Nursing and Midwifery Council v Lagah-Bona

An interim suspension order may be extended where the allegations are sufficiently grave, there is a serious risk of harm to patients, the delay in concluding the regulatory proceedings is adequately explained, and the practitioner’s prejudice is balanced against the public interest. The court does not determine the truth or merits of the allegations. It asks whether the allegations themselves justify continuation of the interim order. Although the statutory time limit and prolonged delay weigh heavily in the balance, an extension may be granted in unusual circumstances where the substantive hearing is imminent and continued restrictions remain necessary for public protection.

The Nursing and Midwifery Council applied under article 31(8) of the Nursing and Midwifery Council Order 2001 to extend an interim suspension order imposed on a registered nurse. The order had previously been extended twice by the High Court. The respondent faced allegations concerning forced administration of fluids to a vulnerable patient and subsequent dishonesty in failing to disclose the referral and an interim conditions of practice order to a new employer.

The first referral had concluded with a substantive conditions of practice order, but the second referral had been adjourned and listed for February 2015. The respondent did not attend or make submissions. The central issue was whether further continuation of the interim suspension order was necessary for public protection and otherwise in the public interest.

1. Applicable principles. Under article 31(8) and (9) of the Nursing and Midwifery Council Order 2001, the court considered the principles stated in General Medical Council v 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 concluded; and the prejudice to the practitioner from continuation of the interim order.
2. The regulatory body bears the burden of satisfying the court on those matters. The court must not determine disputed facts or the merits of the allegations. It must assess whether the allegations, viewed as allegations, justify prolonging the order.
3. The allegations were sufficiently grave and disclosed a serious risk of harm, particularly because the respondent allegedly failed to disclose an existing regulatory order when taking new employment. The substantive conditions of practice order arising from the first referral did not sufficiently protect the public because it related to different allegations and findings. The alleged prolonged dishonesty and disregard of the earlier order also raised concerns about compliance and underlying attitude.
4. The delay was unfortunate but explained by witness availability and the need to enable the respondent to be represented at the adjourned hearing. The court recognised prejudice to the respondent’s practice, but concluded that the public interest in protecting patients and maintaining confidence in the profession outweighed it.
5. The 18-month statutory limit indicated that proceedings should ordinarily be concluded within that period. Nevertheless, the circumstances were unusual, the substantive hearing had been fixed for 16 to 18 February 2015, and a short further extension was proportionate. The interim suspension order was extended until 18 March 2015, with the respondent given the usual right to apply. There was no order for costs at that stage.

The judgment records that the interim suspension order had previously been extended by the High Court on two occasions, on 20 March 2014 and 18 July 2014. The present application was granted, extending the order until 18 March 2015.