Legal Principles and Delays in Regulatory Process Highlighted in NMC v Deojlt Persand Case

Citation: [2023] EWHC 3356 (Admin)
Judgment on

Introduction

In the recent case of Nursing and Midwifery Council (NMC) v Deojlt Persand, the High Court entertained an application by the NMC under article 31(8) of the Nursing and Midwifery Order 2001 to extend the period during which Mr. Persand should be subject to conditions affecting his ability to practice as a nurse. This article will analyse the judgment made before David Lock KC, sitting as a Deputy Judge of the High Court, and illuminate the various legal principles applied.

Key Facts

The NMC’s application stemmed from a referral alleging that Mr. Persand failed to provide safe and effective care as a registered general nurse, which may have led to the deterioration of a resident’s medical condition in Care Home A. Additional concerns arose regarding his employment at Care Home B and a subsequent role at Care Home C, where he allegedly provided misleading information on his CV.

Despite the NMC receiving a complete set of relevant documents from the care homes by December 2021, there were substantial periods of inactivity and delay in the investigation process. An interim suspension order imposed in June 2022 evolved into conditions on Mr. Persand’s registration by June 2023. Mr. Persand has since been working as a healthcare assistant, an outcome that has significantly affected his professional career.

The judgment rigorously addressed several salient legal principles:

  1. Article 6 ECHR - Right to a Fair Trial: Emphasized throughout the judgment was the necessity for regulatory proceedings to adhere to the Human Rights Act 1998, which mandates that public bodies act in accordance with the rights provided under the European Convention on Human Rights (ECHR), including the right to have one’s case heard within a reasonable time.

  2. Necessity Test - Article 31(2) of the Order: The judge underscored the statutory requirement that any interim order must be “necessary” for public protection or in the public interest. Citing R (Sheikh) v General Dental Council and Houshian v General Medical Council, the judgment clarified that this test requires more than a mere demonstration of desirability and must approach a level of indispensability.

  3. Public Interest Considerations: It was made clear that public interest grounds for interim orders should be rare and reserved for cases presenting significant additional factors justifying such an intervention.

  4. Assessment of Risk: In critically assessing interim orders, the court must intensely focus on the specific risks to the public, determining the seriousness of such risks and the necessity of the order itself.

  5. Delays in Regulatory Process: The judgment provided a thorough exposition of the implications of delays in the regulatory process, considering the impact on the professional involved and the potential breach of Article 6 rights when investigations are not conducted with reasonable diligence.

  6. Interim Orders - Conditions and Duration: The judgment highlighted that the standard conditions imposed by the NMC did not satisfy the necessity test on an individual basis. Furthermore, the statutory scheme only allows for an interim order up to 18 months unless extended, implying such measures should not be commonplace and extended periods require justification.

Outcomes

The Deputy Judge granted the NMC’s application only partially, adjusting the conditions to a more limited scope that would prevent Mr. Persand from working as the sole nurse on duty but allow him to work as a nurse under supervision. The adjustment aimed to reflect a balance between risk management and the undue career and financial impact on Mr. Persand.

Conclusion

The case of NMC v Deojlt Persand acts as a reminder that regulatory bodies must abide by stringent standards when imposing interim orders on professionals, ensuring such orders truly meet the statutory necessity test. Moreover, the judgment serves as a critique of the NMC’s investigatory and disciplinary practices, particularly concerning delays that have become systemic issues impacting the fundamental rights of those under investigation. For legal practitioners, the case reaffirms the importance of a fair trial and expeditious handling of regulatory proceedings to prevent infringement upon individuals’ article 6 ECHR rights.

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