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
		9 April 2015

1. JUDGE ALICE ROBINSON: This is an application under article 31(8) of the Nursing and Midwifery Order 2001 for a three month extension of an interim order imposed on the respondent suspending her registration as a nurse. She was employed as a registered nurse by Peverel Court Care at Merryfield House Nursing Home. In June 2013 she was found to have taken morphine from stock at the nursing home for her own use as she had been in pain due to her health conditions and on 26th June 2013 she accepted a police caution for theft. She was subsequently dismissed from her job owing to her misconduct.
2. The matter was referred to the Nursing and Midwifery Council on July 2013. On 17th July 2013 a Panel of the Investigating Committee decided to make the interim suspension order. The decision refers to a letter from the respondent to the home where she is employed accepting responsibility for theft of the morphine, stating that she was suffering from a medical condition which caused pain and had taken the medication in order to help manage the pain during the course of her shifts. The Panel said this:

i. "The panel has decided that based on the information before it there is a risk of repetition because [the respondent] took medication from two service users and this related to an ongoing health condition. While there was no evidence that a patient had in fact come to harm as a result of her behaviour, the panel concluded that a registrant self-medicating non-prescribed, controlled, opiate drugs was at risk of impaired judgment which had the potential to put patients at real risk of significant harm. The panel also considered that to allow [the respondent] to practice unrestricted would not be in her interest because of the access she would have to controlled drugs in the course of her work and the risk of repetition while her symptoms and pain are still present.

ii. The panel therefore concluded that some form of interim order is necessary on the grounds of public protection, in [the respondent's] own interest; and an order is also otherwise in the public interest in order to maintain confidence in the professions and the NMC as the regulator. The panel noted that these are serious allegations regarding dishonesty and theft of controlled medication, which are matters likely to damage the reputation of the profession. The public would make it wrong to allow Miss Ackland to practise unrestricted pending a final hearing."

3. The Panel considered whether to impose an interim conditions of practice order but decided that that would not be sufficient to meet the circumstances of the case and accordingly made an interim suspension order.
4. On 28th November 2013, the NMC's solicitors completed their investigation and reported back and on 21st January 2014 the Panel Investigating Committee decided there was a case to answer and referred the case to the Conduct and Competence Committee. A substantive hearing of the Conduct and Competence Committee took place on 16th May 2014 but in the light of the evidence decided to refer the case to the Health Committee as it determined the case would be better dealt with by that Panel. The respondent was not present or represented at that hearing.
5. During the course of the next six months the NMC instructed UK Independent Medical to undertake medical screening of the respondent but that took some time as a result of the fact that she failed to attend two appointments which had been made, although on 6th December 2014 she did eventually attend the medical assessment. In the meantime, on 15th September 2014, the interim suspension order had been extended by the High Court by consent for a period of six months.
6. Following the medical report on the respondent on 26th February 2015 a Panel of the Health Committee considered the matter at a substantive hearing. Again the respondent was not present or represented. Having regard to the evidence the Panel determined that the respondent's fitness to practice was not impaired by reason of a health condition and the matter was referred back to the Conduct and Competence Committee. A hearing is scheduled to convene to deal with the matter on 29th May 2015.
7. Under article 31(9) of the 2001 Order, the court may extend the interim order for up to 12 months. The principles on which such a decision should be made are set out in the case of Hiew [2007] EWHC Civ. 369. The criteria to apply are the same as the original interim order, namely the protection of the public, the public interest or the practitioner's own interests. The court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case had not been completed, the prejudice to the practitioner if the interim order was continued. The onus of satisfying the court on those criteria falls on the applicant, the NMC in this case, on the balance of probabilities. The court's function is not to ascertain whether the allegations made against the respondent are true or false, but whether they justify prolongation of the suspension.
8. Although no harm was in fact caused by the respondent's conduct in this case, in my judgment the order remains necessary. The medical report dated 19th December 2014 notes that although her consumption of opiates has reduced over the last year with the help of her GP, the author agreed with her GP's diagnosis that she remains addicted to opiates. The risk therefore remains that she might either help herself again to stocks of medication at work, or work under the influence of opiates obtained elsewhere, putting her at risk of impaired judgment and in consequence putting her patients at risk of harm. Furthermore, until the respondent's fitness to practice is finally resolved in light of the serious action by her which involves both dishonesty and mismanagement of medication, it would not be in the public interest to allow her to practice as a nurse having regard to the importance of maintaining confidence in the profession.
9. Finally, I also consider the order to be in the respondent's best interests because putting her in a position of having unrestricted access to opiates, given her addiction, could risk a repetition of the incident.
10. Although the order prevents the respondent from practising and is therefore inevitably prejudicial, I am satisfied that in this case the NMC have proceeded with reasonable expedition to consider her fitness to practice. The case was heard by the Conduct and Competence Committee within one year of referral and the delay thereafter resulted from the referral to the Health Committee which in the circumstances was entirely proper, and subsequent delays were due to the respondent's refusal to attend two medical appointments. The final hearing is now scheduled for 29th May. I have canvassed whether a two month extension would be sufficient and for the reasons given by counsel I am satisfied it would not. If for any reason the hearing on 29th May could not go ahead, for example because of illness by a member of the Panel, or because they decided to give the respondent one last chance to attend, the case would have to be relisted and in the light of the requirement to give the respondent 28 days notice of any hearing that could not be done if the interim order was only continued for a period of two months. Therefore, I am going to grant a three month extension as requested.