Nursing & Midwifery Council, R (on the application of) v Cully

When extending an interim suspension order pending professional disciplinary proceedings, the court should consider the seriousness of the allegations, the nature and weight of the supporting evidence, the conduct and likely duration of the proceedings, and the proper regulation of the profession. These factors are not exhaustive. Protection of the public and the reputation of the profession may justify continued suspension, but the period must be proportionate. Disciplinary proceedings should be conducted with reasonable promptness, and suspension should last no longer than reasonably necessary, having regard to the respondent’s financial and employment interests.

The Nursing and Midwifery Council applied to extend an interim suspension order made against a charge nurse pending the final determination of disciplinary proceedings. The allegations concerned serious indecent and unprofessional conduct towards a visitor to a patient, together with other complaints. The respondent had been dismissed by his employer, but the regulatory proceedings had not reached a final hearing.

The application engaged the High Court’s power under article 31(8) of the Nursing and Midwifery Order 2001. The central issue was whether the suspension should be extended and, if so, for what period.

1. The court had power under article 31(8) of the Nursing and Midwifery Order 2001 to extend an interim suspension order for up to 12 months. Although the provision specified no criteria, the criteria relevant to making an interim order under article 31(2) were relevant to an extension.

2. The important, non-exhaustive considerations were the seriousness of the allegations and the nature and weight of the evidence supporting them; the way in which the proceedings had been conducted, including existing and prospective delay; and the interests of proper professional regulation.

3. The court was not deciding whether the allegations were proved. Nevertheless, serious allegations supported by a detailed complaint could justify preventing the respondent from occupying a professional position involving contact with patients or visitors. The regulator could also consider the reputational impact on the profession and the existence of other complaints, including a serious disciplinary warning.

4. Proportionality required the disciplinary hearing to be conducted reasonably promptly. The respondent’s loss of earnings and possible damage to employment prospects were relevant. The suspension therefore had to be confined to a reasonable minimum, while allowing sufficient time for witnesses to be secured and the hearing convened.

5. The court accepted that the disciplinary proceedings were expected to conclude within six months of 24 May 2007. The suspension was extended for six months from that date, expiring on 23 November 2007.

The judgment itself records no appeal or earlier judicial decision. It concerned the High Court’s determination of an application to extend an interim regulatory suspension order pending disciplinary proceedings.