Perry v The Nursing and Midwifery Council

This is an appeal from the judgment of Thirlwall J rejecting the appellant’s claim that his hearing before the Investigating Committee of the Nursing and Midwifery Council at an Interim Orders hearing, and the order made by that Committee to suspend him from practice as a nurse for a period of 18 months (unless within that time the case against him was concluded by one of the NMC’s Practising Committees), infringed his Convention rights under Articles 6 and 8.

The judge however concluded that an order suspending the appellant from practice was unnecessary, and that an order imposing conditions on his practice as a nurse would be sufficient and appropriate. She made an order under Article 31(12) of the Nursing and Midwifery Order 2001 terminating the appellant’s suspension from practice on 20 September 2012 or such earlier date as the NMC convened a Committee to consider the imposition of suitable conditions of practice. There is no appeal against that part of the judge’s order.

This appeal raises a question of general importance as to the procedure of an Investigating Committee of the NMC (and similar committees of other professional regulatory bodies) when considering whether to make interim orders pending the substantive hearing of a complaint against a member of the profession.

The relevant facts were concisely set out by the judge in her judgment:

2.

The applicant is a 53-year-old registered mental health nurse. He qualified in March 2001. From early 2004 he had been employed by the Cwm Taf Health Board as part of the Youth Offending Service in Swansea. In August 2010 he began working with a 30-year-old mother of 3 children, Mrs J. In October 2010 Mrs J made a complaint to the Health Board about the applicant. It is his case that this was precipitated by his having told her that he needed to distance himself from her. She alleged he had acted improperly towards her. Her allegations and the applicant’s responses to them were considered at a disciplinary hearing of the Health Board on the 13^th June 2011. The applicant was summarily dismissed. In a letter of 20^th June 2011 the disciplinary officer wrote “I carefully considered all the evidence and information presented to me and concluded that you had fundamentally breached your contract of employment and your actions constituted gross misconduct. On this basis I had no alternative but to dismiss you without notice or payment in lieu of notice. Due to the seriousness of your actions I will be referring your case to the Nursing and Midwifery Council”. That referral took place by letter of the 11^th July 2011. Some 4 months later, on the 9^th November 2011 the NMC wrote to the appellant informing him that the investigating committee had received an allegation that his fitness to practise as a nurse was impaired and that pending a decision as to whether he had a case to answer an interim orders hearing would be held. The letter explained that the interim orders hearing could either impose conditions on the appellant’s practice as a nurse or suspend his registration and that an interim order may be necessary because of “the nature of the allegations which related to an inappropriate and sexualised relationship with a client”. It went on “if the alleged behaviour was to be repeated there would be a real risk of psychological harm to clients…an order may be necessary for the protection of the public and otherwise in the public interest to maintain the public’s confidence in the profession”.

3.

The hearing took place on 29^th November 2011. Mr Perry has always accepted some of the allegations against him. He accepts that the panel could properly have imposed a conditions of practice order. Detailed conditions were proposed to the panel. …

…

24.

Some of the allegations were not in dispute. The applicant accepted at the time of the disciplinary hearing before his employers, and thereafter, that he had overstepped professional boundaries. He made the same concession at the hearing. The applicant said that he had started out with good intentions, seeking to gain Mrs J’s trust and to ensure that she engaged with him. He accepted sending texts in response to texts she had sent him. The applicant did not accept any sexual touching. The complainant had alleged that he had asked her for cuddles, kissed her on the forehead, asked her to talk about her sexual history in detail, asked her to dress up for him, sent sexually explicit texts which he had asked her to delete. It is the applicant’s case that those allegations were fabricated, to punish him for seeking to distance himself from the complainant. Although the police were fleetingly involved it is not apparent that there was any allegation of criminal conduct. The police took no action. At the hearing before the panel the applicant recognised that his admitted conduct justified an interim order, as Mr Wise did before me. That was a realistic concession; whatever the circumstances in which the texts came to be sent, their sexual content and overtones were plainly completely unacceptable in the context of a professional relationship.

