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 March 2017

1. MS SARA COCKERILL: This is an application by the Nursing and Midwifery Council for a four-month extension of an interim order which was first made on 15 September under Article 31(8) of the Nursing and Midwifery Order 2001. The current order is due to expire on 13 March 2017. The order has since been reviewed on a number of occasions and most recently on 11 January 2017.
2. The facts which underlie this case are set out in the witness statement which has been served. They concern whether there has been an incorrect or fraudulent entry on the applicant's register. The respondent contacted the applicant in August 2015 to obtain further information about the new validation process. During the course of that conversation, she disclosed she had not been working as a nurse since 1998 and it is alleged that she returned the Notification of Practice Forms to the NMC in 2003, 2006, 2009 and 2012 stating she had completed the requisite hours of clinical practice and continuing professional development, when this was not the case. The facts underlying the application and the NMC's position are supported by the witness statement of Sally Neil.
3. I should deal with the fact that the respondent to this application is not present this morning and is not represented. I am informed that she has indeed been served by recorded delivery first-class post with the witness statement and exhibits relating to this application. She also received a letter putting her on notice of the application. In this case, the respondent has responded to these communications with an email dated 1 March in which she states:

"Further to your email concerning the interim order on my right to practise as a nurse in the UK, continuing the continuous stream of obstacles that have been placed in my path towards reactivating my NMC registration, I have decided against the whole idea of working as a registered nurse in the UK. Also, partially as a result of the stream of accusations and the innuendos which have been suggested concerning my years of faultless service, combined with the fact that my doctor has now placed me on long-term sick, therefore, bearing in mind that I am due to retire in four years, I wish to lapse my registration with the UK NMC effective immediately.

Please send me confirmation that all the necessary paperwork has been completed."

4. In those circumstances, it is seems to me to be appropriate that I proceed with the application this morning, because the respondent has plainly had notice of the application, has had a chance to consider it and to attend, and has chosen not to do so, putting some representations before the court in lieu of attendance.
5. In considering this order, I am required to balance the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case has not yet been concluded and prejudice to the practitioner if the order is continued. In this case, the allegations are serious, although of a slightly different nature to those which one often sees. I am convinced that they are, nonetheless, serious, because the risk of harm to patients and members of the public, while not obvious and acute, is demonstrated in that the point of continuing clinical practical or maintenance of CPD is to maintain up-to-date practice and skills. The failure to perform these, over a considerable period in this case, indicates that the respondent poses a real risk of potential harm to patients.
6. There has obviously been some delay in this case. That is explained in the witness statement and by counsel. There was an initial delay, for which no reason has been given, of about three to four months. Investigation then took place until August 2016. In September 2016, the Investigating Committee was referenced. On 27 September 2016, the respondent returned her response and requested that there be a substantive meeting. In November, that was agreed to. In January, an NMC lawyer reviewed the case and requested that a further witness statement be obtained as it was listed for hearing. I understand that is now in the process of being done.
7. Overall, however, I have to note that the story on delay is not entirely satisfactory. Were this a case where the respondent had serious concerns or was opposing the application or was putting forward arguments in relation to prejudice, the NMC would be in some danger here. However, paragraph 13 of the witness statement of Ms Neil does explain the plan to progress the case. Mr Scott, for the NMC this morning, has indicated to me that a hearing in the near future is very likely and so it is likely that the matter can be concluded in the period of the extension sought. The respondent has not specifically cited any prejudice which she says she will suffer if the order is extended. Given the fact she has not been practising and the terms of her letter, it seems to me that there are unlikely to be any.
8. I am, therefore, prepared to grant the order as sought. I am satisfied that the balance of convenience favours the grant of relief, given the seriousness of the allegations and the fact that there is no serious prejudice to the respondent.
9. I propose to make the order sought, but I do again note that the delay to date is not really very admirable. If it becomes necessary to bring this back in front of another judge, my comments that the delay is a matter of concern should be brought to that judge's attention.