Nursing and Midwifery Council v McGuinness [2015] EWHC 3426 (Admin)

Case No CO/3060/2015[2015] EWHC 3426 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 9 July 2015
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE KENNETH PARKER
Between
NURSING AND MIDWIFERY COUNCILApplicantv
Between
JOSEPHINE McGUINNESSRespondent
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)
Neil Jeffs (instructed by the Nursing and Midwifery Council) appeared for Applicant for The Respondent did not appear and was not represented
J U D G M E N T
[1]MR JUSTICE KENNETH PARKER: This is an application under Article 31(8) of the Nursing and Midwifery Order 2001 ("the order") for a 3-month extension of an interim order imposed on the respondent suspending her registration as a nurse. The applicant is the Nursing and Midwifery Council and the respondent is Josephine McGuinness. The applicant served the application and supporting witness statement and exhibits on the respondent by means of recorded delivery and first class post on 30 June 2015.[2]Mr Neil Jeffs, who appears on behalf of the applicant today, and whose skeleton argument has been of considerable assistance on this application, has drawn my attention to the fact that the respondent very recently has communicated, in effect, saying that there are certain matters that have been raised in the application with which she does not agree and that she would like to have the matter adjourned in order for her to obtain legal assistance and representation.[3]It is plain that the respondent would have appreciated the urgency of this application and given the timescale, to which I have referred, she has already had an opportunity to consider the position and to seek assistance and representation. It appears that not only has she not particularised the alleged deficiencies in the factual information, but has not so far taken any steps to seek such assistance and representation.[4]In those circumstances, insofar as the respondent is seeking an adjournment of this application, it appears to me that that would not be in the public interest for reasons that will emerge in the substantive decision that I shall shortly make. I appreciate that the respondent has had somewhat limited time to respondent, but, as I have already stated, she has not indicated in any way how the factual information is alleged to be deficient, nor has she indicated on what basis she would be opposing the granting of the proposed order.[5]I am not therefore prepared, given the urgency of the matter and the pressing public interest, to adjourn this application. However, the proceedings should be treated as proceedings that have taken place without the respondent having been given a full opportunity to participate along the lines that she has suggested. Therefore, she will have an opportunity, as a result of the order that has been made, to apply to the court for the discharge or variation of this order if she believes that the order should not have been made.[6]Moving to the factual background, the respondent was employed as a Band 5 registered nurse by the University Hospital South Manchester Trust ("the Trust"). The allegations against her concerned errors made in the administration of medication and the completion of records. The charges faced by the respondent are set out in the panel's written determination now made on 18 June, and they record findings in relation to record keeping failures, administration of medication errors, shortfalls in patient care and dishonesty.[7]Under Article 31(2) of the order a Practice Committee can make an interim order where it is satisfied that such an order is necessary for the protection of members of the public or is otherwise in the public interest, or in the interest of the person concerned. The respondent's case first came before a panel of the Investigating Committee on 13 February 2013. An interim conditions of practice order was made on that day for 18 months on the basis that such an order was necessary on the grounds of public protection and was otherwise in the public interest. The reasons for the decision are set out to the respondent in a letter dated 19 February 2013. That interim order has been reviewed on several occasions.[8]On 2 August 2013, a panel of the Investigating Committee replaced the interim conditions of practice order with an interim suspension order. The reasons for doing so were set out in a decision letter dated 6 August 2013. The panel said this in inter alia:
"The panel determined that due to the serious nature of Ms McGuinness' alleged behaviour, conditions of practice were not workable. Firstly, the panel considered that in light of the potential seriousness of the allegations in particular in relation to the harm that could have resulted from the medication errors, that the existing conditions were not workable. Secondly, the panel noted that some of the existing allegations relate to issues of honesty and probity which are not easily remediable. Furthermore the panel noted that incident H, if proved, would have seriously compromised the patient's dignity. The panel is of the view that conditions cannot be formulated to adequately address the risks identified. Finally, the panel noted that Mr McGuinness had previously received management support over an extended period of time to address wide-ranging failings in her practice including medicines management but this had failed. The panel also noted that Mr McGuinness had been subject to a previous disciplinary hearing on the 10 August 2011 in relation to failure to follow procedures with regards to medicines management policy and patient observation and that she had failed to act in a professional attitude when communicating with relatives."
[9]The order was last reviewed and continued by a Conduct and Competence Committee on 25 February 2015. That order is due to expire on 10 July 2015, which is tomorrow. That explains the urgency of this particular application. In fact the substantive case did begin on 19 January 2015. It was heard over various dates before being adjourned part-heard on 16 June 2015. The panel did find most of the charges proved and that the respondent's fitness to practise is impaired by reason of her misconduct. The panel's reasons are set out in full in a written determination dated 18 June 2015. The case is now scheduled to resume to consider the issue of sanction on 11 and 12 August 2015.[10]As I have already rehearsed, the present application is made under Article 31(8) of the Nursing and Midwifery Order 2001. Under Article 31(9) on such an application the court may extend, or further extend after 12 months, the period for which the order has effect. I have to consider, following authority, the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued.[11]In this case charges, as I have recounted, have already been proved and they are, by their nature, serious. The record keeping failures, administration of medication errors, shortfalls in patient care and dishonesty all have the potential to cause substantial harm to patients and, if repeated, could have serious consequences.[12]In my judgment, having regard to the determinations made by the panel and the seriousness of the findings, an interim order is necessary on the grounds of public protection. The continuation of the interim order certainly has potential to cause prejudice to the respondent (the applicant acknowledges that), but that has to be weighed against what has now been proven: misconduct by the respondent of a serious nature, and it appears to me that the balance of the public interest firmly comes down in favour of the continuation of the suspension.[13]A matter that is of concern obviously to the court is the delay in the conduct of the proceedings. That is somewhat unsatisfactory. I have an explanation of what has happened, but it is still most unfortunate that the investigation and the panel's determination has taken such a considerable time. However, the sanction hearing is now scheduled not too far in the distance and the proceedings should then be completed. I do not believe that it would promote a public interest for me to refuse the order, because there has been that delay in these proceedings. It seems to me that the public interest does demand that this order be continued.[14]I shall therefore make an order that the interim order be extended to 4pm on 10 October 2015 and that the respondent has permission on giving 3 days' written notice to the applicant to apply to the court to vary or discharge this order. I make no order for costs.

MR JUSTICE KENNETH PARKER: Thank you very much, Mr Jeffs.