The judge described the hearing before the Investigating Committee as follows:

32.

The applicant was represented by counsel, Mr Beeby. Mr Wise submits that Mr Beeby was prevented by the chairman from exploring the allegations in evidence with the applicant. I was directed to the following intervention “Background is helpful in order to help us with the assessment of risk. But we are not here to consider matters of fact and certainly not here to consider balancing evidence in one direction or the other. We take the allegations. We need to hear whatever is appropriate to be said to us in helping us to assess the level of risk going forward from here”. However a little later he said this, “The guidance that the NMC gives is very clear. We are not required to weigh up evidence. All we have to be satisfied of is that, given the information in front of us, there is what is called a prima facie case requiring consideration of an interim order.”

As appears from this summary, the appellant gave evidence. The Committee indicated that it would hear any evidence going to suggest that the allegations were clearly unfounded or malicious, and it received the appellant’s evidence as to what he admitted and what he denied.

Sections 60 and 62 of the Health Act 1999 authorise the making of Orders in Council to regulate health care and associated professions. The Nursing and Midwifery Order 2001 (“the Order”) was made under the authority of those sections. Article 3(1) of the Order provides for the establishment of the Nursing and Midwifery Council. Its principal functions are “to establish standards of education, training, conduct and performance for nurses and midwives and ensure the maintenance of those standards”. In accordance with Article 5 of the Order the NMC has established and maintains a register of qualified nurses and midwives. Paragraph (9) of Article 3 provides for the establishment of 4 committees of the Council, including the Investigating Committee and the Conduct and Competence Committee. I shall refer to the Investigating Committee as “the Committee”.

Fitness to practise is the subject of Part 5 of the Order. Article 22 requires an allegation that fitness to practise is impaired by reason of misconduct or other specified matters to be referred, as soon as practicably possible, to the Investigating Committee. Article 26(1) requires the Investigating Committee to investigate any allegation which is referred to it in accordance with Article 22 or Article 24. Article 26(2)(i) requires the Committee “to consider in the light of the information it has been able to obtain and any representations or other observations made to it … whether in its opinion” in respect of an allegation that fitness to practise is impaired by reason of misconduct “there is a case to answer”. The Committee must notify the person concerned and the person making the allegation of its decision, giving its reasons. If the Committee concludes that there is a case to answer it must refer the case to the Conduct and Competence Committee. That Committee conducts a hearing of the merits of the allegations and determines whether the allegation is well-founded and if so what is the appropriate order to be made, which may range from striking the person off the register to a caution: see Article 29.

Article 26(11) authorises the Investigating Committee to make an interim order in accordance with Article 31 at any time before referring a case to the Conduct and Competence Committee. Article 31 is headed “Interim Orders by a Practice Committee”. … (The Practice Committees are the Investigating Committee, the Conduct and Competence Committee and the Health Committee: see Schedule 2 to the Order.) Article 31 provides, so far as relevant:

“(1)

This Article applies where –

an allegation against a registered professional has been referred to the Investigating Committee, Conduct and Competence Committee or to the Health Committee but –

(i)

that Committee has not reached a decision on the matter;

...

(2)

Subject to paragraph (4), if the Committee is satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the registration of that person to be suspended or to be made subject to conditions, it may-

(a)

make an order directing the Registrar to suspend the person’s registration (an “interim suspension order”) or

(b)

make an order imposing conditions with which the person must comply (an “interim conditions of practice order”) during such period not exceeding eighteen months as may be specified in the order.

…

(12)

Where an order has effect under paragraph (2)…the court, may, on an application being made by the person concerned-

(a)

in the case of an interim suspension order, terminate the suspension;

(b)

in the case of an interim conditions of practice order, revoke or vary any condition imposed by the order;

(c)

in either case, substitute for the period in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it).

and the decision of the court under any application under this paragraph shall be final.

