February 21, 2019

It’s about time

NMC advised to take interim suspension periods into account

If a nurse appeals a decision of the Nursing and Midwifery Council to order suspension, they’re placed on interim suspension pending the outcome of that appeal. If their appeal is unsuccessful, that period of interim suspension is not deducted from the original sanction. This appears unfair, and the court agreed in Burton v NMC [2018] CSIH 77.

The appellant, Ms Burton, is a nurse with 40 years’ experience. In February 2016 she was put on a capability assessment by NHS Lothian due to concerns about aspects of her work. Before the assessment was completed the appellant resigned. NHS Lothian submitted a complaint to the NMC, who imposed an interim suspension.

Ms Burton was not present at the fitness to practise hearing, but had provided written representations denying the charges. After hearing from four witnesses, the panel found Ms Burton’s fitness to practise was impaired and suspended her for 12 months. They also imposed a further interim suspension order for a maximum of 18 months pending any appeal.

Ms Burton appealed to the Court of Session. She appealed both the committee’s finding and the sanction. The court held there was sufficient evidence to entitle the committee to make the findings they did. Further, the sanction was “well within the range of reasonable disposals open to [the committee] on the basis of the facts established”. The appeal was dismissed.

But in a postscript to the judgment, Lady Paton highlighted the apparent unfairness in the NMC’s procedure in cases such as this. Where a nurse appeals a decision of the NMC an interim suspension is imposed, ending upon resolution of the appeal. If the appeal is unsuccessful, the interim suspension is followed by the original sanction (which in this case was a 12 month suspension).

While accepting the rationale underlying an ongoing interim suspension, Lady Paton identified that it appears unfair that time spent on an interim suspension does not count towards the period of suspension imposed. Further, a nurse with a valid reason to appeal may be discouraged as it could simply prolong their absence from work.

Lady Paton suggested that the NMC consider reviewing the point. This would bring them into line with other regulators where an interim sanction is taken into account for the period of the final sanction.

The underlying principle is that reasonable procedural steps taken by a party, such as a right of appeal, should not have an effect on the total sanction that is imposed.”

Her Ladyship also proposed that the NMC make it clearer in their decision letter that it is always open to a nurse to seek review of interim and substantive suspension orders where they have, for example, taken steps to remediate.

While this option has always been available, any steps taken to make the NMC’s communications to registrants clearer are to be welcomed. Especially where – as in this case – the nurse was without legal representation.