Perry v Nursing and Midwifery Council [2012] EWHC 2275 (Admin)

[2012] EWHC 2275 (Admin)

Case No CO/297/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/08/2012

Before

MRS JUSTICE THIRLWALL DBE

Between

CHRISTOPHER PERRYClaimant

NURSING AND MIDWIFERY COUNCILRespondent

(Transcript of the Handed Down Judgment of

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IAN WISE QC and GABRIEL BEEBY (instructed by Jonathan Green, RCN Legal Services) for Claimant

ANUPAMA THOMPSON for Respondent

Hearing Hearing date: 20 June 2012

Judgment

[1]This application concerns an interim order suspending the applicant’s registration as a nurse imposed upon him by the respondent at a hearing on 29th November and confirmed in writing on 12 December 2011. The applicant erroneously lodged an appeal against the imposition of the interim suspension order. The decision under challenge is not an appealable decision under Article 38 of the Nursing and Midwifery Order 2001. I have therefore treated it as an application under Article 31(12) to terminate the interim order of suspension. The applicant has also made a Part 8 claim in respect of a freestanding complaint that the respondent has breached his rights under Articles 6 and 8 of the European Convention on Human Rights. Consideration of Article 6 and Article 8 will form part of my decision in respect of the application under Article 31(12). A decision under Article 31(12) is final. There is no appeal. An appeal would be available were I to decide against him in respect of his freestanding claim in respect of breaches of Article 6 and Article 8. For that reason I have permitted him to pursue that claim.

Background

[2]The applicant is a 53 year old registered mental health nurse. He qualified in March 2001. From early 2004 he had been employed by the Cwm Taf Health Board as part of the Youth Offending Service in Swansea. In August 2010 he began working with a 30 year old mother of 3 children, Mrs J. In October 2010 Mrs J made a complaint to the Health Board about the applicant. It is his case that this was precipitated by his having told her that he needed to distance himself from her. She alleged he had acted improperly towards her. Her allegations and the applicant’s responses to them were considered at a disciplinary hearing of the Health Board on the 13th June 2011. The applicant was summarily dismissed. In a letter of 20th June 2011 the disciplinary officer wrote “I carefully considered all the evidence and information presented to me and concluded that you had fundamentally breached your contract of employment and your actions constituted gross misconduct. On this basis I had no alternative but to dismiss you without notice or payment in lieu of notice. Due to the seriousness of your actions I will be referring your case to the Nursing and Midwifery Council”. That referral took place by letter of the 11th July 2011. Some 4 months later, on the 9th November 2011 the NMC wrote to the appellant informing him that the investigating committee had received an allegation that his fitness to practise as a nurse was impaired and that pending a decision as to whether he had a case to answer an interim orders hearing would be held. The letter explained that the interim orders hearing could either impose conditions on the appellant’s practice as a nurse or suspend his registration and that an interim order may be necessary because of “the nature of the allegations which related to an inappropriate and sexualised relationship with a client”. It went on “if the alleged behaviour was to be repeated there would be a real risk of psychological harm to clients…an order may be necessary for the protection of the public and otherwise in the public interest to maintain the public’s confidence in the profession”.

[3]The hearing took place on 29th November 2011. Mr Perry has always accepted some of the allegations against him. He accepts that the panel could properly have imposed a conditions of practice order. Detailed conditions were proposed to the panel. They were repeated before me.

[4]It is the applicant’s case that i) the procedure adopted by the Interim Orders Panel was unfair, in breach of the common law and in breach of the requirements of Article 6 and

Article 8 of the Convention

. 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.

[5]This application is, I am told, of importance, not only to Mr Perry, but to the wider nursing profession. Mr Jonathan Green, solicitor and senior legal officer at the Royal College of Nursing Legal Directorate explains in his statement that some 400-500 members of the profession are made subject to interim suspension orders each year. Mr Wise says that there is no objection in principle to interim orders but, he says, the way in which such orders are currently being arrived at is in breach of common law and convention rights. The length of such interim orders is, I am told, routinely 18 months. They may then be extended in the way I describe below. Mr Green also says that since the introduction of the Standard Operating Procedure the number of suspensions has increased while the numbers of conditions of practice orders has decreased.

