Nursing And Midwifery Council v James

When deciding whether to extend an interim order restricting a registered healthcare professional’s practice, the court must balance:

• the gravity of the allegations;
• the seriousness of the risk of harm to patients;
• the reasons for delay in concluding the regulatory process; and
• the prejudice to the practitioner if the order continues.

Serious allegations and an established patient-safety risk may justify an extension where the practitioner suffers no serious current prejudice. Delay remains material. A further extension may receive particularly careful scrutiny where the regulatory investigation has progressed slowly.

The Nursing and Midwifery Council applied for a four-month extension of an interim order restricting the respondent’s conditions of practice under article 31(8) of the Nursing and Midwifery Order 2001. The order followed allegations that the respondent, an agency nurse working in a locked psychiatric intensive care unit, had kicked a patient, failed to report the incident, and told a colleague that he had taken the patient down.

The respondent had been served but was abroad and did not attend. Through his representative, he raised concerns about delay and indicated that he would not contest the consent order. The central issue was whether the balance of relevant considerations justified continuing the interim restriction until the regulatory proceedings could be heard.

1. Application granted. The interim order was extended for four months under article 31(8) of the Nursing and Midwifery Order 2001.
2. In deciding whether to continue the order, the court balanced the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case had not concluded, and the prejudice to the practitioner.
3. The allegations were plainly serious and the risk of harm to patients was made out on the material before the court. Although there had been significant delay, the delay was explained by the sequence of referrals, investigations, reviews and responses. The setting of a hearing date also reduced the concern that the proceedings would continue indefinitely.
4. The respondent had identified no specific prejudice from continuation of the order. He remained able to work within its conditions, so the present prejudice was not serious. The balance of convenience therefore favoured relief.
5. The court observed that the delay was not admirable. If a further extension were sought, it should be examined with a very careful eye, and these observations should be drawn to the attention of any future judge.