Nursing And Midwifery Council v James [2017] EWHC 801 (Admin)

Case No CO/958/2017[2017] EWHC 801 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 9 March 2017
Strand
London WC2A 2LL
B e f o r e:
MS SARA COCKERILL QC
(Sitting as a Deputy High Court Judge)
Between
NURSING AND MIDWIFERY COUNCILApplicantv
Between
JAMESRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Neil Jeffs (instructed by the Nursing and Midwifery Council) appeared for Applicant for The Respondent did not attend and was not represented
J U D G M E N T (Approved)
[1]MS SARA COCKERILL: This is an application by the Nursing and Midwifery Council for a four-month extension of an interim order restricting the conditions of practice of the respondent. The order was first made on 15 September under Article 31(8) of the Nursing and Midwifery Order 2001. The current order is due to expire on 14 March 2017. The order has been reviewed on five occasions, most recently on 24 January, and was at one time replaced with an interim suspension order, given the nature of the work which the respondent was conducting at the time.[2]The facts which underlie the claim are set out in the skeleton argument and in the witness statement. Essentially, the respondent was working as a registered agency nurse in a locked psychiatric intensive care unit in St Mary's Hospital operated by the Isle of Wight NHS Trust, which provides facilities for patients who require a high level of nursing care.[3]It is alleged that the respondent kicked a patient causing him to fall to the floor, that he failed to inform the senior staff of the incident and failed to inform staff on the following shift. It is alleged that the respondent informed a colleague that he had "taken the patient down". The patient is said to have been encouraged to return to his room on more than one occasion by the respondent and then was challenged by the respondent and kicked by the respondent. Patient A, as consequence of this, was not seriously injured. The facts underlying the application and the application itself are supported by the witness statement of Nargis Razvi.[4]Before I turn to the substance of the order, I should deal with the fact that the respondent to the application is not present and is not represented. However, I have been provided with certain information. It is clear that the respondent has indeed been served with the application. An email from his representative, Mr Edward Carey, dated 1 March 2017 informed the court that Mr James is out of the country and cannot sign the consent order. He will not contest the consent order, but would like

the judge to take the following into account when considering his application:

"There is nothing exceptional about this case that justifies the process taking longer than 18 months. Despite there being a three-month delay at the beginning and the full cooperation between the NMC and the referrer, there remained ample time to complete what was a relatively simple investigation. There are very few witnesses and the police concluded its own investigation before the NMC had begun its own. No action was taken. Experience suggests that the order is likely to be extended on this occasion, but I would ask the court to note the weak justification for the delay and express the view that an application for a second extension is not likely to succeed."
[5]In the circumstances, it seems to me appropriate that I proceed with the application this morning, because the respondent has plainly had the chance to consider the application and to attend and has chosen not to do so, but has effectively made representations in writing.[6]In considering the order, I am required to balance the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case has not yet been concluded, and the prejudice to the practitioner if the order is continued. In this case, the allegations are plainly serious and the risk of harm to patients certainly, it seems to me is made out, given the nature of the allegations.[7]There has obviously been some delay in this case. The delay has been explained in the witness statement and by counsel in the skeleton argument. It is said that there were initial referrals which led to the applicant not being able to commence this investigation until 9 September. They were was then waiting for information until December 2015. There was an investigation between December and August 2016, including taking witness statements. There was then a review leading to a recommendation that a further investigation be undertaken in relation to a previous incident. That took until October 2016 and then there was a review and a recommendation that the matter be considered by the case examiners. On 24 November 2016, there was a notification that it was to be referred to the case examiners and offering the opportunity to respond by 22 December. That response was received. The case examiners have considered the case and have referred the matter to the Conduct and Competence Committee. I am now told that the respondent has been given an opportunity to provide a further written response.[8]I am now told that there has been a hearing date set. The fact that the hearing date has been set somewhat allays a concern which did strike me on the papers that the representations which the respondent makes seems to me to be to some extent justified in that this matter has moved somewhat more slowly than one would anticipate or hope.[9]On prejudice, the respondent has not sought to draw to the attention of the court any prejudice which he says he will suffer if the order is extended. The Nursing and Midwifery Council says it is likely to be minimal, because he is still able to work within the confines of the order.[10]I am, therefore, prepared to grant the order sought. I am satisfied that the balance of convenience favours the grant of relief, given the seriousness of the allegation, and the fact that there is no serious prejudice to the respondent at the moment. I propose to make the order sought, but, and it may well be irrelevant, I do note that the delay to date is not admirable and, given that there is likely to have been some ongoing prejudice from the delay, the NMC should be prepared, if they do need any further extension, for it to be looked at with a very careful eye by the judge. I would indicate that I would expect these remarks to be drawn to the attention of any future judge looking at an application, if that becomes necessary.