NNC v Babalola

When deciding whether to extend an interim regulatory order, the court must be satisfied that continuation remains necessary for public protection, the public interest or the interests of the person concerned. The regulatory body bears the burden of satisfying the court. Relevant considerations include the gravity of the allegations, the seriousness of the risk to patients, the reasons for delay, and the prejudice to the practitioner. Where the original allegations were serious but the regulator accepted that circumstances had materially changed and that there might be no case to answer, a lengthy extension was inappropriate. A short extension may nevertheless be granted to preserve protection while the regulator reaches a clear decision, particularly where the practitioner may apply to vary or discharge the order.

The Nursing and Midwifery Council applied under article 31(8) of the Nursing and Midwifery Order 2001 to extend an interim Conditions of Practice Order concerning a registered midwife. The order had originally been made after allegations concerning consent, care during labour and a drug administration error. The respondent had failed or not completed supervised practice programmes.

The Council sought an eight-month extension. By the hearing, however, it accepted that there had been a significant change, that the allegations might not result in a case to answer, and that continued prejudice to the respondent could be substantial. The respondent did not attend or make representations. The issue was whether, and for how long, the interim order should continue.

1. The application was granted only in part. The interim Conditions of Practice Order was extended for one month, until 12 January 2015, rather than for the requested eight months. The respondent was permitted, on written notice, to apply to vary or discharge the order.
2. Article 31(2) of the Nursing and Midwifery Order 2001 permits an interim order where the court is satisfied that it is necessary for the protection of members of the public, otherwise in the public interest, or in the interests of the person concerned. The regulatory body bears the burden of satisfying the court.
3. In deciding whether an extension is justified, the court should consider the gravity of the allegations, the seriousness of the risk to patients, the reasons why the substantive case has not been concluded, and the prejudice to the practitioner. These factors were drawn from General Medical Council v Hiew [2007] EWCA Civ 369 and applied to the application.
4. The allegations had initially been grave, but the Council accepted that there had been a significant change and that there might be no case for the respondent to answer. The potential prejudice of continuation was therefore high. In the continuing uncertainty, a short extension was justified to preserve the position and allow the Council to reach a clear decision, while enabling the respondent to seek an earlier discharge or variation.