A&E and was transferred to the respondent's unit with a gastrointestinal bleed. Observations were completed at about 10.35 pm, the results of which identified Patient A as being at risk. But no other steps were taken for some 90 minutes, until, at about 1.10 am on 2 May, the patient complained of chest pains and further observations were taken. The patient suffered a cardiac arrest, and died on 8 May 2013. It is not suggested that the patient's death was caused by the respondent's failings, but it is suggested that there were serious failings on her part in providing basic nursing care.
4. On 8 October 2013, a panel of the Investigating Committee of the Council made an interim suspension order for 18 months under article 31(2) of the Nursing and Midwifery Order 2001. That order has been reviewed and a decision made to continue it on four subsequent occasions, the most recent being 16 January 2015. The order, however, expires on 7 April.
5. The substantive charges against the respondent will not come to a hearing within that time. The Council has no power to grant an extension of the interim suspension. The Court does have that power under article 31(9) of the Order, which empowers the court to grant an extension of up to 12 months. The application now made is for an extension of 5 months, until 7 September 2015. That will be enough, it is believed, to allow the substantive hearing to take place before the suspension expires.
6. The threshold requirements for the exercise of the Council's power to impose an interim suspension order and the court's power to extend it are the same: it must be shown by the applicant 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. It is the first two of those criteria that have been relied on and are relied on by the Council in this case.
7. I have been referred by counsel's skeleton argument to the Court of Appeal decision in General Medical Council v Hiew [2007] EWCA Civ 369, where the court considered the factors relevant when assessing whether to grant an extension. These include the gravity of the allegations, the seriousness of the harm to which patients may be exposed, the reasons why the case has not been concluded, and the prejudice to the practitioner if an interim order is continued. The court's role is not to make findings of primary fact or to consider the merits of the case; rather, it is to determine whether the allegations justify the prolongation of the interim order.
8. In this case, the allegations are undoubtedly serious: a failure to conduct observations when appropriate, and a failure to escalate to the medical team in the case of a patient who was deteriorating are serious deficiencies in basic nursing care. The risk of harm to patients if the respondent were to resume practice can be assessed as substantial. There is evidence of a separate and similar incident of deficient basic care involving a patient who died. The investigating committee has assessed the risk of repetition to be high.
9. Against that, it is fair to say that the respondent expressed an intention not to practise again as a nurse as long ago as 1 October 2013, and has sought voluntary removal from the register. It therefore seems improbable, if she is genuine in these expressions of her desire, that patients would be exposed to risk in practice. But I must consider not only the protection of the public but also the public interest in ensuring that the regulator is seen to be taking steps to ensure that there is no question of a nurse exposed to these allegations being permitted to practise, and that the court is seen to be supporting that approach.
10. The reason this case has not been concluded within the 18-month period of the interim order is that, after the the Council's investigation was completed, at the end of August 2014, the case was held up for some four months pending the outcome of an inquest concerning Patient A. The coroner's proceedings concluded in December 2014, and it is submitted that the Council's case has "progressed appropriately" since then.
11. I am not sure that I necessarily agree that progress at the pace involved is entirely appropriate. One could perhaps test the question by asking whether, if the respondent were a self-employed individual challenging the allegations and reliant on nursing work for her income, an interim suspension of nearly 2 years would be regarded as necessary and proportionate. It might be so, but it is not necessarily obvious that it would. That, however, is not this case: the respondent has not opposed the continuation of the order or sought a variation at any stage. It is apparent that she does not wish to resume practice as a nurse, and indeed she has admitted that she was guilty of failings on the occasion in question. In practice, therefore, there is no prejudice to this practitioner if the interim suspension is continued. I am satisfied that it is necessary for the protection of patients and in the public interest for the reasons that I have given to continue the suspension.
12. The period is set on the basis of what I might call a worst case scenario. It may (and I would hope it will) be possible to conclude the proceedings within less than the period that is asked for, but I accept that it is appropriate to grant the full 5 months' extension and I do so.
13. If the respondent's intentions were to change, it would be open to her to apply for a review, and variation of the interim order. The draft order that is in front of me expressly provides that she has permission on 3 days' written notice to apply to the court to vary or to discharge the order. I therefore make the order in the terms sought.
14. MS HALL: I am grateful, my Lord.
15. MR JUSTICE WARBY: Thank you very much.