Nursing And Midwifery Council v Cabia

When deciding whether to extend an interim conditions of practice order, the court must assess the allegations rather than determine their truth. Relevant considerations include the gravity of the allegations, the seriousness of the risk of harm, the reasons for delay, and prejudice to the practitioner. The regulator bears the burden of proving that an extension is necessary and that its proposed duration is justified. The court may proceed in the practitioner’s absence where proper service and notice are established. An extension may be granted where protection of patients and public confidence outweighs prejudice to the practitioner, including where delay has occurred but the investigation is substantially complete.

The Nursing and Midwifery Council applied under article 31(8) of the Nursing and Midwifery Order 2001 to extend an interim conditions of practice order imposed on the respondent, a registered nurse. The respondent had been notified of the hearing but neither attended nor was represented, and the court proceeded in his absence.

The application concerned serious allegations involving record keeping, patient monitoring, escalation of deteriorating patients and patient safety. The Council sought a seven-month extension while its case examiners considered whether there was a case to answer. The central issue was whether continuation for the period sought remained necessary for public protection and otherwise in the public interest.

1. Application granted. The interim conditions of practice order was extended for seven months.
2. The court proceeded in the respondent’s absence because the evidence established that he had been served with the application and informed of the hearing arrangements.
3. Applying the guidance in GMC v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369, the relevant considerations were the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case had not concluded, and prejudice to the practitioner. The regulator bore the burden of establishing both the need for an extension and the length sought.
4. The court’s function was not to determine primary facts or the merits of the allegations. The question was whether the allegations, assuming neither their truth nor falsity had been established, justified prolonging the order.
5. The allegations concerned basic nursing failures and created a real risk of unwarranted patient harm if the respondent practised without restriction. His history of similar errors heightened that risk. Allowing patients to face that risk would also undermine public confidence in the profession.
6. There had been two significant periods of delay without a satisfactory explanation. That failing was relevant, but the investigation had been completed and a decision on whether there was a case to answer was awaited. The statutory response and notice periods, witness availability and COVID-19-related disruption justified the period sought.
7. The existing suspension order relating to language skills did not provide an adequate substitute because it could be revoked following remediation and did not address the clinical concerns. The public interest in continuing the interim order therefore outweighed the prejudice to the respondent.