Nursing and Midwifery Council, R (on the application of) v Rojas

An interim suspension may be extended where the material before the court provides a sufficient basis for concluding that the practitioner is unfit to practise. Procedural fairness and Article 6 concerns do not prevent an extension where the practitioner’s absence from an earlier hearing was materially contributed to by her own conduct, and the regulatory authority has acted reasonably in obtaining the necessary papers. Delay alone does not make an extension unfair where the matter can now proceed expeditiously.

The Nursing and Midwifery Council applied under Article 31(8) of the Nursing and Midwifery Order 2001 for a further 12-month extension of an interim suspension imposed on 14 February 2006. The suspension was due to expire on 13 August 2007.

The respondent resisted the application, relying on the age and alleged minor character of the underlying allegations, an earlier Irish order permitting her to work, the decision not to prosecute, procedural unfairness, delay and Article 6 of the Convention. The central issues were whether there was a sufficient basis to conclude that she was unfit to practise and whether any fairness or human-rights consideration required refusal of the extension.

1. Extension granted. The court granted a further 12-month extension of the interim suspension under Article 31(8) of the Nursing and Midwifery Order 2001.
2. The relevant material included findings made on 12 May 2005 in respect of 12 allegations of serious misconduct. Those allegations had been proved beyond reasonable doubt after consideration of evidence and the respondent’s responses. The material was sufficient to support the conclusion that she was unfit to practise.
3. The respondent’s absence from the May 2005 hearing did not make the extension unfair. She had previously been aware of the allegations and had an opportunity to attend. On the evidence available, she had contributed to her absence by moving to England and failing, or at least failing adequately, to establish what had happened to the allegations.
4. There was no breach of Article 6. Although it would have been preferable for the Council to have progressed the matter within the original 18-month suspension, the Irish authorities did not provide the requested papers until December 2006. Once those papers were available, the matter was expected to proceed expeditiously.