Nursing and Midwifery Council v Firth

When considering an application to extend an interim suspension order, the court applies the same criteria as the regulatory body applies when making the order. Relevant considerations include the gravity of the allegations, the risk of harm to patients, the reasons for delay, and prejudice to the practitioner. The regulatory body bears the burden of establishing, on the balance of probabilities, that an extension is justified. Delay is a matter of concern, but an extension may be granted where the investigation is complete, a final hearing is imminent, the regulator is proceeding with reasonable expedition, serious charges require public protection, and continuation causes little or no prejudice. The extension should be limited to the period reasonably required for the final hearing.

The Nursing and Midwifery Council applied for an extension under article 31(8) of the Nursing and Midwifery Order 2001 of an interim suspension order imposed on Helen Firth by the Council’s Interim Orders Panel. The order was due to expire on 19 October 2012. The Council’s investigation had concluded, but three charges remained to be determined by its Conduct and Competency Committee. The hearing was expected in the first three months of 2013, although witness availability had prevented a date being fixed.

The defendant had taken no part in the regulatory proceedings or the application and had indicated that she no longer wished to work as a registered nurse. The central issue was whether the statutory and regulatory criteria justified extending the suspension order.

1. Application granted. Under article 31(8) of the Nursing and Midwifery Order 2001, the court extended the interim suspension order by eight months, from 19 October 2012 to 19 June 2013.
2. The criteria for extending an interim order are the same as those applicable when the regulatory body makes the order. They include the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded, and the prejudice to the practitioner if the order continues. The regulatory body bears the burden of showing, on the balance of probabilities, that those criteria are met and that an extension should be granted. This approach was applied from General Medical Council v Stephen Chee Cheung Hiew [2007] EWCA Civ 369.
3. Delay in a matter of this kind is always a concern. It must be assessed in context. Here, the investigation was complete, the charges had been referred to the Conduct and Competency Committee, and a final hearing was due to take place shortly. The Council was proceeding to a conclusion with reasonable expedition.
4. The serious nature of the charges and the importance of protecting the public carried particular weight. There was little prejudice to the defendant because she had indicated that she did not intend to practise as a nurse, at least in the near future.
5. The period of eight months was appropriate because listing the hearing in early 2013 might be difficult given the number of potential witnesses. The hearing should nevertheless be listed as soon as practicable.