Extending an Interim Order: Necessity

4 July 2025

The NMC sought an extension of 12 months to an interim order imposing conditions of practice on a Midwife: Nursing and Midwifery Council v Helen Richmond [2025] EWHC 1828 (Admin) – Duncan Atkinson KC (sitting as a Deputy High Court Judge)

An Interim Order was first made on 11 January 2024 by the Investigating Committee. It had been reviewed on three occasions since and was presently due to expire on 10 July 2025.

The investigation by the Council was complete. The respondent’s submissions were awaited and a 12-month extension sought.

The Investigation concerned two referrals in relation wo what were said to be discriminatory remarks made by the Midwife.

Until comparatively recently, the Midwife had been dismissed by her Trust following internal disciplinary proceedings. That changed on 9 June 2025 when a renewed disciplinary hearing brought about by procedural errors at the first hearing resulted in the Midwife being reinstated and receiving a written warning.

The internal inquiry said this: “The panel recognises that this process has been very difficult for you. you are a valued senior midwife with significant teaching and audit responsibilities. Whilst the content of your email was inappropriate and gave cause for serious concern, your reflections and historical good conduct led the panel to a restorative rather than a punitive decision. We believe this outcome balances accountability with an opportunity for reintegration and rehabilitation.”

In General Medical Council v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369 the Court of Appeal said it was necessary to consider the following factors in identifying whether to grant an extension: (a) the gravity of the allegations; (b) the seriousness of the risk of harm to patients; (c) the reasons why the case had not been concluded, and (d) prejudice to the practitioner if an interim order was continued.

It was accepted that there would be prejudice to the Midwife if the interim order was extended. It was clear that the basis upon which the order was made had primarily been a concern as to the public perception of a practitioner being allowed unrestricted practice in the light of allegations such as these. It was also clear that from the outset it had not been, in fact, the concern of the panel that this particular practitioner posed any actual substantive risk to her patients.

The first panel observed that “an interim order was otherwise in the public interest as a well-informed and reasonable member of the public would be concerned if they were to learn a nurse facing such allegations was allowed to practise without restrictions at this time.”

In NMC v Persand [2023] EWHC 3356 (Admin) the Court considered very similar observations. The court made clear (at para 41) that … “in every case the NMC committee and the Court had to ask itself precisely why it was said to be ‘necessary’ to impose an interim sanction on the nurse. If the case was that it was necessary to protect patients, then there needed to be an intense focus on how and why the evidence demonstrated that patients may be at risk from the nurse and how serious that risk is.” The Court went on to say:

“Simply saying that, if a nurse was free to practise without being subject to conditions, such a circumstance would raise concerns in the minds of a member of the public is, in my judgment, wholly insufficient. Equally, saying that there is some limited risk to patients from a nurse’s clinical practice if he or she is allowed to continue to practice without restrictions is equally insufficient. It seems to me that the necessity test requires the NMC to show that, on the particular facts of a case, there are features of the case which mean that matters are so serious that it is justifiable to restrain the exercise of professional skills by a nurse at a stage when the allegations are unproven. The test is something close to saying that an interim order is essential, in the sense that a responsible regulator would not be acting properly in failing to act on a proven risk to the public”.

In the present case, the Council had failed to establish that there was any substantial or substantive risk to patients posed by the Midwife in her practice as a nurse. Indeed, it was of note that she had been reinstated and carried out such a role in the front line of patient care.

In the court’s view, the Council had acted in a way which the court in Persand said that it could not do: namely, to express a concern that a member of the public would have concerns if allegations such as these did not result in restrictions being imposed on a practitioner. In the case of Persand such concerns were said to b e wholly insufficient and, in this court’s judgment, that was also the case.

Accordingly, the application for an extension to the interim order was refused.