Nursing and Midwifery Council, R (on the application of) v Cottingham [2013] EWHC 616 (Admin)

Case No CO/887/2013[2013] EWHC 616 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 21 February 2013
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE ALLAN GORE QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF NURSING AND MIDWIFERY COUNCILClaimantv
Between
COTTINGHAMDefendant
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 7404 1424(Official Shorthand Writers to the Court)
Mr S Hafejee (In-house NMC solictor) appeared for Claimant for The Defendant was not represented
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an application by the Nursing and Midwifery Council under Article 31(8) of the Nursing and Midwifery Order 2011, for an order extending the period of suspension on practice of the defendant nurse, whose latest suspension by the Interim Orders Panel is due to expire on 24 February 2013. Since the defendant does not appear and is not represented, I must first be satisfied that she has been validly and effectively served with notice of this application. Service is required by CPR Part 54.7, and it must be on the defendant, but it does not have to be personal service. Therefore, Part 6.3 applies and permits service by first class post.[2]Nurses who are registered are required to provide up to date addresses to the registration authorities, and I am therefore entitled to assume that the address registered remains the correct address for the defendant. Service by appropriate and compliant postal means to that address is established by the documents contained in the file of papers handed to me a moment ago by Mr Hafejee, who appears for the applicant. In those circumstances, I am satisfied that she has been validly and effectively served.[3]The relevant history is as follows. The allegations of misconduct arise out of her role as a visiting nurse, providing care to end of life patients, considered on any measure to be particularly vulnerable. The original complaint was in relation to two reports by patients that the respondent was attending work in an unfit state, under the influence of alcohol, and two further reports where alcohol was not raised, but where behaviour was unusual and caused concern to the patient or their families.[4]Further to the potential misconduct raised, the respondent was convicted on 16 February 2011 of a drink driving offence that looks as if it occurred in or about January 2011, but the date is not clear from the paperwork before me.[5]The final relevant piece of evidence is that medical evidence was put before the panel, which disclosed a 17 year history of excessive drinking. The case came before an Interim Orders Panel of the Investigating Committee on 25 August 2011. An interim suspension order was made on that date for 18 months. It has been reviewed on two occasions, the last being 17 August 2012, and it is due to expire on 24 February 2013. The case is now with the Health Committee, an Investigating Committee of which, having reviewed the evidence and referred it to the Health Committee in October 2012, so that they may determine whether there is a current impairment based on her health, namely alcohol misuse or dependence, that impairs her fitness to practice. The Health Committee wish further investigations to be undertaken to make a determination upon that issue, as a result of which they seek an eight month extension of the interim order from the date at which it is due to expire.[6]As regards jurisdiction, the relevant provision is Article 31 of the Nursing and Midwifery Order. Pursuant to Article 31(9), the court may extend for the period of up to 12 months, but may only do so if the generality of the provisions of Article 31 apply. That means that just as a practice committee, the court must be satisfied that the order in this case, the suspension from practice and its extension, is necessary for the protection of members of the public, or is otherwise in the public interest or in the interests of the person concerned. The principles to apply in that regard are to be found in the decision of the Court of Appeal relating to the analogous jurisdiction exercise by the General Medical Council in General Medical Council v Hiew 2007 EWCA Civ 369, which reminds me that the criteria to be applied by the court when considering an application to extend such as this, are the same criteria that would apply to the making of the order by the relevant practice committee. Those criteria are those I have already described set, out in Article 31. Relevant factors for the court to consider include the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case has not concluded, the prejudice to the practitioner if the order is continued, and, of course, the onus is on the regulatory body to satisfy the court that the criteria are satisfied. But in the context of an application to extend such as this, it is not the function of the court to make findings of primary fact. Those are matters really to be dealt with elsewhere.[7]In this case, well documented and well-founded serious concerns about risk for the safety of patients necessitated the suspension from practice, were found established by the relevant panel, and are recorded in the papers before me in the following terms:
"The allegations relate to four separate incidents which occurred over a period of a month, when the registrant was working in the community visiting patients who needed end of life care. The allegations relate to the strange behaviour exhibited by the registrant; cancelling visits at short notice and reports that clients suspected her of being unfit for duty. The panel heard that there existed a parallel case in with the registrant have been convicted of driving with excess alcohol and that this case had produced a report received by the NMC from the registrant's GP which described ongoing issues regarding the registrant's health. "
However, that did not form the basis of the application for this interim order. The panel decided that, given the number of alleged incidents, there was a risk of repetition, and that if repeated, there was a real risk of significant harm to patients. The panel concluded that an order was necessary on the grounds of public protection, and being otherwise in the public interest to protect the reputation of the profession. Given the health issues raised, the panel also decided that an order was in the registrant's own interests. "The panel next considered conditions of practice, but concluded that no conditions could be formulated which would be practicable or appropriate in circumstances. There is no up to date information regarding the registrant's employment situation, although the RCN believe that she is not currently practising as a nurse. Therefore a suspension order was both necessary and proportionate."[8]There is no evidence to show that those concerns have abated. Those concerns are so serious that I am also satisfied that extension of suspension is proportionate and justified for all three relevant reasons set out in Article 31, until both fitness to practice is established by further enquiries in hand, and that those enquiries have been concluded. I am satisfied that a period of extension of eight months is reasonable in the circumstances.[9]THE DEPUTY JUDGE: I do not appear to have, Mr Hafejee, a draft order.[10]MR HAFEJEE: I can hand one up, my Lord. There is no application for costs either.[11]THE DEPUTY JUDGE: I think, strictly speaking, eight months is 21 October, not 23 October.[12]MR HAFEJEE: I calculated the date from the end of the current order, which would be 24 October. That is the basis I calculated, my Lord.[13]THE DEPUTY JUDGE: I am not sure which is correct. I have made it 21 October. It probably makes no difference.[14]MR HAFEJEE: I take no issue, my Lord.[15]THE DEPUTY JUDGE: Thank you very much indeed. Thank you.