The Nursing And Midwifery Council v Faizey

When deciding whether to extend an interim suspension order in professional disciplinary proceedings, the court must assess whether extension is justified for public protection or otherwise in the public interest. The assessment is fact-sensitive and should address the gravity of the allegations, the evidence, the seriousness of the risk to patients, the reasons for delay, and prejudice to the practitioner. The applicant must establish the statutory criteria on the balance of probabilities. Public confidence in the profession is a relevant public-interest consideration. An extension may be granted where serious allegations and patient risks outweigh delay and unparticularised prejudice.

The Nursing and Midwifery Council applied to extend an interim suspension order imposed against a nurse under the Nursing and Midwifery Order 2001. The order had been renewed several times and was due to expire on 25 December 2015. The Council sought a further eight-month extension to allow the concluded investigation to be considered by the case examiners and, if appropriate, referred for a substantive hearing.

The respondent had engaged with the proceedings but did not attend or oppose the application. The central issue was whether continuation of the suspension was necessary for public protection or otherwise in the public interest, having regard to the allegations, delay, risk and prejudice.

1. Application granted. The interim suspension order was extended to 25 August 2016.
2. The approach in General Medical Council v Hiew [2007] EWCA Civ 369, although developed under a different disciplinary regime, was equally applicable. The court had to consider the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case had not concluded, and prejudice to the practitioner.
3. The Council had to establish, on the balance of probabilities, that extension was justified for the protection of the public or was otherwise in the public interest under Article 31 of the Nursing and Midwifery Order 2001.
4. The allegations were serious and widespread. They concerned medication errors, recording omissions and errors, and pain suffered by care-home residents over a three-year period and across different employments. These matters created potential risks to patients.
5. There had been delay, including between October 2014 and November 2015. Although the court had concerns about the time taken, efforts had been made and progress, though slow, had continued. The respondent had shown no specific or particular prejudice arising from the proposed extension.
6. The public interest in maintaining confidence in the profession was relevant, particularly while serious allegations concerning practice in NHS employment and private residential care continued to be investigated. The eight-month period sought was appropriate.

The judgment was a first-instance determination of the Council’s application to extend the interim suspension order. The judgment does not state any appellate history.