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

An interim suspension order may be extended only where continuation is necessary for public protection or otherwise in the public interest. The court assesses the gravity of the allegations, the seriousness of the potential harm, the reasons for delay and the practitioner’s prejudice. It does not determine the truth of the allegations or the merits of the substantive disciplinary case. The allegations themselves must justify prolongation. Even where continuation is necessary, the period granted must be proportionate. Regulatory delay may require the case to receive priority and may make a full extension excessive.

The Nursing and Midwifery Council applied under article 31(8) of the Nursing & Midwifery Order 2001 to extend an interim suspension order imposed on the respondent, a nurse. The allegations concerned forcibly administering medication to a patient and taking medication from a hospital unit. The respondent did not attend, but recent correspondence admitted some theft and disputed the remaining allegations.

A previous 12-month court extension was due to expire on 13 January 2012. The disciplinary investigation had progressed, but a substantive hearing was unlikely before July. The central issue was whether a further extension was necessary and, if so, what period was proportionate.

1. Application granted in part. The interim suspension order was extended for eight months from the date on which it would otherwise expire. The requested further 12-month extension was refused as excessive and disproportionate.
2. The governing test under article 31(8) of the Nursing & Midwifery Order 2001 is whether continuation is necessary for the protection of the public or otherwise in the public interest. The same test applies to the Council and to the court.
3. Applying the guidance in General Medical Council v Hiew [2007] EWCA Civ 369, relevant considerations included the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case had not concluded, and prejudice to the practitioner. The regulatory body bears the burden of satisfying the court that the criteria are met.
4. The court’s role is supervisory and provisional. It must not make primary findings of fact or determine the merits of the substantive case. It must decide whether the allegations, rather than their truth or falsity, justify prolonging the interim order.
5. The allegations were grave and a risk of repetition could cause serious harm to patients. The respondent’s stated intention not to return to nursing reduced the prejudice to him. Although the earlier timetable had not been achieved, the Council had progressed the matter sufficiently for delay not to justify refusal.
6. Continuation remained necessary for public protection and in the public interest. However, the delays required the case to receive priority, and an eight-month period provided the appropriate proportionate extension.