2022-10-10 15:02:39
All the healthcare regulators have similar or identical powers to impose interim orders, such as suspension or conditions, pending a final fitness to practise hearing. Generally, these powers are exercisable if it is necessary for the protection of the public or is otherwise in the interests of the profession (or in the interests of the registrant). Fitness to Practise tribunals have the power to impose an interim order for up to 18 months. If the regulator wants to extend that period because a final hearing has not yet taken place, It must apply to the High Court or, in Scotland, to the Court of Session.
We recently circulated news of the first Scottish case to deal an application to extend an interim order by a Fitness to Practise tribunal. The Inner House of the Court of Session has just given judgment in another case, K v General Medical Council [2022] CSIH 44
On 25 November 2019 Dr K was arrested and charged with the crime of rape. A tribunal determined that it was necessary in the public interest to impose an interim suspension order on the reclaimer’s registration for a period of 18 months. Following trial, a jury found the case against the Dr K not proven and he was acquitted. The decision of a criminal court, where the standard of proof is beyond reasonable doubt, does not prevent a healthcare regulator from pursuing the same allegation before a fitness to practise tribunal, where the standard of proof is the balance of probabilities. At a Fitness to Practise review after Dr K’s trial, the interim order was varied from suspension to the imposition of conditions. The conditions included, for example:
He must personally ensure that the GMC is notified of the details of his current post within seven calendar days of the date these conditions become effective, including:
- his job title
- his job location,
- his responsible officer
Notifying any employer of the conditions.
By 19 June 2022 the GMC had not completed its investigation into Dr K’s fitness to practise. It applied to the court for a 12-month extension of the conditions to allow its investigations to conclude.
Amongst other things, the GMC argued:
- If no conditions were maintained Dr K’s registration pending the outcome of the investigation, public confidence in the medical profession would be seriously damaged.
- The allegation was a serious one which could affect Dr K’s fitness to practise and, in turn, the public interest.
- Dr K’s acquittal had been recognised by the substitution of an order for conditional registration for the previous suspension order. While it was accepted that the allegation had not been found to be proved to the criminal standard of proof, the standard to be applied in the GMC’s investigations was the lower civil standard of balance of probabilities. An investigation and assessment of risk was required.
The court held that it had to decide whether a reasonable and properly informed member of the public would be concerned if Dr K was allowed to resume his career without an order imposing conditions which inter alia require him to report details of changes of employment to the GMC, and to disclose the existence of interim conditions to any new employer. The court said:
“We consider it more likely that such a member of the public would be concerned that a doctor who has been acquitted after trial of the charge against him, and against whom no allegation relating to clinical practice has been made, would be the subject of interim conditions which could render it difficult or even impossible for him to return to practice pending the outcome of the GMC’s investigation…
Turning to the proportionality test, we find it difficult, in the absence of any connection between the allegation under investigation and the appellant’s clinical practice, to see a rational connection between the conditions imposed and the reason for imposition of conditions, namely the public interest. The allegation under investigation is one of serious sexual misconduct outside the clinical context, and it has not been demonstrated that reporting and disclosure conditions related entirely to the appellant’s clinical employment would address the concerns raised by that allegation in any way. In the absence of a clinical connection, there is no demonstrable risk to patients to be assessed in the context of an interim order. For these reasons the proportionality test is not met.”
In the even more recent English case of Nursing and Midwifery Council v MM [2022] 2484 (KB), MM, a paediatric nurse, had faced a number of allegations, including receiving a police caution in 2014 for slapping his stepdaughter (in respect of which the Disclosure and Barring Service banned him from working with children and vulnerable adults); a drink-driving conviction; and a criminal allegation of two serious sexual assaults of which he had been acquitted. An 18-month suspension was imposed. The Nursing and Midwifery Council applied to the court to extend this. By the time it did so, the only live allegation on which the application was based was that MM had failed to report the caution, the barring order and the conviction to the regulator.
Mr David Locke KC, sitting as a deputy judge of the High Court, held:
“If the concerns…are solely around the failure to make appropriate disclosure …, it is difficult to see why those allegations, of themselves, are said to give rise to a risk to patients. There is no evidence that MM has acted dishonestly in a work context or in relation to patients, and I find it difficult to see how the logical jump can be made to saying that omitting information…can provide a solid evidential basis for saying that this is conduct which could lead to a risk to patients. It is, of course, possible to say that any form of conduct which amounts to potential dishonesty could be replicated in another context within the work environment and that a nurse who acts dishonestly is a risk to patients. However, it seems to me that there has to be a measure of proportionality applied to that exercise in order to balance the real nature of the risks, the detriment to patients from being deprived of the services of an otherwise competent nurse (particularly at a time of intense shortages of nurses in the NHS) and the very real detriment to the individual nurse who is subject to suspension.
With regard to the test for making an interim order in the first place (see above), the judge said:
“Necessary” does not, in my judgment, mean absolutely essential but must mean substantially more than preferable or desirable. Accordingly, in order to show that an interim order is necessary to protect members of the public or is justifiable in the public interest it is essential that the evidence led by the [regulator] demonstrates a clear causal link between the risks to the public and the conduct of the Registrant or clearly shows why a suspension is necessary in the public interest.”