QUEEN'S BENCH DIVISION
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B e f o r e :
| CHRISTOPHER PERRY
|- and -
|NURSING AND MIDWIFERY COUNCIL
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ANUPAMA THOMPSON for the Respondent
Hearing date: 20 June 2012
Crown Copyright ©
MRS JUSTICE THIRLWALL :
ii) the decision to suspend rather than impose conditions was unlawfully fettered as a result of the application by the panel to their decision of a Standard Operating Procedure promulgated by the NMC in July 2011.
iii) The panel failed to give reasons which adequately explained why it rejected the stringent conditions of practice offered by the applicant.
The Court's approach to the application
an allegation against a registered professional has been referred to the Investigating Committee…but -
(i) that Committee has not reached a decision on the matter ; or
(ii) in a case to which article 26 (6) applies, where the Investigating Committee refers the matter to another Practice Committee.
(2) Subject to paragraph (4), if the Committee is satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the registration of that person to be suspended or to be made subject to conditions, it may-
(a) make an order directing the Registrar to suspend the person's registration (an "interim suspension order") or
(b) make an order imposing conditions with which the person must comply (an "interim conditions of practice order") during such period not exceeding eighteen months as may be specified in the order.
(a) in the case of an interim suspension order, terminate the suspension;
(b) in the case of an interim conditions of practice order, revoke or vary any condition imposed by the order;
(c) in either case, substitute for the period in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it).
and the decision of the court under any application under this paragraph shall be final.
The court means the High Court (see Article 31 (13) and Article 32)
"26.- Order of proceedings at an interim orders hearing
Except where rule 24(14) applies, this rule shall apply to any hearing at which the Committee is considering whether to make, revoke, confirm, vary or replace an interim order.
Unless the Committee determines otherwise, the order of proceedings at an interim orders hearing shall be as follows-
(a) the presenter shall inform the Committee of the reasons why it may be necessary to make an interim order on the registrant, or to revoke, confirm, vary or replace any order previously made, and may adduce any relevant evidence in this regard;
(b) the registrant may make representations as to why an interim order should not be made, or should be revoked or not confirmed, varied or replaced, and may adduce any relevant evidence, including oral testimony, in support of her case; and
(c) the Committee shall deliberate in private and shall then announce its decision, together with the reasons for its decision, in the presence of the parties (where present)"
The rules are silent as to the basis upon which the panel is entitled to find that there is a need to protect the public.
"10. A panel considering whether or not to impose an interim order should take the following into account:
10.1 The panel may only impose an interim order:
10.1.1 if it is satisfied that such an order is necessary for the protection of members of the public
10.1.2 if it is satisfied that such an order is otherwise in the public interest
10.1.3 if it is satisfied that such an order is in the interests of the registrant.
10.2 For an order to be necessary for the protection of the public the panel must be satisfied that there is a real risk to patients, colleagues or other members of the public if an order is not made. It is not enough for the panel to consider that an order is merely desirable.
10.3 The panel should consider the seriousness of the risk to members of the public if the registrant were allowed to continue practising without restriction. This includes consideration of the seriousness of the allegation, the nature of the evidence and (in the case of an allegation of impaired fitness to practise) the likelihood of the alleged conduct being repeated if an interim order were not imposed.
10.4 The panel should bear in mind that the primary purpose of an interim order is to protect members of the public. It will be relatively rare for an interim order to be made only on the ground that it is in the public interest (for example, to maintain public confidence in the profession) (see R (Sheikh) v General Dental Council  EWHC 2972).
10.5 The panel must take into account the impact which an order may have on the registrant: an order will impact upon the registrant's right to practise their profession and may also impact financially and on the registrant's reputation. The panel must balance the need for an interim order against the consequences for the registrant and satisfy themselves that the consequences of the order are not disproportionate to the risk from which the panel is seeking to protect the public (Madan v General Medical Council  EWHC 577).
10.6 When considering an interim order, the panel is not making findings of fact nor making findings as to whether the allegations are or are not established. It is sufficient for the panel to act, if they take the view that there is a prima facie case and that the prima facie case, having regard to such material as is put before them by the registrant, requires that the public be protected by an interim order (R (George) v General Medical Council  EWHC 1124 paragraph 42).
I note the use of the phrase prima facie case rather than case to answer. I assume the phrase is used here because it was used by Collins J in the George case.
"The panel must give clear and adequate reasons for its decision. Such reasons must be given whether or not an order is imposed. Reasons should include:
(i) The ground(s) on which the panel has made its decision (that is, whether necessary for the protection of members of the public, or otherwise in the public interest, or in the interests of the registrant)
(ii) what impact an interim order might have on the registrant, and how the panel has balanced that impact against the need for an interim order
(iii) why an interim order is (or is not) proportionate to any risks the panel has identified and proportionate (or not) to the consequences for the registrant
(iv) if an order is imposed, why the panel has chosen the period of time for which the order should be imposed.