NMC v Pestano: Open Justice & Interim Suspension

Nursing and Midwifery Council v Pestano EWHC 1412 (Admin): Anonymity and Interim Suspension in Fitness to Practise Proceedings

This article analyses Nursing and Midwifery Council v Pestano EWHC 1412 (Admin), an important Administrative Court decision addressing anonymity applications and interim suspension orders in professional discipline proceedings.

The court refused both an anonymity order and an application to extend an interim suspension, providing detailed guidance on when such orders are “necessary” in professional regulation cases. The judgment clarifies that anonymity will rarely be appropriate in regulatory proceedings and reinforces the deliberately high threshold for interim suspensions, requiring cogent evidence of actual risk rather than assumptions based on unproved allegations.

Why This Case Matters

Pestano offers practical guidance to regulators, practitioners, and registrants on two key issues:

Anonymity in regulatory proceedings: The principle of open justice applies with full force, even where hearings are held in private.
Interim suspension: Panels and courts must carry out an intense, evidence-based analysis before imposing restrictive measures prior to findings of fact.

Key Facts and Procedural Background

The Nursing and Midwifery Council (NMC) applied to extend an interim order of suspension or conditions of practice against a registered nurse. The respondent did not attend and was not represented.

The NMC sought:

Extension of the interim order.
Anonymisation of the respondent’s identity.
An order requiring notice before any third-party application to access court records.

This was the second anonymity application by the NMC before the same judge that week. A previous application (within a proposed consent order) had been declined when the court requested justification; it was then withdrawn, with the NMC accepting that the evidence did not support anonymity.

The court held the substantive hearing in private under CPR 39.2(3), being satisfied this was necessary to secure the proper administration of justice.

The consequences of suspension were significant:

Removal of the registrant’s right to practise before allegations were proved.
Likely loss of the respondent’s right to remain in the UK (which may have already occurred).

Issues Before the Court

The court identified issues of general relevance to regulatory interim order applications:

Whether anonymity should be granted under CPR 39.2(4).
Whether suspension or conditions were “necessary for the protection of the public”.
Whether suspension or conditions were “otherwise in the public interest”.

The Court’s Decision

The court:

Refused anonymity, finding the application fell “a long way short” of necessity.
Refused to extend the interim suspension or impose conditions.
Found the “public interest” test was not met and the original panel could not reasonably have justified suspension or conditions on the evidence.
Granted an order requiring notice before any CPR 5.4C(2) application for access to court records.

Open Justice and Anonymity

The court reaffirmed the fundamental principle of open justice: justice must be done and seen to be done.

Relying on PMC v A Health Board EWCA Civ 126, the court emphasised:

Open justice carries very substantial weight.
There is a strong presumption in favour of openness unless displaced by sufficiently compelling justification.

Under CPR 39.2:

Hearings are public by default.
Private hearings require necessity under CPR 39.2(3).
Anonymity under CPR 39.2(4) requires necessity to secure the administration of justice and protect a party’s interests.

A key principle emerged:
If adequate protection can be achieved through less intrusive measures, anonymity will not be “necessary”.

The court identified alternative protections:

Restricting access to court records.
Holding hearings in private (in whole or part).
Drafting pleadings to avoid confidential material.

In professional regulation cases:

Respondents are typically not children or protected parties.
Identity is rarely confidential.
Details of registration and suspension are usually publicly available via the regulator.

Accordingly, anonymity will be “necessary” only in rare cases.

The NMC’s application failed because:

The skeleton argument provided minimal reasoning.
No cogent evidence justified derogation from open justice.
Existing measures (private hearing and restricted access) already protected relevant interests.

Interim Orders: Protection of the Public

The court confirmed that interim orders must meet a high threshold of necessity.

Two-stage approach:

Is suspension “necessary for the protection of the public”?
If yes, should discretion be exercised (applying GMC v Hiew 1 WLR 2007)?

Drawing heavily on Persand EWHC 3356 (Admin), the court emphasised:

Decision-makers must identify precisely why suspension is necessary.
There must be an “intense focus” on how evidence demonstrates risk.
The seriousness and nature of risk must be clearly analysed.

Key points:

Evidence of actual harm strengthens the case but is not determinative.
Even where risk exists, suspension is not justified if conditions can adequately manage that risk.
Panels must explain, with evidence, why conditions are insufficient.

The court stressed the importance of:

Evidence of safe ongoing practice: A registrant practising without issue is strong evidence against necessity.
Case-specific analysis: Risk must be assessed on the particular facts.

The panel’s reasoning was flawed because:

It inferred professional risk from alleged private conduct without evidential basis.
It failed to explain why conditions would not suffice.
It lacked a proper evidential foundation.

“Otherwise in the Public Interest”

The court confirmed that this is also a high threshold, with such cases being “relatively rare” (per R (Sheikh)).

When applying this test:

Panels should assume the public is fully informed and capable of balanced judgment.

In this case:

The regulator’s own position suggested concerns could be addressed by conditions.
The panel failed to justify why suspension was required instead.
The reasoning included emotive language rather than objective analysis.

The court concluded the test was not met and could not reasonably have been met on the available evidence.

Practical Takeaways

Anonymity Applications

Anonymity will rarely be necessary in professional regulation proceedings.
Less intrusive measures must be considered first.
Applications must be supported by cogent, case-specific evidence.
Open justice carries substantial weight and requires strong justification to displace.

Interim Suspension Applications

The necessity threshold is deliberately high.
Evidence must demonstrate actual risk, not assumption.
Safe ongoing practice is highly relevant.
Private conduct does not automatically translate into professional risk.
Conditions should be preferred where they can manage risk.
Panels must give clear, evidence-based reasoning.
Public interest suspension alone is rare.
Decision-makers must recognise the serious consequences of suspension, including loss of livelihood and potential immigration impact.

Key Authorities

PMC v A Health Board EWCA Civ 126: Strong presumption in favour of open justice.
Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust 2 WLR 815: Contextual reference to injunctive jurisdiction.
GMC v Hiew 1 WLR 2007: Leading authority on interim orders.
Persand EWHC 3356 (Admin): Detailed guidance on necessity and evidential analysis.
R (Sheikh) v General Dental Council: Public interest suspension is “relatively rare”.

If you are facing NMC interim order or fitness to practise proceedings, our NMC defence solicitors can help.