“From Rubber-Stamp to Robust Scrutiny” – The Court of Session’s Proportionality Test for Extending Interim Regulatory Orders
(The Nursing & Midwifery Council for Extension of Time Periods of Interim Orders, [2025] CSOH 51)

1. Introduction

In The Nursing and Midwifery Council for Extension of Time Periods of Interim Orders ([2025] CSOH 51) Lady Poole delivered a detailed opinion on two unopposed petitions by the Nursing & Midwifery Council (NMC) seeking to extend interim orders against two registered nurses (JH and JF). Although such applications are usually routine, the Court used the opportunity to articulate – and apply rigorously – a heightened proportionality standard, emphasising that:

• the Court’s role is not to rubber-stamp the regulator’s request;
• extensions are justified only if they remain necessary and are the least intrusive means to achieve public-protection or other statutory aims; and
• human-rights proportionality (Articles 6 & 8 ECHR and A1P1) permeates the statutory test in Article 31 of the Nursing & Midwifery Order 2001.

By trimming onerous conditions in one case (JH) and converting an outright suspension into conditions in the other (JF), the decision sets a new benchmark for professional-regulation litigation in Scotland and, arguably, throughout the UK.

2. Summary of the Judgment

Lady Poole:

1. Restated the governing law – Article 31 of the 2001 Order; the proportionality test from Bank Mellat; and guidance in GMC v K.
2. JH: Allowed an extension until 12 February 2026 but struck out six of the twelve existing conditions, finding them disproportionate and unnecessary in light of delay, the nurse’s admission, and her non-practice since 2021.
3. JF: Refused to continue the interim suspension; instead ordered the NMC (under Art 31(9)(c)) to draft practice conditions (e.g. bar on unsupervised or community work) effective to 6 June 2026.
4. Directed parties to return with agreed wording within three weeks, retaining short stop-gap extensions meanwhile.

3. Analysis

3.1 Key Precedents Cited

• General Medical Council v K 2023 SC 1 – eight-point framework for court extensions; source of para 6 factors (gravity, evidence, delay, prejudice, etc.).
• IB v GMC 2024 SLT 172 and B v GMC [2022] CSIH 38 – confirmed that “necessary” imports a Convention-style proportionality assessment.
• R (Sheikh) v GDC [2007] EWHC 2972 (Admin) – rarity of interim suspension solely for public-confidence grounds; endorsed again.
• NMC v Persand [2023] EWHC 3356 – warns against over-reliance on “maintaining confidence” and against conditions so onerous that they become de-facto suspension.
• Bank Mellat v HM Treasury (No 2) [2014] AC 700 – four-limb proportionality test embraced.

These authorities collectively guide the Court towards a sophisticated proportionality inquiry rather than a formalistic checklist.

3.2 Legal Reasoning

1. Statutory duty of necessity (Art 31) is read through HRA 1998 s.3, importing Convention proportionality.
   → Lady Poole explicitly overlays the Bank Mellat “importance / rational connection / less intrusive means / fair balance” steps.
2. Burden of proof – rests on the petitioner (NMC) on balance of probabilities. Unopposed petitions do not dilute the burden.
3. Active judicial scrutiny – The Court is not reviewing the regulator’s decision but making its own, albeit giving the regulator’s views “such weight as is fit”.
4. Identification of least restrictive alternative – Suspension is one tool; conditions tailored to actual risk may suffice. The Court used Art 31(9)(c) to downgrade suspension to conditions in JF.
5. Temporal proportionality – Delay within the NMC process reduces justification over time; past compliance and changed personal circumstances matter.

3.3 Impact and Forward-Looking Consequences

The decision will likely have ripple effects:

• For Regulators: Heightened obligation to show:
  • fresh risk evidence at each renewal;
  • why each specific condition (or suspension) is necessary;
  • efforts to progress the substantive case expeditiously.
• For Practitioners: Provides a clear litigation route to challenge over-broad interim measures even when they do not formally oppose the extension. Offers leverage to negotiate agreed removal or tailored conditions.
• For Courts: Confirms they possess (and must exercise) a remedial power to re-draft or replace orders. Expect more contested practice-condition wording hearings.
• Broader Human-Rights Jurisprudence: Aligns professional-discipline interim orders with mainstream Strasbourg/UK proportionality doctrine, reinforcing ECHR horizontality in regulatory law.

4. Complex Concepts Simplified

Interim Order

A temporary measure (suspension or conditions) imposed before the full disciplinary hearing, intended to manage risk rather than punish.

Article 31 (Nursing & Midwifery Order 2001)

The provision allowing the Fitness to Practise Committee (and, on application, the court) to impose or extend interim orders for up to 18+12 months at a time when “necessary for protection of the public, public interest, or the nurse’s own interests”.

Proportionality

Legal test asking whether a rights-infringing measure is (1) pursuing a sufficiently important objective, (2) rationally connected to that objective, (3) the least intrusive means, and (4) strikes a fair balance between benefit and harm.

Least Restrictive Means

The idea that, if the goal (e.g. patient safety) can be achieved through narrower conditions, more intrusive steps like full suspension are unlawful.

Rubber-Stamping

Colloquial term for courts granting orders automatically without independent analysis. This judgment rejects that approach.

5. Conclusion

Lady Poole’s opinion transforms routine extension applications into rigorous proportionality assessments. The Court of Session will now:

• scrutinise each condition or suspension request against real-time risk and delay;
• insist on demonstrable necessity and the absence of viable, less restrictive alternatives;
• wield its power to modify or replace orders proactively.

The precedent delivers a dual message: regulators must expedite substantive proceedings and tailor interim measures with precision; practitioners retain enforceable Convention rights even during preliminary stages. Going forward, “[2025] CSOH 51” will be cited whenever a Scottish (and possibly English) court is asked to extend an interim professional-discipline order, marking the end of automatic renewals and the dawn of robust judicial scrutiny grounded in proportionality and human rights.