Nursing and Midwifery Council v Awolola

When extending interim conditions on a regulated professional’s practice, the court applies the same criteria governing the original interim order. Relevant considerations include the gravity of the allegations, the risk of harm to patients, the reasons for delay, prejudice to the practitioner, and the applicant’s burden of proof. The court does not determine the primary facts underlying the regulatory allegations. Conditions may be extended where serious, established concerns remain, provided the extension is necessary, proportionate and justified in the public interest or for public protection.

The Nursing and Midwifery Council applied under article 31.8 of the Nursing and Midwifery Order 2011 to extend interim conditions of practice imposed on a nurse. The substantive fitness-to-practise proceedings had begun, and nearly all factual allegations had been found proved, but the proceedings remained part heard. The respondent did not attend or participate in the application.

The court had to decide whether the statutory criteria for extending the interim order were satisfied and, if so, the appropriate duration of the extension.

1. The application was granted. Under articles 31.8 and 31.9 of the Nursing and Midwifery Order 2011, the court could extend the interim conditions for up to 12 months, but only where the statutory criteria for an interim order were satisfied.
2. The applicable principles were those identified by the Court of Appeal in General Medical Council v Hiew [2007] EWCA Civ 369. The relevant considerations included the gravity of the allegations, the seriousness of the risk to patients, the reasons for delay, prejudice to the practitioner, and the burden on the regulator to satisfy the court that the conditions remained justified.
3. The court’s function was not to make primary findings of fact about the events underlying the regulatory proceedings. Here, however, the substantive tribunal had already found almost all the relevant allegations proved, including sleeping on duty, failures concerning prescribed insulin, and inadequate record-keeping.
4. The concerns about patient safety remained serious and had not abated. Conditions were therefore necessary, proportionate and justified pending conclusion of the part-heard fitness-to-practise hearing and imposition of any consequences arising from the factual findings.
5. An eight-month extension was excessive on the evidence. The order was extended for six months, until 19 August 2013.

The judgment records an earlier extension by the High Court on 14 June 2012. The present court extended the interim conditions under article 31.8 of the Nursing and Midwifery Order 2011.