Nursing and Midwifery Council v Marlow-Reginer

An interim suspension order may be extended where the statutory criteria applicable to the original order remain satisfied. The court must consider public protection, the public interest and the practitioner’s interests, together with the gravity of the allegations, the evidence, the risk of harm, the reasons for delay and prejudice caused by continuation. The applicant bears the burden of proof on the balance of probabilities. The court does not determine the truth of the underlying allegations. It decides whether, in light of them, continuation is justified. A proportionate extension may include a short period to accommodate an adjournment or other unforeseen delay.

The Nursing and Midwifery Council applied under article 31 of the Nursing and Midwifery Order 2001 for a three-month extension of an interim suspension order concerning a nurse. The order had been extended several times while criminal proceedings and subsequent regulatory investigations were pending.

The respondent did not attend or appear. Objections included that the disciplinary hearing was imminent, that the respondent had not caused delay, and that certain matters relied on by the NMC were outside the charges. The central issue was whether continuation of the suspension was necessary and proportionate pending the forthcoming disciplinary hearing.

1. The application was granted. The interim suspension order was extended for three months.
2. Under article 31 of the Nursing and Midwifery Order 2001, the criteria for extending an interim order are the same as those for making the original order: protection of the public, the public interest and the practitioner’s own interests. The court should consider the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons for delay and the prejudice to the practitioner. The NMC bore the burden of satisfying the court on the balance of probabilities (para [3]).
3. The court was not required to decide whether the allegations were true. It had to decide whether, in light of them, an extension was justified (para [3]).
4. Only matters forming part of the current charges were taken into account. The abandoned medication-error referral, alleged use of false identification documents, and an uncharged previous caution were excluded (para [10]).
5. The respondent’s convictions for dishonesty formed the subject of the outstanding fitness-to-practise allegation. They disclosed a continuing pattern of dishonest behaviour, and continuation of the suspension was justified by public confidence in the profession and patient safety (paras [11]–[12]).
6. The delay had not been caused by either party. The public-interest and patient-safety considerations substantially outweighed the prejudice caused by continued suspension (para [12]). A three-month period was proportionate because the disciplinary hearing might be adjourned or continue part-heard, and a very short extension could cause disruption, wasted costs and a further court application. If the hearing concluded earlier, article 31(5) would cause the interim order to lapse (para [13]).

The judgment records earlier extensions of the interim suspension order by the High Court, including extensions on 11 August 2016, 15 February 2017 and 14 June 2017. The present application was granted for a further three months.