The court means the High Court (see Article 31 (13) and Article 32).

The order of proceedings for interim orders hearings is set out in Article 26 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004:

26.- Order of proceedings at an interim orders hearing

(1)

Except where rule 24(14) applies, this rule shall apply to any hearing at which the Committee is considering whether to make, revoke, confirm, vary or replace an interim order.

(2)

Unless the Committee determines otherwise, the order of proceedings at an interim orders hearing shall be as follows-

(a)

the presenter shall inform the Committee of the reasons why it may be necessary to make an interim order on the registrant, or to revoke, confirm, vary or replace any order previously made, and may adduce any relevant evidence in this regard;

(b)

the registrant may make representations as to why an interim order should not be made, or should be revoked or not confirmed, varied or replaced, and may adduce any relevant evidence, including oral testimony, in support of her case; and

(c)

the Committee shall deliberate in private and shall then announce its decision, together with the reasons for its decision, in the presence of the parties (where present).

The judge made extensive reference to the guidance produced by the NMC for Practice Committees considering whether to make an interim order. The guidance relevant to this case was issued in 2010. Paragraph 10 sets out the matters to be taken into account by a Practice Committee:

10.

A panel considering whether or not to impose an interim order should take the following into account:

10.1

The panel may only impose an interim order:

10.1.1

if it is satisfied that such an order is necessary for the protection of members of the public

10.1.2

if it is satisfied that such an order is otherwise in the public interest

10.1.3

if it is satisfied that such an order is in the interests of the registrant.

10.2

For an order to be necessary for the protection of the public the panel must be satisfied that there is a real risk to patients, colleagues or other members of the public if an order is not made. It is not enough for the panel to consider that an order is merely desirable.

10.3

The panel should consider the seriousness of the risk to members of the public if the registrant were allowed to continue practising without restriction. This includes consideration of the seriousness of the allegation, the nature of the evidence and (in the case of an allegation of impaired fitness to practise) the likelihood of the alleged conduct being repeated if an interim order were not imposed.

10.4

The panel should bear in mind that the primary purpose of an interim order is to protect members of the public. It will be relatively rare for an interim order to be made only on the ground that it is in the public interest (for example, to maintain public confidence in the profession) (see R (Sheikh) v General Dental Council [2007] EWHC 2972).

10.5

The panel must take into account the impact which an order may have on the registrant: an order will impact upon the registrant’s right to practise their profession and may also impact financially and on the registrant’s reputation. The panel must balance the need for an interim order against the consequences for the registrant and satisfy themselves that the consequences of the order are not disproportionate to the risk from which the panel is seeking to protect the public (Madan v General Medical Council [2001] EWHC 577).

10.6

When considering an interim order, the panel is not making findings of fact nor making findings as to whether the allegations are or are not established. It is sufficient for the panel to act, if they take the view that there is a prima facie case and that the prima facie case, having regard to such material as is put before them by the registrant, requires that the public be protected by an interim order (R (George) v General Medical Council [2003] EWHC 1124 paragraph 42).

10.7

As regards the amount of evidence before the panel, the High Court has indicated that it would expect the allegation to have been made or confirmed in writing, whether or not it has yet been reduced to a formal witness statement. The panel will need to consider the source of the allegation and its potential seriousness. An allegation that is trivial or clearly misconceived should not be given weight (General Medical Council v Sheill [2006] EWHC 3025).

10.8

If the panel decides that an interim order is necessary, it should not automatically impose an interim suspension but should first consider whether an interim conditions of practice order would be sufficient and proportionate.

10.9

If the panel imposes an interim order, it must specify the length of the order. The panel should not automatically impose the maximum period of 18 months, but should consider what period is appropriate and proportionate in the circumstances. The panel should take into account the amount of time which is likely to be needed to complete any investigation into the allegations and for the case to be listed for hearing. Once a period has been chosen, it can only be extended by the NMC applying to the High Court (or Court of Session, or High Court of Justice in Northern Ireland, where appropriate).