The Court’s approach to the application

[6]This is neither a judicial review nor an appeal. My approach is therefore not restricted to a review of the process or procedure or to errors of law. In R(Stephen James Walker) v GMC [2003]EWHC 2308 (Admin) Stanley Burnton J (as he then was) was dealing with an application under S41A(10) of the Medical Act 1983, which is in identical terms to Article 31(12). He said “the Court does not interfere on a review ground but itself decides what order is appropriate” I have considered the case on its merits, taking into account, where relevant, the views of the panel and acknowledging their experience and expertise. This case does not involve consideration of technical nursing practice, but rather professional nursing conduct. To that extent the nursing expertise of the two nursing members of the panel is important but not determinative.

Statutory Framework

[7]For ease of reference I set out some of the commentary within my rehearsal of the framework.

[8]By operation of sections 60 and 62 of the Health Act 1999, Orders in Council may be made to regulate health care and associated professions. The Nursing and Midwifery Order of 2001 provides at Article 3(1) for the establishment of the Nursing and Midwifery Council. Its principal functions “shall be to establish standards of education, training, conduct and performance for nurses and midwives and ensure the maintenance of those standards”. In accordance with Article 5 of the Order the NMC has established and maintained a register of qualified nurses and midwives. Paragraph (9) (so far as is relevant) provides for the establishment of 4 committees of the Council including the Investigating Committee and the Conduct and Competence Committee.

[9]Fitness to practice is dealt with in Part 5 of the Order. Article 22 provides, so far as is relevant, that where an allegation that fitness to practise is impaired due to misconduct the allegation shall be referred, as soon as practicably possible, to the Investigating Committee.

[10]By Article 26(1) the Investigating Committee shall investigate any allegation which is referred to it in accordance with Article 22 or 24. By operation of Article 26(2)(i) it is for the Investigating Committee to consider in the light of the information it has been able to obtain and any representations made to it whether in its opinion in respect of an allegation of the kind referred to in Article 22(1)(a) (as here) there is a case to answer. Where the investigating committee reaches a decision as to whether there is a case to answer it must notify the person concerned and the person making the allegation of the decision, giving its reasons. Where the Investigating Committee concludes that there is a case to answer it shall refer the case to the Conduct and Competence Committee (see Article 26 (6) (b) (iii)). That Committee conducts a hearing of the merits of the allegations and determines the nurse’s fitness to practise.

[11]Paragraph (11) of Article 26 provides that the Investigating Committee may make an interim order in accordance with Article 31 at any time before referring a case to the Conduct and Competence Committee.

[12]Article 31 is headed Interim Orders by a Practice Committee. The body of the article includes the Investigating Committee. The relevant part of the Article reads(1) This article applies where – 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.

[13]By paragraph (4) the Investigating Committee shall not make an order in any case after it has referred the allegation in question to another Practice Committee.

[14]Paragraph (12) sets out the role of the Court“Where an order has effect under paragraph (2)…the court, may, on an application being made by the person concerned -(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)

[15]The order of proceedings for interim orders hearings are set out at Article 26 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004. “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)” (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.

Guidance

[16]The NMC have produced guidance to panels considering whether to make an interim order. The guidance relevant to this case was issued in June 2010. It applies: “when a panel of the Investigating Committee, Conduct and Competence Committee or Health Committee is considering whether to impose an interim order in a case of alleged impairment of fitness to practise”, see paragraph 1.1.

[17]Paragraph 10 sets out the matters to be taken into account by a committee considering whether to impose an interim

[18]Guidance as to what, in my judgment, is logically the first step in the process comes at paragraph 10.6 – 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

[2003] 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.

[19]Paragraph 10.7, so far as is relevant, provides - “as regards the amount of evidence before the panel, the High Court has indicated that it would expect the allegation to have been made or confirmed in writing, whether or not it has yet been reduced to a formal witness statement. The panel will need to consider the source of the allegation and its potential seriousness. An allegation that is trivial or clearly misconceived should not be given weight (General Medical Council v Sheill

[2006] EWHC 3025

).”

