Nursing and Midwifery Council v Gates

MRS JUSTICE DOBBS: This is an application for an extension of an interim suspension order which was made on 20 February 2008 by virtue of Article 31(8) of the Nursing and Midwifery Order 2001. The order was made for 18 months. It expires on 19 August and the extension sought is for a period of six months.

The case, as it transpires now, is listed for final hearing on 7 September before the Health Committee. Essentially the reason why this extension is needed, is because there was due to be a hearing in July of this year. The necessary documentation was sent by the applicant to the respondent, but, sadly, service was not effective enough to comply with the rules as the applicant could not prove delivery of the documents. As a result the matter has had to be rescheduled.

The central allegation before the investigating Committee of the Nursing and Midwifery Council was that the respondent, who was in employed at a nursing home in Lancashire, wrote to the Professional Standards Department of Merseyside Police in 2006 expressing concern that the police had failed to take a complaint she had made earlier seriously. The content of the letters to the police by the respondent had given the police some cause for concern regarding the respondent's state of mind. Enquiries revealed that the respondent had a history of mental illness.

There is evidence before the court by way of a report from Dr Murugananthan dated 10 June 2009, that the respondent is still suffering from paranoid schizophrenia; that she still lacks insight into her condition and that this lack of insight is likely to last a long time. The essence of the material in front of the investigating committee shows that the respondent has serious mental health issues.

The principles to be applied when considering an application for extension are set out in paragraph 11 of the applicant's skeleton argument which is essentially the guidance referred to and set out in the case of GMC v Dr Chee Cheung Hiew [2007] EWCA Civ 369. Similar considerations obviously apply in a case like this, although that case dealt with the statutory regime of the GMC.

The criteria are the same as for the making of an interim order itself, namely the protection of the public, the public interest and the respondent's own interest. The court must take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reason why the case has not been concluded and the prejudice to the respondent if the case is not concluded, and the court is required to ascertain whether the allegations justify the prolongation of the interim order.

It is quite clear that the investigating committee were given full directions by the legal adviser when coming to their decision to make the order. The transcript of the 20 February 2008 makes that clear. Page 2 of the transcript over to page 3 comprises the legal advice given to the committee by the legal assessor which set out the criteria in full. The committee was satisfied that there was evidence of severe mental health problems and found that the order was necessary for public protection and in the public interest and registrant's own interests.

It is quite clear from the doctor's report that I have read that the investigating committee's finding of severe mental health problems was a proper one and, in the light of the evidence of the medical practitioner, that this respondent had little insight into her condition. It is also quite clear that the protection of the public is of considerable importance, as indeed the reputation of the profession in ensuring that people who are suffering from severe mental health problems are not allowed to continue to practise unrestricted. The protection of the respondent herself is also an important consideration. As to hardship to the respondent, it is to be noted, that the respondent herself has written to the Nursing Council and Midwifery Council and indicated a desire to come off the register, although I think technically she is still employed as a care assistant.

It is unfortunate about the delay, due to service not being effected. It is not a case of the applicant failing to serve the documents and failing to provide a date for hearing, but rather, unfortunately, not quite meeting the strict rules for service. It is also clear that the applicant has taken steps to remedy this and to hold a hearing as soon as possible.

In this case I am satisfied that the necessary criteria are made out, that there is no significant hardship to the respondent and therefore this application will be granted in the terms which will be set out in the order.