Nursing & Midwifery Council, R (on the application of) v Finnegan

1. MR JUSTICE LLOYD JONES: This is an application by the Nursing & Midwifery Council for an extension of an interim suspension order imposed on the registration of the respondent, Cliodhna Laura Finnegan, on 27 February 2007. That order has been extended on a number of occasions and is, at present, due to expire on 26 May 2010.

2. The respondent was employed as a nurse in a nursing home in County Galway. Allegations were made about her conduct. On 2 February 2006 a Fitness to Practise Committee of the Irish nursing regulating body erased Miss Finnegan from the Register and the High Court later dismissed her appeal against the findings and sanction on 28 July 2006. The Irish regulatory body referred the case of the respondent to the Nursing & Midwifery Council in the United Kingdom in August 2006.

3. The steps taken in the proceedings before the Nursing & Midwifery Council are as follows. The Investigating Committee referred the case for a lawyer's investigation in June 2007. This was completed. On 7 November 2007 the Investigating Committee referred the case to the Conduct and Competence Committee. The case came on as a substantive case before that committee on 30 June 2008 but could not be concluded due to insufficient time. It resumed on 12 September 2008. The Conduct and Competence Committee found Miss Finnegan's fitness to practise to be impaired, but at her request referred the case to the Health Committee at the sanction stage. When the case came before the Health Committee on 26 March 2009 a medical report was ordered. However I am told that Miss Finnegan did not co-operate in that she did not present herself for an independent medical examination. The case was returned to the Health Committee on 29 January 2010 and was referred back to the Conduct and Competence Committee. That committee is due to hold a resumed hearing to decide sanction on 26 May 2010, which is the date on which the current extension of the interim suspension expires.

4. Accordingly an application is made to the court for a further extension.

5. The interim order was made by the Investigating Committee on 27 February 2007 pursuant to Article 31.2. It was made for a period of 18 months. The reasons given were the serious nature of the allegations that led to the removal from the Register of Nurses by An Bord Altranais, a decision which was upheld by the High Court of Ireland. An interim suspension was necessary for the protection of the public or otherwise in the public interest.

6. That order was subsequently reviewed by the Investigating Committee on 17 July 2007 and, I am told, has been regularly reviewed thereafter. The interim suspension has been extended by the High Court on three previous occasions: 26 August 2008, 26 February 2009 and 26 August 2009, that last extension being for a period of nine months, an order made by Master Venn on the papers.

7. The criteria to be applied by the court when considering an application to extend an interim order are those set out in Hiew [2007] EWCA Civ 369 . They are the same as for the making of an interim order, namely the protection of the public, the public interest and the registrant's own interests. Using these criteria, the court can take into account matters such as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not concluded and the prejudice to the registrant if the case is not concluded.

8. It is not the function of the court to make findings of primary fact about the events that have led to the suspension or to consider the merits of the case for suspension. The court is required to ascertain whether the allegations rather than their truth or falsity justify the prolongation of the interim order.

9. I am satisfied that the protection of the public requires an extension of the suspension. The court will always be vigilant to ensure that there are proper grounds for an extension of an interim suspension, that being a matter which necessarily has a huge impact on the registrant. However I am satisfied that in the particular circumstances of this case it is appropriate and, indeed, necessary to grant an extension. I have considered whether that extension should be for the period of six months requested by the Nursing & Midwifery Council or for a shorter period. However Miss Strickland has drawn to my attention the fact that the Conduct and Competence Committee, as presently constituted, has to complete the hearing which it has started. Although it is expected that that will be concluded on 26 May, there remains a possibility that for unforeseen reasons it may not be possible to reconstitute that committee.

10. Having regard to that consideration, I am prepared to grant an extension for a period of six months from 26 May 2010. Accordingly the interim order will be extended to 4 pm on 25 November 2010. The respondent shall have permission on giving three days' written notice to the applicant to apply to the court to vary or discharge this order. There will be no order as to costs.

11. Miss Strickland, do you want me to endorse this copy of the order?

12. MISS STRICKLAND: Yes.