Newsletters Professional Discipline 25th Sep 2017

The Impact of an Interim Order on Sanction

An interim order is a crucial part of the assessment of proportionality when it comes to sanction

Until recently, one of the most frustrating things for registrants facing sanction was that no account was taken of how long they had been on an interim order. A registrant who had been suspended or under conditions for a year or sometimes much longer could be subject to the same sanction as a similar registrant who had never been on an interim order at all.

The cases of Ujam v GMC [2012] EWHC 683 (Admin) and and Abdul-Razzak v GPhC [2016] EWHC 1204 seemed to confirm that approach. In Abdul-Razzack comments made in Ujam to the effect that any interim order was no more than part of the background were adopted and followed. In those cases the argument revolved around whether the committee should have made a deduction in the manner of a criminal judge for the period on interim conditions.

Then in Kamberova v NMC [2016] EWHC 2955, Dingemans J considered a somewhat different situation. The panel had found proved, among other things, three charges relating to Ms Kamberova dishonestly recording observations that she had not made. During the period prior to the substantive hearing, and between the first part of the hearing and a resumption, she had been suspended, or under conditions of practice which prevented her finding work. At the hearing she was handed a 12-month suspension order. She appealed, in part against that sanction.

The NMC contended in its skeleton that the interim orders were made under different criteria and had no relevance to the substantive sanction, although that position was softened in the hearing. Dingemans J considered Abdul-Razzack and Ujam and concluded that the Panel should take it into account:

 [Counsel for the NMC] accepted that the Committee must take account of any interim order and its effect on the registrant in deciding whether any sanction was proportionate. This is no more than common fairness dictates. If proceedings are long delayed and a person is subject to suspension in the interim period, that period of suspension may affect the proportionality of the length of the subsequent period of suspension.

He quashed the decision on sanction and remitted it back to the Committee for redetermination. Further he noted that because of the length of time the appeal had taken, there was a danger that the registrant would end up serving more than a 12-month suspension even since the substantive hearing, and directed that the Committee should have regard to that as well.

The issue was further considered in July of this year. Mr Akhtar was a dentist who had dishonestly practised for four years without insurance. He was suspended for six months. On appeal [Akhtar v GDC [2017] EWHC 1986 (Admin)] he contended that the Committee had failed to take into account a six month interim suspension prior to the substantive hearing. Kamerova, Ujam and Abdul-Razzack were all considered. HHJ McKenna (sitting as a High Court judge) upheld the decision of the Committee on the basis that it had clearly taken the interim order into account before the sanction. Indeed the Panel had been advised by the legal advisor that it could bear the interim order in mind when assessing proportionality.

The case affirms the following principles:

(a) Regulatory sanctions are not like sentences in criminal courts. There is no principle that, like time on remand in custody, time spent on an interim order must be deducted from a substantive sanction [Ujam, Abdul-Razzak]. However,

(b) Common fairness dictates that Panels must take into account any interim order and its effect on the registrant when deciding on whether a sanction is proportionate [Kamerova].

(c) So long as the Panel does properly consider that issue, it is entitled to conclude in a given case that the interim order does not affect the substantive order. [Akhtar].

In practical terms, interim orders are likely to have little effect on panels where the issue is one of clinical competence, or public safety generally. The protection of the public is bound to take precedence over any apparent unfairness to the registrant. The assessment of impairment is, in any case, done as at the day of the decision and so arguably already takes into account the interim period. However where a sanction (perhaps suspension or a long caution) is directed to public confidence in the profession, or to the declaring and upholding  standards of conduct, there should be much greater scope for deploying arguments around proportionality, even more so where there have been long delays between the start of the investigation and the final hearing.

Ben Rich

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