Nursing and Midwifery Council v Eke- O- Lere [2011] EWHC 224 (Admin)

Case No CO/12256/2010[2011] EWHC 224 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 12 January 2011
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE LINDBLOM
Between
NURSING AND MIDWIFERY COUNCILApplicantv
Between
KOLAWOLE ADEMOLA EKE-O-LERERespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Ms Adrianna McDonnell (instructed by NMC) appeared for Applicant for The Respondent did not appear and was not represented
J U D G M E N T
[1]MR JUSTICE LINDBLOM: The applicant, the Nursing and Midwifery Council, seeks an extension to the Interim Suspension Order made by a panel of the Council's Practice Committee on 15 July 2009 under Article 31 of the Nursing and Midwifery Order 2001, for a period of 12 months from its present date of expiry, which is 14 January 2011. The application is not opposed by the respondent, Kolawole Ademola Eke-o-lere. The order had the effect of suspending the respondent from practice for 18 months while a complaint alleging inadequate care by him of a community psychiatric patient, who committed suicide while suffering from severe depressive illness in November 2007 is investigated.[2]The order was reviewed by the Council on 20 January 2010, 28 April 2010, 8 July 2010 and 4 October 2010. The application for the extension is made on the grounds that it is necessary for the protection of members of the public and is generally in the public interest.[3]The application is supported by the witness statement of Miss Jennifer Moody dated 19 November 2010. Miss Moody is the case officer in the Council's Fitness to Practise Directorate with responsibility for the respondent's case. Exhibited to Miss Moody's witness statement is a copy of the Council's solicitor's investigation report, which sets out the factual background to the matter. Ten draft charges were prepared.[4]On 6 October 2010, the Council's Investigating Committee Panel considered the respondent's case in the light of the solicitor's investigation report and decided to refer it to the Council's Conduct and Competence Committee. The Council's Conduct and Competence Committee considered the case and decided to refer it for a hearing. The case is at present being considered by the Council's in-house legal team for review prior to its being allocated for a hearing. It appears likely that the case will be given a date for hearing at some point between May and August 2011. A date for it has not yet been indicated, still less confirmed.[5]The Council contends that the reasons for the making of the order in July 2009 continue to apply. In its letter of 17 July 2009 to the respondent, it stated:
"The panel considers that this is a serious allegation; that you failed to provide adequate care in that you did not undertake a thorough risk assessment. However the information you did obtain clearly indicated that the patient was at immediate risk of harming herself. If the allegation is proven there would be a real risk of significant harm to patients. An order is necessary both to protect the public and is otherwise in the public interest to uphold the standards of the profession. The panel considered whether the public could be adequately protected with a conditions of practice order. The panel believes that owing to the nature of the allegations and the fact that the panel also has no information before it regarding the current employment status of the registrant, either from the registrant or the South London and Maudsley NHS Foundation Trust; it is not practical to formulate a Conditions of Practice Order in this case. The panel has therefore concluded that an interim suspension order is a both necessary and proportionate response in this case. The panel has no information about the potential impact of the suspension order on the registrant in terms of hardship."
[6]The letter advised the respondent that the interim order would have to be regularly reviewed and that he could apply to the court for it to be revoked or its period changed.[7]As Miss Moody's witness statement acknowledges, it is unfortunate that the respondent's case is still not ready for a final hearing. It is clear, however, that the case is going to proceed to a hearing. It is also plain that the allegations against the respondent are substantial and serious.[8]I am satisfied that the Council has discharged the onus upon it of demonstrating that, in principle, the defendant's suspension from practice should be prolonged: see General Medical Council v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369.[9]The Council apparently intends to call four witnesses. It will therefore be necessary to find a date for the hearing on which all of those witnesses will be able to attend. An early date which is convenient for all involved may be difficult to find. As I have indicated, the Council has suggested that the hearing is likely to take place by the end of August. If, however, an adjournment is necessary, Miss Moody contends that a further three months may be needed to reconvene the hearing. That evidence has been supported in submissions this morning by Miss McDonnell.[10]In the circumstances, I am satisfied that an extension of the interim order is necessary. I am also persuaded that, in the present circumstances, whilst the delay that has occurred in this case is unfortunate, the full 12 months sought is justified. Accordingly, the interim order of 15 July 2009 will be extended. I approve the draft order submitted to the court, the effect of which will be that the interim order is extended to 4pm on 13 January 2012.