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

On an application to extend an interim regulatory order, the court is the primary decision-maker. It must balance public protection, the public interest and the practitioner's interests. Relevant considerations include the gravity of the allegations, the evidence, the risk to patients, the reasons for delay and the prejudice caused by continuation of the order. The regulator must justify the extension on the balance of probabilities. Any extension must be the minimum necessary and proportionate, particularly where the initial order was imposed for its maximum period. Serious allegations may justify continuation, but unjustified investigative delay can limit the period granted.

The Nursing and Midwifery Council applied under Article 31 (8) of the Nursing and Midwifery Order to extend an interim conditions of practice order imposed on Ms Raji. The original interim order had been made for 18 months and was due to expire on 7 January 2011. The investigation had taken from February 2009 to October 2010, with further work still outstanding.

The application was opposed. The central issues were whether the allegations justified prolonging the order and, if so, what period was necessary and proportionate.

1. Outcome. The application was granted in part. The interim conditions of practice order was extended for six months. No order was made as to costs.
2. The court was the primary decision-maker on the application. It had to consider the protection of the public, the public interest and the practitioner's own interests. The relevant factors included the gravity of the allegations, the nature of the evidence, the seriousness of the risk to patients, the reasons the case remained unfinished and the prejudice to the practitioner. The NMC bore the burden of satisfying the court on the balance of probabilities. Full regard was due to the earlier Practice Committee decisions, but the court was not bound by them or required to defer to them. These principles were drawn from GMC v Lauffer [2009] EWHC 3497 (Admin), summarising GMC v Hiew [2007] EWCA Civ 369.
3. The allegations justified prolongation of an interim conditions of practice order. However, the regulator had accepted that the investigation had involved unacceptable and excessive delay. A further 12-month extension was therefore unacceptable. Any extension had to be the minimum necessary, and required specific justification.
4. Although the NMC anticipated that the remaining procedures would make completion within six months difficult, the court considered six months appropriate, necessary and proportionate. Any later application would require an extremely detailed justification for the further time sought.