Perry v Nursing and Midwifery Council

An application under Article 31(12) of the Nursing and Midwifery Order 2001 is determined on its merits. The court decides what interim order is appropriate, rather than merely reviewing the panel’s process. An interim order requires a prima facie case and a properly assessed need to protect the public, but it does not require a full merits hearing. A panel must consider whether conditions of practice would sufficiently protect the public before imposing suspension. Guidance must not fetter that decision. Where conditions are proposed, the panel must give adequate reasons for rejecting them and explain why suspension is necessary and proportionate.

The claimant, a registered mental health nurse, challenged an interim suspension order imposed by the respondent’s Investigating Committee following allegations of inappropriate professional conduct towards a service user. He accepted that some conduct justified an interim order but argued that the hearing was unfair, that the panel had unlawfully applied the respondent’s standard operating procedure, and that it had failed to explain why conditions of practice were insufficient.

The claim was treated as an application under Article 31(12) of the Nursing and Midwifery Order 2001, because the interim suspension order was not appealable under Article 38. The claimant also advanced freestanding complaints under Articles 6 and 8 of the Convention.

1. Nature of the application. The application under Article 31(12) was neither judicial review nor an appeal. The court therefore considered the merits and decided what order was appropriate, while taking account of the panel’s views and expertise.
2. Threshold and fairness. The panel was entitled to proceed on the basis that there was a prima facie case, without deciding the truth of the allegations. The claimant had been heard, had provided explanations and evidence, and had made submissions. A process based on a prima facie case, coupled with consideration of material advanced by the registrant, was fair and complied with Article 6. A full merits hearing at the interim stage was unnecessary and would frustrate the protective purpose of the jurisdiction.
3. Article 8. The interim suspension did not engage Article 8. In any event, the interference would have been proportionate to the need to protect the public.
4. Conditions and suspension. The panel’s conclusion that an interim order was necessary for public protection was well reasoned and supported by a prima facie case. Its separate decision to impose suspension rather than conditions was inadequately reasoned. The panel did not identify the conditions that would be insufficient, the risk they addressed, or why the claimant’s proposed undertakings were rejected. The standard operating procedure’s suggestion that conditions requiring employer support should be rare where no employer was known had operated as a fetter on the panel’s discretion. The absence of a current employer did not prevent conditions being imposed. If no employer accepted the conditions, there would be no risk from practice; if one did, practice would be strictly controlled.
5. Order. The court was not satisfied that suspension was necessary. Because it could not directly substitute conditions, the suspension was varied to terminate at 4 pm on 20 September 2012, or earlier if the respondent convened a panel to consider suitable conditions.

Not an appeal. The court treated the proceeding as an application under Article 31(12) to terminate or vary an interim order, while also determining the freestanding Convention complaints.