Successfully Resisting an Interim Order Extension
Chris Gillespie looks at issues arising from applications to extend interim orders in circumstances where there are concurrent criminal proceedings. In the case discussed below Chris was instructed by Marie Dancer at Richard Nelson LLP. All parties have been anonymised.
In this case the High Court refused an application by a healthcare regulator to extend the Registrant’s Interim Conditions of Practice Order on the basis that such an extension would not be fair and proportionate. Although the facts are unremarkable the case highlights the danger for a Regulator if it simply allows criminal proceedings to take their course before it conducts its own consideration and analysis of the case.
The Registrant had been charged with minor offences, which had a sexual element to them; proceedings in the Magistrates’ Court took a year, at the end of which he was acquitted; during that period and for the six months following his acquittal the Registrant had been subject to conditions on his practice, which had drastically reduced his employment opportunities and his income.
This was not a factually complex case: either the Registrant had made certain remarks and acted in a certain way or he had not. Whether or not his words and actions were criminal they were certainly capable of founding a charge of misconduct.
However, whilst the Regulator had asked for and been provided with the case papers after the Registrant’s acquittal it had still not formulated charges or set a date for a hearing by the time the eighteen month interim order was due to expire. There was a query as to whether one of the witnesses was prepared to participate any further but no consideration appeared to have been given to whether other evidence filled in the gaps, an application should be made to rely on the statement as hearsay or to seek a summons.
The Regulator relied on General Medical Council v Srinivas  EWHC 670 Admin for the uncontroversial proposition that during the currency of criminal proceedings a regulator should not seek to interview witnesses or otherwise act in a way likely to contaminate those proceedings.
That, it was argued, was to miss the point. The Regulator was not being asked to interview witnesses but rather to inform itself of the allegations so that whatever the eventual outcome of the case it would have at least given some initial consideration to whether or not the facts revealed a prima facie case of misconduct and how the investigation would proceed.
The Registrant relied on General Medical Council v Hiew  1 WLR 2007. In determining whether or not to extend an interim order the criteria must be the same as for the original order, namely the protection of the public, the public interest or the practitioner’s own interests. 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 on the balance of probabilities that the criteria are met falls on the Regulator.
In this case the High Court concluded that the allegations were not the most serious of their type, the evidence was straightforward, the risk of harm was not serious, no good reason had been put forward for the delay, in particular in the period after the conclusion of the criminal proceedings, and there had been substantial financial and reputational prejudice caused to the Registrant. No allegations had been formulated and no date for hearing set. Therefore, it would not extend the order.
Each case is going to turn on its own facts. However, when a regulator is considering a criminal allegation, the current system is completely haphazard. Different police forces have different policies on disclosure; there is no common approach among the healthcare regulators. Some police forces invoke the Data Protection Act as a mantra to ward off applications for disclosure when in fact sections 31 and 35 of the Act specifically permit disclosure of material to regulators.
Looking at the broad picture should there not be a protocol between the healthcare regulators, and indeed other regulators, and the police dealing with the disclosure of material to the regulator in circumstances where a Registrant is facing criminal charges? In this case it was bad enough that the Registrant should have been on bail for a year before his acquittal; the Regulator was proposing the continuation of an order that would have restricted the Registrant’s practice and therefore his employment prospects for a total of twenty-seven months.
Those who defend must scrutinise applications for extension in circumstances such as these with great care. In many cases the protection of the public and/or the public interest will outweigh the Registrant’s own interests. This should not prevent rigorous analysis of the Regulator’s conduct of the case in the period leading up to the application.