Tribunal costs orders – claimants beware
High Court grants interim suspension order restricting a nurse from practising pending the outcome of final disciplinary proceedings against her, thereby maintaining her registration with the Respondent Council and preventing frustrating the purpose of a statutory appeal of the sanction against her.
The applicant Authority applied for an interim order to maintain the registration of the second respondent nurse (H) pending a full hearing into the sanction imposed by the respondent Council. N, former Chief Nurse at Mid Staffordshire Foundation Trust (the Trust) received a 5 year caution from the Nursing and Midwifery Council’s Conduct and Competency Committee (the Panel) following a finding of misconduct for failing to ensure adequate provision of nursing staff on a number of wards at the Trust between 1998 and 2006. A number of other allegations against her were found not proved. The Panel concluded that there was no requirement to restrict H’s practise in order to protect the public.
The Authority referred the matter to court on the ground that the sanction levied against H was unduly lenient pursuant to s.29 of the National Health Service Reform and Health Care Professions Act 2002. However, H’s registration would have lapsed prior to the appeal hearing thus removing H from the Council’s jurisdiction and frustrating the purpose of an appeal by the Authority as a result of an oversight in the drafting of the regulations governing the Council’s procedures.
The Council did not oppose an interim suspension order, but took the position that such an order would be contrary to the Rules Order of Council 2004 and would technically allow H to continue to work as a nurse. H opposed such an order on the grounds that it was both unnecessary and disproportionate, since she retired in 2010.
The court accepted the Authority’s interpretation and granted the application, making an interim suspension order to restrict H from working as a nurse in any capacity pending the outcome of the appeal process against her, which would also be expedited to minimise the restriction on H.
Lang J held that neither the Court nor lapsed registration should frustrate the appeals process. The Authority and Council should therefore request urgent action from the Secretary of State for Health to change the rules and remove this lacuna.
The Authority has announced that they will audit the handling of cases of alleged misconduct at the Trust by both the NMC and GMC and publish a report in the New Year.
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