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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nursing And Midwifery Council v Moniba [2017] EWHC 798 (Admin) (09 March 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/798.html Cite as: [2017] EWHC 798 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9 March 2017

1. MS SARA COCKERILL: This is an application by the Nursing and Midwifery Council for a 12-month extension of an interim order suspending the respondent's registration. It was first made on 11 September 2015 under Article 31(8) of the Nursing and Midwifery Order 2001. The current order is due to expire tomorrow. The order has since been reviewed on three occasions. It was most recently reviewed on 1 December 2016. The substantive case is yet to be rescheduled for reasons which I will come to.
2. The facts which underlie the claim are that the respondent was employed as a registered nurse at a care home. On 16 February 2015, a resident suffered a fall at the home and the respondent was called to assist by care staff who had witnessed the fall. It is alleged that the respondent did not use a hoist to lift the resident, did not carry out a body check and instructed a junior member of staff to lift the resident inappropriately. After the resident suffered the fall, it is alleged that the respondent did not identify a fractured femur, did not seek medical attention and did not give a full handover.
3. It is also alleged that the respondent the next day completed an incident form, dated it incorrectly and dishonestly recorded false information within it. There is also an allegation that the respondent displayed inappropriate behaviour towards her colleagues on various occasions.
4. She has been dismissed from her employment following a disciplinary hearing on 22 April 2015 on the basis of gross misconduct. The facts underlying the allegation and the application are supported by the witness statement of Sonia Holgate.
5. I will deal as a preliminary matter with the fact that the respondent to the application is not present this morning and has not been represented. I am informed by counsel that the witness statement and the exhibits were served on the respondent by means of recorded delivery and first-class post on 24 February 2017, but at the date of the skeleton argument no response had been received from the respondent. It seems to me appropriate that I proceed with the application this morning, because it appears to be demonstrated that the respondent has had a chance to consider the application and to attend and has chosen not to do so.
6. In considering the order, I take into account the principles set out in the General Medical Council v Dr Stephen Chee Cheung Hiew case, in particular the requirement to balance the gravity of the allegations, the seriousness of the risk of harm to patients, the reason 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 serious and the risk of harm to patients and members of the public is apparent.
7. The allegations relate to serious concerns in relation to the respondent's handling of the particular incident and her alleged dishonest conduct in the aftermath. There is a risk of significant harm to the public if the respondent were entitled to practise without restriction at this time, given the nature of the allegations and the circumstances demonstrated by the incident which gave rise to the allegation. I note that the NMC considers there is a risk that public confidence in the nursing profession and the applicant as a regulatory body will also be affected if the respondent was entitled to practice without restriction pending the full determination of the allegations.
8. There has obviously been some delay in this case, but the delay is substantially explained in the witness statement and by Ms Dutt for the NMC. The main cause of delay in this matter has been that the respondent herself is in very poor health. She has a kidney condition and is currently awaiting a transplant and that led to the postponement of a substantive hearing which was scheduled to take place in late September 2016 to early October 2016. Then there have been two preliminary meetings of the CCC to consider what adjustments can be made to the hearing process to allow the respondent to participate. The most recent preliminary meeting took place on 6 February 2017 and directions were given that the applicant should seek consent from the respondent to contact her treating physician to discuss her state of health. The applicant has sought access to the respondent's medical records and proposes to have a further preliminary meeting next month at which further directions will be sought, as appropriate, in order to progress the case.
9. Although there has been something of a delay in the latter stages of the case, that is a matter which is very much based on the respondent's health. It appears to me that the hearing can follow fairly shortly consequent on the respondent's health improving or steps being put in place to enable her to participate in the process while she continues to wait for the kidney transplant which she needs.
10. On prejudice, the respondent has not sought to draw the attention of the court to any prejudice which she says she will suffer and, given the state of her health, it seems unlikely that there is going to be prejudice suffered, because she appears to be unlikely to be able to work.
11. I have been concerned about the length of the extension sought. I have raised that with Ms Dutt for the NMC. I was concerned that the grant of a 12-month extension, being the maximum grant, might lead to undue delay. However, Ms Dutt has addressed me on that and has satisfied me that, given the circumstances of the case where the only thing which is holding up the final hearing is effectively either the respondent's health improving sufficiently for her to participate or for a scheme to be put in place which enables her to participate pending the improvement of her health, there is no reason to think that there will be delay. Although it might be tempting to say one should grant only 6 months, the seeking of a 12 month period, given the uncertainty and the minimal amount of prejudice which the respondent seems likely to suffer, seems to me to be a pragmatic and sensible approach; particularly given that, if the matter does proceed to final hearing earlier, this order will of course fall to the ground at the end of that.
12. I am satisfied that in this case the balance of convenience does favour the grant of relief in the period of 12 months, given the seriousness of the allegations and the potential danger to the public. The particular circumstances of this case in particular the need for a particular approach to the delay and the fact that there appears to be currently no serious prejudice to the respondent in the continuation of the order mean I will, therefore, make the order sought.