Nursing & Midwifery Council v Webster [2006] EWHC 1952 (Admin)

Case No CO/5044/2006[2006] EWHC 1952 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 6th July 2006
Strand
London WC2
B E F O R E:
MR JUSTICE WILKIE
Between
NURSING & MIDWIFERY COUNCILApplicant-v-
Between
NIGEL WEBSTERRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR P ARNOLD (instructed by In-House Legal Team, Nursing and Midwifery Council) appeared for APPLICANT for The RESPONDENT did not attend and was not represented
J U D G M E N T
[1]MR JUSTICE WILKIE: This is a claim brought by the Nursing and Midwifery Council, seeking an extension of an interim order suspending the defendant Nigel Webster's registration with the Nursing and Midwifery Council.[2]The Council itself has power to suspend, in the first instance, pursuant to regulation 31 of the Nursing and Midwifery Order 2001 (Statutory Instrument No 2002/253), for a period of up to 18 months if a Practice Committee of the Council, which includes for this purpose the Investigating Committee, is satisfied that it is necessary for the protection of members of the public, or is otherwise in the public interest or is in the interests of the person concerned, for the registration of that person to be suspended. The period of suspension initially imposed by the Investigating Committee is, by virtue of regulation 31(6), subject to review after six months and thereafter at three monthly intervals, as well as where at any time new evidence relevant to the order has become available after the making of the order.[3]The Council has powers under regulation 31 only to impose one period of suspension. If it wishes the period of suspension to be extended, it may only do so by applying to this court for an order that the suspension be extended, either once or on repeated occasions, and the court may extend for a period of up to 12 months. In that event the court's order for suspension is subject to periodic reviews by the Practice Committee at periods of three months beginning with the date on which the extension is ordered.[4]The initial suspension imposed by the Council was for a period of 18 months and was imposed on 11th January 2005. It therefore expires on 10th July of this year.[5]The circumstances giving rise to that suspension are that on 16th November 2004 the Council received a letter dated 6th November 2004 from Caroline Reeves, the Registered Manager of the Woodleigh Community in Croydon. That reported that Mr Webster, who was employed at that community, was suspended from duty on 29th July 2004 pending investigation into certain allegations of sexual abuse in connection with one of the vulnerable residents. After due disciplinary procedures, culminating in a disciplinary hearing on 7th September 2004, Mr Webster was dismissed from his employment with Woodleigh Community without notice for gross misconduct. On 8th September he appealed unsuccessfully against that decision. In the course of the disciplinary hearing other issues came to light which highlighted other possible breaches of the professional code of conduct, according to Miss Reeves. She was writing to the Council as a registered manager and qualified nurse to the fact that she was very concerned that Mr Webster was unsafe to be working with any type of vulnerable person on several accounts and asked the Council to consider seriously his fitness to practise as a nurse. She had similarly sent information to the Secretary of State for consideration by the Secretary of State of inclusion of his name on a list prohibiting certain of his professional activities. She had also referred the matter to the Croydon Police.[6]The Investigating Committee of the Council, on 11th January 2005, considered what course to adopt arising out of the complaint made to it by Miss Reeves, and on that date decided to impose the 18 month suspension already referred to. The Council was already aware that criminal proceedings were possible and the requisite statutory periodic reviews were undertaken, informed by progress reports as to the criminal proceedings.[7]The trial of Mr Webster commenced on 26th June of this year in connection with sexual assaults as well as other matters. I am told by Mr Arnold, who appears for the Council today, that yesterday he was convicted of those sexual assaults and received a total of eight months' imprisonment, which he has started to serve having been on bail prior to the verdict of the jury.[8]Under the provisions of the order, paragraph 22 deals with the purposes for which disciplinary action may be taken on grounds of fitness to practise. A conviction in the United Kingdom for a criminal offence which impinges upon a nurse's fitness to practise is one of the grounds upon which disciplinary action may be taken. I am informed, and accept, that it is not only standard procedure, but entirely sensible that, when in receipt of allegations which have resulted in criminal proceedings, the Council postpones its own investigation until such time as the criminal proceedings have concluded. It therefore follows that, until the verdict yesterday, the Council was not in a position either to commence or to proceed further with the investigation into the complaint made by Miss Reeves.[9]In view of the imminent expiration of the 18 month suspension the Council has applied to this court seeking an extension of the period of suspension for a period of 12 months.[10]For the reasons already indicated, I am satisfied that it is necessary for the protection of members of the public, or is otherwise in the public interest, for the registration of Mr Webster to be suspended for a further period of 12 months, subject to the periodic reviews to which I have referred.[11]The only matter which gave me cause for concern was the fact that Mr Webster is not present or represented today, nor was he present or represented on 11th January 2005 when the initial suspension was imposed. The provisions as to service of documents are contained in The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004, Statutory Instrument No 2004/1761. Paragraph 34(1) provides that:
"Any notice of hearing requiring to be served upon the registrant shall be delivered by sending it by a postal service or other delivery service in which delivery or receipt is recorded to, or by leaving it at ... (c) in any other case - (i) her address in the register, or (ii)where this differs, and it appears more likely to reach her at her last known address, the registrant's last known address."
[12]On 11th January 2005 this issue arose. There is, I am told, in the register an address in Sutton which is cited as his last known address. I have been shown an extract from the computerised register which, under the heading, "Current address", says "do not mail". It does not indicate any address other than the Sutton address. On 11th January 2005 the question arose and it was said that the interim order notice was sent to the practitioner's registered address, that is the Sutton address, and another known address on 23rd December 2004. That other known address was somewhere in Morden and was said to be an address where "he is believed to have some previous connection". I am told that the Morden address, which has been used in the past, has been an address at which no success has been achieved in notifying Mr Webster and the view taken is that that is no longer a valid address so that the only address that the Council has is the Sutton address, which is his last known address and the address which appears in the register.[13]On the basis of what I have been told, I am satisfied that service has been effected by virtue of paragraph 34 by being served upon the respondent at his registered address on 20th June 2006 by first class post and recorded delivery. Therefore, notwithstanding the fact that Mr Webster is not here, for obvious reasons, but more particularly not represented, and there has been no notification from him, I have been content to proceed today on the basis that due service was achieved.[14]In view of the fact that I have been satisfied of service on the basis of information not contained in the witness statement of Claire McLaughlan, but on the basis of what I have been told by counsel, it seems to me that I should proceed on the basis of that information, but only on the footing that the Council undertakes to file a further witness statement from Claire Mclaughlan, or some other appropriate person, rehearsing the matters about which I have been told concerning service and exhibiting all the screens or sheets of paper, or whatever it might be, on the register pertaining to Mr Webster's last known address or current address or address at which he is registered.[15]MR JUSTICE WILKIE: Mr Arnold, presumably you are content to give an undertaking to do that within seven days?[16]MR ARNOLD: I am.

MR JUSTICE WILKIE: On the basis of that undertaking, I make the order sought.

[18]MR ARNOLD: I am grateful, my Lord.