Nursing & Midwifery Council, R (on the application of) v Cully [2007] EWHC 1340 (Admin)

Case No CO/3624/2007[2007] EWHC 1340 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 14th May 2007
Strand
London WC2
B E F O R E:
MR JUSTICE GIBBS
Between
THE QUEEN ON THE APPLICATION OF NURSING AND MIDWIFERY COUNCILClaimant-v-
Between
CULLYDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications CompanySmith 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 the NMC) appeared for CLAIMANTMR MMUKULU (instructed by Shores Anchor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE GIBBS: The respondent in this case, Carlex Raymond Cully, was employed as a charge nurse at the West Middlesex University Hospital having been promoted to that grade on 20th December 2004. There was, however, an incident that took place in May 2004 followed by another incident in December 2004, upon each of which it was alleged that the respondent conducted himself in an indecent, inappropriate and unprofessional manner.[2]The second incident to which those allegations refer was far more serious, allegedly, than the first. It concerned as an alleged victim Miss A, as she is referred to. It is said that the respondent made remarks indicating that he was attracted to her. He said he wanted to rub baby oil on her body. She said that he pulled her into a boys' changing room, exposed himself to her, started to rub himself against her and in so doing committed what can only be described as a quite serious indecent assault against her. On the previous occasion he, it is said, had already behaved inappropriately to her by making suggestive remarks. She was a visitor to a patient of the Trust.[3]Internal disciplinary proceedings resulted in the respondent being dismissed from his position in the Trust. The current proceedings are brought by the respondent's regulatory body, the Nursing and Midwifery Council, "the applicant" under the Nursing and Midwifery Order of 2001. As yet there has not been a final hearing of the disciplinary proceedings. The sanctions or penalties which the final hearing when it takes place may impose range from the respondent being struck off and prevented from practice altogether through a range, no doubt, of lesser sanctions and penalties.[4]Pending the final hearing of the proceedings instituted by the applicant, there is power to make and to extend interim orders suspending the respondent from practice. The power to extend the order is vested in the High Court. The current order as extended lapses at midnight tonight, that is to say 14th May 2007. The applicant seeks an extension of the order for a period of 12 months from today. The power to extend the order is contained in Article 31, paragraph (8) which reads as follows:
"The Council may apply for an order made by a Practice Committee under paragraph (2) or (7) to be extended, and may apply again for further extensions."
The following subparagraph provides:
"On such an application a court may extend (or further extend) for up to 12 months the period for which the order has effect."
There are no criteria set out for the court to apply in considering whether to extend the order, and if so for how long.[5]Mr Arnold invites me to have regard to the criteria for making an interim order in the first place, and I agree that that is a relevant consideration in deciding whether to extend. The test for an interim order pending the final disciplinary proceedings is set out at paragraph 31(2) of the order which reads as follows:
" ... if the 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 or to be made subject to conditions, it may [make a suspension order]."
In this case it is said that the suspension of the respondent is necessary in the public interest and for the protection of members of the public.[6]Following submissions by counsel, I am of the view that whilst the following factors are not exhaustive of those which might be relevant to the question of extension, they are important ones: first, the seriousness of the allegations themselves and the nature and weight of the evidence in support of them; secondly, the way in which the proceedings have been conducted hitherto, including the length of any delay in proceedings and any prospective further delay; and third, the interests of proper regulation of the profession.[7]It seems to me that the present allegations are serious. Whether or not they are proved, of course, is not for this court to decide, but a detailed complaint has been made by the alleged victim and it is no doubt the duty of the applicant to investigate the allegations thoroughly and to conduct a disciplinary hearing, because unless the complaint is admitted it is bound to involve an assessment of the evidence of the parties to the incident.[8]It seems to me that the seriousness of the offence attracts the consideration of the protection of the public. Whilst the substance of the offence is being considered it is entirely proper for the applicant to take the view that the respondent should not be placed in a professional position vis a vis the members of the public, whether they be patients or visitors. Furthermore, it is entitled to take the view that it would be detrimental to the reputation of the profession if it were to be known that allegations of this kind have been made but that the person against whom they were made was permitted to continue to have contact with patients, visitors and so on. It further seems to me that the applicant is entitled to take into account that these are not the only complaints that have been received, but that there are several outstanding, including one in which the Trust who employed the respondent gave a serious warning in disciplinary proceedings.[9]Thus, I am satisfied in principle that it was right that the respondent should be suspended and, subject to what I am about to say, that the appropriate extension to that suspension order should be made.[10]I accept, however, Mr Mukulu's submissions under the heading which he describes as "proportionality". Those submissions would equally come under the more traditional domestic law headings of "balancing all relevant factors" in exercising a judgment as to how long suspension should last. As a matter of principle, it seems to me right, not only in the interests of the respondent but in the interests of the public, that the disciplinary hearing should be conducted reasonably promptly. By way of analogy, largely successful efforts have been made in criminal proceedings to ensure that issues of fact relating to serious sexual allegations are dealt with by a jury in Crown Court proceedings within a period of usually six to nine months, but rarely more than a year. Bearing that in mind it is right to expect a degree of urgency and promptness to inform disciplinary proceedings such as these. In particular, as Mr Mukulu points out, the respondent has much to lose by delay in terms of loss of earnings in this case and potential damage to employment prospects. The length of suspension should be confined to a reasonable minimum.[11]In that context, Mr Arnold has helpfully taken instructions about likely time scale for the conclusion of the disciplinary proceedings in this case. He tells me that it is anticipated that they should be concluded within three months of 24th May and he is confident that they will be at an end within six months. It seems to me, therefore, that the necessity of extending this suspension order relates to a duration of no more than six months from 24th May and accordingly, as I indicated, that is the period of extension which I fix. It is said, no doubt rightly, that there are difficulties in obtaining availability of witnesses and in convening the hearing, but it would seem to me that the six month and ten days period will be more than sufficient for all such practical matters to be dealt with.[12]I hope that has covered everything.[13]MR ARNOLD: Thank you, my Lord.[14]MR MUKULU: I am grateful, my Lord.[15]MR ARNOLD: My Lord, we have a draft order. We are doing some amendment in relation to the length of the extension. It may assist if I hand up.

MR JUSTICE GIBBS: Six months from 24th May.

[17]MR ARNOLD: Yes, which is 23rd November 2007. Perhaps if I can hand that up. (Handed).[18]MR JUSTICE GIBBS: Yes. Thank you.