An important post-script

Somewhat unusually, the focus of this piece is a post script in the judgment of the Court of Sessions addressing concerns about unfairness in the mechanism for appealing fitness to practise sanctions.

The sanction

A nurse whose fitness to practise had been found to be impaired was subject to an Order for suspension for a period of 12 months.[1] In determining the sanction the Committee was required to apply the principle of proportionality.

The practical effect of the appeal

The Registrant appealed that decision. In common with the regime across the regulators of healthcare professionals, the effect of lodging the appeal was to prevent the sanction of suspension taking effect until the appeal was determined.

The supplementary order

However, the nurse was not permitted to practise pending the outcome of her appeal because the NMC panel had also imposed a supplementary Order of suspension which took effect immediately, and would continue until the appeal was determined. Again, such supplementary Orders are common across regulators in this sphere and are referred to variously as Immediate Orders or Interim Orders.

A disproportionate outcome?

In this case, the NMC decision was made in January 2018. The Registrant was suspended under the terms of the supplementary Order until the Court of Session determined her challenge to the primary Order on 11 December 2018. The effect of the Court’s decision to dismiss the appeal was that the primary Order, for a period of 12 months’ suspension, came into effect in December 2018.

Despite the fact that the Registrant had spent a period of 11 months suspended from the Register by virtue of the supplementary Order, she would nonetheless have to serve the full 12 month suspension term almost doubling the total period of suspension.

The post-script

Having rejected the appeal in this case, the Court added a postscript addressing concerns about the unfairness which might arise where Registrants have exercised their statutory right of appeal:

‘[33] While accepting that the rationale underlying such an approach includes the need to protect the public, we consider that there may be an appearance of unfairness, for two reasons. First, time spent on interim suspension does not count towards the period of suspension ultimately imposed as a sanction; and secondly, a nurse with a valid appeal point may be discouraged from making an appeal on the view that doing so would simply prolong the unwanted absence from work. We note that in other areas of the law, where an interim sanction is imposed pending the completion of procedural steps, it is usual to have the interim period count towards the period of the final sanction, provided first, that the two are similar in nature and secondly, that the interim period is not taken into account when the final sanction is imposed. The underlying principle is that reasonable procedural steps taken by a party, such as a right of appeal, should not have an effect on the total sanction that is imposed.’

The Court invited the NMC to consider alerting registrants in the position of the appellant to the statutory mechanism for Registrants to seek a review in an effort to persuade the panel that there was no further need for suspension.[2]

Comment

Fitness to practise panels should not impose supplementary Orders unless those Orders are necessary for the purposes of public protection.[3]

When such Orders are imposed they usually achieve the same practical effect as the substantive Order. The potential unfairness can be illustrated by considering a practitioner who has a set of conditions imposed on the basis of an adverse health condition. The primary and supplementary conditions will usually be imposed in identical terms. Even if an appeal is successful, the practitioner will have been subject to the impugned conditions whilst awaiting the determination of the appeal. That is so unless they issue separate proceedings to challenge the supplementary restrictions and obtain an expedited Order in respect of that challenge.

There is considerable force in the Court’s concerns that exercising a statutory right of appeal may result in significant prejudice to the registrant, and to restrictions which goes beyond that which the first instance tribunal deemed proportionate. There is no clear mechanism to maintain the proportionality of sanction in circumstances where an appeal is dismissed following a period of immediate/interim restrictions, or to permit a registrant to elect that the primary order come into force whilst they are awaiting determination of their appeal.

We have previously commented on a number of cases where the appellate courts have accepted that some allowance ought to be made for ‘time served’ under supplementary orders.[4] This is an issue which could be addressed in the event that the much heralded reforms of regulation of healthcare professionals progress.

Footnotes
[1] Burton v Nursing and Midwifery Council [2018] CSIH 77
[2] A comparable mechanism exists in the HCPC’ statutory scheme.
[3] Davey v General Dental Council [2015] 10 WLUK 213
[4] https://www.rlb-law.com/briefings/healthcare/case-review-kamberova-v-nmc/ and https://www.rlb-law.com/briefings/healthcare/case-review-habib-v-gphc/


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur 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.

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