Nursing and Midwifery Council, R (on the application of) v K & OR

MR JUSTICE LANGSTAFF: I have before me three applications by the Nursing and Midwifery Council in respect of three registrants seeking extensions of interim suspension orders which in each case were made on 19th July 2005 suspending registration.

The suspension was made in each case as an interim order under Article 31 of the Nursing and Midwifery Order 2001. The power is exercisable where an allegation against a registered professional has been referred to an investigating committee or other committees but the committee has not reached a decision in the matter and it must be exercised if the committee -- that is in each of the cases with which I am concerned the investigating committee -- is satisfied that 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 person concerned, for the registration of that person to be suspended or to be made subject to conditions. In such a case the committee may (it does not have to) make an order directing the Registrar to suspend the person's registration which is an interim suspension order, or alternatively to make an order imposing conditions with which the person must comply, which is an interim conditions of practice order.

The period for such an order may not exceed 18 months and it must be reviewed at three-monthly intervals after the first six months of the order. At the conclusion of the 18 month period, under Article 31(8) the Council may apply to the court for an order to be extended and it may apply again for further extensions. By virtue of Article 31(9) on such an application, the court may further extend for up to 12 months the period for which the order has effect.

Mr Arnold, who appears today for the Council in each of these three applications, acknowledges that there is no specific test referred to within the legislation to which this court must have regard in determining whether or not to extend an interim suspension order. But he contends, in my view appropriately, that this court should have in mind that the interim suspension order is one made specifically for the purposes to which I have already referred. Those purposes necessarily involve a balance being struck between the interests of the registrant, which may be continuing with their work for which they are qualified and which may be their only source of income, quite apart from a source of personal and professional pride, on the one hand and the interests of the safety of the patients with whom the registrant has to deal on the other.

There is a public interest which is not necessarily identical with the interests of the patients, although plainly there is an overlap. The public interest is often said to lie in resolving matters, where there are serious allegations, within a reasonable timescale. It is plainly important that if there are serious health issues and, more importantly, if there are serious issues of conduct which are disputed, that there should be a resolution of those issues sooner rather than later.

I take it to be that the purpose of the legislation that an interim suspension order is reviewed effectively by the High Court after 18 months, further indicated by the fact that the High Court cannot give any open ended continuation of an interim suspension order, is that such an order is intended only for the short term. The purpose of the legislation is thus consistent with, and indeed indicative of, the need to have matters heard and determined. The interim suspension order is to protect the position in the meantime. Therefore, it seems to me that in ordinary cases the Council applying for a continuation should show good reasons why the matter has not thus far been capable of determination. I would expect normally of such an application that it should be explicit or at the very least clearly implicit, within the papers why it is that within the 18 months which have been available since an allegation was first made, it has not proceeded to a final hearing and determination. Plainly finality is important for the public, for the reputation of the profession and in the interests of the registrant.

I turn, after those introductory remarks, to the case of K. I make an order in her case pursuant to section 11 of the Contempt of Court Act 1981 that she not be identified. In her case, it was alleged on 24th August 2004 that she had self-administered a drug which was liable to, and in her case did give rise to, cardiac arrest. It appeared that she was suffering from at least a major depressive disorder. Further reports from subsequent employers show that, despite her protestations to the contrary, she had maintained an involvement with administering and taking drugs (not, I hasten to add, it seems drugs which are prescribed by the Misuse of Drugs Act as such, but drugs which were her employer's property and which she had taken for personal use or abuse).

Eventually, on 21st August 2006 she pleaded guilty to a number of criminal charges in respect of her misappropriation of drugs from various of her employers.

It is plain, reading the papers, that there is a psychiatric background to her offending. In the light of the fact that she collapsed through self-abuse on the job, and subsequently it coming to light that she had misappropriated the drugs and acted without proper frankness to her employers, the Panel took the view that they should impose an interim order for suspension of registration. It seems to me that the reasons for protection of the public are clear, even from this brief description of her case. It is also plain from the papers that in her case the Panel have taken the perhaps merciful view thus far that what is in issue is probably a matter of health. It may well refer the issue to the Health Committee in due course rather than to the Conduct and Competence Committee. That matter has yet to be determined. It has not yet been determined, it seems to me, because the full prognosis for her condition has not yet been finally determined. In a situation where there is an ongoing and perhaps a developing health condition, or an appreciation of that condition which is developing, it seems to me not unreasonable for there to have been the delay there has been thus far. It is a matter of regret that the last of the three-monthly reviews which should have taken place did not, but that was by reason of a technical problem and not because the Council did not have the matter well in mind. I have therefore no hesitation in continuing this interim suspension order for the period of 12 months as asked.

The case of Mr Bawden is of a very different character. This is a case in which the order was made because of an allegation which was received on 9th May 2005 on behalf of the employer of the registrant that he had been dismissed from his post as a community nurse for gross misconduct following a disciplinary hearing. It had been alleged that he had conducted a sexual relationship with one of the Trust's service users. It does not appear from what the registrant subsequently told the police to be in issue that there was indeed a sexual relationship between him and someone who had been under his care but had, at the time the relationship was consummated, ceased to be so.

