Nursing and Midwifery Council v Kidd & Anor

Introduction

There are before the court two applications brought by the Nursing and Midwifery Council (“NMC”) for extensions of interim orders of suspension. The first case concerns Mr Mark Kidd and the second case concerns Mr Paul De’filippis. The facts of the two cases are very different. However, in both instances, the NMC submits that there is a real urgency in the application because the existing interim order is about to expire. In both cases the Respondent is not in attendance before the court. And in both cases real questions arise as to the circumstances in which notice of the application and the proceedings was given to the Respondent.

The NMC in both cases seeks orders extending interim suspension orders pursuant to Article 31(8) and (9) of the Nursing and Midwifery Order (the “2001 Order”). This empowers the High Court to extend or further extend for up to 12 months the period for which an interim order imposed upon a registrant suspending his registration as a nurse or midwife has effect.

I propose to start by considering the case of Kidd from both the perspective of the procedural issue as to the manner in which notice was served upon him and then as to the merits. I will then consider the case of De’filippis.

The criteria to be applied when the Court determines an application

The basis upon which the court should exercise its jurisdiction in respect of applications for extensions is well known. It was set out by Lady Justice Arden in GMC v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369. In that case Lady Justice Arden pointed out that Parliament had deliberately entrusted the jurisdiction to grant extensions to the High Court and that the jurisdiction was not one of judicial review. In paragraph [28] of her judgment she stated that the criteria to be applied were “…protection of the public, the public interest or the practitioner’s own interests”. By way of illustration as to the sorts of matters which a court might consider to be relevant she identified: the gravity of the allegations; the nature of the evidence; the seriousness of the risk of harm to patients; the reasons why the case had not been concluded; and the prejudice to the practitioner if an interim order were continued. It will be obvious that in relation to most if not all of these matters the views of the Respondent, threatened with a continuation of an order of suspension, may constitute relevant evidence for a court in the exercise of its judgment not only on the question whether to extend an order but also as to the duration of the extension if granted.

It is also to be emphasised that in taking such a decision the court is not engaged in a routine, tick box, exercise but on the contrary is considering the balance of private and public interests arising. By way of illustration only, if the court concludes that the regulator is acting unreasonably slowly it might be loathe to grant a lengthy extension which served to prolong what might be serious harm to a respondent. The fact that in the overwhelming majority of cases the court does grant the extension sought does not undermine the point that the court is exercising an independent judgment.

Mr Kidd: The notice issue

I turn now to consider the case of Mr Kidd. I start by examining the question of notice. In this case the interim order was first imposed on 14^th September 2012. It was subsequently reviewed by the NMC Practice Committee on 9^th September 2013 and on 29^th November 2013. On both occasions the order was extended.

This application to extend was lodged with the Administrative Court Office on Tuesday 4^th March 2014. It relates to an order which expires on Tuesday 11^th March 2014. The hearing was scheduled for Friday 7^th March 2014. The application was prepared with care and no doubt took some time to compile. It is supported by a witness statement from a case officer from the NMC. The Respondent, Mr Kidd, was served with the hard copy application by means of recorded delivery and first class post on 5^th March 2014. Accordingly, pursuant to CPR 6.14 since the claim is deemed served on the second business day, service was not effected until 7^th March 2014. With regard to the electronic service even if this was made at some point before 16.30hrs on 4^th March 2014 it is still deemed served on 6^th March. This is in relation to the hearing which occurred on 7^th March 2014. At some point on 5^th March 2014 the NMC sent to Mr Kidd and his Union Representative a draft consent order. It was in the following terms:

“I, Mark Paul Kidd, confirm as follows:

•

I have received the claim form dated 4 March 2014 informing me that the application to extend the Interim Order against me would be heard on 7 March 2014.

•

I do not intend to attend the hearing.

•

I do not intend to be represented at the hearing.

•

I do not oppose the application and consent to the Interim Order to which I am subject being extended for the period of time sought by the Applicant.

•

I consent to the application being dealt with without a hearing”.

