Interim Orders – is a dental care professional’s right to privacy less important than a doctor’s?
“…. those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.”
GDC Interim Orders Hearings
The power to impose orders restricting a professional’s registration whilst their fitness to practise is being investigated is common to the GMC and the GDC. Such orders are referred to as Interim Orders and are imposed based on a risk assessment undertaken by a three-person committee at a hearing which reviews documentary evidence and receives legal submissions. The Committee do not determine whether the allegations against the professional are true; that decision can only be made by a Fitness to Practise Committee [FTP] at a fact-finding hearing.
Interim Orders hearings often take place at the very early stage of an investigation when limited evidence is available and before a decision is taken as to whether the case meets the test for referral to an FTP Hearing. The threshold for referral to an FTP hearing is low – it requires that there is more than a remote, or fanciful, prospect that the registrant’s fitness to practise will be found to be impaired. In this context a decision to refer to the FTP is akin to a decision to charge in the criminal process.
Despite those common features, there is an important and unprincipled difference between the treatment of doctors and dental care professionals; a doctor facing an interim orders hearing is guaranteed that the hearing will take place in private, unless they request otherwise. However, for dental care professionals the starting point is that such hearings will take place in public unless the Committee hearing the case determine that it should proceed in private. Both the GMC and the GDC publish the nature of any Interim Order which is imposed regardless of whether the hearing took place in private.
The Current Position
The GDC’s current guidance Interim Orders Guidance for decision makers (October 2016) observes:
“Circumstances in which all or part of a hearing may be held in private include:
- where it is necessary to protect the interests of the parties or the protection of the private and family life of the respondent or any other person so requires e.g. vulnerable or juvenile witnesses; or
- where the Committee is of the opinion that publicity would prejudice the interests of justice.”
Whilst it is common for concerns relating to a practitioner’s health to be dealt with in private, it is almost invariable that other types of allegations will be ventilated in public at the GDC’s Interim Orders Committee. Our experience indicates that the power to sit in private will not be exercised simply because the investigation is at an early stage and no decision has been made in respect of referral to an FTP hearing. Thus, even where the Committee determine not to impose an Interim Order the nature of the allegations and the fact of the GDC’s investigation will have been made public.
The GDC did not update its guidance on the issue following the Cliff Richard case. Following the Court of Appeal’s recent decision in ZXC v Bloomberg  EWCA Civ 611 it is clear that the IOC should be considering the status of the investigation as a factor which is relevant to whether an interference with the registrant’s Article 8 rights, by holding the IOC hearing in public, is justified. Although the starting point of the statutory scheme is that hearings should be in public, the available discretion is capable of accommodating the principle captured in the quotation from ZXC which opened this article whilst leaving the default to operate in IOC hearings dealing with cases where the Case Examiners have already determined the test for referral to the FTP has been met. Such an approach would protect the reputation of Registrants who appear at the IOC early in the course of an investigation where the only evidence is often the untested and uncorroborated hearsay assertions of a complainant.
Without a change in the statutory rules to align them with those of the GMC, dental care professionals would still have no guarantee that their IOC hearing would take place in private, only the possibility of that result. The contrast with the statutory scheme which applies to doctors only serves to demonstrate the weakness of any argument that the interference with the Article 8 rights which a public hearing involves is “necessary”, in the sense required to justify it.
 Paragraph 82 of the judgment of Simon LJ ZXC v Bloomberg  EWCA Civ 611. Although this was a case involving an action for misuse of private information by a news organisation the Court’s comments on the existence of a reasonable expectation of privacy in respect of an investigation by a state agency are instructive.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.