The Nursing and Midwifery Council, R (on the application of) v Silvester

An interim suspension order may be extended where the extension is necessary for public protection or is otherwise in the public interest. The court must consider both whether an extension is justified and whether the proposed period is proportionate in the circumstances. Relevant considerations include the nature and seriousness of the allegations, existing protective measures, the potential access of the practitioner to vulnerable patients, and the effect of continued suspension on the practitioner.

The Nursing and Midwifery Council applied under article 31(8) of the Nursing and Midwifery Order for a further nine-month extension of an interim suspension order imposed against the defendant. The suspension had been imposed while proceedings concerning his fitness to practise were pending.

The defendant was subject to a Risk of Sexual Harm Order restricting contact with persons under 16. His appeal against that order remained pending, and the fitness-to-practise proceedings had been placed on hold until the appeal was concluded. The central issue was whether the requested extension was necessary for public protection or otherwise in the public interest, and whether the proposed period was justified.

1. The application was granted and the interim suspension order was extended for nine months from 2 January 2015.

2. The governing principles were those identified in General Medical Council v Hiew [2007] EWCA Civ 369, [2007] 1 WLR 2007, at paragraphs 31 to 33. The court had to determine whether the extension was necessary for the protection of members of the public or was otherwise in the public interest.

3. The court considered the effect of continued suspension on the defendant. It also considered the serious nature of the allegations, the existing Risk of Sexual Harm Order, the risk that employment might give him access to young and vulnerable patients, the importance of maintaining public trust and confidence in the profession, and the fact that the substantive fitness-to-practise case was otherwise ready for hearing.

4. The pending appeal against the Risk of Sexual Harm Order justified waiting before proceeding with the substantive regulatory case. The defendant’s solicitors had consented to the proposed nine-month period. In those circumstances, both the extension and its duration were justified.