Nursing and Midwifery Council v Devine [2014] EWHC 2541 (Admin)

High Court refuses application for extension of an interim suspension order due to lack of evidence of risk to public and undue delay in advancing to a final hearing of the matter

Judgement date: 10 July 2014

Background

The applicant Council (NMC) applied for a three month extension of an interim suspension order in respect of Elizabeth Anne Devine (the Registrant).

On 15 January 2013, an 18 month interim suspension order was imposed on the Registrant by a practice committee of the NMC (the Panel). This order was due to expire on 14 July 2014. The substantive hearing of this matter was scheduled to take place between 15 and 17 July 2014. The NMC made its application on the basis that the hearing was not guaranteed to take place at the above referenced time nor to conclude within the listing window.

The allegation against the Registrant was that, whilst a newly qualified nurse working as a community nurse for the Department of Health in the Isle of Man, she failed to complete her preceptorship programme, even after it was extended from 12 to 18 months, in that she failed to meet all the competencies required of a registered nurse.

Application

The NMC applied for the extension under Article 31(8) of the Nursing and Midwifery Council Order 2001. The Court considered the case of General Medical Council v Hiew [2007] EWCA Civ 369 which was held to apply to applications for extension of interim orders made by the NMC and noted that when considering an application to extend an interim order the criteria to be applied by the Court are the same as those for making an interim order by a regulatory body.

In this vein the Court was required to be satisfied that the order was either necessary for the protection of members of the public, otherwise in the public interest, or in the interests of the Registrant. When considering such an extension the Court should consider:

1.  the gravity of the allegations, as opposed to their truth or falsity;
2.  the seriousness of the risk of harm to patients;
3. the reasons why the case has not been concluded;
4. and the prejudice, if any, to the practitioner, if an interim order is continued.

​As prefaced, it was alleged that the Registrant’s fitness to practise was impaired by reason of lack of competence.

Following the imposition of the interim suspension order the Registrant wrote a letter dated 13 December 2013 setting out her position and confirming she would not be continuing to work as a nurse. On review, the Court took the view that the Registrant accepted the technical deficiencies in her performance and that, despite being critical of the support she received, there was nothing to suggest she was not aware of her limitations or would be likely to go out and practice if no suspension order was in place.

Decision
The Court placed great emphasis on the Registrant’s indication that she had no intention of practising as a nurse and held that the risk of the Registrant practising was, ‘extremely slight [9]’. As a corollary the Court further held that the risk of harm to patients was equally ‘extremely slight [9]’.

The Court turned to consider the question of delay and noted that the NMC had been unable to explain why this case had not been substantively progressed between 25 February 2013 and 8 November 2013.

Ultimately the Court refused the NMC’s application for the following reasons:

1.  the order was not necessary for the protection of the public as the Registrant had no intention of nursing;
2. the nature of the allegations did not give rise to a serious risk of harm to the public if she were to practice;
3. the NMC had been unable to provide a good reason as to why the case had not been concluded within the 18 months the order was imposed for nor the 8 month delay referenced above;
4. whilst there was no demonstrable financial prejudice to the Registrant the proceedings had gone on for far too long.

A seemingly novel case suggesting that indications given by a Registrant to the effect that they have no intention of practising in the future may be seen as a legitimate and relevant consideration when Interim Orders Committees consider whether there is risk to the public.   

This case also serves as a salutary reminder to regulators of the importance of progressing cases with appropriate alacrity.