In two recent decisions, the Court of Session reiterated the correct test to be applied on an application by a healthcare professional regulator to extend an interim order, and explored when an order may be required in the public interest.
Interim order case studies
In B v General Medical Council  CSIH 38, the Court of Session confirmed that its function was to decide whether to grant an extension, examining the matter afresh as the primary decision maker, applying the statutory test, and considering the issue of proportionality. Its task was not simply to rubber-stamp the decision of the tribunal which imposed the interim order, nor was it to conduct a judicial review-style enquiry as to whether that tribunal had been entitled to make that interim order. The court has to apply the following principles, drawn from the case of General Medical Council v Hiew  1 WLR 2007:
- The court can take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued;
- The onus of satisfying the court that the criteria are met falls on the regulator, as it is the applicant for the extension, and the standard of proof is on a balance of probabilities;
- It is not the function of the court to make findings of primary fact about the events which had led to the suspension or to consider the merits of the case for suspension;
- Rather, it is the function of the court to ascertain whether the allegations made against the practitioner justify the extension of the suspension, rather than their truth or falsity;
- If the practitioner contends that the allegations are unfounded, they should challenge by judicial review the original order for suspension or the tribunal’s failure to review it;
- The court has to reach its decision on the basis of the evidence on the application, which includes evidence as to the opinion of the regulator and the tribunal as to the need for an interim order;
- The court is not bound to follow or defer to these opinions, but should give it such weight as in the circumstances of the case it thinks fit.
Taking this approach, in B, the Court of Session decided that the public interest did require the extension of an interim suspension order against a doctor who is awaiting trial on terrorism offences. The interim order was based on the general public interest in maintaining public confidence in the medical profession. The Court of Session concluded that a reasonable and properly informed member of the public would be surprised and offended to learn that the doctor had been allowed to practise while under investigation and subject to serious charges of this kind. An interim suspension order was proportionate to the nature and seriousness of the charges and the risk to public confidence.
In K v General Medical Council  CSIH 44, the Court of Session concluded that the public interest did not require the extension of an interim order where a doctor remained under GMC investigation following a criminal trial for rape, at which he had been acquitted. The alleged rape was not connected with his professional practice and there was no suggestion by the GMC that an interim order was necessary for the protection of the public. After his acquittal, the interim order was varied from suspension to conditions. The Court was not persuaded that the test of likelihood of serious damage to public confidence in the medical profession was met. It found that the reasonable and properly informed member of the public would be aware that the allegation against the doctor had no connection to his professional practice and that the GMC had not sought to identify any clinical risk to his patients. They would be aware that the charge against the doctor had been the subject of a criminal trial, and that the doctor had been acquitted by the verdict of a jury. They would be aware that the doctor was subject to an obligation to inform the GMC of details of his employment without the imposition of a condition to that effect, and it was not suggested that there is any history of non-compliance by the doctor with his obligations to the GMC. The Court said that in these circumstances:
… 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.
As an aside, the Court noted that the doctor in K did not dispute that he remained answerable to his regulator in respect of the allegations, but that was a different issue from whether an interim order ought to be imposed while the investigation took place. The Court referred to General Medical Council v Srivinas  EWHC 2513 as authority for the “uncontroversial” proposition that an acquittal in a criminal trial did not mean that the doctor no longer had to answer allegations relating to sexual misconduct. But, Srivinas was a case involving alleged sexual misconduct towards patients during a clinical examination. Was the doctor in K right to concede that he remained answerable to his regulator, when the crime of which he was acquitted had no connection to his professional practice? Some regulators would suggest not. In its fitness to practise guidance library, the Nursing and Midwifery Council includes the following statement of its position:
Police investigations that result in no conviction
Criminal investigations into possible offending by nurses, midwives or nursing associates can end with the police, prosecutors, or the courts taking no action.
The nurse, midwife or nursing associate may be found not guilty in court, or the investigation could end before the case gets to court.
For example, the court may give the nurse, midwife or nursing associate a conditional or absolute discharge.
Sometimes, the police may choose not to investigate following the findings of other organisations, such as safeguarding or social services, that the nurse, midwife or nursing associate has done something that is against the law.
We would only reinvestigate the facts of these cases if the concerns they raise put patients or members of the public at risk of being harmed, or could affect the public’s trust in all nurses, midwives and nursing associates or their professional standards.
When we would reinvestigate
When deciding if we would need to reinvestigate, we would need to consider if the nurse, midwife or nursing associate’s alleged actions could be serious professional misconduct.
We would reinvestigate the facts of a case if:
- the offence took place in a clinical or care setting or context,
- the alleged victims were patients, service users or people in the nurse, midwife or nursing associate’s care, or
- there is a clear link to professional practice2(which includes respecting boundaries with patients and colleagues).
Before we reinvestigate alleged offending in a care, clinical or professional context we first carefully assess why there was not a conviction, or why the police decided not to investigate.
We will look carefully at whether, and if so why, the courts or the police rejected the accounts of people who would give evidence in any fitness to practise case.
We’ll consider discussing any previous criminal trial with those people and assess very carefully how willing or able they would be to attend to give evidence in any future fitness to practise case.
When we wouldn’t reinvestigate
If a nurse, midwife or nursing associate is accused of offending in their private life, based on incidents that have no connection with their practice as a registered professional, and they are not convicted, we are far less justified in reinvestigating the facts.
The allegations wouldn’t really be connected with our role as a professional regulator, and the investigation would not need the specialist knowledge of our regulatory investigators or case examiners.
Nurses, midwives or nursing associate’s fitness to practise can be affected by very serious offending in their private life for which they are convicted. But if they aren’t convicted, it’s not our role to fill in any perceived gaps in the criminal justice system by taking regulatory action against them if there isn’t a clear link to patient safety, clinical practice, or professional standards.
For example, if a nurse, midwife or nursing associate is investigated for an alleged mortgage fraud against a bank, but the prosecution collapses, it wouldn’t be our role to reinvestigate whether they acted dishonestly as part of a possible misconduct case.
We suggest that it is important for healthcare professional regulators to understand and be able to explain why they need to take regulatory action. This is usually very clear when the professional presents a risk of harm to people they may come into contact with during their professional practice. But sometimes, it is less clear when the risk is to public confidence. Different regulators may take different approaches, but whatever approach they take, the test of proportionality requires them to be able to explain it, and justify it with reference to their statutory objectives.
Enjoy That? You Might Like These: