Mon 02 Oct 2023

Referrals to your Regulatory Body for the consideration of an Interim Order

Following on from Fiona's last blog on three important things to do if facing fitness to practice proceedings, this blog looks at what is often the next step in the process once your regulatory body has carried out their initial investigations into whether or not you have a case to answer.

This next step is the consideration of an interim order pending a full fitness to practice hearing.

Whilst each regulator has its own set of rules, all of them have provisions within their rules governing the making of an interim order pending full determination of the case. An interim order can be in the form of a suspension from all practice or the imposition of temporary conditions of practice, such as increased supervision or restrictions on place of work or duties.

If your regulator is considering making an interim order they must inform you and provide you with an opportunity to attend a hearing and state your case. If you are served with a notice of an interim order hearing, we strongly recommend that you seek legal advice.

At an interim order hearing a panel must consider whether or not an interim order is necessary in light of all the evidence and having consideration to three distinct grounds. The leading authority in this respect is George v GMC [2003] EWHC 1124 Admin. If the panel is satisfied that one or more of the three grounds apply, they can make an interim order.

The grounds are: -

Necessary to protect the public

For an interim order to be considered necessary for the protection of the public, it is not enough for a panel to consider that an interim order is merely desirable, they must be satisfied that there is a real risk to patients, colleagues or other members of the public if an order is not made. There are three factors which are important to this consideration. Firstly, any harm the alleged conduct has already caused, or could have caused to the public. Secondly, having regard to that harm, the seriousness of the alleged conduct and the risk of the conduct being repeated. Thirdly, any other relevant factors contained within the evidence.

Otherwise in the public interest

The threshold for making an interim order on the public interest ground alone is high, in the absence of any evidence of risk of harm. A panel have to be satisfied that public confidence in the profession could be seriously damaged by you continuing to practise without restriction while your case is being fully investigated. In relying upon of this ground, the panel should set out the nature and seriousness of any damage to the reputation of the profession that would result if an order was not made. They should then weigh the likelihood of serious damage to public confidence in the profession against the interests of the registrant in order to ensure that the decision is proportionate.

In the registrant's own interests

In some cases, there may be some evidence that your work is adversely affecting your health and for this to potentially impact upon your ability to practise safely. Where such evidence exists, it may suggest that an interim order is in your own interests to protect your health. This ground is usually only relevant to matters of fitness to practice arising from health concerns, not conduct concerns.

Effect of an interim order

An interim order is not a determination of any fitness to practice issue. It is made if a case is, on the face of things, set out. No facts following evidence will have been established at this stage. For these reasons an interim order must be kept under regular review and cannot be made for an open-ended period of time without application for an extension being applied for by your regulator. The expectation is that an interim order should only be in place for as long as is absolutely necessary.

Morton Fraser MacRoberts has advised and represented clients before the ARB, NMC, HCPC and SSSC. We have a dedicated group of experienced solicitors who can guide you through the complex process of being investigated by your regulator.

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