10.10

The panel must give clear and adequate reasons for its decision. Such reasons must be given whether or not an order is imposed. Reasons should include:

(i)

The ground(s) on which the panel has made its decision (that is, whether necessary for the protection of members of the public, or otherwise in the public interest, or in the interests of the registrant)

(ii)

what impact an interim order might have on the registrant, and how the panel has balanced that impact against the need for an interim order

(iii)

why an interim order is (or is not) proportionate to any risks the panel has identified and proportionate (or not) to the consequences for the registrant

(iv)

if an order is imposed, why the panel has chosen the period of time for which the order should be imposed.

The procedure followed by the Committee in the case of the appellant complied with this guidance, and if Mr Wise’s submissions are well-founded, the guidance would require amendment to make clear the right of the registrant to give evidence about the substance of the allegations against him.

For the appellant, Mr Wise QC submitted that the hearing before the Committee had engaged Article 6 of the European Convention on Human Rights, since the decision to suspend his registration, which while it was in force prevented his working in his profession, determined his civil right within the meaning of that Article. Article 8 was engaged, since his suspension affected his relationships with patients and his ability to work and resulted in a stigma that affected his private life. The proceedings before the Committee infringed his Convention rights and were unfair at common law. Fairness required that the appellant should be given the opportunity to give evidence addressing the substance of the allegations against him. The Committee prevented him from doing so. It followed that the appellant’s Convention right under Article 6 and his rights under Article 8 had been infringed and the hearing failed to comply with the common law requirement of fairness. Mr Wise placed considerable reliance on the decision of the House of Lords in R (Wright and others) v Secretary of State for Health [2009] UKHL 3 [2009] 1 AC 739, in which, as it happens, I was the judge at first instance.

For the respondent, Mr Englehart QC submitted that Article 6 was not engaged, and if it was the procedure applicable to interim measures, viewed as a whole, satisfied the requirement of fairness under the Convention and at common law. Similarly, even if Article 8 is engaged, the procedure satisfied the requirements of Article 8.2. He submitted that Mr Wise’s submissions are inconsistent with the statutory disciplinary scheme, one which is common to a number of other professions.

The most recent authority of the European Convention on Human Rights on the applicability of Article 6 to interim orders is the judgment of the Grand Chamber in Micallef v Malta (Application no. 17056/06) (2010) 50 EHRR 37. The case concerned an interim injunction restraining the use by neighbours of property rights. The complaint of the applicant was that the proceedings did not satisfy the Article 6 requirement of an independent and impartial judge and that she had been denied the opportunity to make submissions. The Chamber reviewed previous decisions of the Court and decided that a new approach was required. It said:

(c)

Whether there is a need for a development of the case-law

78 The Court observes that there is widespread consensus amongst Council of Europe member States, which either implicitly or explicitly provide for the applicability of Article 6 guarantees to interim measures, including injunction proceedings (as explained in paragraph 31 above). Similarly, as can be seen from its case-law (see paragraph 32 above), the Court of Justice of the European Communities (“ECJ”) considers that provisional measures must be subject to the guarantees of a fair trial, particularly to the right to be heard.

79 The exclusion of interim measures from the ambit of Article 6 has so far been justified by the fact that they do not in principle determine civil rights and obligations. However, in circumstances where many Contracting States face considerable backlogs in their overburdened justice systems leading to excessively long proceedings, a judge's decision on an injunction will often be tantamount to a decision on the merits of the claim for a substantial period of time, even permanently in exceptional cases. It follows that, frequently, interim and main proceedings decide the same “civil rights or obligations” and have the same resulting long lasting or permanent effects.

