Nursing and Midwifery Council v Kidd & Anor

When extending an interim suspension order, the High Court must exercise an independent judgment. The relevant considerations include protection of the public, the public interest and the practitioner’s own interests. The court should assess the gravity of the allegations, the evidence, the risk of harm, the reasons for delay and the prejudice caused by continuation of the order.

Regulators should ordinarily give a respondent at least seven calendar days’ notice. Applications are not intrinsically urgent merely because the existing order is close to expiry. The court must balance private and public interests and may grant a shorter extension or give liberty to apply where fairness concerns arise.

The Nursing and Midwifery Council applied to extend interim suspension orders concerning Mark Kidd and Paul De’filippis under article 31(8) and (9) of the Nursing and Midwifery Order 2001. Both applications were issued shortly before the existing orders expired, and neither respondent attended the hearing.

The court considered whether the respondents had received adequate notice, the effect of delay by the regulator, the fairness of proposed consent orders, and whether the statutory criteria justified extensions. The factual circumstances differed: Mr Kidd’s case concerned a serious medical condition and an uncertain route to a final hearing, while Mr De’filippis had a final fitness-to-practise hearing listed approximately six weeks later.

1. The court applied the criteria identified in GMC v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369: protection of the public, the public interest and the practitioner’s own interests. Relevant matters included the gravity of the allegations, the nature of the evidence, the risk of harm to patients, the reasons why the proceedings remained unresolved and the prejudice caused by continuation of the interim order.

2. The jurisdiction was not a routine or mechanical exercise. The court had to balance private and public interests and exercise independent judgment. Delay by a regulator could justify refusing, shortening or closely scrutinising an extension, particularly where continuation substantially affected the practitioner.

3. The respondents had not been given a fair opportunity to prepare. Although the CPR supplied rules for service, good practice ordinarily required a minimum of seven calendar days’ notice of an application to extend an interim order. Such applications were not intrinsically urgent merely because the regulator had waited until shortly before expiry. The regulator should liaise with the court to arrange a suitable hearing.

4. The late provision of a consent order requiring complete capitulation could unfairly pressure a litigant in person. Offering a consent order was not necessarily improper, but doing so shortly before an oral hearing carried a risk of unfairness.

5. Despite the procedural defects, the court extended Mr Kidd’s order for six months. The evidence indicated a possible capacity to return to practice at some level, but the NMC provided updated information that proceedings were being progressed towards a final hearing. Mr Kidd was given liberty to apply on three clear days’ notice to vacate or vary the order.

6. The court extended Mr De’filippis’s order for four months. His final hearing was listed for 23–25 April 2014, so the prejudice caused by continuation was slight. He was given liberty to apply to set aside or vary the order because of the inadequate notice.

7. The applications were granted and the orders sought were made.