Factual and Procedural Background
This opinion concerns two petitions brought by the Nursing and Midwifery Council ("NMC") seeking extensions of time periods for interim orders affecting registered nurses. Interim orders, such as suspension or conditions of practice, are imposed by the NMC while regulatory proceedings are ongoing. The court exercises a supervisory role over the continuation and extension of these orders.
One case involves a registered nurse ("Appellant A") referred to the NMC following concerns about identical wording in multiple assessment reports and subsequent dismissal for gross misconduct. An interim conditions of practice order was imposed, extended, and reviewed multiple times, with the regulatory proceedings experiencing significant delays.
The second case involves another registered nurse ("Appellant B") suspended following allegations of an inappropriate relationship with a patient. An interim suspension order was imposed and reviewed, with ongoing investigations delayed partly due to external factors including maternity leave. Both cases feature petitions for extensions of these interim orders.
Legal Issues Presented
- Whether the statutory tests for extending interim orders under the Nursing and Midwifery Order 2001 have been met.
- Whether the existing interim orders in their current form are necessary and proportionate to achieve the legitimate aims of public protection, public interest, or the interests of the registered nurses concerned.
- Whether less restrictive interim orders can be formulated to balance public protection with the rights and interests of the members subject to the orders.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| General Medical Council v K 2023 SC 1 |
Principles for extending interim orders, including criteria for protection of the public, public interest, and proportionality. |
Guided the court’s assessment of statutory tests and balancing of interests in deciding whether to extend or vary interim orders. |
| B v General Medical Council [2022] CSIH 38 |
Proportionality analysis required when assessing necessity of interim orders. |
Supported the court’s proportionality approach weighing risks against adverse effects on the member. |
| IB v General Medical Council 2024 SLT 172 |
Necessity and proportionality in interim suspension orders; public interest considerations including criminal charges. |
Referenced in relation to grounds for interim orders and the need for proportionality. |
| R (on the application of Shiekh) v General Dental Council [2007] EWHC 2972 (Admin) |
Rarity of interim suspension on public interest grounds alone. |
Used to contextualise the grounds for interim suspension in the cases considered. |
| Nursing and Midwifery Council v Persand [2023] EWHC 3356 (Admin) |
Consideration of cumulative effect of conditions and proportionality in interim orders. |
Informed the court’s reasoning on the restrictiveness of conditions and necessity of less intrusive alternatives. |
| Bank Mellat v HM Treasury (No 2) [2014] AC 700 |
Four-stage proportionality test under Convention rights. |
Framework applied in assessing compatibility of interim orders with Convention rights. |
Court's Reasoning and Analysis
The court began by outlining the statutory framework under the Nursing and Midwifery Order 2001, emphasizing the overarching objective of public protection. It noted that interim orders must be necessary and proportionate, balancing the protection of the public and public interest against the adverse effects on the member subject to the order.
The court applied a proportionality analysis informed by relevant case law and human rights principles, including the necessity to consider less intrusive measures that could achieve the legitimate aims.
In Appellant A's case, the court acknowledged the seriousness of the allegations and the admission made, but found the delay in the regulatory process excessive and the ongoing conditions overly restrictive, particularly given the nurse's absence from practice since 2021 and lack of evidence of repetition. The court concluded that only a subset of the current conditions were necessary for a limited extension.
In Appellant B's case, the court accepted that public protection and interest were engaged, but found that continuing interim suspension was disproportionate given the passage of time without repetition, changed personal circumstances, and delay in investigation. The court determined that replacing suspension with interim conditions of practice would be a less intrusive and proportionate alternative.
The court emphasized its independent role in applying statutory tests and did not defer to the NMC’s opinions but gave them appropriate weight. It also considered the impact on the members' rights under the Human Rights Act 1998 and the European Convention on Human Rights, requiring careful balancing of interests.
Holding and Implications
The court GRANTED extensions of time for interim orders in both cases, but with modifications to ensure proportionality and necessity:
- In Appellant A's case, the court ordered an extension of an interim conditions of practice order limited to certain specified conditions (conditions 1-3 and 8-12) until 12 February 2026, rejecting the full continuation of all existing conditions and the longer period initially sought.
- In Appellant B's case, the court replaced the interim suspension order with an interim conditions of practice order, extended until 6 June 2026, recognizing the need for continued oversight but rejecting the more severe suspension as disproportionate.
The court ordered the NMC to submit written proposals on the terms of the revised interim conditions within three weeks and granted short extensions of the current orders to maintain public protection during this process. A hearing date was reserved should further court consideration be required.
The decision directly affects the parties by adjusting the terms and duration of interim orders but does not establish new legal precedent beyond applying established principles of necessity, proportionality, and human rights compatibility in the context of regulatory interim orders.