Nursing and Mid-Wifery Council, R (on the application of) v Apara

JUDGE THORNTON: This is an application by the Nursing and Mid-wifery Council to continue the order made by Mr Justice Sullivan on 27 October 2008 in which the judge ordered that the interim order suspending the respondent Eunice Maduke Apara from the Register of Nurses be extended on that occasion until 26 October 2009. Today, the applicant seeks a further extension until 25 October 2010.

Mr Justice Sullivan has considered the background to this case as a preliminary to granting the order. I will briefly refer to that. The unhappy history of this matter started as long ago as 6 April 2006 when the letter of referral was received. The basis of referral was that there were grounds for considering that the competence to practise of the respondent was impaired on medical grounds. The matter proceeded, following investigation, with a notice of referral to the investigating committee. On 27 February 2007 the panel considered the case and decided to investigate the allegations and, as they have power to do, invited Miss Apara to undergo a medical examination by a psychiatrist. The word "invited" in this context is a polite usage since the panel properly has - and clearly did on that and subsequent occasions use - the power to direct a medical examination.

At all events, on 1 May 2007 an interim suspension order for a period of 18 months was imposed. It is at that stage, albeit nearly 18 months later, that Mr Justice Sullivan considered the application on grant of the order.

The explanation for the lengthy period, both before and after the granting of that order, is that despite repeated attempts as documented by the applicant and the panel to obtain the necessary consent and then the necessary psychiatric examination, there was no co-operation from the respondent. The position remains that the respondent has been unable to obtain the relevant psychiatric evidence which is, as counsel for the applicant explained in practical terms, an essential pre-requisite for referral to the relevant panel concerned with competence to practise and the related consideration of the physical and mental capacity of the respondent to practise.

The decision has now been taken to refer the respondent to the appropriate panel for consideration of a disciplinary complaint, namely the respondent's repeated failure to comply with directions for her co-operation and participation in the relevant psychiatric examination. It is envisaged that the final decision as to whether to refer will be taken by the panel at its meeting which has been listed for 9 December 2009. If there is to be a referral, as is envisaged there will be, the hearing will take place in the early part of 2010.

For all those reasons, I am satisfied the order should be made and that it is appropriate and reasonable to grant the period of extension sought - that is to say 12 months from 26 October 2009 to 25 October 2010. I will include in the order a provision that the respondent has liberty to apply to vary or discharge this order on three days' written notice to the applicant.

Here is the order. Do you wish to have back your posting documentation or can it be added to the file?

MISS STRICKLAND: Can it be added to the file?

JUDGE THORNTON: It is only a very small point but I notice that the applicant has issued a Part VIII claim form. I should have thought - although I speak without having done any research - that it could have been done by issuing an application notice in the original proceedings. The advantage to the applicant of that would have been that it would have saved £400. I think the court fee would have been rather less for an application notice.

MISS STRICKLAND: That is helpful.

JUDGE THORNTON: That is for the future. We will not investigate that. Had I been in a position to direct any saving in costs, I would have done so. It is probably not possible today. Certainly whoever is responsible may like to note that for the future.

MISS STRICKLAND: I am most grateful. I will look into that.

JUDGE THORNTON: In Apara I was provided with proof that the respondent had been served with notification of the application being made today and with the appropriate supportive documentation. The service was by recorded delivery at her last known address held by the applicant. Service was effected by posting on 2 October and [there was] proof of service by the relevant notification from the Royal Mail.

In those circumstances I was able to proceed in the absence of the respondent.