The consent order sought complete capitulation. Mr Kidd was unhappy about this state of affairs. On 16.47 hrs on 5^th March 2014 his Union Representative, Mr Peter Chapman, responded to the NMC saying:

“I’ve consulted with Mark and he does not give his consent to have the Interim Order extended. Mark has been under investigation since July 2012 and feels his case should have been concluded in a much more timely manner. In addition the stress that the process has caused has been ongoing and Mark is of the view that a further extension to his IO will have a damaging effect on his health”.

Because the Interim Order expired imminently the Administrative Court Office felt compelled to list the matter urgently. I am informed by the office that the service of applications by regulators for extensions near to the expiry date of the order in question is by no means uncommon.

There are a number of serious problems relating to this course of events.

First, and foremost, is the fact that the Respondent was given insufficient time to prepare any sort of a case to put before the court. Invariably respondents are litigants in person who have no legal representatives to advise them or act on their behalf during hearings. Sometimes they appear in court with a McKenzie Friend or a Union Representative or with some other professional association advisor. Experience tells one that their ability to digest a well prepared application and to respond is hindered not only by a lack of legal advice but by the pressure of time. There is a serious and elementary issue of fairness which arises. An interim order strips a person of the right to practise a profession prior to a final hearing on fitness to practise. It is a significant incursion into that person’s civil liberties. At the very least when the regulators seek court orders to extend interim orders the respondent must be given an adequate time to prepare. In the present case the NMC accepts that there have been delays on its part in processing the proceedings against Mr Kidd which have now gone on for in excess of 18 months. In applying the relevant criteria as set out in GMC v Dr Stephen CheeCheung Hiew (ibid) a court will wish to know, inter alia, the reasons why the case has not been concluded. It will also wish to know what the consequences are for the respondent of the continuation of the order. These are matters upon which any respondent might very well have strong views. A tardily brought application which has the consequences I have identified risks making it intolerably difficult for respondents to put across their case. The CPR provides rules as to notice of applications. However in cases of this sort the Courts will wish to look closely at how applications are made. It will be rare indeed that short notice should ever be given. Good practice might entail giving litigants in person longer notice than the bare minimum. Having had the opportunity to discuss this matter with both the Administrative Court Office and with colleagues, in circumstances such as these, good practice suggests that a respondent should ordinarily receive a minimum of 7 calendar days notice of an application to extend. In many instances a respondent given proper time will agree to the extension and will in such a period have had an opportunity to consider the regulator’s evidence and seek advice or assistance. If the order is on the cusp of expiring and a respondent decides to challenge the application the court might then have to decide whether to make directions for a contested hearing which might include an extension of the order until further order of the court. The short but critical point is that respondents to proceedings of this nature must be given a fair chance to be heard and the Courts will be astute to ensure that regulators act fairly.

Secondly, these cases are not intrinsically urgent. They are artificially made so by the delay on the part of the regulator in bringing them to court such that by the time the application is made the order in issue is very close to expiry. The Administrative Court Office has felt compelled to place such applications before a Judge urgently but it is not, as I have stated, for any good reason. Even in a case where a respondent has made clear that upon expiry of the order he or she intends to obtain work or otherwise conduct themselves in a manner causing a real risk to the public, there would still be no urgency. This would simply be evidence likely to lead the court to extend the order to prevent such eventuality occurring. Nothing in the present case prevented the NMC from giving the respondent adequate notice and then liaising with the Court to find an appropriate time for the case to be heard.

Thirdly, the practice of NMC in tendering a consent order to the respondent just days before the scheduled hearing risks using the imminence of the hearing as a means of pressurising a respondent into agreeing to a consent order in the onerous terms that I have referred to. One factor that risks pressurising a nurse or midwife into consenting is the alternative to not consenting, namely the potentially very intimidating prospect of being required to turn up in person before a High Court Judge at very short notice not having had any sort of a realistic chance to prepare. I am not suggesting that the proffering of draft consent orders is necessarily inappropriate; but it has the potential to be unfair if tendered at the 11^th hour to a litigant in person shortly before an oral hearing.

Fourthly, the modus operandi adopted by the NMC in the present case also imposes pressure upon the court whose lists are always crowded. To make room for urgent applications of this type other matters might have to be deferred and/or Judges diverted from other duties. In circumstances where, as I have observed, the lateness of the application is a problem of the regulator’s own making it is not right that this should be allowed to have adverse consequences for the efficient administration of the court service.

