Justifying and Extending an Interim Order

15 January 2024

An NMC investigation into allegations against a Nurse Manager commenced in October 2021 and proceeded with appropriate diligence until February 2022 when nothing appeared to happen for the next four and a half months because of a ‘regrettable oversight’: Nursing and Midwifery Council v Deojlt Persand [2023] EWHC 3356 (Admin) – David Lock KC (sitting as a Deputy High Court Judge)

Following the imposition of an interim suspension order in June 2022 the case stalled again for five months when nothing substantial happened. The case was referred to external solicitors for investigation after a delay of nine months.

There were further delays when the external solicitors sought to resolve matters with reluctant witnesses. There were further delays whilst the case was waiting to go before the NMC’s case examiners. This was an application to extend the interim order.

It seemed to his Lordship that delays in the investigation of regulatory concerns which could lead to disciplinary action against a nurse who was subject to interim measures were more than a regrettable oversight which could be cured by an apology.

Once regulatory proceedings were commenced, the NMC was required to discharge its functions in a way which complied with Art 6 ECHR (see the duty in section 6(1) of the Human Rights Act 1998). A public duty had a duty to ensure that the case was brought to a final determination within a reasonable time.

From 30 June 2022 an interim order of suspension was imposed on the Nurse for a period of 18 months. This was reviewed and approved by a Practice Committee. On 20 June 2023 the Committee concluded that a continuing suspension was not justified but that conditions should be imposed n his practice. Basically, the Panel  felt the allegations were serious, that the Nurse had not completed relevant training as he had not yet worked as a registered Nurse and there was insufficient information to support that his learning had been transferred to the workplace.

The panel concluded that a fully informed member of the public would be concerned if a nurse facing such allegations were permitted to practice without restriction.

The Nurse was currently employed as a healthcare assistant, had worked there since October 2022 and there was no evidence about concerns relating to his work. Disciplinary proceedings hanging over him had effectively prevented him from being able to work as a registered Nurse, had a substantial effect on his professional career, and almost certainly his income, for a period of two years.

It seemed to his Lordship that the committee was concerned if a registered Nurse facing such allegations was allowed to practise without restriction whilst an investigation was carried out by the NMC was inconsistent with dicta in R (Shiekh) v General Dental Council [2007] EWHC 2972 para 16, per Davis J.

An order on public interest grounds was only justifiable in a relatively rare case. There must be something in the evidence of the individual case which was far more substantial than anything arising here to justify a public interest suspension. This case was solely about  whether conditions on the Nurse’s right to practise could be justified on the grounds of public protection.

The court considered GMC v Hiew [2007] EWCA Civ 369 and the factors that should be considered: (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; (d) the prejudice to the practitioner if an interim order was continued, but that was not an exclusive list. For example, had the regulator been reasonably diligent in progressing the case?

His Lordship accepted that the NMC was working in very difficult circumstances given the number of cases and the need for a thorough and fair investigation in every case, but the overall pace of investigations seemed unnecessarily slow, and there were periods of unjustifiable inaction. There were also other delays by third parties in failing to disclose documents within a reasonable time. The internal processes within the NMC were complex and lengthy.

Delays in completing investigations were such that the NMC should be more cautious about imposing interim orders in cases where the orders were likely to remain in force for long periods.

Relying on the authorities, it seemed to his Lordship 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 upon a nurse.

The real question was whether, given that there was a risk, the NMC could show (with the onus being on the NMC) that it was ‘necessary’ for sanctions to be imposed. Simply saying that, if a nurse were free to practise unrestricted, would raise concerns in the minds of members of the public, was wholly insufficient.

The allegations against this Nurse came nowhere near justifying a suspension order. The court accepted that the NMC had satisfied it that some, albeit limited, conditions should be placed on the Nurse’s practice as a nurse. But having reviewed the conditions, they were so extensive and restrictive that it was nearly impossible to envisage how any employer would be prepared to employ the Nurse under those conditions.

The NMC’s application was granted in part in the hope that varied conditions would enable the Nurse to return to work as a Nurse rather than a healthcare assistant.

There should be no such thing as a set of standard conditions because the necessity test had to be satisfied with regard to each condition on the facts of each individual case before it could be lawfully imposed.