Absence of a known employer should not be decisive when considering whether to impose an interim suspension order as opposed to an interim conditions order.

In Perry, an interim order suspending the applicant - a mental health nurse - from practice had been made by the respondent NMC, following a complaint that Mr Perry had engaged in an inappropriate and sexualised relationship with a client. Prior to the interim order hearing, Mr Perry had been dismissed by his employer (a health board of the Youth Offending Service in Swansea) and was not otherwise employed in a nursing position. At the hearing, Mr Perry had proposed detailed conditions on his registration, but the panel had instead exercised its power of interim suspension pursuant to Article 31 of the Nursing and Midwifery Order (2001) (the Order).

An application to the High Court to terminate the suspension order under Article 31(12) of the order was subsequently made. In his application, Mr Perry contended that the panel had been unlawfully fettered by the Council’s Standard Operating Procedure. Promulgated in July 2011, this provided that it would be rare for an interim conditions order to be imposed where a registrant was not employed in a nursing capacity. In addition, Mr Perry made a Part 8 claim for breach of his rights under the common law and Articles 6 (fair trial) and 8 (respect for privacy and family life) of the European Convention on Human Rights.

Thirlwall J DBE held that the panel’s approach when deciding whether an interim order was necessary was not in breach of common law or Article 6. She stated that the two-stage procedure (requiring a panel firstly to satisfy itself that there is a prima facie case to answer, followed by consideration of the risk to the public) was fair - especially where (as in the present case) some of the allegations were accepted by the respondent.  Thirlwall J further considered that the review and application to court procedures (for example, under Article 31 of the Order) available to respondents were sufficient safeguards for individuals subject to such orders.

There was also found to be no breach of Article 8, with Thirlwall J noting that even if there had been interference with this right, it would be ‘proportionate to the need to protect the public’.

However, whilst accepting that an interim order was necessary, it was held that the panel had failed to address adequately why interim suspension was necessary. Thirlwall J noted that the panel had discounted Mr Perry’s proposed conditions on the basis that they required ‘a high degree of supervision… [which] would require the explicit support of a named employer’. She rejected this argument and held that absence of a known employer did not necessarily preclude an interim conditions order being made. This was on the basis that - as with the applicant’s own proposal - conditions could be ‘refined’ by a panel to address any potential risks.

It was held that the panel had failed to demonstrate that suspension was necessary. Accordingly, an order varying the duration of the suspension was made to allow the Council to convene a panel to consider instead suitable conditions of practice.