Christou v Nursing and Midwifery Council [2016] EWHC 1947 (Admin)
By Hannah Blake, Trainee Solicitor
In this case the High Court discharged an interim suspension order imposed on a registrant who received a caution for assault and a subsequent failure to notify the NMC of this. It raises the question as to the requirements needed to justify an interim suspension order in the wider public interest (i.e. not for the protection of the public or in the interests of the registrant) and also the need for a thorough analysis of proportionality to be carried out.
The facts of the case concern C, a nurse registered with the Council in 2005. On 15 September 2014, he was involved in a heated argument with a housemate over the use of a shared car parking bay. The argument escalated and C made threats to burn his housemate's car if he did not remove it immediately. By 17 September C had reflected on his actions and issued a written apology to his housemate for his behaviour. However, by this point, the housemate had already reported C's actions to the police.
Following a police investigation, C accepted a caution, though he later told the NMC that he was not aware that this constituted a formal caution that would go on his record.
On 11 April 2015 C completed his annual registration renewal form which required him to indicate whether he had received a 'police charge, caution or conviction since 1 August 2005.' C indicated that he had not. On 15 October 2015 C received a copy of his Disclosure and Barring Service ("DBS") certificate which referred to his caution for common assault. On receiving the certificate C realised the formal nature of the caution and emailed the NMC declaring this on 2 November 2015. He apologised for not disclosing the caution earlier, explaining that he only realised the formal nature of the caution upon receiving his DBS certificate.
The NMC referred the matter to the Investigating Committee and an Interim Order hearing was held on 8 December 2015. The IC considered that an interim suspension order was necessary for a period of 9 months to maintain public confidence in the profession and the NMC as a regulator. It held the view that that the public would not expect a nurse to be able to practise without restrictions where that nurse was facing allegations of dishonesty and had received a caution for assault. The IC considered that "due to the allegation of potential dishonesty this met the high threshold required to impose an interim order based on public interest alone." Whilst the IC acknowledged that C may face hardship as a result of the interim suspension it believed that in applying the principle of proportionality, the public interest in maintaining confidence and reputation of the profession outweighed C's interest in this regard.
C's application for an early review of the Interim Order, was rejected for the same reasons.
In granting the appeal and setting aside the interim suspension order, Mr Choudhury QC (sitting as a Deputy High Court Judge) determined that the original decision by the panel did not identify the specific risk to the integrity of the register or any risk of serious damage to the wider public interest in regards to its maintenance. The judge stated that the register would be adequately protected by the making of an appropriate order after a final hearing and that it was unclear why suspension was required on an interim basis. In this regard, he referenced the judgment of Davis J in the case of Shiekh[1] in which he said that "the difficulty was identifying why the panel thought that interim suspension was needed to reflect public concerns when this could be done appropriately at the final stage". Similarly in the present case, Mr Choudhury QC felt that the panel had failed to address this.
As to the issue of proportionality, Mr Choudhury QC observed that here, C had not only lost his ability to practise as a nurse but had also needed to claim welfare benefits and quit the tenancy on his rented property. He observed that the Panel had effectively concluded that whatever the disadvantage suffered by C, it would always be outweighed by the need to protect the specific public interest in question. Mr Choudhury QC commented that he did not agree and that "public interest cannot be so elevated that no amount of hardship caused would make any difference. That, in my judgment, cannot be right".
This case makes clear that, when relying solely on wider public interest grounds to seek an Interim Suspension Order, regulatory bodies should ensure that they identify not only the specific public interest at stake, but also demonstrate that there would be a serious risk of damage to that public interest if an order was not made on an interim basis. Interim Order panels should take care in applying the proportionality test and should not elevate the wider public interest to a point at which there is no fair consideration for the individual concerned.
[1] Shiekh v General Dental Council [2009] EWHC 186 (Admin)