80 Against this background the Court no longer finds it justified to automatically characterise injunction proceedings as notdeterminative of civil rights or obligations. Nor is it convinced that a defect in such proceedings would necessarily be remedied at a later stage, namely, in proceedings on the merits governed by Article 6 since any prejudice suffered in the meantime may by then have become irreversible and with little realistic opportunity to redress the damage caused, except perhaps for the possibility of pecuniary compensation.

81 The Court thus considers that, for the above reasons, a change in the case-law is necessary. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see, mutatis mutandis, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I, and Vilho Eskelinen [GC], cited above, § 56). It must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see, inter alia, Folgerø and Others v. Norway [GC], no. 15472/02, § 100, ECHR 2007 ..., and Salduz v. Turkey [GC], no. 36391/02, § 51, 27 November 2008).

82 In this light, the fact that interim decisions which also determine civil rights or obligations are not protected by Article 6 under the Convention calls for a new approach.

(d)

The new approach

83 As previously noted, Article 6 in its civil “limb” applies only to proceedings determining civil rights or obligations. Not all interim measures determine such rights and obligations and the applicability of Article 6 will depend on whether certain conditions are fulfilled.

84 First, the right at stake in both the main and the injunction proceedings should be “civil” within the autonomous meaning of that notion under Article 6 of the Convention (see, inter alia, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 39, Series A no. 301 B; König v. Germany, 28 June 1978, §§ 89-90, Series A no. 27; Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31, ECHR 2001-VII; and Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005 X).

85 Second, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable.

86  However, the Court accepts that in exceptional cases - where, for example, the effectiveness of the measure sought depends upon a rapid decision-making process - it may not be possible immediately to comply with all of the requirements of Article 6. Thus, in such specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensable and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In any subsequent proceedings before the Court, it will fall to the Government to establish that, in view of the purpose of the proceedings at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objectives sought by the interim measure in question.

(e)

Applicability of Article 6 in the present case

87.

The Court notes that the substance of the right at stake in the main proceedings concerned the use by neighbours of property rights in accordance with Maltese law, and therefore a right of a civil character according to both domestic law and the Court's case-law (see Ferrazzini v. Italy [GC], cited above, § 27, and Zander v. Sweden, 25 November 1993, § 27, Series A no. 279 B). The purpose of the injunction was to determine, albeit for a limited period, the same right as the one being contested in the main proceedings, and which was immediately enforceable. It follows that the injunction proceedings in the present case fulfil the criteria for Article 6 to be applicable and no reasons have been established by the Government to limit the scope of its application in any respect (see paragraph 86 above).

88.

The Court observes that the applicant's complaint concerned appeal proceedings which ended with a judgment of 5 February 1993, at a time when the merits of the main claim had already been determined by a judgment of 6 March 1992. Consequently, the Court is aware that at the time of the contested judgment the dispute at issue had actually been resolved. However, in 1990, when the proceedings were instituted, the merits of the claim had not yet been determined, and Article 6 was, in principle, applicable as has been established above. The Court sees no reason why Article 6 should not have continued to apply to those same proceedings at a later stage. Moreover, it notes that the continuation of those proceedings was not due to any fault on the part of Mrs M. since it was Mr F. who appealed.

89  It follows that Article 6 is applicable to the proceedings complained of and that the Government's objection must therefore be dismissed.

I do not find it easy to determine, from the judgment of the court, what test is to be applied in order to determine whether interim proceedings result in an order that is determinative of the civil right. The right to work in one’s chosen profession is certainly a civil right within the meaning of the Convention: see Wright in the House of Lords at paragraph 19. An order temporarily preventing the exercise of that right may determine that right. However, I am content to proceed on the basis that Article 6 was engaged by the hearing before the Investigation Committee. It is not suggested that the Committee was not impartial or independent or that the appellant was prevented from making submissions to the Committee. Moreover, he was permitted to give evidence. The complaints made in Micallef are not and could not be advanced by the present appellant.

