Nursing and Midwifery Council v Marlow-Reginer

This is an application by the Nursing and Midwifery Council (“the NMC”) for an extension to an interim suspension order originally made on 16^th February 2015 and extended several times subsequently in respect of the respondent nurse. The application is made pursuant to article 31 of the Nursing and Midwifery Order 2001 (SI 2002 No.253). Article 31(2) provides so far as relevant:

By article 31(8): "The Council may apply to the court for an order made by a Practice Committee under paragraph (2) or (7) to be extended, and may apply again for further extensions."

The principles which apply to an application for an extension of an interim order are set out by the Court of Appeal in the General Medical Council v Hiew [2007] 1 WLR 2007. The criteria that the court must apply are the same as those which apply to the making of the original interim order, namely the protection of the public, the public interest and the practitioner’s own interests. The court should take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued. The onus of satisfying the court that the criteria are met falls on the applicant, in this case the NMC, and the standard of proof is the balance of probability. It is not for this court to decide whether or not the allegations made against the respondent are true or not but whether, in the light of them, an extension of the interim order is justified.

The chronology in this case is briefly as follows. On 24^th October 2014 the NMC received a referral in relation to the respondent that related to a medication error. However, it swiftly became apparent that the respondent was the subject of interest by the police in relation to alleged offences of dishonesty. On 2^nd December 2014 the NMC was notified by the police that she had been arrested and on 19^th January 2015 that the respondent had been charged with such offences. The NMC obtained a printout from the police national computer later on in January 2015 which revealed that the respondent also had previous convictions for offences of dishonesty between 1998 and 2001. On 16^th February 2015 a panel of the Investigating Committee decided to make an interim suspension order for a period of 18 months. When making that order the committee said this:

The panel determined that the serious nature of the allegations was such thatan interim order was necessary on the grounds of public protection and was satisfied that there is a real risk of significant harm to the safety and wellbeing of patients if an order was not made. The panel was also satisfied that an order was otherwise in the public interest, in order to maintain confidence in the professions and the NMC as a regulator. The Panel also said:

There was then a significant delay as a result of the NMC quite properly deferring consideration of disciplinary proceedings against the respondent pending the outcome of the prosecution against her. That was delayed repeatedly.

The trial was fixed for 2^nd November 2015 and then April 2016, but did not take place on either date. Eventually, on 10^th August 2016 the NMC was informed that the respondent had been found guilty by a jury of two counts of making false representations. Those representations comprised false declarations to her employer, CTS Recruitment, firstly, that she had not been convicted of any criminal offences which was not true, and second, that she provided a false date of birth, preventing proper disclosure and barring service checks taking place. On 11^th August 2016, the High Court granted an extension to the interim suspension order for a period of six months. However, the disciplinary proceedings continued to be deferred because the police had in the meantime informed the NMC that they were investigating the respondent for drugs matters following the conviction of her husband and his sentence to 23 months' custody for drugs offences. It was not until 9^th December 2016 that the NMC was informed that the police had decided to take no further action against her in relation to that matter.

On 15^th February 2017 the High Court granted a further extension of the Interim Suspension Order for 4 months. There then followed a period during which the NMC was investigating and obtaining information from the police and the Crown Court before concluding in June 2017 that there was a case to answer, and the matter was referred to the Conduct and Competence Committee. In the meantime, on 14^th June, the High Court granted a further extension of the interim order for a period of 4 months. On 10^th July 2017 the NMC scheduled the substantive hearing of the allegations against the respondent for 19^th and 20^th October, that is the Thursday and Friday of this week (today being Tuesday). The charges which the respondent will face at that hearing are that, in light of her convictions in August 2016, 3^rd January 2001 and 10^th August 1998 for a variety of offences of dishonesty, her fitness to practice is impaired.

Yesterday the court received an unsigned witness statement by email from a Joseph Nthini, a lay representative who has been assisting the respondent in the disciplinary proceedings, objecting to the extension of the interim order sought today and indicating that neither he nor the respondent will attend court, as indeed they have not. The first objection is to the fact that the witness statement in support of the application gives the wrong name. That, I expect, is because it was cut and pasted from another witness statement. While the court could not endorse such a sloppy approach to litigation, the essential facts in this matter are set out in the claim form which contains a declaration of the truth, and Miss Roberts' statement producing the relevant exhibits is signed by her.

The essential points made on behalf of the respondent are these: firstly, that a three month extension is not necessary because the disciplinary hearing will conclude by the end of this week; secondly, that the respondent has not contributed to any delay; thirdly, that some issues raised on behalf of the NMC are not part of the charges against her and should not be taken into account. As to these, I accept the submission made that receipt of the case management form from the respondent did not contribute to any delay in this case and I also agree that it is inappropriate for the NMC to rely on matters which do not form part of the charges against her. These are the original referral based on a medication error, which is irrelevant as that is not been proceeded with, and also the suggestion that the respondent used false identification documents to gain entry onto the NMC register which is not part of the current charge. Therefore, I will not take these into account. I note also that neither does a previous caution, which is referred to in paragraph 7 of the NMC's Skeleton Argument, appear in the charge and I will not take that into account either.

Nonetheless, the respondent's convictions, the subject of the charge she now faces, are for serious matters. They show a continuing pattern of dishonest behaviour since 2001 and the charge that by reason of those convictions the respondent's fitness to practice is impaired is a very serious allegation.

I am quite satisfied that it is in the public interest in maintaining public confidence in the profession as well as for the safety of patients that the respondent should remain suspended from practice until the outcome of the forthcoming disciplinary hearing. There have been significant delays but these have not been of the NMC's making, or indeed, the respondent's. In so far as the respondent continues to suffer prejudice because of her suspension, in my judgment that is heavily outweighed by the public interest and patient safety considerations.

Notwithstanding the representations made by Mr Nthini, I am going to grant an extension of the interim order for three months. In my experience, a substantive hearing in such disciplinary proceedings, especially the first such hearing, often does not complete as scheduled for a variety of reasons. If there is an adjournment any further hearing requires 28 days' notice to be given to the respondent and even if not wholly adjourned, the hearing may go part-heard, as these cases often last longer than anticipated. Indeed, a very short extension of, say, a week to the interim suspension order would provide the opportunity for significant disruption and wasted costs if the NMC has to come back to court for a further extension. The respondent will not suffer any prejudice if the case does resolve at the end of this week on 20^th October because, by virtue of article 31(5) of the Nursing and Midwifery Order, the interim suspension order will fall away. In my judgment, a further three months will allow the forthcoming hearing to take place and for a further short period to cater for any unforeseen delays so that hopefully there should be no need for any further application to the court to be made and the disciplinary proceedings will be concluded.