[20]Paragraph 10.8 deals with conditions of practice orders -“If the panel decides that an interim order is necessary, it should not automatically impose an interim suspension but should first consider whether an interim conditions of practice order would be sufficient and proportionate.”

[21]Paragraph 10.9 reads -“If the panel imposes an interim order, it must specify the length of the order. The panel should not automatically impose the maximum period of 18 months, but should consider what period is appropriate and proportionate in the circumstances. The panel should take into account the amount of time which is likely to be needed to complete any investigation into the allegations and for the case to be listed for hearing. Once a period has been chosen, it can only be extended by the NMC applying to the High Court (or Court of Session, or High Court of Justice in Northern Ireland, where appropriate).”

[22]Guidance on the giving of reasons is at paragraph 10.10: “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.

[23]I note the guidance does not specifically require the panel to give reasons for choosing to impose an interim suspension order rather than a conditions of practice order. Given that this is an important part of the decision making it is a surprising omission from the guidance on reasons.

The allegations

[24]Some of the allegations were not in dispute. The applicant accepted at the time of the disciplinary hearing before his employers, and thereafter, that he had overstepped professional boundaries. He made the same concession at the hearing. The applicant said that he had started out with good intentions, seeking to gain Mrs J’s trust and to ensure that she engaged with him. He accepted sending texts in response to texts she had sent him. The applicant did not accept any sexual touching. The complainant had alleged that he had asked her for cuddles, kissed her on the forehead, asked her to talk about her sexual history in detail, asked her to dress up for him, sent sexually explicit texts which he had asked her to delete. It is the applicant’s case that those allegations were fabricated, to punish him for seeking to distance himself from the complainant. Although the police were fleetingly involved it is not apparent that there was any allegation of criminal conduct. The police took no action. At the hearing before the panel the applicant recognised that his admitted conduct justified an interim order, as Mr Wise did before me. That was a realistic concession; whatever the circumstances in which the texts came to be sent, their sexual content and overtones were plainly completely unacceptable in the context of a professional relationship. Conditions of Practice

[25]Further guidance was provided to panels via a document headed “Standard Operating Procedure: engaging third parties when a panel at a hearing is proposing to impose a conditions of practice order.” It is dated 16th June 2011 and was distributed to panels under cover of an email dated 14th July 2011. It is the distribution and implementation of the procedure in this document which has led, Mr Green says, to an increase in the number of suspensions where previously conditions of practice were imposed. Its objective is “to ensure that conditions of practice orders imposed are clear, unambiguous and practicable”. Its scope is described thus “This SOP applies where a panel at a substantive or non substantive hearing is considering imposing a conditions of practice order”. However the only relevant legislation referred to is Article 29 of the 2001 order, which does not deal with interim orders. The covering email says “we hope that it will enable you to avoid making unsuitable or impracticable conditions for want of information.”

[26]The procedure requires that where a panel is considering the imposition of conditions it should announce the proposed conditions in public and then give time (up to one hour) for the parties to contact a known third party (presumably a known employer) to see whether or not the proposed conditions are workable.

[27]Papers written to (and I assumed approved by) the corporate leadership board in April and May 2011 recommend the implementation of measures designed to involve employers before conditions of practice orders are made. Both have sections dealing with Interim Conditions of Practice Orders.

[28]The background section of the two papers contained in paragraph 5 is silent on the nature of complaints, if any, about the imposition of conditions of practice in nursing (as opposed to midwifery) cases. It is not clear why a new procedure is necessary in nursing cases.

[29]Paragraph 13 reads“In some cases, conditions are such that they do not require the cooperation of an employer, and are plainly practicable eg a condition not to practise as a midwife, not to practise in ITU etc. In these cases it will not be necessary to canvass the views of any employer.” The reference to practice as a midwife is surprising, given that midwives are dealt with in another part of the document. The assertion that a condition not to practise in ITU would not require the cooperation of an employer is not easy for a lay person to understand but it may be clear to those in the profession.