I am similarly prepared to proceed on the basis that the appellant’s Article 8 rights were engaged in the hearing of the Committee, and that to justify the interference with that right under Article 8.2 it must be shown that the proceedings leading to the interim order having that effect were fair. The appellant’s complaint that the order for his suspension was disproportionate and went further than necessary to protect the public was addressed, and upheld, by Thirlwall J.

It follows that the only question on this appeal is whether fairness required the appellant to have the opportunity to give evidence for the Committee to consider on the truth of the allegations made against him. He was prevented from giving such evidence.

What is required by fairness depends on the nature of the inquiry being conducted by the tribunal in question. The statutory function of the Committee relevant in this appeal is its duty to determine whether to make an interim order, and the statutory right of the registrant under Article 26 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council to give “any relevant evidence in this regard” refers to evidence relevant to that question. For this purpose the Committee must decide whether, on the basis of the allegation and evidence against the registrant, including any admission by him, it is satisfied that an order is necessary for the protection of the public, or otherwise in the public interest or in the interests of the registrant himself. The Committee must of course permit both parties to make their submissions on the need for an interim order and, if one is to be made, its nature and its terms. For that purpose it must consider the nature of the evidence on which the allegation made against the registrant is based. It is entitled to discount evidence that is inconsistent with objective or undisputed evidence or which is manifestly unreliable. The Committee may receive and assess evidence on the effect of an interim order on the registrant, and the registrant is entitled to give evidence on this. The registrant may also give evidence, if he can, to establish that the allegation is manifestly unfounded or manifestly exaggerated; but the Committee is not otherwise required to hear his evidence as to whether or not the substantive allegation against him is or is not well-founded: that is not the issue on the application for an interim order.

What the Committee cannot do, and should not do, is to seek to decide the credibility or merits of a disputed allegation: that is a matter for the substantive hearing of the allegation by the Conduct and Competence Committee, pursuant to Article 27 of the Order. Necessarily, at the interim stage, the Committee must not and cannot decide disputed issues of fact in relation to the substantive allegations. The Committee must also be extremely cautious about rejecting or discounting evidence on the basis that it is incredible or implausible. In the course of argument I mentioned the Challenor case in the 1960s, when allegations by demonstrators against the Vietnam War that bricks had been planted on them by a police officer were dismissed as self-serving and incredible, only later to be found to be true.

In my judgment, the foregoing is consistent with authority. In R (George) v The General Medical Council [2003] EWHC 1124 (Admin), Collins J said:

42 Now I should make it plain that the Committee did not, and was not required to make any findings as to whether the allegations were or were not established. It was sufficient for them to act, if they took the view that there was a prima facie case and that that prima facie case, having regard to such material as was put before them by the medical practitioner, required that the public be protected by a suspension order.

43 They were not making any final decision because, as I say, they were not reaching any conclusions of fact. That is important, because it must not be taken that I have made any conclusions of fact. I have not. It has not been my task in the context of this application to do so.

As its title indicates, George was concerned with the procedure of the Interim Orders Committee of the GMC. The statutory provisions relating to that Committee’s function of making interim orders are materially identical to those in the present case.

In Walker v GMC [2003] EWHC 2308 (Admin), I said, at paragraph 24:

24.

There is relatively little dispute as to the functions of the [Interim Orders Committee] under section 41A, at least for present purposes. It is not the function of the IOC to make findings of fact in relation to the pending disciplinary charges against the person concerned. It seems to me that it must of course consider whether there is substance in the charges. There may conceivably be circumstances where the IOC can be persuaded that such charges as are being put forward are of no real substance and therefore do not merit any interim measures. Normally, however, particularly where matters have gone beyond the screener, it will assume that the charges are charges which may be proved in due course. It must then decide, as required by subsection (3) where it is considering a suspension, whether it is satisfied that an interim suspension is necessary for the protection of members of the public or is otherwise in the public interest or the interest of the person concerned.

