Nursing and Midwifery Council v Churchyard

1 This is an application by the Nursing and Midwifery Council ("the NMC") to extend an interim suspension order originally imposed on 17th December 2015 for a period of 18 months. The application is made under article 31(8) of the Nursing and Midwifery Order 2001 (SI 2002 No.253). Article 31(2) provides: "… if the Committee is satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the registration of that person to be suspended or to be made subject to conditions, it may — (a) make an order directing the Registrar to suspend the person's registration (an 'interim suspension order')… during such period not exceeding eighteen months as may be specified in the order." 2 By article 31(8): "The Council may apply to the court for an order made by a Practice Committee under paragraph (2) or (7) to be extended, and may apply again for further extensions." 3 The criteria to be applied by the court when considering such an application are set out by the Court of Appeal in the case of the General Medical Council v Hiew [2007]1 WLR 2007. The criteria the court should apply are the same as those which apply to the making of the original interim order, namely the protection of the public, the public interest, and the practitioner's own interests. The court should take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case had not been concluded and the prejudice to the practitioner if an interim order were continued. The onus of satisfying the court that the criteria are met is on the applicant, in this case the NMC, and the standard of proof is the balance of probabilities. It is not the function of the court to make findings of primary fact or to consider the merits of the case, but rather to consider whether the allegations made, whether true or false, justify the extension of the suspension. 4 Briefly, the chronology is as follows. On 23rd November 2015 the NMC received a referral from King's College Hospital NHS Foundation Trust regarding the applicant as a result of which the case was referred to the case examiners and the original interim suspension order imposed. There were lengthy delays during 2006 while the NMC conducted an investigation owing largely to difficulties in contacting and obtaining statements from witnesses. The interim suspension order was reviewed and confirmed on a number of occasions. There were also difficulties in getting the respondent to engage with the process. Eventually a hearing date was fixed for 23rd December 2016 but that was put on hold after the respondent did come back to the NMC and participate. 5 A substantive hearing was held between 5th and 7th April 2017 and became part-heard to resume in July but in July the panel decided to adjourn to a date in October. There are a number of reasons for that. In April the respondent did not appear but it later transpired that she had been in hospital at the time of the hearing which the panel was unaware of. The panel had also been sent material which should have been redacted but had not been, and although it had not handed down any decision it had in fact reached a decision on the facts. An application on behalf of the respondent to adjourn was successful, the panel saying this: "The panel acknowledge that there was a strong public interest in disposing of this hearing expeditiously. It also took into account the inconvenience that would be caused to NMC witnesses who would have to attend again. However, the panel are now aware that you dispute factual circumstances as outlined by the NMC witnesses. It took into account your previous personal circumstances and considered that you had a good reason for not being able to attend the hearing in April. Had the panel been made aware at the time of your hospitalisation and personal circumstances it is unlikely it would have proceeded in your absence." 6 Later the panel continued: "The panel has received documentation sent erroneously including unredacted witness statements. Further, the panel has also determined the facts of the case albeit that it has not handed down its decision. The panel decided that whilst it could disregard the information which it was sent erroneously, the fact that the panel received and read it could give rise to a perception of prejudice and unfairness. The panel balanced the interests of all the parties and consider that the public interest and the expeditious disposal of the case would be to schedule a new panel and hear the witness evidence afresh within the context of your own evidence. The panel therefore decided that both justice and fairness would be best served if it were to recuse itself in proceedings at this stage. The panel will be replaced by a new panel at a later date." 7 The substantive hearing was rescheduled for 2nd to 6th October. However, I am told this morning by Miss Fleck, counsel for the NMC, that the hearing did not proceed because the respondent has again disengaged and was not present. The panel decided that, although the respondent's engagement had been sporadic, because she had previously engaged and had wished to call evidence of her own and medical evidence, they should adjourn. 8 I should have mentioned that on 13th June the NMC made an application to the High Court for an extension of the interim suspension order under Art.31(8) of the 2001 Order which was granted by consent for a period of 3 months. That expires on 15th October. In the light of the fact that the hearing scheduled for October was ineffective, the court is being asked to extend time again for a further 3 months. The respondent has been written to and was asked to respond by 31st October. If she does not then a further hearing date will be fixed for which 28 days' notice has to be given. Thus, the earliest the rescheduled hearing date could resume is early December, and a 3-month extension would expire on 15th January thus providing a 6-week window within which the hearing could be completed. This includes the Christmas and New Year period. 9 The allegations against the respondent are these. First of all that on 13th May 2014 the respondent made a dosing error as a result of which a patient suffered harm by reason of a skin burn; that on 5th January 2015 during dermatology surgery a used trolley was returned to theatre and used for another patient as a result of which a syringe but not the needle was used on 2 consecutive occasions. There are further allegations relating to the respondent's communication and relationship with her colleagues. MISS FLECK: I hesitate to interrupt. The charges are in fact contained at page 31 of the bundle and they are slightly different. Those ones were at the very earliest stage of proceedings. The charges being considered by the panel are what has been solidified into the charges. JUDGE ROBINSON: I am grateful for that correction. Do I take it from that that the charge relating to the use of the syringe has been dropped? MISS FLECK: My Lady, it has. JUDGE ROBINSON: So the charges now relate to the incident on 13th May when a mistake about the dose was made. MISS FLECK: Yes. JUDGE ROBINSON: Resulting in a burn. Ointment was provided on 2 occasions when it had not been prescribed. A treatment given was not recorded and there were 2 incidents relating to incontinence pads. Is that right? MISS FLECK: Yes, my Lady. JUDGE ROBINSON: I am grateful for that correction. 10 Turning to the criteria which the court has to apply, some of those allegations may not be particularly serious but it is quite clear that providing a patient with the wrong dose of treatment which resulted in a skin burn is serious as is providing treatment which is not prescribed and failing to record treatment which had been given. As to the seriousness of the risk of harm to patients, in one case the patient did suffer actual harm, and the potential risk of harm by being given treatment that is not prescribed is obvious. I have referred to the history at some length as to why the case has not yet been concluded. The reasons for the recent delay are largely in order to give the respondent an opportunity to re-engage with the disciplinary process. So far as prejudice to the practitioner is concerned, because she has not appeared today that is largely unknown, although she resigned her post fairly soon after the referral was made. 11 I am satisfied that as a result of the matters to which I have referred this is a proper case for the order to be extended by a further 3 months, both in order to protect the public and in the wider public interest. I think a shorter extension is unrealistic given the requirements of notice and the Christmas and New Year break.