Lasting Powers of Attorney: recent key developments
Judgement date: 28 February 2013
Court of Appeal holds that fairness does not require that a registrant be given the opportunity to give evidence that goes to the substance of the allegation at interim order hearings of professional regulatory bodies
This was an appeal from the judgment of Thirlwall J rejecting the appellant’s claim that his hearing before the Investigating Committee (IC) of the Nursing and Midwifery Council (NMC) at an Interim Orders hearing, and the order made by that Committee to suspend him from practice as a nurse for a period of 18 months, infringed his Convention rights under Article 6 and 8.
The appeal was said to raise a ‘question of general importance as to the procedure of an Investigating Committee of the NMC (and similar committees of other professional regulatory bodies) when considering whether to make interim orders’.
The appellant (P), a mental health nurse, was summarily dismissed from his role within the Cwn Taf Health Board, following a complaint by a 30 year old mother of 3 with whom he had been working, that his behaviour towards her had been improper. A disciplinary hearing had been convened, which ultimately resulted in a finding that his behaviour had ‘fundamentally breached’ his contract of employment and constituted gross misconduct.
The matter was referred to the NMC on 11 July 2011. On 9th November 2011 the NMC wrote to the appellant informing him that the Investigating Committee were to consider an allegation that his fitness to practice was impaired and that pending their decision as to whether there was a case to answer an interim orders hearing would be held. That hearing took place on 29 November 2011. Although P admitted some aspects of the allegation against him, conceding that he had overstepped professional boundaries, P did not accept other more serious aspects of the case, such as sexual touching, asking the complainant to dress up for him and asking her to talk about her sexual history.
At the hearing it was realistically conceded on P’s behalf that the admitted conduct justified an interim order, but it was submitted that conditions would be sufficient.
It was argued on behalf of P that the hearing before the IC had engaged Article 6 of the European Convention of Human Rights (ECHR) since the decision to suspend his registration, which while in force prevented his working in his profession, determined his civil right within the meaning of that Article. It was further submitted that Article 8 was also engaged, since his suspension affected his relationships with patients and his ability to work and resulted in a stigma that affected his private life. It was said that the proceedings before the IC had infringed his Convention rights and was unfair at common law. Fairness, it was argued, required that P should be given an opportunity to give evidence addressing the substance of the allegations against him and in the present case the Committee had prevented him from doing so.
On behalf of the NMC it was submitted that Article 6 was not engaged but that if it was, the procedure applicable to interim measures satisfied the requirements of fairness under the Convention and at common law. Similarly, if Article 8 was engaged the procedures satisfied those requirements. It was said that the submissions made on P’s behalf were inconsistent with the statutory disciplinary scheme which is common to a number of other professions.
Micallef v Malta
The case of Micallef v Malta (Application No. 17056/06) (2010) 50 EHRR 37, the most recent authority of the European Court of Human Rights (ECHR) on the applicability of Article 6 to interim orders, was considered by the Court. In that case the Court held that it ‘no longer found it justified to automatically characterise injunction proceedings as not determinative of civil rights or obligations’. Nor was it convinced that a defect in such proceedings would necessarily be remedied at a later stage, namely in an Article 6 compliant later hearing, since prejudice suffered may be irreversible. It called for a new approach which meant that the applicability of Article 6 would depend on whether certain conditions are fulfilled.
The Court of Appeal stated that it did not find it easy to determine from the Micallef judgment what test is to be applied in order to determine whether interim proceedings result in an order that is determinative of a civil right. However, it was content to proceed on the basis that both Article 6 and Article 8 were engaged by the hearing before the IC.
It followed that the only question on the present appeal was whether fairness required the appellant to have the opportunity to give evidence for the Committee to consider on the truth of the allegations made against him. P was prevented from giving such evidence at the hearing.
The Court followed the authority in the case of GMC v Hiew  1 WLR 2007, namely that at such a hearing the Committee is ‘to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension’. In general, in need not look beyond the allegation. The Court of Appeal held that it was significant that these remarks made in Hiew were made in a judgment in which the impact of the Convention was considered by the Court.
The Court distinguished the case of Wright v Secretary of State for Health  UKHL 3 (in which Burton had been the judge at first instance) that had been heavily relied upon by P; that case concerned the right of a care worker to make representations before his name was included a barred list, rather than his right to give evidence.
It was held that;
‘Wright is not authority for the proposition that fairness requires that a respondent to an allegation of unfitness to practise his profession must be given an opportunity to give evidence as to the substance of that allegation before a tribunal considering whether to make an interim suspension or other interim order under a legislative scheme as the present’ .
Further, it was held that P’s submissions were ‘inconsistent with the statutory scheme’.
By way of further reasoning, the Court stated that;
If a registrant is to be given an opportunity to give evidence to an Investigation Committee on the substance of the allegations against him, with a view to the Committee rejecting those allegation on the merits, fairness would require that the NMC should have the opportunity to call the complainant and any other evidence in support of its allegations. The result would be a trial before the trial. That is not what the statutory scheme envisages or what fairness requires at the interim stage.
Davis LJ and Hughes LJ both agreed that the present case was fair and did not infringe the Convention rights of the appellant under Article 6 or Article 8. The appeal was dismissed.
This Court of Appeal reiterates that Article 6 and Article 8 rights are engaged by interim order hearings, however, fairness does not require that the registrant be able to give evidence that goes to the truth or otherwise of the allegations, bearing in mind the potential implications of such a requirement.
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