High Court criticise on-going interim suspension order imposed on nurse, given that her case had been transferred to the Health Committee, who have no power to ultimately strike off

Judgment date: 11 September 2014

Background                                                                                                     

The Nursing and Midwifery Council (NMC) made an application to the High Court for a six month extension of an interim suspension order imposed on the respondent nurse (N).  The NMC had received a referral from the Primary Care Trust at which N was a practice nurse on 19 February 2013.  It was alleged that N had issued a prescription for codeine phosphate for a patient, when it had not been requested.  The tablets had temporarily gone missing, and when they were found, 28 tablets were missing.  At an internal investigatory meeting N admitted that she had issued the prescription but denied taking the medication. As a later disciplinary hearing N accepted that she had been stock-piling her own medication due to an episode of depression, but denied taking the patient’s medication.  She was dismissed for gross misconduct.   In her later appeal against this decision, N finally admitted taking the strip of medication and ingesting it, her appeal did not succeed.

On 18 March 2013, the Investigating Committee of the NMC imposed an interim suspension order (the Order) for 18 months and an investigation ensued.  For various reasons, no hearing took place until 18/19 August 2014, when N provided a report from her GP outlining the mental health difficulties from which she had been suffering.  A decision was taken to transfer the matter to the Health Committee.   Given that the Health Committee does not have striking off as an available sanction, the panel must have been satisfied that if N’s fitness to practise was impaired it would not merit a striking off order.  

The latest decision to continue the Order was taken on 14 August 2014.  The circumstances that presented at that hearing were wholly different from those that existed when the original Order was imposed, not least because the Registrant had admitted that she had taken the tablets and fully accepted the charges (which had not been the case at the original IO application). The reviewing panel found that interim suspension remained necessary, stating that they had considered conditions of practise but that ‘in all the circumstances…such an order would be insufficient to protect the public and to meet the wider public interest considerations in this case. 

Decision

The High Court held that the reasons provided by the 14 August Panel were subject to potential criticism but that, in any event, they have been completely overtaken by the decision of the Conduct and Competence Committee to refer the matter to the Health Committee, who cannot strike the N off.  It was said that ‘concerns about her dishonesty calling into question her integrity as a nurse to some extent fall by the wayside because the position is that, one way or another, she will be allowed to continue to practise’.   It was pointed out that ‘if the position is that the NMC has effectively taken a decision that it will permit Mrs Wright to continue practising as a nurse eventually, it is difficult to see why those concerns justify her continued suspension from practise’.   It was held that there was no evidence that the on-going suspension was necessary for protection of the public, as N did not dispense medication which she should not have to anyone else, rather, she took it herself.  The only support for suspension that the Court could find was that it was in the interests of N, given that she may return to the same behaviour.  However, the Court found that there was no evidence that N is currently suffering from any mental health problems, nor that there was any risk of repetition.  The Court held that ‘it would appear that there is no reason why [a conditions of practice order] could not be made restricting either N’s ability to dispense medication and/or her access to it subject to supervision.’

For those reasons the Court limited the extension of the interim suspension order to one of 2 months, within which time the NMC were instructed to either finally resolve this matter at final hearing or make an interim Conditions of Practice Order which will enable N to resume practise as a nurse subject to any necessary safeguards pending final resolution by the Health Committee.  

When a matter in which there is an interim suspension order in place is transferred to a regulators’ health committee, thought must be given to the appropriateness or otherwise of the on-going suspension, bearing in mind the limited powers of such a committee.  As a matter of interest, one argument that was not seemingly considered is that the Health Committee does of course, for many regulators, have the power to transfer the matter back to the Conduct Committee if they feel it is better dealt with there or if they hear evidence which they think merits strike off.