Over the last few years more and more professional regulatory bodies have developed disciplinary schemes which include the right to take action against a respondent professional before there has been any formal adjudication on the facts of a particular case. Interim orders procedures have for example recently been introduced, or extended, by the Actuarial Profession, the General Teaching Council for Scotland and the General Dental Council.
At one level, this development is an example of others following where the General Medical Council has led. It was in the wake of the Shipman case that the GMC acquired comprehensive powers to take interim action against doctors in order to protect patients during the sometimes lengthy period required to investigate a case and hold a full hearing on the facts. At another level, interim orders procedures exemplify the growing powers granted to regulatory bodies to hold members to account and the rigour of the regulatory climate under which all professionals practise.
As interim orders are imposed before any wrong-doing has been proved, they are in one sense a fairly draconian measure. They form part of the public interest jurisdiction under which all professional regulatory activity falls and while the specific rules will vary from scheme to scheme, the common theme will be that it must be in the public interest to impose an order. The public interest will usually encompass protection of the public and / or protection of the reputation of the profession concerned. The rules governing the imposition of an interim order should be clear and as unambiguous as possible and it is essential that tribunals who impose interim orders fully understand the rules of the particular scheme they are implementing and the circumstances in which they are entitled to conclude that an interim order of some sort is appropriate.
Weight of evidence
The key issue for tribunals is that they are not there to decide whether the facts of the case are proven. They will however have to make some judgement about the strength or weight of evidence available to them at what may be an early stage of an investigation. The evidential standard varies, with some schemes requiring prima facie evidence and others seeking 'sufficient' or 'reliable' evidence. Once the initial evidential hurdle is passed, the tribunal has to weigh up the public interest in imposing an order against the likely effect on the respondent who may not be able to pursue his or her career as a result.
This weighing up of the factors is crucial as the key legal principle underpinning interim orders is proportionality. In other words, any order imposed must be proportionate to the risk posed by allowing the respondent to continue practising unrestricted. Similarly, if an order is to be imposed it must be no more restrictive than is necessary to protect against the risk identified. Thus if conditions are sufficient to protect the public from a specific risk, it would be disproportionate to impose suspension. It should be noted however that the courts have held in several cases that, in this particular balancing act, the respondent's rights and the public interest are not necessarily to be given equal weight. It is the nature of this jurisdiction that the public interest should take precedence over the rights of individual professionals.
In these circumstances, tribunals must clearly give careful consideration to the nature of the risk, its relative seriousness and the likelihood of a recurrence of the conduct at issue. In the case of health professionals, interim orders are most often imposed or at least considered where for example there is a concern that ill health of one sort or another is putting a professional's ability to practise safely in doubt. Beyond that, interim action is usually reserved for misconduct or under-performance at the more serious end of the spectrum. Interim orders are certainly not something to be imposed lightly. On the other hand, the jurisdiction exists to protect the public and in the current regulatory climate, regulators not only wish to hold professionals properly to account, but to be seen to do so.
Whether an interim order is necessary in a given case is not an easy decision but one which tribunals must grapple with, often before there is very much in the way of information or investigation. For regulators who already have such procedures, it is worth taking stock of the existing rules to ensure they are clear and unambiguous and assist tribunal members in making fair, consistent and proportionate decisions. It is worth considering also the level and nature of training offered to tribunal members and whether any updating is required. For regulators who do not yet have interim procedures, the time may be right to consider whether they should now be part of your regulatory armoury.