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Delay and interim orders in regulatory proceedings

A look at the court's consideration of 'delay' in applications by healthcare regulators to extend interim orders imposed on practitioners'…

Two recent decisions provide an insight into the High Court’s consideration of ‘delay’ in the context of applications by healthcare regulators to extend interim orders imposed on practitioners’ registration.

Both cases, decided in the past month, involve applications by the Nursing and Midwifery Council (“NMC”) pursuant to Article 31(8) of the Nursing and Midwifery Order 2001 to extend existing interim orders of suspension.

Article 31 allows a practice committee of the NMC, where consideration of an allegation has yet to be concluded, to impose an interim order (be it a suspension or conditions) upon an individual’s registration for up to 18 months. The decision is made without determination of the substantive allegation(s).

Mirroring provisions are available to other regulators, such as the General Medical Council.  To do so, the committee must be 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”.

Aside from requiring regular reviews, the Article also allows the regulator to apply to the High Court to extend, applying the same test above, the Interim Order beyond its initial period, and to seek further extensions if necessary thereafter.

In both cases, R (on the application of the NMC) v Pitts and NMC v Miller the interim order in question was one of suspension, meaning neither individual could practise pending resolution of their substantive case.

Pitts  involved allegations that the registrant had obtained in August 2008 medication taken from her place of work (subsequently receiving a police caution for theft) and, separately, had been convicted for allowing a dog to be dangerously out of control in a public place, causing injury. Miller involved allegations, also arising in the summer of 2008, of aggressive conduct and dishonesty (claiming to work a shift when he had not) culminating in dismissal by his employer.

In both cases, the Court was faced, when considering the applications to extend, delays by the regulator.

In Pitts, the NMC’s Investigating Committee first considered the case in September 2009, deciding further information was required. Following its receipt, the Committee considered the case again, in February 2010, indicating a health assessment should be undertaken. However, due to delays in allocating the case and obtaining disclosure from the police, by the time of the application (for a further 10 month interim suspension) the Court was told that the case was unlikely to be finally determined for some time.

In Miller, the NMC’s committee had first imposed, pending investigation, an 18 month suspension in May 2009, the extension of which came before Mitting J in the High Court in November 2010. Expressing concern that the “relatively minor matters” involved “could have been investigated a little more quickly” and receiving confirmation that these views would be fed back to the NMC, Mitting J extended the suspension for a further 9 months. The NMC now, having failed to conclude the case in that extra time and having shortly before its latest application fixed the hearing for February 2012, sought a further extension.

Thus, the regulator had been investigating the cases since May 2009 (Miller) and September 2009 (Pitts) respectively, with interim suspension orders in place for 28 months (Miller) and 18 months (Pitts) respectively. The Court (Silber J in Pitts and Blake J in Miller) expressed concern in both cases with regard to delay by the regulator, albeit with one granting the extension sought and the other not.

In Pitts, Silber J granted the 18-month extension sought, despite noting the delay involved, indicating the following factors as relevant to his decision: the volume of cases with which the regulator was dealing (given as 3,816) as against its resources to do so; the seriousness of the allegations (involving criminal offences); the likelihood of eventual onward referral of the case to a substantive hearing and the absence of the registrant at any of the review hearings and the application hearing.

In Miller, Blake J, when rejecting the regulator’s application, indicated the following factors as relevant to his decision: the impact of a loss of registration on the registrant; the fact that there had been no cognisance taken by the regulator of the Court’s previous warning; the Human Rights Act Article 6 fair trial requirement to progress cases to determination as soon as reasonably practicable and that this was an uncomplicated case. The Court applied less weight to the limited resources argument and the non-attendance of the registrant.

The cases do not depart from established principles in determining such applications, but Blake J’s observations in Miller do provide a timely warning to regulators as to the importance of the balancing interests of the registrant and hence in avoiding delay particularly in cases where there is suspension from practise pending resolution. As Blake J observed in Miller: “I [reject the application] in the hope that the concerns that this court has about delay will be brought to the attention of the Council, and that due priority will be given to cases in which a suspension is brought…”

Simon Turner
Associate
Weightmans LLP
simon.turner@weightmans.com