Responding to an Interim Order Extension Application

Interim Orders temporarily suspend or restrict a medical practitioner’s practice while their case is being investigated. Healthcare regulators can apply to extend orders, and healthcare professionals should exercise their right to challenge these applications.

Interim Orders – Brief Overview

Interim Orders temporarily suspend or restrict a medical practitioner’s practice while their case is being investigated. Interim order cases may include, for example, cases of serious lack of competence or poor clinical practice, serious convictions or imprisonment, and serious illness.

Interim Orders are generally made at the beginning of the case process. Investigations will continue while an interim order is in place. However, interim orders can be made at any time throughout the process if needed.

Interim Orders Tribunals (IOT) can impose the following orders:

Interim conditions of practice orders; or
Interim suspension order.

An interim order lasts for a maximum of 18 months at any one time, subject to rights of appeal.

Applications for Extensions

In circumstances where an interim order is ending and the fitness to practise investigation has not been concluded, a healthcare regulator can apply to the High Court or, the Court of Session in Scotland, to extend the interim order.

The Court can extend the interim order for up to 12 months at a time. The Court also has the power to substitute an interim conditions of practice order for an interim suspension order or the other way around if necessary.

‘Justify the prolongation of the suspension’

There is a well-developed body of case law on the issue of applications for interim order extensions.

In the case of GMC v Hiew, considered the authority for the proposition of the matters to be taken into account on an application to the court for the continuation of a suspension order, it was commented that the court should carefully consider the facts of each case “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.”

In another recent case, GMC v M [2022] CSOH 25, the Court highlighted several important points regarding applications for extensions to interim orders:

The healthcare regulator must have evidence to advance in support of their application for an extension;
The factual circumstances, on its merits, must be considered in relation to the correct legal test; and
there must be clear evidence showing evaluation relating to the proportionality of any extension.

Courts considering applications for interim order extensions have been rather critical of healthcare regulator’s delays in concluding investigations, stressing the need for regulators to be proactive in ensuring that when a substantive hearing overruns, the resumed hearing is arranged within a reasonable period of time.

Right to Respond and Challenge

Healthcare professionals have a right to respond to applications for interim order extensions, although many do not.

Courts considering interim order extension applications do take a careful approach to ensure the prolongation of the suspension or practice restrictions is necessary and proportionate. This approach includes a careful assessment of all the facts and information, including evidence and representation from the healthcare professional.

In fact, in the case of GMC v Webberley [2021] EWHC 3620 (Admin), the court went so far as to say that the GMC had a “duty of candour” to bring before the Court:

“not only the underlying factors that led to the proceedings against the doctor in the first place, but also material relied upon by the doctor in defence of that allegation, in particular where that material has been adduced before a Fitness to Practise Tribunal and should include reference to the fact that allegations have not been pursued…”

Suspension orders or practice restrictions can have a negative impact on a healthcare professional’s reputation and current or future employment prospects. Healthcare professionals should therefore seriously consider their position and response to extension applications made by their regulator.

Kings View Barristers

With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence. We fully understand that fitness to practise defence is not merely about processes and procedures. We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.

We are proud to be rated ‘excellent’ by our clients. Our commitment to client care is genuine in both seeking the very best outcomes for our clients, but also ensuring we do what we can to support them through the process.

Contact us today for a no obligation and free telephone consultation about your case in the knowledge that you are speaking to one of the best in the business.

In upholding the appeal, Alan Bates, sitting as a Deputy Judge of the High Court, said:

Failure to assess witness credibility and reliability The panel did not sufficiently evaluate the general credibility and reliability of key witnesses, whose evidence was essential to the charges. It failed to consider factors such as contradictions between witnesses' accounts and whether their testimonies should be approached with caution. This omission undermined the panel's ability to justify its conclusions.
Lack of explanation for preferred evidence The panel failed to provide adequate reasons for preferring the complainants' evidence over the appellant nurse's and the paramedic's. Simply stating a preference for certain witnesses' accounts without detailed justification left the appellant without a clear understanding of why her evidence was rejected.
Errors in evidence evaluation The panel assessed each charge in isolation without considering broader patterns or contextual evidence. It failed to recognize that inaccuracies in one allegation (contradicted by CCTV) could cast doubt on the reliability of witnesses' accounts in other allegations, leading to flawed conclusions.
Improper handling of contextual evidence The panel neglected to evaluate the behaviour of the complainant nurses during the investigation, which was relevant to determining their credibility. Additionally, it overlooked the appellant nurse's claims that the allegations were fabricated to remove her from her managerial position.
Insufficient reasoning for findings The panel provided inadequate reasoning for its findings of misconduct. It did not fully explain how the evidence supported its conclusions, including why the NMC had met the burden of proof for each disputed allegation. This failure left the appellant with unsubstantiated conclusions, undermining the credibility of the process.

Lessons

This case highlights several critical considerations for fitness to practise tribunals. One key lesson is the importance of thoroughly evaluating the credibility and reliability of witnesses, particularly when their testimony is central to the charges. Without such assessments, the accuracy and fairness of the tribunal’s findings can be compromised. Witness accounts must be examined not only in isolation but also in a broader context, taking into account patterns and inconsistencies to achieve a holistic evaluation.

Additionally, tribunals must provide clear and rational reasoning for their decisions. Merely preferring one witness’s account over another without detailed explanations can lead to procedural unfairness. Ensuring transparency in decision-making fosters trust in the process and supports robust outcomes. Tribunals must also maintain procedural fairness by upholding the burden of proof on the prosecuting body. Accused parties should never feel pressured to disprove allegations, as fairness is crucial to preserving the system’s integrity.

Finally, the impact of procedural delays cannot be underestimated. Prolonged proceedings can cause undue harm to the accused, affecting their career and reputation. Timely resolutions are essential to upholding justice while minimizing unnecessary stress on all parties involved. By focusing on these principles, fitness-to-practise tribunals can enhance the fairness and effectiveness of their proceedings.

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.