Mr Kidd: Facts

I have made these observations so as to put down a marker for all of the regulatory authorities who rely upon the High Court as part of their enforcement regime. I fully appreciate that many regulators are under considerable pressure as a result of the large number of difficult and substantial cases that cross their paths. I am also conscious of the fact that there is no history of regulators coming forward with flimsy or unsustainable cases. In the present case Ms Hoggett-Jones, counsel for the NMC, has explained to me the internal administrative problems faced by the NMC in recent times. She candidly accepted that the manner in which these applications had been brought before the court was unacceptable. She explained that the NMC had recently experienced IT issues which, when coupled to a shortage of staff, had caused a backlog of interim order applications resulting in many cases being lodged much later than would normally be expected. She explained that in the normal case the NMC would strive to give a minimum of 3 clear days notice to respondents but in the majority of cases they would seek to give much more than this recognising the practical problems that the respondents faced. She explained that the IT issues had now been resolved and a recruitment campaign had been completed. I was informed that the backlog of cases had now cleared. Importantly, she said that due to internal improvements it was hoped that regulatory proceedings would more generally be expedited and this should lead to fewer occasions when applications for extensions would need to be made to the High Court. I had placed before me witness statement evidence which addressed these matters from the Paralegal Team Leader whose responsibility it was to oversee the preparation and lodging in the High Court of applications to extend interim orders. I should say that I accept this evidence and was grateful for the explanations given. Nonetheless, none of this, as counsel accepted, can constitute a good reason for assuming that respondent’s rights can be ignored or that the court will not act to protect those rights where such is appropriate.

I turn now to consider whether, in the light of these observations, I should refuse the applications or otherwise abbreviate any extensions of time or adopt some other course. In the text below I have referred only to so much of the specific facts as relate to Mr Kidd are as necessary to make sense of this judgment. I have read a good deal of the medical history surrounding his position which was contained in medical and other reports and evidence before the Court. Ordinarily, since hearings are in public this material would fall into the public domain. I am however conscious that I have not heard from Mr Kidd and I have accordingly refrained from referring to his medical history in any detail. I have taken account of the fact that under Rule 19(3) of the Nursing and Midwifery Council Fitness to Practice Rules 2004 hearings before the NMC Health Committee may be held wholly or partially in private where the Committee is satisfied that this is justified in then interests of any party or third party or in the interests of justice. In this case had proper notice been given and had Mr Kidd been accorded a chance properly to consider matters he might have consented to some form of extension of the order in which case there would have been no need for this judgment. Turning now to the facts in my view the following considerations apply.

First, the Respondent, Mr Kidd, has contracted a serious medical condition which has impaired his ability to work. Concerns were expressed by professional colleagues. In July 2012 he was assessed as not being currently fit to work.

Secondly, a recent expert assessment was made of Mr Kidd. The conclusion to this assessment was that the Respondent continued to function well below his predicted pre-morbid level which was estimated as falling within the superior range but that this did not necessarily mean that he was incapable of working at some level. With regard to the future ability to work the expert stated:

“… it is my opinion that Mr Kidd, on balance, would presently struggle to fulfil his professional role at his former level. Mr Kidd was a charge nurse at Band 7 prior to his illness carrying a great deal of responsibility and in a supervisory as well as an organisational role.

I am in agreement that a probationary period of supervised practice be the next stage, initially with Mr Kidd being in a less senior and demanding role than he occupied previously. I would also agree that his performance at work should be monitored and that regular reviews will be necessary”.

It is apparent from this report that the sooner the matter is resolved the better it is for Mr Kidd. His is not a case where one can confidently say that the overwhelming likelihood is that he could never return to professional practise.

Thirdly, in the evidence served in support of this application no indication was given as to when this case would be resolved. I was told only that a further review was awaited from the NMC Regulatory Legal Team with a view to proceeding towards a hearing. I was also told that a further medical opinion might be needed. Neither piece of information provided any comfort. They suggested that a final decision could well be a long way off. More helpful to me was the information that the NMC Health Committee was due to hear a review of the interim order on 13^th March 2014, should I be minded to extend the present order. That committee is empowered to continue, revoke or vary the order. In the course of oral submissions Ms Hoggett-Jones updated me on the present position. She indicated that the NMC was moving purposefully towards a final, fitness to practise, hearing and that it was hoped that a two day hearing could be arranged for May or June 2014. She asked for a 6 month extension to allow for slippages or adjournments due, by way of example, to the possible unavailability of expert witnesses.

