Nursing And Midwifery Council v Wilding

When deciding whether to extend a professional regulator’s interim order, the court applies the same criteria as those governing the original order. Relevant considerations include the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons for delay in concluding the substantive case, and prejudice to the practitioner.

The court does not determine the truth of the allegations or make primary findings of fact. It asks whether the allegations, taken at face value for this purpose, justify prolonging the order. An extension is justified where continued restriction remains necessary for public protection or otherwise serves the public interest, and that interest outweighs the practitioner’s prejudice.

The Nursing and Midwifery Council applied under article 31(8) of the Nursing and Midwifery Order 2001 for a seven-month extension of an interim suspension order imposed on the respondent, a registered midwife.

The order had been imposed following allegations of serious competence concerns in clinical practice and dishonest record-keeping. The substantive fitness-to-practise case had not yet been concluded, partly because of investigative delay and the effects of the COVID-19 pandemic. The respondent did not attend or oppose the application.

The central issue was whether the statutory and common-law criteria for extending the interim order were satisfied.

1. Application allowed. The interim suspension order was extended for seven months under article 31(9) of the Nursing and Midwifery Order 2001.
2. Following General Medical Council v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369, the criteria for extending an interim order are the same as those applicable when the regulatory body makes the order. Relevant factors are the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the substantive case has not been concluded, and prejudice to the practitioner.
3. The court’s task is supervisory and evaluative. It is not required to determine disputed primary facts or assess the merits of the allegations. The question is whether the allegations themselves justify prolonging the order.
4. The allegations concerned fundamental aspects of midwifery practice, had allegedly persisted despite supervision and capability programmes, and included dishonest record-keeping. They therefore demonstrated sufficient gravity and potential for serious patient harm. Delay in concluding the substantive case was a relevant concern, but the chronology provided explanations for much of the later delay, including witness evidence, additional information and the COVID-19 pandemic.
5. Although continuation of the order would cause prejudice, that prejudice was outweighed by the public interest in patient safety and maintaining confidence in the profession and its regulator. Repeated reviews by the specialist panel also supported the conclusion that the order remained necessary for public protection and otherwise in the public interest.