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 three-month extension of an interim order suspending the registration of the respondent. It was first made on 10 December 2015 under Article 31(8) of the Nursing and Midwifery Order 2001. It is due to expire on 9 March 2017. That is today. The underlying case was due to be heard on 7 to 10 March and adjourned part-heard, because of the failure of the respondent to cooperate. He was, as I understand it, not present at the hearing. The order, which I have before me today, has been reviewed on three occasions, the last being on 9 December 2016, when the Panel decided to continue the interim order.
2. The facts which underlie the claim are that the respondent is the subject of two separate referrals, that his fitness to practise is impaired as result of his lack of competence and misconduct and that his fitness to practise is impaired by reason of his lack of knowledge of English.
3. In relation to the first referral, the specific regulatory concern is that the respondent lacks competence in relation to medication administration. There are a portfolio of other lesser concerns, but it appears that there were concerns raised about his ability to identify and understand uses of well-known drugs. During the investigation of the first referral, concerns were raised regarding his ability to communicate effectively in English and that gave rise to the second issue. The respondent was directed to undertake an International English Language Testing System assessment. He has failed to undertake that and has indicated that he is unwilling to do so. The facts underlying the application are supported by the witness statement of Angela Shah.
4. I should deal with the fact that the respondent to this application is not present this morning and is not represented. I have asked questions about whether he has been notified of this hearing. I am informed that the respondent had served on him the witness statement and the exhibits by means of recorded delivery by first-class post on 10 February 2017, that he has not responded and that he also has not attended the previously scheduled hearing for the disciplinary offences, which was due to take place.
5. In those circumstances, it seems to me to be appropriate that I proceed with the application this morning, because it appears that the respondent has had a chance to consider the application and has had a chance to attend and has chosen not to do so, as he has done the underlying matter as well.
6. In considering the order, I have had mind to the principles which are set out in the relevant authority, Generally Medical Counsel v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369, which requires me to balance a number of different factors. In this case, the allegations are serious and the risk of harm to patients and members of the public is apparent. The fact that the respondent is not familiar with basic medications is extremely concerning. It is a basic, but important, function of nursing practice. The ability to use these medications and calculate the appropriate amounts is critical to a major part of the job which a nurse has to do and somebody who cannot do that is obviously a risk of harm.
7. Similarly, the lack of knowledge of English is extremely concerning, because that is a fundamental to the delivery of safe and effective care to understand the concerns of patients and adequately record them and react to them.
8. There has obviously been some delay in this case, but the delay has been substantially explained in the witness statement and by counsel. There have obviously been delays inherent in the fact that there have been two referrals and that has slowed down the process. Then the matter has been reviewed by a lawyer who recommended further investigation, which was completed in January 2017. There was then the necessity to allow the respondent time to respond and to canvass witness availability. The matter has been scheduled for a substantive hearing. That substantive hearing has taken place and has had to be adjourned. I am satisfied that there is a plan in place to bring the matter to a conclusion within the currency of the extension which is sought.
9. On prejudice, the respondent has not sought to draw the attention of the court to any prejudice which he says he will suffer if the order is extended. I am prepared to grant the order sought. I am satisfied that, given the seriousness of the allegations, the balance of convenience amply favours the grant of relief. There is a potential of danger to the public, given the nature of the allegations. In the absence of there being any serious prejudice indicated, I think it is appropriate to make the order.