[30]Paragraph 14 reads“In other cases, where the practicability of the proposed condition may depend on the registrant’s working environment, much will depend on whether there is a known employer. It should be rare for a panel to make a conditions of practice order requiring the support of an employer when no employer is known” This is not explained. It plainly had an important effect on the views of the panel in this case.

[31]In October 2011 the Panel Support team reminded panels of the need to check with employers before conditions are imposed, “so as to avoid the situation where conditions are imposed but subsequently prove to be unworkable”.

The Hearing

[32]The applicant was represented by counsel, Mr Beeby. Mr Wise submits that Mr Beeby was prevented by the chairman from exploring the allegations in evidence with the applicant. I was directed to the following intervention “Background is helpful in order to help us with the assessment of risk. But we are not here to consider matters of fact and certainly not here to consider balancing evidence in one direction or the other. We take the allegations. We need to hear whatever is appropriate to be said to us in helping us to assess the level of risk going forward from here”. However a little later he said this, “The guidance that the NMC gives is very clear. We are not required to weigh up evidence. All we have to be satisfied of is that, given the information in front of us, there is what is called a prima facie case requiring consideration of an interim order.”

[33]The chairman was there plainly relying on the guidance at 10.6 to which I referred above. Mr Wise is critical of that paragraph of the guidance in a number of respects. He submits first that the decision of Collins J does not provide a proper foundation for the guidance at paragraph 10.6. Secondly that the effect of the guidance has been to elevate to the status of statute the prima facie test when it does not appear in the order or rules. Its implementation has resulted in breaches of the common law requirement of fairness and breaches of the applicant’s rights under Articles 6 and 8 of the European Convention on Human Rights. I shall deal with the submissions in that order.

[34]Mr Wise submits that Collins J was concerned with the conduct of the GMC and the provisions of the Medical Act 1983. He concedes that the provisions under consideration, section 41A (10) of the Act, are in identical terms to Article 31 (12) of the Nursing and Midwifery order of 2001. I am satisfied that, in principle, a decision in respect of s41A(10) of the Act is relevant to decisions made by panels of the NMC dealing with identical provisions. Mr Wise correctly says that this paragraph was not part of the ratio of the decision since that issue was not a matter of dispute; the GMC had accepted that the applicant medical practitioner was not able to have his case fully considered because so much information was served on him at a very late stage.

[35]It may be thought uncontroversial for Collins J to have taken the view that at the interim stage a prima facie case was required. Mr Wise points out that the test of prima facie case is not in the statute or the rules. That is correct. As I observed earlier they are silent as to the threshold that must be passed before the panel considers whether or not an order is necessary for the protection of the public. Given the structure of the order and the rules it might be argued that something less than a prima facie case/case to answer would suffice since the consideration of the interim order takes place before the determination of the question of whether there is a case to answer and its primary purpose is the protection of the public. In General Medical Council v Dr Stephen Chee Cheung Hiew

[2007] EWCA Civ 369

, the Court of Appeal, there dealing with s41(A) (10) of the Medical Act 1983, observed that a judge considering an application for an extension of an interim order is not required to be satisfied (eg) “that there is a case to answer in respect of misconduct or any other matter. On the other hand, if the judge can clearly see that the case has little merit, he may take that factor into account in weighing his decision on the application”. An application for an extension is different from an application to make or terminate the order but the Court of Appeal’s approach lends some support to the argument that the rules provide that something less than a prima facie case would suffice when Interim Orders are under consideration. I would not come to that conclusion without hearing further argument but in the event Mrs Thompson did not submit that anything less than a prima facie case was sufficient and it is plain that the panel took that approach. It is about that approach that Mr Wise complains.Article 6

[36]Mr Wise submits that the applicant was entitled to and should have had what he describes as a full merits hearing and that the failure to conduct such a hearing was a breach of his Article 6 rights, his rights under Article 8, and was unfair at common law. He submits, correctly, that the appellant’s right to work in his chosen profession is a civil right for the purposes of Article 6. That is not disputed. He also submits that notwithstanding the fact that this is an interim decision the applicant is entitled to the protections contained in Article 6. He relies on the decision in R (Wright) v Health Secretary

