000 days

since the NMC committed to investigate its ‘established procedures’. We’re still watching!

High Court Objection to Interim Order extension application












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 below extracts are from legislation and case law that applies to this case.


The criteria for an extension is 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


When there is no harm actual or potential to clients then the gravity is not significant.


The case against this registrant does not include any actual or potential harm to clients.



  1. the nature of the evidence


The regulator often fails to test the evidence and presents allegations as if they are facts when in reality they are untested allegations.


These allegations may be misunderstandings or even vexatious allegations.


I(XXX Give examples from this case how / why it is vexatious etc).


The nature of the evidence is weak, untested and unreliable.


  1. the seriousness of the risk of harm to patients


There was no harm or allegations of risk of harm.


  1. the reasons why the case has not been concluded 


Failings by the regulator the NMC include:


  • Failing to to interview witnesses
  • Failing to present it’s case in a timely manner.
  • Other failings are listed in the skeleton argument



  1. 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.