Nursing and Midwifery Council v Deojlt Persand

An interim order restricting a nurse’s practice may be imposed only where it is necessary for public protection, the public interest or the practitioner’s interests under the Nursing and Midwifery Order 2001. Necessity is a high threshold: more than desirable, but less than indispensable. The regulator must identify specific features of the individual case showing why an unproven risk justifies restraint, and must establish that no lesser restriction will suffice. Public-interest suspension is relatively rare and cannot be justified merely because an informed member of the public might be concerned. Each condition must independently satisfy the necessity test. In deciding whether to extend an interim order, the court performs a primary decision-making function and must consider factors including delay, evidence, risk, gravity of allegations and prejudice to the practitioner.

The Nursing and Midwifery Council applied under article 31(8) of the Nursing and Midwifery Order 2001 to extend conditions imposed on Deojlt Persand’s registration. The regulatory investigation had begun following allegations concerning care of a resident, employment conduct and misleading information in a job application. An interim suspension order was imposed in June 2022 and later replaced by conditions.

The investigation had experienced substantial unexplained delays. The NMC accepted that suspension was no longer justified but sought continuation of conditions on public-protection and public-interest grounds. The central issues were whether continued restrictions were necessary and, if so, what conditions were proportionate.

1. Statutory test. The court’s function on an application to extend an interim order is a primary decision-making function. It applies the same statutory criteria as the Practice Committee. The regulator bears the onus of demonstrating necessity.
2. Relevant factors. The court may consider the gravity of the allegations, the nature and cogency of the evidence, the seriousness of the risk of harm to patients, the reasons for delay, the NMC’s diligence, and prejudice to the practitioner. The list is not exhaustive. Unreasonable or unexplained delay is relevant because it may engage the practitioner’s article 6 right to a determination within a reasonable time.
3. Necessity. Necessity means more than desirability but less than absolute indispensability. The decision-maker must focus intensely on how and why patients may be at risk. Even cogent evidence of risk will not ordinarily justify suspension if conditions can reasonably protect patients. Allegations must be taken at their highest, while the apparent weakness of the case may be weighed.
4. Public interest. Interim suspension in the public interest is relatively rare. Concern that a hypothetical informed member of the public might object to unrestricted practice is insufficient, since that reasoning would justify restrictions in almost every serious case.
5. Application. The allegations did not justify suspension. Some limited risk from unsupervised nursing practice was established, but the existing standard conditions were excessive. The necessity test applied separately to every condition. Conditions preventing Mr Persand from being the sole nurse on duty were sufficient. Conditions 1, 2, 3 and 10 were upheld; condition 9 was modified to require disclosure of the conditions to any establishment applied to; the remaining conditions were removed.
6. The NMC’s application was granted in part.