[2009] 1 AC 740

. The House of Lords there considered appeals by care workers who had been referred to the Secretary of State for Health under section 82(1) of the Care Standards Act 2000, which (then) provided for the keeping of a list of people who are considered unsuitable to work with vulnerable adults. The names were included on the list pending determination of whether or not their names should be included. As a result of the provisional listing the names were also provisionally included on a list of people unsuitable to work with children. There was no requirement for any hearing of any sort before the name was provisionally included on the list. The House of Lords found that the effect of that provisional registration was so severe, resulting in irreparable damage to the claimant’s prospects of employment within the care sector, that the decision to include a name on the list, even provisionally, amounted to a determination of a civil right under Article 6 (1) of the convention. Section 82(4) of the Care Standards Act was held to be incompatible with Article 6.

[37]Mr Wise submits that the position of the applicant here is the same. The order runs for 18 months (with provision for an application for an extension). He relies on the statement of Mr Green who says that the practical effect of a suspension order is permanently to prevent the nurse from practising in his or her chosen profession; even if the nurse’s name is subsequently cleared the damage done to the nurse’s ability to practise is irreparable. Mr Green points out that when considering the question of fitness to practise the final panel often seeks reassurance from references. If the nurse has been prevented from taking any form of nursing employment during a very prolonged period the chances of persuading the panel that they are fit to practice are hugely reduced. He says “an interim suspension order made in these circumstances can often produce a killer blow to a nurse’s career,” echoing judicial observations in another context. I bear in mind however that the outcome of the hearing, even where an interim order is made, is not necessarily suspension. It seems to me that where conditions of practice are imposed the strength of the arguments as to the effect on the nurse’s ability to work are much reduced. I had some reservations as to the applicability of Article 6 at this interim stage but Miss Thompson, whose submissions on behalf of the NMC were measured and realistic, accepted that Article 6 was engaged and I have approached the case on that basis. Miss Thompson submits that there was no breach of Article 6.

[38]Mr Wise was a little reticent as to what would constitute a “full merits” hearing. It would presumably be a fully contested hearing on the primary allegations about which the panel would make findings. In that respect it would be indistinguishable from the final hearing. The practical consequence of a requirement for such a hearing would be very significant delay which would thwart the purpose of the interim order namely the protection of the public.

[39]I am quite satisfied that a process which requires the decision maker to be satisfied that there is a prima facie case before deciding whether there is a need to protect the public in the interim is a fair one, particularly where, as here, it is coupled with evidence from the person whose conduct is being scrutinised.

[40]The applicant was entitled to be heard and was heard. Common law fairness and Article 6 require as much. Plainly if there is evidence that the allegations are unfounded a panel must take that evidence into account. In this case the chairman accepted that if there were grounds for saying the allegations were malicious “then that would be something that would be of interest to us”. Thereafter the approach taken was not simply to accept what was written (which, I record, on its own plainly sets out a case to answer) and consider what was said about whether the allegations were malicious . The applicant suggested a number of reasons why they might have been made. (see page 252 A to 253 and beyond). He also explained why he had breached professional boundaries, principally because he had not borne in mind the Nursing Code of Conduct. Comprehensive character evidence was put before the panel. His counsel made submissions. The panel received advice from its adviser in open session. The rules were all complied with.

[41]I can see no unfairness, at common law, or in breach of Article 6, in the approach that the panel took during the hearing to the question of whether an interim order was necessary. As to the fairness of the procedure overall, the applicant has the benefit of reviews of the order, and the opportunity to make this application to the court, as he has done.

[42]I do not consider that Article 8 was engaged. The suspension of registration on the nursing register is far less likely to affect the whole of a registrant’s life in the way inclusion on the lists preventing people from working with children and vulnerable adults. It does not constitute an interference with the applicant’s right to family or private life. Even if it did in my judgment the interference was proportionate to the need to protect the public. I do not consider that Article 8 adds anything to the case in any event.

