When the NMC recently applied for an extension to Ms Richmond’s interim order of conditions, the High Court was none too impressed. The basis of the order may be summarised as follows:
The initial interim orders panel based its decision on the negative public perception of a practitioner being able to practice unrestricted in light of such allegations. At the most recent review the panel considered there was no evidence of patient harm, but there was potential risk for considerable harm if this behaviour were repeated. It went on: “The panel concluded that a member of the general public would be concerned if a midwife in a senior position, who had allegedly made discriminatory remarks, continued to practise unrestricted“.
In doing so the High Court considered the panel had repeated the very error addressed in NMC v Persand [2023] EWHC 3356 (Admin) where an NMC panel had made similar observations that “an informed member of the public would be concerned if a registered nurse facing such allegations was allowed to practise without restriction whilst an investigation was carried out by the NMC “.
In the instant case, the court quoted and endorsed Persand at length:
“… in every case, the NMC committee and the Court, has to ask itself precisely why it is said to be “necessary” to impose an interim sanction on the nurse. If the case is that it is necessary to protect patients, then there needs to be an intense focus on how and why the evidence demonstrates that patients may be at risk from the nurse and how serious that risk is…
Simply saying that, if a nurse was free to practise without being subject to conditions, such a circumstance would raise concerns in the minds of a member of the public is, in my judgment, wholly insufficient. Equally, saying that there is some limited risk to patients from a nurse’s clinical practice if he or she is allowed to continue to practice without restrictions is equally insufficient. It seems to me that the necessity test requires the NMC to show that, on the particular facts of a case, there are features of the case which mean that matters are so serious that it is justifiable to restrain the exercise of professional skills by a nurse at a stage when the allegations are unproven. The test is something close to saying that an interim order is essential, in the sense that a responsible regulator would not be acting properly in failing to act on a proven risk to the public“.
In Ms Richmond’s case, the NMC argued that her attitude raised a risk in respect of how she would treat certain groups of patients. Rejecting this, the court noted there was in fact no evidence she had ever done so in 45 years of practice. Moreover, none of the remarks had been made to a patient or in the context of patient care. The NMC failed to show any substantial risk to patients. The judgment went on:
“It seems to me, on my reading of the material, that, in fact, what the Council has done is to act in a way which the court in Persand said that it could not do; namely to express a concern that a member of the public would have concerns if allegations such as this did not result in restrictions being imposed on a practitioner…
I have considered the public interest but, for the reasons I have just given, that public interest is not such as to require the interim order to continue in this case.”
This judgment is a helpful reminder of Persand, and its comments on the high bar of necessity. It is well worth repeating its observations when faced with resisting an interim orders application.
SUMMARY In 2017 a 24-year-old woman, Louella Fletcher Michie, died at the Bestival Music Festival,…
On the 3rd November 2020, Kadian Nelson abducted and raped a 13 year old girl…
