Mr David Lock KC, sitting as a deputy Judge of the High Court, has refused an application by the NMC to extend an interim order in a scathing judgement.

In this case, the Nursing And Midwifery Council v MM [2022] EWHC 2484, MM was subject to an order by the Disclosure and Barring Service (DBS) barring MM from working with children and vulnerable adults.  MM was unaware of the DBS decision until he was suspended by his employer because the DBS correspondence was not delivered.

Furthermore, in 2015, MM was convicted of driving with excess alcohol and was banned. In 2018, MM was arrested in respect of two serious sexual offences. He was subsequently charged with those offences and a trial occurred in November 2020. MM was acquitted of both offences.

In 2017 MM was aware that his DBS clearance certificate to work with children was due to be renewed. He informed the Trust about the 2015 caution and told his employers that, that it would appear on his new DBS certificate. When the new certificate arrived, neither MM nor his employers appear to have recognised that it included a requirement that prevented MM working with children and vulnerable adults.

MM applied for a promotion, at which point his employer became aware of the fact that he was on the barred list.  It was at this point that MM realised he had been working despite being barred from doing so and as a consequence he was referred to the NMC.

NMC Case Examiners considered a report on MM’s case in relation to his having worked whilst subject to a DBS bar and the fact that he had been charged with sexual offences by which time he had been acquitted of the rape offences. The NMC decided that there was no case for MM to answer for these matters and that his case would be closed.

The Deputy Judge noted in his judgement that the decision of the Case Examiners made a decision that MM had no case to answer on 26 October 2021 but was not formally notified until 6 December 2021 saying:

It seems to me that it is unacceptable practice for a professional regulator to prepare a report suggesting that a person who is under investigation has no case to answer and for there then to be significant delays before a decision is made and further delays before that decision is communicated to the registrant.

Following the initial decision by the Case Examiners to close MM’s case, “senior staff within the NMC” invoked a review process because “a Senior Case Examiner considered that the decision may have been materially flawed”.  However, the Deputy Judge noted that the NMC did not follow the correct statutory process, saying:

The RCN, on behalf of the Respondent, have complained that the first that the Respondent learned that a decision had been taken to review the decision that he had no case to answer in respect of Referral 1 was on 3 August 2022. If that is correct, it suggests that the NMC carried out the review in breach of its obligations to inform the registrant and to seek his views as part of the review process. There is nothing in the evidence to suggest that the NMC had complied with its legal obligations under Rule 7A(3) to notify the Respondent that the Registrar was undertaking a review, to give reasons for that decision or to seek representations about the proposed review from those acting for MM.

The initial decision was eventually overturned, which meant that the case was reopened by the NMC.  MM was also subject to a second NMC investigation, alleging that he failed to declare the various cautions and investigations to them during renewal applications and revalidation.

Interim Order

On 21 April 2020 MM’s case came before the NMC Investigating Committee. That committee imposed an interim suspension order for a period of 18 months. On 14 October 2021 the interim order was extended by consent by the High Court for a period of 10 months, expiring on 18 August 2022.

In its application to seek an extension of MM’s Interim Order, the NMC argued that, in brief:

  1. the “risk to patients” identified by the committee arose out of the risk of violence being used by MM in the same way as he had assaulted his stepdaughter (an incident in October 2014 when MM received a caution from the police for “slapping” his stepdaughter); and
  2. a suspension is necessary to maintain confidence in the profession.

David Lock KC, rejected the NMC’s case relating to MM’s “risk to patients” noting that this was “a single incident which occurred 8 years ago in a domestic setting” and that there was no evidence of any repetition of this conduct by MM and no evidence that it was replicated in a work context and, in any event, the facts surrounding the original assault are not a matter of regulatory focus by the NMC.

In relation to the argument suggesting the “suspension is necessary to maintain confidence in the profession”, the Deputy Judge noted that the legal test is whether an interim suspension is “necessary“.  In order for the NMC’s committee to satisfy the legal test:

“it is important for the Committee to identify precisely why it is said to be in the public interest to deprive the Respondent of the ability to exercise his profession whilst charges against him remain to proven. The Committee failed to explain why it had reached the conclusion that this was one of those rare cases where the Respondent’s suspension was necessary in the public interest. In those circumstances, whilst I give weight to the decision of the Committee as an expert body, that weight must be reduced by its failure to provide proper reasons.”

He continued:

“Necessary” does not, in my judgement, mean absolutely essential but must mean substantially more than preferable or desirable. Accordingly, in order to show that an interim order is necessary to protect members of the public or is justifiable in the public interest it is essential that the evidence led by the GMC demonstrates a clear causal link between the risks to the public and the conduct of the Registrant or clearly shows why a suspension is necessary in the public interest. In this case, there does not appear to be anything beyond the allegations themselves to support the case for a suspension. The case against this Registrant would be far stronger if there was any evidence that his alleged dishonest behaviour was replicated within a work context or that his conduct in his professional role was inappropriate towards patients. There is no such evidence and I am not satisfied that the failure to include important matters on his revalidation forms demonstrates that it is necessary that he should remain suspended.”

He consequently refused the extension application, saying:

“I am therefore not satisfied that the NMC has discharged the burden of showing that the Respondent’s continuing suspension is necessary for either of the grounds set out in article 31(2) and this application falls to be dismissed. It may well be that the Respondent may find it difficult to secure work as a nurse because of the continuing DBS bar on him but that, of itself, cannot justify the continuance of a total suspension from practice.”

The NMC sought to persuade the deputy Judge to replace the Interim Suspension Order with a Conditions Order as an alternative to refusing the extension application.  This too was refused on the basis that the NMC should provide details of the conditions that they propose as an alternative to suspension, and that MM should have the opportunity to make submissions on any proposed conditions.

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