The undertakings

[43]The applicant offered 4 undertakings to the panel . Mr Beeby said; “ The Panel are rightly concerned with public protection. Mr Perry recognises that and offers four undertakings to assuage any concern the court may have. Those four undertakings are as follows. Firstly, to work only in a clinical setting. By that we are distinguishing from a community setting. Secondly not to work in a community nursing role. Thirdly, to undertake supervision by an appropriate person. That has been left deliberately wide because, as you have heard, at the moment he has been unable to find work, but we anticipate in the sorts of elderly care jobs he told the panel about, that would be a registered general nurse or an RMN. Fourthly and importantly, Mr Perry undertakes to ask every potential employer to write a report every three months to the NMC, giving them an update of conduct and progress in any role that he secures. We anticipate that would probably be the deputy manager of a care home, but again that is left wide. So a three monthly report by an appropriate person.”

The Decision

[44]The panel deliberated for 25 minutes. The decision took some 10 minutes to deliver. The panel’s findings and conclusions on the issue of whether an order was necessary were well reasoned. There was, in my judgment a prima facie case on all the allegations. Having considered all the points made by the applicant I agree that an interim order was necessary for the protection of the public.

[45]The issue of conditions of practice was dealt with in very short order at the end of the decision“The panel next considered whether a conditions of practice order would be sufficient. In particular the Panel gave careful consideration to the four conditions that were offered on your behalf. However, in the view of the Panel, only the most robust conditions would possibly be sufficient to protect the public, including a high degree of supervision and this would require the explicit support of a named employer”. The panel is there relying on the guidance in the SOP and letters to which I have referred.

[46]The decision to suspend rather than to impose conditions of practice is not adequately explained nor is the reasoning easy to discern. The panel do not say in terms that conditions of practice would not be sufficient to protect the public although that might be inferred from “the most robust conditions would possibly be sufficient to protect the public”. They do not say what the conditions would be, nor what the harm (or the risk of harm) would be to which such conditions would be directed. The four undertakings offered by the applicant are dismissed without explanation. They say that a high degree of supervision would require the explicit support of a named employer. That goes without saying. It does not follow from that, in my judgment, that where there is no current employer such conditions cannot be imposed. It appears that the panel have been influenced by the SOP’s direction, or at least suggestion, that “it should be rare for the panel to make a conditions of practice order requiring the support of an employer when no employer is known”. This has operated as a fetter on the panel’s decision making.

[47]The applicant’s detailed undertakings/proposed conditions were worthy of consideration and in my judgment could have been refined or, if necessary, improved by the panel to meet the risk to vulnerable service users. Plainly if no one is prepared to employ the applicant on such conditions the applicant will not be able to practise. There will be no risk to the public. If an employer is prepared to take him on those terms then he and the public have the benefit of a nurse in practice, albeit strictly circumscribed.

[48]The respondent argues that where a nurse is the subject of an interim suspension order and obtains employment he or she is entitled to return to the respondent for consideration of conditions. No doubt that can be done. I am sure, from all that is known of the respondent’s procedures, that this will be a slow process which will not be conducive to the obtaining of employment. In any event it has no advantage over the approach I have taken.

[49]Accordingly I am not satisfied that an interim suspension order is necessary in this case. Both counsel have pointed out to me that there is no provision in the Order for me to terminate the suspension and substitute conditions of practice. The applicant has undertaken, were I to terminate the suspension, not to seek to practise for a period of 28 days to permit the respondent to convene a panel to draft conditions. My provisional view is that the better solution is to vary the duration of the suspension (as I am empowered to do under Article 31(12)) so that it terminates at 4pm on 20th September 2012 or at such earlier date as the NMC may convene a panel to consider the imposition of suitable conditions of practice. If the parties wish to make any submissions in that regard they should do so no later than 4pm 15th August.

[50]I shall deal with all matters of costs at hand down.

order

“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 [2007] 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 [2001] EWHC 577). 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.