I turn to set out my conclusion in relation to the case of Mr Kidd. With some hesitation I have decided I should extend the order. This is not a case of a respondent charged with malpractice, dishonesty or incompetence. This is a case of a health professional suffering from a medical condition which on the basis of the evidence I have seen may be problematic at certain levels but which might not necessarily be so at all other levels. The possibility cannot therefore be ruled out that Mr Kidd will, in some form, be able to resume practise. The continuation of this order coupled to the lack of a clearly defined pathway to a resolution was hence in my view a potential difficulty in the way of granting an extension. This difficulty was exacerbated by the fact that I felt that Mr Kidd had not been given a fair chance to advance his case to the Court. Nonetheless, in view of the information that was provided to me in the course of the hearing as to the progress being made to bring the case to a conclusion it seems to me proper that the extension should be granted. In coming to this conclusion I am conscious that I am balancing private interests with strong public interests and I must take account of the fact that the NMC is acting under statute to safeguard the public. I have not, for the reasons already given, heard from Mr Kidd. There are many points upon which he might have been able to provide useful information which was relevant to the exercise of my discretion. Nonetheless, in the circumstances of this case I will grant an extension of the order for 6 months as requested. However I give liberty to Mr Kidd to apply on three clear days notice to the Applicant to vacate or vary this order should he feel that he wishes to say something about the order that I have made.

Mr De’filippis

I turn now to consider the position of Mr De’filippis. This concerns an application by the NMC for an extension of an interim order of suspension pending a scheduled final hearing. I have already in this judgment expressed concerns about the way in which the application to extend the interim order has come before the court. In particular I have expressed concern as to the way in which it appears to have been assumed that the interests of respondents in appearing before the court to explain their positions are not of significance. My concerns remain the same in the case of Mr De’filippis, even though, as I explain below, the facts are materially different relative to those of Mr Kidd.

In this case the order in question expires on 10^th March 2014. However an application was served in court only on 3^rd March 2014. No explanation was given as to why this application was so late. In relation to service upon the Respondent Ms Hoggett-Jones gave me the following chronology. She explained that the application was sent to the Respondent on 3^rd March 2014 by first class post recorded delivery. She explained that the NMC attempted to communicate with Mr De’filippis by email but that there was no response. He was spoken to on the telephone and he explained that he had a new email address which he then gave to the NMC. He confirmed over the phone that he had received the papers but had not yet had an opportunity to look at them. An email was sent to him, at his new email address, on 5^th March 2014 which attached a consent order. No response was ever received from Mr De’filippis to the application or to the draft consent order. He did not appear before me to explain his position.

As to the facts surrounding this particular case, and given my concerns about confidentiality set out above, it is possible to be brief and to explain the position without delving into detail. A final hearing in relation to fitness to practise has been convened for 23^rd-25^th April 2014. At this hearing it will be determined whether a charge of dishonesty has been made out. An interim suspension order was made initially on 11^th September 2012. This was reviewed on 11^th March 2013 when the interim suspension order was replaced by an interim Conditions of Practise order. This order was, in turn, further reviewed and modified on 30th May 2013. However, on 27^th August 2013, that order was replaced with a fresh suspension order. That order was then reviewed on 25^th November 2013 and 17^th February 2014. It is due to expire, unless extended by this court, on 10^th March 2014.

I have read the file in relation to this case with considerable care. In view of the fact that the final hearing is listed to be heard circa 6 weeks after expiry of the present order the prejudice caused to the Respondent by extending the order is slight. It has been explained to me that the request for a 4 months extension will cater for the possibility of adjournments or delays in the conduct of the hearing. It is, however, intended that this matter will be brought to a conclusion within a shorter period of time. I have therefore decided to grant an extension for 4 months as requested. However, because of the concerns expressed about the manner in which notice was given, I give liberty to apply to the Respondent to seek to set aside and/or vary this order.

Conclusion

For the reasons set out above the orders sought are made.