Knowledge and approval - When is a will suspicious?
On 17 April 2015 the High Court of Justice in Northern Ireland considered an application by the NMC to further extend an 18 month interim suspension order imposed on Nurse CN on 25 October 2012. The Court ultimately extended the Order, but the Judge commented on what future courts may require from a regulator when delays have been caused by a criminal prosecution.
The nurse in question faced allegations in relation to the theft of drugs from the hospital in which she was working. The suspected criminal activity was reported to the police in August 2012. The police investigation took around 8 months and the file was sent to the Public Prosecution Service (PPS - the equivalent of the CPS in England) in April 2013. After that there was a “clerical error” which meant that the hearing did not take place until September 2014, when CN pleaded guilty.
In explaining the delay, the NMC explained that criminal proceedings took a long time and that it could not take any substantive steps until these proceedings had concluded. This is not unusual – where a registered professional faces criminal proceedings, his or her regulatory body will usually place their investigation on hold until the criminal proceedings have concluded. There are good reasons for this. For example, a regulatory body would not want to do anything to jeopardise a criminal investigation, such as taking separate statements from witnesses which may be contradictory to their police witness statements. If the regulatory hearing took place before the criminal trial, there would also be issues if the allegations were not found proved in the regulatory hearing, but were found proved in the criminal trial. There are also practical, resource-based reasons for delaying the regulatory matter until the conclusion of the criminal trial because if the allegations lead to a conviction, the regulatory body can rely on this alone without the need for witnesses to be called and evidence to be examined.
However, the Judge made it clear that regulatory bodies must not simply do nothing until the conclusion of the criminal trial. The Judge emphasised the importance of considering the public interest, stating that the court should consider the impact of an extension not only on the nurse, but also on the public. He said that the case raised “an issue as to whether, before granting an extension, this court should be satisfied that the council has engaged with the PSNI [Police Service of Northern Ireland] and the Public Prosecution Service (the PPS) so that the time taken over the criminal proceedings takes into account the important public functions to be discharged by the council and the impact on the nurse or midwife concerned”.
While it is right that the criminal trial takes precedence over the regulatory matter, the Judge’s comments make it clear that the public interest in dealing with the regulatory matter expeditiously should be pressed upon the prosecuting agencies.
The Judge also stated that “if the council submits, as they do in this case, that there has been a delay on the part of others in a criminal investigation, then I consider that prior to granting an extension, as one of the factors to be taken into account, the court has an obligation to determine whether the council have taken appropriate steps at the appropriate level to establish a system of liaison with the relevant public authorities involved in the criminal investigation”.
The Judge recognised that it would be difficult for a court to refuse an extension on the basis that there had been inadequate liaison between the regulator and the prosecuting agencies given the need to protect the public, but said that “those bringing such applications in the future should anticipate that a court may wish to hear from representatives of the relevant public bodies”.
The NMC informed the Court that they had been “continually” corresponding with the PSNI and the PPA to encourage them to deal with the matter expeditiously”. However, the Judge was not satisfied that this was enough. He was concerned that the NMC did not have a method of liaising with both the PSNI and the PPS “at an appropriate level”. He did not go on to explain what would be considered to be an appropriate level, but his comments imply that seeking updates from a junior member of staff at a prosecuting authority, even on a continuous basis, may not be enough. Delays should be escalated to a more senior level.
The Judge was also concerned that, after the conviction on 2 September 2014, no information was supplied by the PPS or the PSNI to the NMC. Instead the nurse’s previous employers, the Health Trust, informed the NMC of the outcome. Had the NMC been in correspondence with the prosecuting authorities, they would have learnt of the conviction at an earlier stage.
The Judge concluded his comments by stating that, given the conclusion of the current case was in sight and no further delay was anticipated, he would not, on that occasion, require the attendance of anyone from the PSNI or the PPS. He clearly therefore implied that in future he may require just that.
While the NMC were granted the extension they sought in this case, the comments of the Judge demonstrate that regulators must regularly engage with the police and prosecutors, at a senior level if necessary, to seek to expedite a criminal trial where this has an impact on the progress of a regulatory case. The regulator should also engage with the police and prosecutors, to open the lines of communication to ensure that they are kept up to date and are not reliant on intermediaries, which may result in delays in the fitness to practise proceedings. A failure to do so may lead to questioning by the court not only of the regulatory body, but also of the police and prosecuting agencies themselves.
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