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

An interim suspension order imposed under article 31(8) of the Nursing and Midwifery Order 2001 may be extended where disciplinary proceedings have been delayed to permit further investigation and the protective purpose of the order remains engaged. The court may proceed in the respondent’s absence where proper service has been attempted at the address supplied to the regulator. The order may be continued for a defined period to accommodate the realistically anticipated hearing date.

The Nursing and Midwifery Council applied to extend an interim suspension order concerning a midwife facing misconduct proceedings arising from her management of a patient’s labour and an alleged failure to disclose earlier supervised practice. The substantive hearing, originally expected between May and July 2008, was postponed after the respondent raised an issue requiring further investigation. The respondent did not attend or appear. Notice and papers had been sent by recorded delivery to the address supplied to the Council. The application concerned whether the interim protective order should be continued pending the anticipated October hearing.

1. The court extended the interim suspension order originally made on 17 January 2006 under article 31(8) of the Nursing and Midwifery Order 2001 until 31 December 2008.
2. The disciplinary hearing had been delayed because the respondent raised a matter requiring investigation, namely whether she knew that she had been subject to supervised practice with previous employers. The Council investigated that issue by obtaining evidence from former colleagues.
3. The extension was justified because the original order had been founded on the need to protect the public pending resolution of the disciplinary proceedings, and the proceedings were expected realistically to be heard in October 2008.
4. The court was satisfied that the application had been properly served. The papers were sent by recorded delivery to the address provided by the respondent, and their return appeared to result from non-collection after an unsuccessful delivery attempt. The court therefore proceeded despite her absence and lack of representation.
5. The order was extended to 31 December 2008. The judgment records the order as an extension of the interim supervision order, although the application and earlier order concerned interim suspension.