Nursing and Midwifery Council v Hitchenor

On an application to extend an interim suspension order, the regulator must satisfy the court that continuation remains necessary. Relevant considerations include the gravity of the allegations, the present risk of harm to patients, the reasons for delay, and prejudice to the practitioner. The court does not determine the truth of the allegations, but must examine the evidence carefully and must not act as a rubber stamp. A serious historical allegation does not by itself justify continuation where current evidence shows that the risk has substantially reduced or is absent. Regulatory bodies are not ordinarily ordered to pay costs merely because they lose, but an order may be justified where unjustified delay and inadequate evidence have caused the application and the regulator has failed to meet the required threshold.

The Nursing and Midwifery Council applied to extend an interim suspension order imposed on Daniel Hitchenor’s registration. The order arose from allegations concerning his misuse and theft of Tramadol while employed as a nurse and had already continued for more than two years.

The substantive health proceedings had been delayed and were eventually listed for February 2013. The Council relied on the continuing need to protect patients and the public. The central issue was whether the evidence justified a further extension under the Nursing and Midwifery Order 2001.

The respondent also sought his costs of the application.

1. The application to extend the interim suspension order was refused. Under articles 31(2), 31(8) and 31(9) of the Nursing and Midwifery Order 2001, the court could extend the order for up to 12 months, but could not substitute a different form of order.

2. The applicable criteria were analogous to those identified in General Medical Council v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369: the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case had not been concluded, and prejudice to the practitioner. The regulatory body bore the burden of satisfying the court.

3. The court was not required to determine the truth of the allegations, but had to consider whether the allegations and the evidence justified prolongation of the order. It was not permitted simply to act as a rubber stamp. The historical thefts and addiction justified the original order, but the evidence showed sustained recovery, negative testing and no evidence of present serious risk. The Council therefore failed to establish that continuation was necessary for public protection or the public interest.

4. The respondent was awarded his costs. The principles in Baxendale-Walker v The Law Society [2007] EWCA Civ 233 did not create an absolute immunity for a regulator. Although costs should not ordinarily follow merely because a regulatory body had lost, the unjustified delay, the earlier assurance that the case would conclude within six months, and the absence of evidence supporting continuing risk justified an order. Costs were summarily assessed at £1,917.

First-instance application to extend an interim suspension order. No earlier decision appealed from is identified in the judgment.