Case review: Kamberova v NMC
Nicolinka Gancheva Kamberova v Nursing and Midwifery Council  EWHC 2955
Prior to the decision of the Supreme Court in Khan v GPhC, this case considered whether the Conduct and Competence Committee of the Nursing and Midwifery Council (NMC) should take into account the time spent by a registrant under an interim suspension order when considering an appropriate and proportionate substantive sanction.
The appellant was the subject of adverse findings in relation to clinical record keeping including findings of dishonesty. During the course of the NMC’s investigation the appellant nurse had been subject to an interim suspension order which was imposed in July 2014 but revoked the following month. Thereafter she worked until April 2015 without restriction. At that stage, the NMC imposed interim conditions on her practice, the net effect being that she was unable to work and had not worked up until the date of her appeal hearing in October 2016.
The nurse’s substantive hearing before the Committee was held on dates in September and December 2015 where the Committee imposed a suspension order of 12 months with a review before its expiry. As that substantive order for suspension would not take effect for at least 28 days, the Committee also imposed an interim order of suspension for a period of up to 18 months.
Ms Kamberova’s appeal against the sanction was allowed because Dingemans J could find no evidence that the NMC had taken into consideration Ms Kamberova’s interim suspension and the restrictions on her practice when imposing the sanction.
The appellant argued that the Committee had not taken into account the fact that she had been subject to an interim suspension order before the hearing when considering her sanction. Relying on Okeke v NMC, the NMC argued that an interim suspension order could not count as a relevant period of suspension for the purposes of determining the appropriate length of a substantive suspension.
However, Dingemans J noted that Okeke made no reference to whether a Committee should take into account the period of time spent subject to an interim order when considering what sanction was proportionate.
Dingemans J was critical of the NMC’s indicative sanctions guidance as it does not explicitly state that the time spent subject to an interim suspension may be a relevant factor when determining the proportionality of the sanction.
At the outset of the judgment he had specifically noted the potential for such interim orders to last for up to 18 months or longer. He said that taking into account any interim order, and its effect on the registrant, in deciding whether any sanction is proportionate is ‘no more than common fairness dictates’.
However, he added that if the appropriate sanction is erasure, then the fact that there has been an interim suspension is unlikely to be relevant. The appeal on sanction was allowed and the issue of sanction was remitted to the Committee for determination.
At the time of the judgment the appellant was still subject to the interim order of suspension imposed at the conclusion of her hearing. The substantive order for suspension had not yet come into effect by virtue of an appeal having been pursued.
It is clear that Dingemans J was keen to uphold the principal that sanctions in this arena are not intended to be punitive (although they can have a punitive effect) and that they must be proportionate.
It remains to be seen whether the NMC will amend their indicative sanctions guidance to include an explicit requirement on the Committee to give consideration to the time spent by a registrant subject to interim orders.
What is clear from this decision is that a Committee should have regard to any interim suspension or restriction that the registrant has been subject to when deciding on a proportionate sanction, and make that clear in their determination. The indicative sanctions guidance of both the GMC and the GDC are silent on whether the tribunal/committee should consider whether a registrant has been subject to an interim suspension order when determining the proportionality of the sanction to impose.
Although this case, and that of Khan, support the proposition that fairness requires that account is taken of interim or immediate orders when deciding on a proportionate substantive sanction, they do not suggest that there should be an automatic ‘discount’ in every case. Where a particular sanction is required to protect patient safety the principle of proportionality would not support any discounting.
Where, as in Khan and Kamberova, the purpose of sanction is exclusively to maintain public confidence by setting and upholding proper standards of behaviour a significant period of interim restrictions may well result in a discount to the duration of any final sanction. Where the period of interim suspension is approaching a duration which risks deskilling, the tribunal will need to carefully consider the risk that any further period of suspension may significantly prejudice the clinical skills and competence of the registrant.
In light of the decision in Khan, the Committee considering the issue of sanction in Ms Kamerova’s case will need to have regard to the period for which she has been the subject of an interim suspension whilst her High Court appeal was pending.
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 Khan v General Pharmaceutical Council  WLR 169
 Okeke v NMC  EWHC 714
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