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Interim Order Committee Hearings Suspensions and Conditions8th July 2021 Business Crime
We defend Registrants facing fitness to practice investigations and prosecutions by a whole range of Regulators. Our work involves representing doctors, dentists, nurses, lawyers and many other professionals.
Quite often, our first point of contact will be a call from a client facing an investigation or intervention; sometimes at very short notice. It can a lengthy process, but if the investigators perceive a material risk arising from the Registrant’s actions, they may seek an interim suspension of the practice or the imposition of conditions pending an outcome to the investigation. Different regulators approach the risk assessment in slightly different ways, but it comes down to this – Having regard to the potential allegations and the current evidence, is there a material risk of harm to patients or clients? Is there a real risk of damage to the reputation of the profession or is it otherwise in the public interest to intervene with an interim order? Is an interim suspension, conditions or immediate cessation of the whole practice a proportionate response to the allegations pending a formal finding of facts?
A Registrant can therefore find themselves defending their reputation and sometimes their whole livelihood before the Regulator (or the relevant Tribunal) makes any determination on the facts. On one hand, this seems rather odd. The Registrant may be confident that they have done nothing wrong and they want to demonstrate this to their Regulator as soon as possible. The length of the process will be frustrating and they may object to any level of intervention in their practice pending the conclusion of a substantive investigation. On the other hand, Regulators are there to maintain the reputation of their particular industries and must protect the public from harm potentially caused by Registrants who deliberately, recklessly – or sometimes unwittingly – act contrary to the relevant regulations.
The interim order can therefore be described as anything from a mild inconvenience to a career changing event. The application for an interim order can give a Registrant very little time to prepare. It can seem complex and the Rules are often difficult to manage.
- How should I respond?
- What evidence do I need?
- What level of detail is required?
- Do I need independent expert evidence?
- Do I need to be legally represented?
- Is the Regulator’s application proportionate?
- What conditions might I offer in place of suspension?
- If my practice is suspended, what are my appeal or review options?
For obvious reasons, Regulators in clinical disciplines are usually more aggressive when it comes to interim order applications arising from a perceived risk to patients. However, Regulators in non-clinical disciplines are increasing their use of interim orders to control practices during the investigation stage. If Regulators are unopposed, or if the Registrant has no experience in opposing applications of this type, the relevant committee or panel considering the application will usually grant the Regulator’s application. Even if the Registrant regards the alleged wrong doing as relatively minor, they can find themselves having to operate under very restrictive conditions or their practice can be completely stopped for months or even years pending a final outcome.
Opposing an interim order application not only requires knowledge of the rules, but also a very structured approach to presentation of evidence.
- Has the Regulator overstated the risk?
- How reliable is their evidence?
- How old are the allegations?
- How quickly did they act?
- Did they disclose issues potentially undermining their own case?
- How are the complaints motivated?
- To what extent is the Registrant culpable?
- Have they properly considered possible conditions in place of suspension?
- How do they say that fitness to practice is impaired?
- Does the alleged activity actually amount to misconduct?
Many more questions arise, but preparing an answer needs to be comprehensive, logical and persuasive. It needs to address the risk assessment. Although it will involve some commentary on the facts, it is not the place for a full exploration of whether a Registrant should be found to be in breach of the relevant rules or principles. When we arrive in a case after the interim order stage, we often find that our (previously unrepresented) client could have put a much better defence at the interim order application stage. They often try to run a trial, when the priority is to oppose the Regulator’s assessment of risk and/or demonstrate how that risk can be wholly mitigated for the remainder of the investigation/prosecution.
Far too many applications of this type are granted. Regulators are often successful because they are not effectively opposed by reference to measures a Registrant can put in place to deal with the risk going forward. We can provide you with an initial assessment of how we can help you prepare for an interim order hearing or how you may respond to any other intervention by your Regulator. We can also assist with notifying your insurer of a claim against your professional indemnity insurance policy. If legal expenses insurance cover is not available, we can provide competitive fixed fees and hourly rates.
Evan Wright is a partner in the Professional Regulation team and has been representing regulated clients for over 25 years.