Court Questions Fairness Of Interim Suspensions Effect Pending Outcome Of Appeals

The Court of Session has dismissed an appeal brought by a nurse (PB) against a decision of the Nursing and Midwifery Council's Fitness to Practise Committee which made a finding of incompetence against her. A 12 month suspension order was imposed by the committee.

As a postscript to its decision, the court made observations about the appearance of unfairness in an unsuccessful appeal in the situation where an interim suspension order of up to 18 months to cover the period of any appeal was then followed by the original 12 month suspension order.

The appearance of unfairness would arise from the time spent on interim suspension pending the outcome of the appeal but which did not count towards the period of suspension originally imposed by the committee as a sanction.

The court was also concerned that a nurse with a valid appeal point may be discouraged from making an appeal in case doing so prolonged their absence from work.

Background

The concerns about PB's nursing practise first arose in 2015 while she was working at Liberton Hospital, Edinburgh. PB was placed on a capability assessment programme. However, before completion of her assessment, PB resigned from her post with NHS Lothian and her employer made a referral to the NMC based on its concerns regarding her competency to work as a nurse. This led to the NMC referring the complaint to a Fitness to Practise hearing with charges relating to PB's failure in her clinical competencies, recognition of her limitations, manual handling techniques, awareness of risk and administration of medication.

The case was heard by a NMC Fitness to Practise Committee on 31 January 2018. PB did not attend the hearing, however, she had submitted written representations denying the charges, contradicting witness statements and explaining her position. PB had been advised to obtain legal advice but responded to say that she would not be attending the hearing and would not be represented at it. The hearing therefore went ahead in her absence. All but one charge was found proved, PB's fitness to practise was found to be impaired and a suspension order of 12 months was imposed. An interim suspension order for a maximum of 18 months was additionally imposed, pending any appeal PB may make.

Appeal

Acting as a party litigant, PB appealed against the decision of the NMC's finding and the sanction. The basis of her appeal was that there was insufficient evidence for the committee to find the charges proved, that...