Nursing and Midwifery Council v Rothwell

1. MR JUSTICE LINDBLOM: The applicant, the Nursing and Midwifery Council, seeks an extension of 12 months to the Interim Suspension Order made under Article 31 of the Nursing and Midwifery Order 2001 by a panel of its Practice Committee on 20 October 2010 in place of an Interim Conditions of Practice Order made by the panel on 23 July 2009, thus extending the order from its present expiry date of 14 January 2011 to 13 January 2012.

2. The respondent, Roland Christian Rothwell, faces allegations that he stole medication from the Royal Surrey County Hospital while he was working there as a staff nurse in 2008, this incident having taken place, it is alleged, in the presence of a student nurse whom he was supervising at the time.

3. The grounds on which the suspension order was eventually made, after two previous variations of the Interim Conditions of Practice Order in January and July 2010, were that it was necessary for the protection of members of public, that it was generally in the public interest, and that it was in the respondent's own interests.

4. The panel's letter of 20 October 2010 to the respondent states:

"The panel, in particular, noted that the registrant had failed to engage with the NMC for more than 2 years and had breached a number of the varied conditions of practice decided by the panel of the NMC Investigating Committee on 19 July 2010. Nothing has been heard from the registrant and the NMC is no wiser as to his whereabouts or current occupation.

The allegations are serious, involving theft of drugs from a medical assessment unit and involvement of a student nurse in these actions. While it is apparent that the registrant may have been unwell at the time of the incident he was invited to submit himself for a medical assessment which he failed to do. It is possible that there could be a repetition of this behaviour and it is impossible to know what he is currently doing. Conditions of practice are not then viable and would not necessarily meet the concerns about both public protection and the registrant's own interests.

Given that all efforts have been made to engage the registrant and to provide him with support with conditions of practice and he has not complied or engaged the panel considered that an interim suspension order would be a more appropriate and proportionate response to the significant harm that this registrant could pose to the public and otherwise in the public interest. Further it is necessary in the registrant's own interests as it is unclear what his current state of health is."

5. It was pointed out to the respondent that the order would be regularly reviewed and that it would be open to him to apply to the court to have it revoked or its period changed.

6. The present application is supported by the witness statement of Miss Gifty Scott dated 10 December 2010. Miss Scott's witness statement explains the progress of the respondent's case thus far. It appears that the respondent has not engaged with the Council since he referred himself to it in September 2008, when he stated that, at the time of the incident with which his case is concerned, he was suffering from depression and was suicidal. The respondent was subsequently dismissed by the NHS Trust.

7. A panel of the Council's Investigating Committee considered the case on 12 May 2009. It decided to invite the respondent to undergo a psychiatric assessment. Medical consent forms were sent to the respondent on 4 June 2009.

8. The case has suffered from chronic delay, not all of which has been the fault of the respondent. In paragraphs 5, 11, 12 and 13 of her witness statement, Miss Scott states:

"5. ... Delays have been experienced since the medical consent forms were sent to Mr Rothwell in June 2009. Efforts were initially made to trace Mr Rothwell but to date Mr Rothwell has not consented to a medical assessment. Unfortunately, and due to an administrative oversight, efforts were not made to chase the consent forms until recently.

11. As matters currently stand there is no immediate prospect of the case concluding. The NMC has been waiting for signed medical consent forms, so Mr Rothwell can undergo a psychiatric assessment. In the absence of these, the case has been at a standstill for a considerable length of time. Cases such as this, where there is some evidence of psychiatric disorder and a failure to engage are particularly difficult to progress.

12. A decision will need to be taken as to whether the case should now provide as a misconduct matter rather than going down the route of ill-health. Inevitably, given that no investigation of the factual allegation has yet been conducted, there will be further significant delay.

13. In the circumstances it is unlikely that the case will be concluded before the end of 2011 and the court is therefore asked to grant an extension of 12 months."

9. The matter has progressed at least to this extent in recent months. On 10 November 2010, Miss Scott wrote to the respondent. In her letter of that date, she stated that no response had yet been received to the request for medical consent. Miss Scott enclosed with her letter medical consent forms for the respondent to complete and return to her by no later than 24 November 2010. There has, however, been no response to that request.

10. Appearing for the Council, Miss McDonnell has submitted that whilst it is accepted by the Council that there has been delay, part of it attributable to the inactivity of the Council itself, the allegations are serious ones. It is pointed out that the matter is now listed before a committee which will investigate it on 9 February 2011, and that the case is now making its way through the disciplinary process. It is said that there will be a lawyer's investigation, and that the committee will make any necessary orders in the light of that investigation. Emphasis is laid, again, on the respondent's failure to engage since the first contact was made. Generally, it is submitted that the Council has to contend with high volumes of case work, having only limited resources to do so, and that this difficulty affects the speed at which cases can be dealt with.

11. Although, in my judgment, it is regrettable that the respondent's case has not been more swiftly brought towards a conclusion, and that even now, according to the Council's own evidence, no early conclusion is yet in prospect, I accept that the allegations facing the respondent are substantial and serious. I accept that there have been difficulties in progressing the case, which are attributable largely, though it seems not solely, to the respondent's failure to co-operate in the disciplinary process. Without prejudging the outcome of that process, if it does indeed go further and reaches a conclusion, I accept that the Council has discharged the burden it must if the extension it seeks to the respondent's suspension from practice is now to be granted: see General Medical Council v Dr Stephen Chee Cheung Hiew[2007] EWCA Civ 369.

12. In principle, therefore, an extension is justified. How long ought that extension to be? This is not easy to judge. The 12 months sought by the Council seems generous, and certainly should be ample for the resolution of these proceedings if they are to go ahead. In the circumstances, and without the benefit of any assistance from the respondent, I am prepared to grant an extension of that length.

13. Accordingly, the interim suspension order will be extended by a further 12 months to 13 January 2012, and I make the order in the form of the draft which has been submitted to me on behalf of the Council.