The recent professional regulatory case (5 October) of NMC v Nursing and Midwifery Council, serves to highlight the difficulties that a regulator can face in seeking to extend an interim order – particularly one with a protracted history…

Here, the regulator sought to further extend an interim order for suspension (ISO) which at the last review had been continued, erroneously taking into account a referral which had at that time been closed by Case Examiners (that referral related to working whilst subject to a DBS bar).

That referral had then subsequently been re-opened (and referred to by the Court as a ‘review in breach of its obligations to inform the registrant and seek his views…’)

Because that decision to re-open that case was not before the Court, the regulator invited the Court not to take account of that decision for the purpose of the extension application.

The sole basis for seeking the extension were those elements underlying a second referral – a failure to declare matters in the revalidation process in 2017 and 2020.

In terms of extending the order on public protection grounds, the Court ‘[found it] difficult to see how the logical jump can be made to saying that omitting information which ought to have been included in a revalidation form can provide a solid evidential basis for saying that this is conduct which could lead to a risk to patients’

The Court further concluded when considering the public interest that “there does not appear to be anything beyond the allegations themselves to support the case for a suspension” (para 25).

Rejecting an invitation to consider replacing the suspension with conditions, the Court concluded that it did ‘not consider that the court [had] the power to devise conditions or should impose them without notice having been given to the Respondent’ (para 29).

Taking into account that the respondent would not be able to practice unless the DBS lifted its restriction, the Court determined that the extension would not be granted (para 30)

The judgment is well worth a read and a copy of the judgment can be found here: www.bailii.org/ew/cases/EWHC/KB/2022/2484.html