Nursing And Midwifery Council v Fleming

On an application to extend an interim suspension order, the court applies the same criteria as the regulator when making the order. Relevant factors include the gravity of the allegations, the seriousness of the risk to patients, the reasons for delay, and prejudice to the practitioner. The court does not determine the underlying facts or merits. It asks whether the allegations, rather than their truth or falsity, justify continuation of the order. An extension is appropriate where public protection and confidence in the profession outweigh 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 order suspending Jacqueline Clare Fleming’s registration as a nurse. The order had been imposed following concerns that her alcohol-related health condition had affected her clinical practice and had been reviewed three times.

The respondent was served but did not attend. Her written representations were taken into account. The central issue was whether the statutory criteria for extending the interim order remained satisfied.

1. The application was allowed. The interim suspension order was extended for seven months under article 31(8) of the Nursing and Midwifery Order 2001.
2. Under article 31(9), the court may extend or vary an interim order for up to twelve months. Applying GMC v Hiew [2007] EWCA Civ 369, the criteria for extension are the same as those applicable when the regulator first makes an interim order. Relevant considerations include the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case has not concluded, and prejudice to the practitioner.
3. The regulatory body bears the burden of satisfying the court that the criteria are met. The court does not make primary findings of fact or determine the merits of the allegations. It considers whether the allegations, rather than their truth or falsity, justify prolonging the order.
4. The allegations were serious and demonstrated a sufficient risk to patients because the respondent’s suspected health condition had previously affected her practice, with no evidence that it was controlled or that the risk of relapse had been assessed. Delay was explained by attempts to obtain medical evidence, difficulties engaging witnesses and the COVID-19 pandemic.
5. Further delay was accepted as prejudicial to the respondent, but that prejudice was outweighed by the public interest in patient safety and maintaining confidence in the profession. Repeated specialist-panel reviews confirming the order’s continuing necessity supported the extension.