Nursing and Midwifery Council v Myaka [2010] EWHC 3187 (Admin)

Case No CO/11473/2010[2010] EWHC 3187 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 26th November 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE LINDBLOM
Between
NURSING AND MIDWIFERY COUNCILClaimantv
Between
LILLIAN THEMBISILE MYAKADefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms Deborah Baljit (instructed by the Nursing and Midwifery Council) appeared for Claimant for The Defendant did not appear and was not represented
J U D G M E N T
[1]MR JUSTICE LINDBLOM: This is an application by the Nursing and Midwifery Council under Article 31(8) of the Nursing and Midwifery Order 2001 for an order to extend by six months the period of an interim suspension order made against Ms Lillian Myaka, a registered nurse, by the Council's investigating committee on 29th May 2009. On that day, the Investigating Committee suspended Ms Myaka from practising as a nurse for a period of 18 months pending an investigation into an allegation that her fitness to practise was impaired.[2]The present application was served on Ms Myaka on 4th November 2010. No response has been received from her by the Council or indeed by the court. She does not appear before the court this morning.[3]The interim order imposed by the Investigating Committee in May 2009 was made under Article 31(2) of the Nursing and Midwifery Order 2001 on the grounds that an interim suspension order was necessary for the protection of the public and otherwise in the public interest. The central allegation before the Investigating Committee was that Ms Myaka regularly slept whilst on night duty over a period in excess of two years. At the time when the allegations were made, Ms Myaka was the only qualified member of staff on duty at the nursing home where she worked.[4]The original interim order, I am assured, has been reviewed regularly by the Investigating Committee since it was first made. On each occasion the Committee has determined the continuation of the interim order is necessary to protect the public and otherwise in the public interest. I am told that the most recent review took place on 12th November 2010, when the Panel gave its decision in the following terms:
"The Panel has comprehensively reviewed this case. The information in this case gives rise to serious concerns about Ms Myaka's conduct and possible neglect of patients whilst she was on duty. The Panel is satisfied that it is in the public interest and necessary for the protection of the public that the existing order should be continued..."
[5]I understand that the investigation is now complete, the papers have been reviewed by in-house counsel and the charges against Ms Myaka have been finalised. The substantive hearing, I am told, is now due to take place on 9th and 10th December 2010. Ms Myaka was served with notice of that hearing on 16th September 2010. I am told that the Council intends to rely on evidence of three witnesses, all of whom have confirmed that they are able to attend on 9th and 10th December 2010.[6]The present application is supported by the witness statement of Ms Hannah Cummings, a case officer in the Fitness to Practise Directorate of the Council, dated 2nd November 2010. Ms Cummings has conduct of Ms Myaka's case. In her witness statement, Ms Cummings states that the respondent faces serious allegations of sleeping on duty and behaving aggressively towards a resident. Ms Cummings produces the report to the Council's Investigating Committee, dated 23rd March 2010, prepared by Capsticks, who had investigated the complaint made against Ms Myaka for the Council's Investigating Committee and stated that they were of the view that there was a case for her to answer on at least some of the allegations made against her. I have regard in particular to what is said in paragraph 62 to 64 of Capsticks' report.[7]In view of the relevant law to which reference is made in paragraphs 9 to 11 of Ms Baljit's skeleton argument for the Council, and having regard in particular to the provisions of Article 31 of the 2001 order, rule 26 of the Nursing and Midwifery (Council Fitness to Practise) Rules Order of Council 2004 and the decision of the Court of Appeal in General Medical Country v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369, I am satisfied that this application is well-founded. It will cause no injustice for the interim suspension order to be extended. This will allow the investigation to be completed. That is expected to be achieved well within six months. But if, for reasons unforeseen at this stage, there is any adjournment of those proceedings, it will nevertheless accommodate that. I am told that it would not be possible to rearrange the hearing probably until well into 2011.[8]In these circumstances, this application succeeds.