Challenging NMC application to extend interim order

Jan 18, 2022 | Resources, Templates

The NMC state on its website:

“If it becomes necessary to extend an interim order timeframe, we may apply to the High Court in England and Wales, the Court of Session in Scotland, or the High Court of Justice in Northern Ireland, where appropriate, for an extension.

When a final hearing is not due to conclude before the expiry of the interim order, we will apply to the appropriate court for an extension. We would not apply for an extension where new information suggests that the allegation may no longer result in a finding of current impairment. Instead, we would list the matter for an early review hearing before a panel of the Investigating Committee or Fitness to Practise Committee. If the panel decides the interim order should be revoked, the matter will not be referred to the court.”

However, what is not publicised is you have a right to object to this application to extend. Not many people are aware they can do this and your legal representative may tell you the application is just a formality. THIS IS NOT ALWAYS FAIR. With cases taking longer and longer to conclude the impact may be huge on you both personally and professionally and the longer the process continues the higher the risk that this may be irreparable. Therefore you need to exercise your right to object to the application if you feel it is appropriate. You deserve your case to be dealt with as swiftly as it can be and it is always worth asking and challenging why delays have been happening as long as you do so in a professional manner.

Some high court judges have said that they have multiple applications for these extensions every year and are perplexed as to why. By offering an objection you give the judge the potential to intervene on your behalf. It is unlikely the judge will not allow the extension but they can put parameters on record to ensure further delay is avoided.

Things to consider when objecting:

  1. How long has it been since the incidents occurred?
  2. How long has it been since the NMC received the referral?
  3. Consider an impact statement

_____________________________________________________________

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION UNDER ARTICLE 31(8) OF THE
NURSING AND MIDWIFERY ORDER 2001 TO EXTEND AN INTERIM ORDER
BETWEEN
THE NURSING AND MIDWIFERY COUNCIL
(Applicant)
AND
XXXXXX
Respondent
Supplementary legal argument by the Respondent (XXXXX) to refuse the NMC’s application for extension of its interim orders.
Extension applications by the NMC need to be Fair Reasonable Proportionate.
The high court needs to balance potential harm to both the public protection and the registrant.
The extracts below are from legislation and case law that applies to this case.

The criteria for an extension are similar to the original interim order.  However, the original interim order was varied by a later review hearing.  In all three interim and review hearings, the case by the NMC was misrepresented as it is not to the court.  There are no facts or tested evidence to justify any sanctions.

Therefore, the interim order was flawed or wrong in law and did not meet the legal requirements.
It is easy for the NMC to make an allegation sound as if the public need protection from the registrant, however, this registrant will show how the allegation has no factual evidential basis and therefore the interim order and any subsequent extension is wrong.
The case law and legislative law Section 41A(7)
Arden LJ (with two other judges agreeing) (not verbatim)
The court has power to determine that there should be no extension or the extension sought by the regulator [to be a]  lesser extension.
 
In an appropriate case and having given the parties an opportunity to be heard the judge also has power under  section 41A (10) to reduce the suspension
 
The powers conferred by this section are original powers and not merely powers of judicial review.
Section 41A (7) does not set out the criteria for the exercise by the cause of its powers under that subsection in any given case
 
In my judgement the criteria must be the same as for the original interim order and  section 41A (1), namely the protection of the public, the public interest or the practitioners own interests.  This means has counsel for the regulator submits, that the court can take into account such matters as
 
  1. the gravity of the allegations
  2. the nature of the evidence
  3. the seriousness of the risk of harm to patients
  4. the reasons why the case has not been concluded and
  5. the prejudice to the practitioner if an interim order is continued
The onus of satisfying the court that their criteria are met falls on the regulator as the applicant for the extension under section 41A(7).
Registrant comments
Each of the above 5 points provide opportunities for registrants to share why there should not be an extension.
  1. the gravity of the allegations
    1. When there is no harm actual or potential to clients then the gravity is not significant.
    2. The case against this registrant does not include any actual or potential harm to clients.
  2. the nature of the evidence
    1. The regulator often fails to test the evidence and presents allegations as if they are facts when in reality they are untested allegations.
    2. These allegations may be misunderstandings or even vexatious allegations.
    3. I(XXX Give examples from this case how / why it is vexatious etc).
    4. The nature of the evidence is weak, untested and unreliable.
  3. the seriousness of the risk of harm to patients
    1. There was no harm or allegations of risk of harm.
  4. the reasons why the case has not been concluded
    1. Failings by the regulator the NMC include:
    • Failing to interview witnesses
    • Failing to present its case in a timely manner.
    • Other failings are listed in the skeleton argument

5. the prejudice to the practitioner if an interim order is continued

  • The prejudice to this registrant is severe.
  • The registrant has no income throughout the proceedings.
  • All potential work and work-related opportunities have been cancelled.
  • Prejudice to the practitioner causes the loss of work, the loss of personal & professional reputation, the loss of possibilities for job applications etc.
  • The impact on family life, the loss of housing for example because of the loss of income etc.
All these points above show how an extension would be prejudicial to the practitioner.
Laws LJ R(D) v secretary of state for health 2006 para 26 
The more serious a public authority’s interference with an individual’s interests the more substantial will be the justification the Court will require if the interference is to be permitted.
The court is not expressing any view on the merits of the case against the registrant.
… the function of the court is to ascertain whether the allegations made against the registrant rather than their truth or falsity justify the prolongation of the suspension.
In general, it need not look beyond the allegations.
GMC v Lauffer
In this case the focus of the court was whether allegations justify the prolongation of suspension and the courts considering the minimum period necessary for extension.
This Lauffer case involved possible negligent surgery that in some cases resulted in death with very clear harm to the public.
The court made the point that the longer a registrant is suspended the longer and the more impact it has on deskilling them.
Therefore the court said it should never be the default position that the maximum period should be routinely applied or applied for by the regulator
Each case has to be considered on its merits particularly where a registrant has been suspended for the maximum period at the outset any extension must be the minimum necessary and requires justification by the regulator
The judgement went on to say that the regulator in arranging hearings and finding difficulties arranging these hearings can never be a sufficient reason for prolonging the period of suspension.
… in some cases,… this can result in the registrant concerned being deprived of their ability to earn a living without any of the allegations made against them having been determined.
This case NMC v XXXXX commenced around XX months before the suspension.
The variation of suspension to Conditions of Practice on XXXX is in effect still a suspension.
The template for COP used by NMC panels does not make it a bilateral agreement that would result in a workable order.
The COP order is effectively continuing the suspension due to it being unworkable, unreasonable, unfair and disproportionate.
This is a breach of the law.
References: Case Citations
GMC v Hiew (2007) 1 WLR 2007, CA
R(D) v secretary of state for health 2006 para
GMC v Lauffer 2009 EWHC (Admin)
NB: The Respondent/Registrant is not legally aided / assisted and has limited minimal resources due to the current suspension / COP with no income.

Share this to help others

If you know someone who will benefit from this content, please share it with them.

Sign our Government petition

We are also petitioning the UK Government for change.

Donate

If you would like to support our work please consider donating.

Sign our letter to NMC

If you want change to happen, please sign our letter to Andrea Sutcliffe, CEO of the NMC.

Related posts

Revalidation FAQs

We have had a few people referred to the NMC due to not completing revalidation properly - some with allegations of deliberately trying to deceive...

read more

0 Comments