Interim orders: Oversight with bite
‘It is, in my judgment, necessary and appropriate that I should make the court’s disapproval of the way in which the NMC responded to the previous court order. For these reasons the costs order, modest as it is, is in my judgment therefore fully justified.’
Whilst under investigation by their regulators healthcare professionals may have their registration suspended or restricted. Those restrictions (interim orders) are imposed by quasi-judicial panels. The Orders must be proportionate. The initial duration of the Order is determined by the panel and often ranges between 12 and 18 months. The fitness to practise process ought to be concluded within the period of the Order. Too often, it is not.
Extensions of such Orders can only be granted by the High Court. Applications for extensions are made too frequently. It is not uncommon for High Court judges to criticise delays in the regulator’s investigations whilst granting the extensions nonetheless. The perceived risk to patient safety, which led to the imposition of the Order, is usually sufficient to outweigh any dissatisfaction with maladministration. Indeed, in many cases registrants consent to the extensions in order to avoid the risk of being ordered to pay the legal costs incurred by the regulator in making the application. As a result entirely valid criticisms of the regulators’ conduct go unventilated.
Holding regulators to account
In that context, two recent decisions by Michael Fordham QC, sitting as a Deputy High Court Judge, merit mention. In each case the NMC applied for an extension to an interim Order. In each case there had been an unsatisfactory delay in the investigation process. In each case the registrant opposed the particular Order sought and in each case the extension was granted.
However, the orders were not extended in the terms the regulator had sought and in one case the order for suspension was varied to one of conditions.
Significantly, the Court also awarded the registrants their costs. This represented a departure from the general rule that the ‘successful’ party should have its costs paid by the other side.
Setting out his reasoning in the case of Ekeweume, the deputy judge noted that the respondent had materially succeeded in a position which she had come to make and to ‘send a message’ because ‘the NMC did not take advantage of the six month extension that the High Court gave it on 4 July.’
‘what there is… is a real problem with what happened after 4 July and took us to the position where this application had to be made. That is the second reason why I am satisfied that, even if it might not otherwise be the norm, it is not inappropriate to order costs. Indeed in my judgment, it is, in the interests of justice, proper and proportionate that the Respondent should have her costs.’
The Court also made it clear that if a further extension were to be sought, the regulator should be accountable to the court for any further delays:
‘…it is entirely right and appropriate that the NMC should be accountable to this Court and should have the burden of making a further application and should, on making it, have to justify what it has done in the light of my Order.’
Interim orders can have a devastating effect on registrants.
Parliament has given the Courts an important role in overseeing the exercise of these powers by regulators of healthcare professionals. Regulators should not escape accountability where their dilatory conduct of investigations makes an extension of an interim order necessary, albeit that the extension is in the public interest.
There is also a public interest in effective mechanisms of accountability. Whilst there will often be no real merit in contesting an application for an extension, the imposition of costs consequences in cases such as these may go some way to ensuring momentum in the investigatory process is maintained.
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.