In GMC v Sheill [2006] EWHC 3025 (Admin) Crane J said:

… these proceedings … relate to an interim order. Neither the [Interim Orders Panel] nor the court is embarking on a fact-finding exercise. In my judgment the strict rules of evidence do not apply in the court hearing. Both the IOP and in turn the court must look at the allegations made against the doctor. The Panel and the court will expect the allegation to have been made or confirmed in writing, whether or not it has yet been reduced to a formal witness statement. The Panel and the court will need to consider the source and the potential seriousness of the complaint. A complaint that is trivial or clearly misconceived on its face will clearly not be given weight. The nature of the allegations will be highly relevant to the issue whether conditions are sufficient.

Statements to similar effect were made by Nicol J in Sandler v GMC [2010] EWHC 1029 (Admin) at paragraph 23 and by Lindblom J inAbdullah v GMC [20012] EWHC 2506 (Admin) at paragraph 91.

In GMC v Hiew [2007] 1 WLR 2007, the Court of Appeal considered the power of the High Court under section 41A(7) of the Medical Act 1983, the equivalent of Article 31(9) of the Order, to extend the period of an interim suspension order. Arden LJ (with whose judgment Lawrence Collins LJ and Tuckey LJ agreed) said:

27 Under section 41A(7), the court has power to determine that there should be no extension or the extension sought by the GMC or (as in this case) some lesser extension. In an appropriate case, and having given the parties an opportunity to be heard, the judge also has power under section 41A(10) to terminate the suspension or to shorten the current period of suspension. The powers conferred by section 41A(10) are also original powers and not merely powers of judicial review.

28 Section 41A(7) does not set out the criteria for the exercise by the court of its power under that subsection in any given case. In my judgment, the criteria must be the same as for the original interim order under section 41A(1), namely the protection of the public, the public interest or the practitioner's own interests. This means, as Mr Englehart QC, for the GMC, submits, that the court can take into account such matters as 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 GMC as the applicant for the extension under section 41A(7). Although Mr Engelman submitted that the standard of proof was the criminal standard, I prefer Mr Englehart's submission that the relevant standard is the civil standard, namely on a balance of probabilities. Proceedings for the extension of an interim suspension order are not criminal proceedings.

…

31 The statutory scheme thus makes it clear that it is not the function of the judge under section 41A(7) to make the findings of primary fact about the events that have led to the suspension or to consider the merits of the case for suspension. There is, moreover, no express threshold test to be satisfied before the court can exercise its power under section 41A(7), such as a condition that the court should be satisfied that there is evidence showing that there is a case to answer in respect of misconduct or any other matter. On the other hand, if the judge can clearly see that the case has little merit, he may take that factor into account in weighing his decision on the application. …

33 Mr Engelman (counsel for the medical practitioner) relies on the proposition, regarded as axiomatic by Laws LJ in R(o/a D) v Secretary Of State for Health [2006] Lloyd's Rep Med 457, that, the more serious a public authority's interference with an individual's interest, the more substantial will be the justification which the court will require if the interference is to be permitted. But, in this case, the decision of the court is simply that there should be an extension of the period of suspension. The court is not expressing any view on the merits of the case against the medical practitioner. In those circumstances, the function of the court is to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension. In general, it need not look beyond the allegations. … I do not consider that a judge is bound to treat a medical practitioner's opposition to an application under section 41A(7) as if it were an application for judicial review on the grounds that the allegations are without foundation, and there is a danger if he does so, other than in a plain and obvious case (which I have already observed will be rare), that the wrong test will be applied. If the judge proceeds in the manner described above, he is unlikely to be diverted by the task of having to consider the seriousness of the risk to the public on the evidence provided by the GMC by contentions that the allegations are unfounded.

