Mrs Richmond, a senior midwife for Barts Health NHS Trust, is subject to an ongoing fitness to practise investigation by the Nursing and Midwifery Council (NMC). The investigation considers two separate referrals made to the NMC regarding Richmond’s alleged making of discriminatory comments. The first referral concerned comments made in relation to a transgender colleague in July 2022 and an email of February 2023 regarding the Trust’s use of a religious space accompanied by comments about various Islamic religious festivals. The second referral in April 2024 concerned remarks made in reference to LGBTQ plus community members.
As recently acknowledged in the Court of Session Outer House by Lady Poole: “experience shows that fitness to practice or other proceedings before regulatory bodies are not always concluded speedily”. Indeed, fitness to practise proceedings are by their very nature protracted. Due to the length of time that can elapse between a referral to the NMC and an investigatory panel’s final decision, an interim order may be granted imposing conditions of practise or suspension, where deemed necessary to protect patient/public safety, public interest and/or the practitioner themself. Whilst an interim suspension order is self-explanatory, it is worth noting that an interim order imposing conditions of practise allows the practitioner to continue practising albeit in a restricted manner. Depending on the conduct under investigation restrictions may be relatively “light touch” or comparatively onerous in nature. The restricted practitioner can only practise within the confines of their conditions.
In Mrs Richmond’s case, as the NMC proceeded with its investigation, the investigating panel deemed it necessary to grant an 18-month interim order imposing conditions of practice (18 months being the maximum duration of an interim order). This initial order was made on 11 January 2024 with an expiration date of 10 July 2025. With the investigatory process ongoing, the NMC sought a 12-month extension to the interim order under article 31(9)(a) of the Nursing and Midwifery Order 2001. The application was considered by the Court 4 July 2025.
In its determination as to whether the application should be granted, the High Court referred to the decision of GMC v Hiew [2007] EWCA Civ 369 where the Court of Appeal identified four factors for consideration when deciding whether to grant an extension, namely: (i) the gravity of the allegation; (ii) the seriousness of risk of harm to patients; (iii) reasons why the case has not yet concluded; and (iv) prejudice to the practitioner.
In applying the Hiew criteria to the current circumstances; whilst the Court emphasised it was unable to determine the allegations against the midwife; high-level comment was made that they were serious enough to potentially undermine public confidence. Investigatory delay was unremarkable due to difficulties with engaging witnesses and was dealt with swiftly. On the question of prejudice, it was accepted that extension of the interim order would be prejudicial against Mrs Richmond.
However, the Court took particular interest in its consideration of the second factor of the seriousness of risk of harm to patients and its relationship to the question of prejudice against the practitioner.
Referring to the investigatory panels’ initial decision to impose an interim order, the Court highlighted that the order was made primarily on the “concern as to the public perception of a practitioner being allowed unrestricted practice in the light of allegations such as these…”. Going further it observed that “it has not been, in fact, the concern of the panel that this practitioner posed any actual substantive risk to her patients” (emphasis added). The Court also referred to the panel’s recent review of the interim order where, again, no evidence of harm to patients had been observed, yet it was concluded that “a member of the general public would be concerned if a midwife in a senior position, who had allegedly made discriminatory remarks, continued to practise unrestricted” (emphasis added). In addressing the question of seriousness of risk of harm to patients, the Court turned to the case of NMC v Persand [2023] EWHC 3356 (Admin) where a similar set of circumstances had previously arisen.
Mr Persand had worked in a care home as a general nurse and registered home manager. He became subject to a fitness to practise investigation relative to a clinical incident, dishonesty in a job application and conduct issues. An interim suspension order was imposed June 2022 under reasoning which included that “an informed member of the public would be concerned if a registered nurse facing such allegations was allowed to practise without restriction whilst an investigation is carried out by the NMC.” The interim suspension order was subsequently reduced to an interim imposition of conditions order in June 2023 where, again, the reasonable and informed member of the public’s concern was included in the core conclusions. In January 2024 the NMC applied to the High Court seeking to extend the interim imposition of conditions order.
In its determination of the application, the Court highlighted its dissatisfaction with the investigatory panel’s prior reasoning which was, in part, on grounds of potential public perception. A low bar had been used in the decision of necessity. Instead, the Court impressed that a high bar of necessity must be established in the determination of an article 31 application for extension to an interim order:
(41)
“…in every case, the NMC committee and the Court, has to ask itself precisely why it is said to be “necessary” to impose an interim sanction on the nurse. If the case is that it is necessary to protect patients, then there needs to be an intense focus on how and why the evidence demonstrates that patients may be at risk from the nurse and how serious that risk is.”
(45)
“Simply saying that, if a nurse was free to practise without being subject to conditions, such a circumstance would raise concerns in the minds of a member of the public is, in my judgment, wholly insufficient. Equally, saying that there is some limited risk to patients from a nurse’s clinical practice if he or she is allowed to continue to practice without restrictions is equally insufficient. It seems to me that the necessity test requires the NMC to show that, on the particular facts of a case, there are features of the case which mean that matters are so serious that it is justifiable to restrain the exercise of professional skills by a nurse at a stage when the allegations are unproven. The test is something close to saying that an interim order is essential, in the sense that a responsible regulator would not be acting properly in failing to act on a proven risk to the public.” (emphasis added)
Upon consideration of the judicial dicta of Persand, it was clear to the Court in Richmond that the panel had erred in conflating potential risk with actual substantive risk. Damningly, the NMC was found to have acted “in a way which the court in Persand said that it could not do”, repeating the same error made by the investigatory panel the year prior. The necessity test had not been met and the judgement, neither considered.
In its refusal of the application seeking a 12-month extension of an interim order imposing conditions of practise on Mrs Richmond, the Court – as in Persand – found the NMC’s concerns of public perception to be wholly insufficient. In the consideration of the above alongside Mrs Richmond’s unblemished 45- year career, the granting of such extension was neither appropriate nor necessary and would be disproportionate to the prejudice which midwife Richmond would face. Accordingly, the NMC’s application was refused.
NMC v Richmond serves as an important reminder to regulators that interim orders cannot be endlessly extended without substantive justification that the seriousness of risk to public protection and public interest is such that it is deemed both appropriate and necessary to further prejudice the practitioner. This reminder to regulators may also be interpreted as a warning; namely, do not fall foul of repeating your own mistakes – engage with previous Court judgments.
Finally, it goes without saying that the regulatory and employment legal sectors are all too aware of the ongoing case of Sandie Peggie v NHS Fife; the A&E nurse bringing a case against the NHS for failing to provide a safe single sex changing place, and the accompanied media furore. Just this week allegations of Peggie’s racist, homophobic and anti-trans views have come to light. Should the NMC decide to investigate these allegations, the case of Richmond could prove to be useful to Peggie. Watch this space…
Rachel Gold, Trainee Solicitor, Professional Discipline and Clinical Defence
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