Particular concerns for the Council are that the patient was someone whose intellectual capacity makes him a vulnerable person, and it may well be that the registrant abused his position and knowledge of the patient in order to conduct the relationship he did. But it is right to record that no prosecution has been undertaken: the police were either satisfied, or at least could not prove to the contrary to the requisite standard, that there had been consent on the part of the former patient. The matter is further exacerbated by the fact that the registrant occupied a moderately senior position and spoke to others about issues of conduct and the like.

It is plain that there may be an issue between the registrant and the Council as to whether the conduct for which he was dismissed from his employed post is one which should affect his registration, and if so what penalty should be imposed.

The matter requires, and one might have thought had always required, reference to the Conduct and Competence Committee. After all, before the interim suspension order the respondent had already been dismissed following a disciplinary hearing at which there must have been sufficient evidence on which to dismiss him. Yet in the 18 months of the interim suspension, no effective step has yet been taken to secure that the matter should be heard and determined. It seems to me to be plainly important in the interests of the public that they should know what the response is of the Council to the serious allegations which have been raised. Secondly, it seems to me important in the public interest that a professional view be taken of the quality, or lack of it, of the registrant's conduct. Thirdly, it seems to me to be important for the registrant himself that the matters in issue be determined one way or the other as soon as possible. There is no obvious and good reason for delay.

I am told that there will be a meeting of the Conduct and Competence Committee, to whom the matter has now been referred, on 8th February 2007. This will set directions for the future. I am told that it is likely that a hearing should be capable of conclusion before the end of July this year. I appreciate that there may be other cases which compete for time and space in the calendar of those who sit on that Committee, but it also seems to me to be important that finality be brought in this case, which is a matter of some sensitivity and undoubted public interest. Accordingly, in this case it seems to me that it is not appropriate to accede to the request to continue an interim suspension order for a period as long as 12 months. By providing, as I shall, for one of 7 months, a period of time to which it is right to record Mr Arnold did not strenuously object in his application to me, that will act as a focus for the CCC when, on 8th February 2007 it determines when this case will be heard. I hope by so providing to encourage an early rather than a late determination, and if it be earlier than August 18th this year, so much the better.

The third of the cases is that in relation to W, in respect of whom again there is an order, as there was in the case of K, under section 11 of the Contempt of Court Act. She has suffered for some time from problems which can be described as occupational health problems. They appear to have been a very sad catalogue of a number of injuries, the cumulative effects of which have involved very substantial periods off work amounting to the majority of time absent from her duties. More worryingly, it was reported that she had been subject to black-outs and possible epileptic fits. As such, it may plainly have been appropriate to restrict the work which she could do.

A report was prepared for her employer by the Head of Service at their Occupational Health Department on 21st January 2005. It noted that she had such a significant body of problems that she might well be regarded as disabled under the Disability Discrimination Act. She had been compliant, it is necessary to add, with the treatment during the four and a half years that she had worked for the Trust, during which for about 75 per cent of the time she had been absent with those problems. Related to those problems there have been issues of reliability and of inappropriate behaviour at work. The occupational health doctor continued:

Accordingly, it seems to me that the report was somewhat opaque, although it was plain that it sought to summarise sensitively a body of problems about which there is much further evidence in the papers before me. When this came to the Council, the Council concluded (see page 7 of the transcript of its determination of 19th July 2005) to make an interim suspension order for 18 months. It gave explicitly as the reasons for the decision that:

It seems to me that it is not clearly reasoned through in that paragraph whether the doctor's conclusion meant that, as a matter of fact and considering all the matters to which they had to have regard, the Panel should interimly suspend the registration of the registrant and, in particular, whether it should do so rather than consider imposing conditions. However, bearing in mind that part of the nature of her afflictions was the potential for sudden collapses or fits whilst undertaking nursing, it seems to me that there was a proper basis nonetheless for having come to the view that there should be an interim suspension of her registration.

Therefore, though a little concerned about the basis upon which the order was originally made and since continued, it seems to me to be appropriate in a case in which the medical position is -- as it is in the case of K -- ongoing, and in which ultimately a decision will have to be made on health grounds as to the future of the registration of the registrant, that I should accede to the request which has been made to me by Mr Arnold. No doubt when the registration is reviewed, as it will be at the three-monthly intervals, the committee next doing so will consider carefully the issues of public safety and whether it is indeed necessary to remove for the time being the registration of this registrant as opposed to imposing conditions upon her practice. But that is a decision for them and not for me. In the meantime, I grant the order which I have been asked to do.

MR ARNOLD: Thank you, my Lord.

MR JUSTICE LANGSTAFF: You are very welcome.

MR ARNOLD: I wonder if I could hand up the draft orders I have prepared. (Handed).

MR JUSTICE LANGSTAFF: Yes, certainly. Thank you very much.

MR ARNOLD: Thank you, my Lord.