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
		6 October 2016

1. THE DEPUTY JUDGE: This is an application for an extension of an Interim Suspension Order under Article 31(8) of the Nursing and Midwifery Order 2001. Originally an Interim Conditions of Practice Order was made for eighteen months on 9 April 2015 but on 3 December 2015, in circumstances I will mention in a moment, that was replaced with an Interim Suspension Order.
2. The respondent practised is a residential care home. It is alleged that between March and July 2014 she failed to provide proper care for a patient, specifically in relation to changing the patient's catheter and keeping proper records about it. The patient got an infection and had to be hospitalised, although the cause of that is in fact recorded as inclusive.
3. Whilst subject to the Interim Conditions of Practice order that was made after referral in respect of that matter, it is alleged that the respondent failed to notify the nursing home where she was then working of the Interim Conditions of Practice Order and also forged signatures on drug records on a number of occasions.
4. Briefly, the chronology is as follows: on 21 January 2015 the NMC received a referral in respect of the first matter I have just referred to. Following the provision of further information on 9 April 2015 the Interim Conditions of Practice Order was made. The NMC instructed an external investigator, a firm of solicitors, who unfortunately had to be prompted on several occasions during the course of 2015 to carry out further investigations and it was not until 21 March 2016 that the NMC wrote to the respondent to confirm that the investigation was complete and the matter would be referred to a Case Examiner. However, in the interim on 27 October 2015 the NMC received a second referral in respect of the further matter which I mentioned earlier. As a result of that, on 3 December 2015, the Interim Conditions of Practice Order was replaced with an Interim Suspension Order.
5. On 20 April this year the Case Examiner considered there was a case for the respondent to answer in respect of the first referral and the matter was referred to the Conduct and Competence Committee. The respondent was given an opportunity to comment and following receipt of that on 26 July an NMC lawyer reviewed this case together with that of another nurse who was involved in the first complaint and decided that they should be joined. Consent by both respondents has been granted to that joinder. The next step will be for a hearing to be fixed.
6. The test which the court must consider on an application for an extension of an Interim Suspension Order is well established in the General Medical Council v Hiew [2007] 1 WLR 2007. The criteria to be applied are the same as those which apply when the order is first made, namely whether it is necessary for the protection of members of the public or is otherwise in the public interest or is in the interests of the member concerned. The court takes into court matters such 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 has not been concluded and prejudice to the practitioner if an Interim Order was continued.
7. The onus of satisfying the court that the criteria are met fall on the NMC on the balance of probabilities and the court's function is not to decide whether the allegations are true or false but whether they justify the extension sought.
8. In my judgment, as well as the serious clinical failings to which the first complaint relates giving rise to the risk of harm to patients, the allegation of dishonesty and failure to notify the new employer of the Interim Conditions of Practice Order affects the respondent's integrity as a nurse and risks damaging the reputation of the profession.
9. Therefore, in my judgment it is in the interests both of the members of the public, i.e. patients, and it is in the public interest for the Interim Suspension Order to be continued until the disciplinary action is concluded.
10. There have been delays in this case, partly as a result of failings on the part of the external investigator. I am pleased to be informed today that a new investigator has been instructed. The delays have also been caused partly as a result of the second referral, the time taken to obtain evidence and the complication of disciplinary action in respect of another nurse being joined.
11. For all those reasons I am prepared to extend the Interim Suspension Order for a further six months so that it will accordingly expire on 7 April 2016.
12. MR KEWLEY: My Lady, thank you very much.