Perry v The Nursing and Midwifery Council

A professional regulator considering an interim order must assess whether the allegations and supporting material justify protection pending the substantive hearing. It may consider the source, nature and reliability of the evidence, admissions, the order’s effect on the registrant and whether the allegations are manifestly unfounded or exaggerated.

The interim tribunal must not determine disputed facts, credibility or the ultimate merits. Fairness does not require it to receive evidence aimed at obtaining a merits determination. Reserving those matters for the substantive disciplinary tribunal is compatible with the common law and, where engaged, articles 6 and 8 of the European Convention on Human Rights.

A registered mental health nurse was dismissed after allegations that he had crossed professional boundaries with a client. He admitted some misconduct but denied the more serious allegations. Pending determination of his fitness to practise, the Nursing and Midwifery Council’s Investigating Committee suspended his registration for 18 months.

Thirlwall J, in [2012] EWHC 2275 (Admin), rejected his claims under articles 6 and 8 of the European Convention on Human Rights. She nevertheless held that suspension was unnecessary and terminated it, subject to the Council’s ability to impose suitable conditions of practice. That part of her order was not appealed.

The remaining issue was whether fairness required the Investigating Committee to receive and consider the nurse’s evidence about the truth of the substantive allegations.

1. Appeal dismissed. The court unanimously held that the Investigating Committee’s hearing was fair and did not infringe the appellant’s rights under articles 6 or 8 of the European Convention on Human Rights.

2. Sir Stanley Burnton proceeded on the assumptions that articles 6 and 8 were engaged. The right to practise a chosen profession is a civil right, and an interim order may affect it. Nevertheless, the procedural requirements of fairness depend upon the nature and purpose of the particular inquiry.

3. At an interim-order hearing, the Committee must determine whether the allegations and available material make an order necessary for public protection, otherwise in the public interest, or in the registrant’s interests. It must hear submissions about the need for an order and its nature and terms. It may assess the source and nature of the evidence, discount material inconsistent with objective or undisputed evidence or which is manifestly unreliable, and consider the order’s effect on the registrant.

4. A registrant may give evidence about that effect and may seek to show that an allegation is manifestly unfounded or manifestly exaggerated. The Committee is not otherwise required to receive evidence directed to whether the substantive allegation is true. It must not decide disputed facts, credibility or the ultimate merits, which are reserved for the Conduct and Competence Committee. It should be extremely cautious before treating evidence as incredible or implausible.

5. The authorities concerning professional interim orders supported that division of functions. Wright was distinguishable because the care worker in that case had no opportunity to make representations before provisional listing. It did not establish a right to present evidence on the merits at an interim professional-disciplinary hearing. Requiring such an evidential hearing would also require the regulator to call the complainant and other evidence, producing an impermissible trial before the trial.

6. The Council’s guidance was compatible with common-law fairness and Convention rights. Committees should consider carefully the likely duration of an interim order; concerns about duration are best addressed by expediting the substantive hearing. Davis LJ and Hughes LJ agreed.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 145, unanimously dismissed the appeal and upheld the rejection of the common-law and Convention procedural challenges.
2. High Court, Administrative Court: Thirlwall J in [2012] EWHC 2275 (Admin) rejected the claims under articles 6 and 8 but held that suspension was unnecessary. She terminated the suspension subject to the earlier imposition of suitable conditions of practice. That relief was not challenged on appeal.