Court of Appeal accepts that article 6 is engaged by interim order proceedings but holds that fairness does not require panels to hear evidence relating to whether the substantive allegation is well founded.

In our October 2012 update, the article entitled "Interim suspension orders v interim conditions orders - lack of a known employer decisive?" discussed the High Court appeal of Mr Perry against the interim suspension order imposed on him by a fitness to practise panel of the Nursing and Midwifery Council (NMC). The case has now come before the Court of Appeal.

Background

Mr Perry, a mental health nurse, was suspended by a fitness to practise panel of the Nursing and Midwifery Council after a client made allegations against him of forming an inappropriate and sexualised relationship with her. At the NMC hearing, Mr Perry had submitted that a conditions order was sufficient.

Mr Perry appealed to the High Court on two grounds:

- that the procedure adopted by the panel was unfair and breached his rights under article 6 (fair trial)
  and article 8 (family and private life); and

- the panel had failed to give reasons for its decision to suspend him, rather than impose conditions,
  and that the panel's decision making had been unlawfully fettered by the NMC's standard operating
  procedure which specified that conditions would rarely be appropriate when no employer was
  known.

Mr Perry failed on the first ground on the basis that there was no unfairness (either at common law or such as to breach article 6), and that article 8 was not engaged at all. However, Mr Perry succeeded on the second ground. The judge found that the panel had dismissed the conditions proposed by Mr Perry without explanation and that it had failed to give reasons to explain why the suspension was necessary.

The High Court ordered that the suspension be terminated after a period during which a panel could consider the imposition of suitable conditions. 

The Court of Appeal

Mr Perry appealed to the Court of Appeal against the finding of the High Court in relation to articles 6 and 8. He submitted that the interim order procedures had infringed his rights under article 6 and at common law because of their unfairness, in that he had been prevented at the panel hearing from giving evidence about the substance of the allegations against him. This unfairness meant that, consequently, his rights under article 8 were infringed as the suspension affected his relationships with his patients and his ability to work, resulting in a stigma which affected his private life.

The NMC submitted that articles 6 and 8 were not engaged and that, even if they were, Mr Perry’s rights under both articles were not breached.

After considering the most recent authority in relation to the applicability of article 6 to interim orders (the judgment of the Grand Chamber in Micallef v Malta (Application no. 17056/06) (2010) 50 EHRR 37), the Court of Appeal proceeded on the basis that article 6 was engaged. It also proceeded on the basis that article 8 was engaged. Prior to Micallef, interim measures had been excluded from the ambit of article 6.

Accordingly, the question for the court was whether it was unfair that Mr Perry had been prevented from giving evidence at the interim order hearing as to the truth of the allegations against him.

It was held that the Court of Appeal decision in GMC v Hiew [2007] 1 WLR 2007 was authority for the proposition that the role of a panel or committee in imposing or extending an interim order against a medical professional was 'to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension… it need not look beyond the allegations'. It was noted that the decision in Hiew was made after consideration by the court of article 6.

The court rejected Mr Perry’s appeal and stated that his submissions, if accepted, would in effect result in 'a trial before the trial' in a way which was contrary to the statutory scheme laid down for the imposition of interim orders as a method to protect the public. It was also noted that if his submissions were correct, established civil procedure relating to interim relief, particularly injunctions and the American Cyanamid rules, would be liable to be judged incompatible with Convention rights.