E-Regulator: Perry v Nursing and Midwifery Council [2012] EWCH 2275 (Admin)

Judgement date: 22 August 2012

Don’t be so quick to dismiss conditions of practice at interim order hearings, says High Court.

A complaint was made by a female patient against the applicant, a 53 year old registered mental health nurse. As a result of the allegations, the Health Board held a Disciplinary Hearing, the outcome of which was to summarily dismiss the applicant for gross misconduct. His case was referred to the respondent Nursing and Midwifery Council (‘NMC’), who, pending a decision as to whether there was a case to answer, summoned the appellant to attend an interim orders hearing. At that hearing, the Panel stated “we are not required to weigh up evidence. All we have to be satisfied of is that, given the information in front of us, there is a prima facie case [sic] requiring consideration of an interim order”. Following the hearing, the applicant was suspended for 18 months. The applicant applied to terminate the interim order of suspension under art 31(12) of the Nursing and Midwifery Order 2011; SI 2002/253.

The applicant submitted, inter alia, that:

1. The procedure adopted by the interim orders panel was unfair, in breach of the common law and in breach of the requirements of Article 6 and Article 8 of the European Convention on Human Rights; and
2. The panel failed to give reasons which adequately explained why it rejected the stringent conditions offered by the applicant.

The court ruled:

1. The panel had followed a fair process in deciding there was a prima facie case before deciding whether there was a need to protect to the public, particularly since the applicant had the opportunity to present his own evidence. Therefore there had been no unfairness at common law, or a breach of Article 6 of the Convention. It was held that art 8 was not engaged.
2. There was a prima facie case on all the allegations and in order to protect the public, an interim order was necessary. The Panel had not however adequately explained their decision to suspend, rather than to impose conditions and the respondent had not explicitly stated that conditions of practice would not be sufficient to protect the public. The court was not satisfied that an interim suspension order was appropriate given that proper consideration had not been given to the detailed undertakings/ proposed conditions put forward by the applicant.  The Panel had stated (having been influenced by a Standards Operating Procedure (‘SOP’) promulgated by the NMC) that a high degree of supervision would require the explicit support of a named employer.  Whilst that was true, it does not flow that where there is no current employer such conditions cannot be imposed.  The SOP had operated as a fetter on the Panel’s decision making.

As such, the duration of the suspension was varied, to terminate at 4pm on 20 September 2012 or at such a date as the respondent could convene a panel to consider the imposition of suitable conditions of practice.

The Courts have always made it clear that suspension prior to full hearing is a draconian step with far-reaching and serious consequences.  It is an action which must be carefully considered.  If there are serious concerns and an interim order is necessary, Panels must work hard to try and formulate conditions that can allay their concerns.  If they simply cannot, they must articulate clearly the preceding process in their reasoning.