The Nursing And Midwifery Council v Lacheva

On an application to extend an interim suspension order, the court applies the same statutory criteria as on the original application. The regulator must establish, on the balance of probabilities, that continuation is necessary for public protection, otherwise in the public interest, or in the interests of the practitioner. The court does not determine whether the allegations are proved. It assesses matters including the gravity of the allegations, the evidence, the risk of harm to patients, the reasons for delay, and prejudice to the practitioner. Serious clinical failings, alleged dishonesty and failure to disclose an interim order may justify continuation because they create risks to patients and to confidence in the profession.

The Nursing and Midwifery Council applied under article 31(8) of the Nursing and Midwifery Order 2001 to extend an interim suspension order imposed on the respondent, a nurse working in a residential care home.

The allegations concerned inadequate catheter care and record-keeping, a patient infection, failure to notify a later employer of an interim conditions of practice order, and forged drug-record signatures. The disciplinary investigation had been delayed, but the matter had been referred to the Conduct and Competence Committee and was awaiting a hearing.

The issue was whether continuation of the interim suspension order remained necessary for public protection or otherwise in the public interest.

1. Applicable test. The application was governed by article 31(8) of the Nursing and Midwifery Order 2001. Applying General Medical Council v Hiew [2007] 1 WLR 2007, the criteria for extending an interim suspension order were the same as those for making the order initially.
2. The relevant considerations included 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 been concluded, and prejudice to the practitioner if suspension continued.
3. The onus lay on the Council to satisfy the court on the balance of probabilities. The court’s function was not to decide whether the allegations were true or false, but whether they justified the requested extension.
4. The alleged clinical failings created a risk of harm to patients. The allegations of dishonesty and failure to notify the new employer of the interim conditions of practice order also raised concerns about the respondent’s integrity and risked damaging confidence in the nursing profession. It was therefore in the interests of patients and otherwise in the public interest for suspension to continue.
5. The delays, including failings by an external investigator, the further referral, the gathering of evidence and the joinder of another nurse, did not outweigh the identified risks. The application was granted and the interim suspension order was extended for six months, stated to expire on 7 April 2016.