Nursing and Midwifery Council v Simpey [2019] EWHC 2290 (Admin)

Nursing and Midwifery Council v Simpey [2019] EWHC 2290 (Admin) concerned an application by the Nursing and Midwifery Council to extend an interim suspension order, heard by Mr Nigel Poole QC sitting as a Deputy Judge of the High Court in the Administrative Court, which was granted for a period of just under four months.

The applicant sought an extension of an interim suspension order originally made by its panel on 27 February 2018 for eighteen months. The order had been reviewed on 13 February 2019 and continued, and was due to expire on 26 August 2019. The applicant sought an extension for four months, the maximum available being twelve months. Mr Simpey, the respondent, did not appear and was not represented. The court was satisfied he had been served with the application by first class post on 24 July 2019 and proceeded in his absence.

The allegations giving rise to the original interim order were serious. Mr Simpey was alleged to have failed to carry out clinical observations, on one occasion for up to seven hours, and to have failed to report an early warning score of three for a patient to the nurse in charge. When subsequently supervised for a shift following these concerns being raised, multiple errors were noted, including in the administration of medicines. He had been dismissed by his Trust and had not engaged in the regulatory proceedings brought by the applicant. A substantive hearing was scheduled for 16 to 20 September 2019.

The Deputy Judge applied the criteria set out by the Court of Appeal in General Medical Council v Hiew [2007] EWCA Civ 369, which concerned parallel powers in medical practitioners’ cases. The criteria are the same as for the original interim order, namely the protection of the public, the public interest, and the practitioner’s own interests. The onus of satisfying the court that the criteria are met falls on the applicant, and the civil standard of proof applies. Relevant factors include the gravity of the allegations giving rise to the interim order, the risk to patients, the reason why the case has not concluded, and any prejudice to the respondent in continuing the order.

The Deputy Judge regarded the allegations as serious. In particular, the multiple errors observed even whilst under supervision gave rise to real concern as to the risk to patients should the respondent’s suspension be lifted due to the passage of time and before the regulatory proceedings had concluded their proper course. The applicant accepted that there had been unjustified delays in the respondent’s case through the regulatory process, largely due to a case-holder leaving the applicant’s employment and a failure to reallocate the case. The applicant accepted responsibility for the delay, although it had taken steps to expedite the case upon realising the error. The applicant’s panel had kept the suspension under review and the period of extension sought was only four months, which would cover the period to the planned hearing date, allowing for extra time in case of any delay in the conclusion of that hearing.

The Deputy Judge accepted that the four-month extension would potentially cause prejudice to the respondent which could have been avoided, namely that he would be unable in this extended period to work within his profession. However, the respondent had not engaged in the regulatory process and any prejudice to him had to be weighed against the significant risk to patients and the public interest if he were permitted to return to practise before the regulatory proceedings had been properly concluded.

Weighing all the evidence and the criteria referred to in Hiew, the Deputy Judge was persuaded that the interim order should be extended. He extended the order to 24 December 2019, a period of just under four months. The balance was in favour of the need to protect the public given the seriousness of the concerns about the respondent’s competence, even though delay should have been avoided. The order included permission for the respondent, on giving three days’ written notice to the applicant, to apply to the court to vary or discharge the order. There was no order as to costs.

In short, the interim suspension order was extended for just under four months to enable the substantive hearing to take place, notwithstanding regrettable delay and prejudice to the respondent, because of the serious concerns about his competence and the risk to patients.

General Medical Council v Hiew [2007] EWCA Civ 369