Nursing and Midwifery Council v Kidd and another [2014] EWHC 847 (Admin)

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In September 2012, an interim suspension order was made against the first respondent following an assessment that he was not fit to work. That order was subsequently reviewed and extended.

At the time of the instant hearing, no final hearing had been scheduled but it was hoped that one could be arranged for May/June 2014.

The interim order was due to expire in March 2014.

The applicant Nursing and Midwifery Council (NMC) applied for an extension of the order by six months. In September 2012, an interim suspension order was made against the second respondent. Subsequently, a fresh interim suspension order was made.

At the time of the instant hearing, a final hearing in relation to the second respondent's fitness to practice had been arranged for April 2014 to determine whether a charge of dishonesty had been made out.

The interim order was due to expire in March 2014.

The NMC applied for an extension of the order by four months. In both cases, the applications for extension were served very near to the expiry date of the orders and the respondents were given very late notice of the applications and the proceedings.

The principal issue that fell to be determined was whether the court should exercise its discretion to grant extensions of the interim suspension orders notwithstanding the fact that notice of the applications and the proceedings had been given to the respondents very late.  

The court ruled:

In relation to most if not all of the relevant matters to be considered, the views of the respondent, threatened with a continuation of an order of suspension, might constitute relevant evidence for a court in the exercise of its judgment not only on the question whether to extend an order but also as to the duration of the extension if granted.

Further, it was to be emphasised that in taking such a decision the court was not engaged in a routine tick box, exercise but on the contrary was considering the balance of private and public interests arising (see [4], [5] of the judgment).

The respondents had been given insufficient time to prepare any sort of a case to put before the court. Nothing in the instant case had prevented the NMC from giving the respondents adequate notice and then liaising with the court to find an appropriate time for the case to be heard.

Regarding the first respondent, the continuation of the suspension order coupled to the lack of a clearly defined pathway to a resolution had been a potential difficulty in the way of granting an extension. That difficulty had been exacerbated by the fact that he had not been given a fair chance to advance his case to the court.

Nonetheless, in view of the information that had been provided as to the progress being made to bring the first respondent's case to a conclusion and in the circumstances of the case, it had been proper that the extension should be granted.

It had to be taken into account that the NMC had been acting under statute to safeguard the public. Regarding the second respondent, in view of the fact that the final hearing had been listed to be heard circa six weeks after the expiry of the instant order, the prejudice caused to the second respondent by extending the order had been slight and therefore an extension would be granted (see [11], [12], [20], [21], [24] of the judgment).

Regarding the first respondent, an extension of his interim suspension order for six months would be granted. Regarding the second respondent, an extension of his interim suspension order for four months would be granted. However, the respondents would both be given permission to apply to set aside and/or vary the orders (see [20], [24] of the judgment).

Per curiam: '…good practice suggests that a respondent should ordinarily receive a minimum of 7 calendar days notice of an application to extend…Respondents to proceedings of this nature must be given a fair chance to be heard and the Courts will be astute to ensure that regulators act fairly' (see [11] of the judgment).  

Per curiam: '…the practice of NMC in tendering a consent order to the respondent just days before the scheduled hearing risks using the imminence of the hearing as a means of pressurising a respondent into agreeing to a consent order in the onerous terms that I have referred to... I am not suggesting that the proffering of draft consent orders is necessarily inappropriate; but it has the potential to be unfair if tendered at the 11th hour to a litigant in person shortly before an oral hearing…the modus operandi adopted by the NMC in the present case also imposes pressure upon the court whose lists are always crowded. To make room for urgent applications of this type other matters might have to be deferred and/or Judges diverted from other duties. In circumstances where, as I have observed, the lateness of the application is a problem of the regulator's own making it is not right that this should be allowed to have adverse consequences for the efficient administration of the court service' (see [13], [14] of the judgment).

Reproduced with kind permission of LexisLibrary.