Court of Session allows time extensions on suspensions of two registered nurses but with less restrictive conditions

About this case:

• Citation:
  [2025] CSOH 51
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Poole

The Nursing and Midwifery Council raised two petitions in respect of the cases of registered nurses JH, and JF. JH was made subject to an interim order following allegations of administrative misconduct, the investigation for which had not yet concluded, while JF was suspended following allegations of an inappropriate relationship with a patient.

The petitions were considered jointly by Lady Poole in the Outer House. Reid KC appeared for the petitioner.

Importance of record keeping

JH was employed as a disability assessor for Personal Independence Payment claims, and was referred to the NMC by her employer, a company working with the DWP, in September 2022 after 19 of her completed reports from 19 July to 4 August 2022 were found to be identically worded. Following a hearing at which she was not present, an interim conditions practice order was imposed on her until June 2024, which was extended by the court for a further year to 12 June 2025.

It was stated by JH, who had not practised as a nurse since April 2021, that she had no plans to return to nursing and admitted that her fitness to practice was impaired. She had requested removal from the register on a number of occasions, but the NMC refused these requests on the basis that the allegations required to be examined by a fitness to practice panel to consider the option of striking off.

In her decision on JH’s case, Lady Poole said: “JH’s case is close to the stage where an interim order would no longer be justified. However, particularly given the admission by JH and the fact that a hearing has been listed, the court is narrowly satisfied that an extension of time, allowing some interim conditions to continue, remains necessary for a short period while fitness to practice proceedings are concluded.”

However, she concluded: “Some conditions impose obligations on third parties, which would be discouraging to potential employers, for no sufficient countervailing benefit to public safety. Condition 7, in effect requiring submission of an essay on the importance of record keeping, appears more appropriate to a case where a member wishes to continue nursing and proceedings have concluded with an adverse finding, and is not sufficiently connected with the legitimate aim of protecting the public and the public interest to be necessary as an interim condition. A less intrusive measure capable of achieving the legitimate aim is available, namely an interim conditions order omitting these various conditions.”

Least restrictive alternative

The second nurse, JF, worked in a community mental health team. She was suspended from her job after an allegation was made that she had an inappropriate relationship with a patient while she was his community practice nurse. Following a hearing at which JF was present but not represented, the NMC decided to impose an interim order in the interests of public protection, and to maintain confidence in the profession.

Following JF’s referral in April 2024, the NMC initially did not initiate an investigation, having decided to wait for the outcome of the NHS employer’s investigation. While it later instructed solicitors, the case was put on hold pending the NHS report, with no timeline for a hearing and determination.

Considering that legitimate aims were engaged by JF’s case, Lady Poole said: “JF has already been suspended for a year. While interim suspension has a rational connection to important legitimate aims, when all the relevant factors are balanced, it is no longer the least restrictive alternative to achieve those legitimate aims. Interim suspension may be a blunt and effective instrument, but it is too severe an infringement on JF when balanced with the importance of the objective.”

She concluded: “Given the reduction in the risk of repetition due to the passage of time and JF’s changed circumstances, the court considers that interim practice conditions can instead be put in place, without unacceptably compromising the achievement of the objectives of protection of the public and the public interest. Conditions which prevent JF working unsupervised, or in the community, and restricting her to working in venues where there are other people available to supervise her, as well as prohibiting her from approaching the patient in question, appear to the court to be adequate interim measures to address the legitimate aim.”

The court therefore decided that it would be prepared to grant extension of time orders in both cases, although not in the form sought by the petitioner. The NMC was ordered to provide written submissions on the terms of interim conditions of practice to give effect to the court’s ruling.