It can be seen that Hiew is authority for the proposition that the matters to be taken into account on an application to the court for the continuation of a suspension order are the same as those relevant to the making of the order by the professional interim orders body (there the Interim Orders Panel and in the present case the Investigation Committee), and that is “to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension” and that “In general, it need not look beyond the allegations”. It is, I think, significant, that these remarks were made in a judgment in which the impact of the Convention was considered by the Court.

Mr Wise said, correctly, that in none of these authorities was the present point taken. However, I do not think that the High Court judges to whom I have referred would have said what they did if they had thought that the procedure they were affirming was unfair. In Hiew the Court of Appeal expressly stated that it was acceding to the request for guidance as to the approach which the court should take on an application for the continuation of an interim suspension order. That guidance is inconsistent with Mr Wise’s submissions.

Mr Wise relied on what was said by Baroness Hale in Wright. However, Wright was a very different case to the present. In Wright, the care worker against whom an allegation had been made which led to the Secretary of State provisionally including his name on the list of persons unsuitable to work with vulnerable adults had no opportunity to make any representations of any kind before his name was placed on that list. The consequence of inclusion on the list was a prohibition of working with vulnerable adults or children. What opportunity should be given to the care worker before his name was included on the list was not in issue. In the Court of Appeal, Dyson LJ described it as a right to make representations rather than a right to give evidence. As he put it, at [2008] QB 422 [2007] EWCA Civ 999 paragraph 108:

The essential defect in the first stage of the process lies in the fact that, as interpreted by the Secretary of State, the CSA does not allow the care worker in any circumstances to make representations before being provisionally included in the list.

Baroness Hale referred to Dyson LJ’s judgment at paragraph 28 of her opinion:

However, in my view, Dyson LJ was entirely correct in his conclusion that the scheme as enacted in the Care Standards Act 2000 does not comply with Article 6(1), for the reasons he gave. The process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment.

In my judgment, Wright is not authority for the proposition that fairness requires that a respondent to an allegation of unfitness to practise his profession must be given an opportunity to give evidence as to the substance of that allegation before a tribunal considering whether to make an interim suspension or other interim order under a legislative scheme such as the present.

Furthermore, I accept Mr Englehart’s submission that Mr Wise’s submissions are inconsistent with the statutory scheme. Under that scheme, it is the Conduct and Competence Committee, and not the Investigation Committee that decides on the merits of the allegations against the registrant. Moreover, the Committee may make an interim order when it has not yet reached a decision that there is a case to answer, and it did so in the present case.

In my judgment, if a registrant is to be given an opportunity to give evidence to an Investigation Committee on the substance of the allegations against him, with a view to the Committee rejecting those allegations on the merits, fairness would require that the NMC should have the opportunity to call the complainant and any other evidence in support of its allegations. The result would be a trial before the trial. That is not what the statutory scheme envisages or what fairness requires at the interim stage.

I add that, if Mr Wise were correct, it seems to me that the Court would have to reconsider the procedure applicable to the grant of interim relief, and in particular injunctions, in all civil cases, and the guidance in American Cyanamid [1975] AC 396 would be liable to be set aside as incompatible with the Convention rights of defendants.

In my judgment, if the Committee conducts the proceedings as I have sought to summarise it will satisfy the requirement of fairness. The Committee should give careful consideration to the likely duration of an order, but concerns as to the duration of an interim order are best addressed by expediting the substantive hearing of the allegation by the Conduct and Competence Committee. The guidance given by the NMC to which I have referred is in my view compatible with the common law and Convention rights of registrants. The hearing in the present case was fair and did not infringe the Convention rights of the appellant under Article 6 or Article 8.

I would dismiss this appeal.

The potential implications for interim order proceedings of the NMC, and for comparable proceedings of other disciplinary bodies, would be profound if the arguments of Mr Wise are right. I am quite sure that they are not right, for the reasons given by Sir Stanley Burnton in his judgment, with which I entirely agree, as well as for the reasons given below by Thirlwall J. I also would dismiss this appeal.

I agree with both judgments. This appeal must be dismissed.