Interim orders guidance: long-taken approach overturned in Aga v GDC

Until now, such regulators had tended to interpret their legislation as meaning that where an immediate order was imposed, it was separate to a final order of suspension or conditions of practice, and that the final order would not start running until the end of the appeal period. In some previous judgments, courts across the UK have noted the potential unfairness of this – where the registrant does appeal, and their appeal is not resolved for some time, it means that they end up being suspended or subject to conditions for longer than the total period originally ordered by the panel, and in the case of a suspension order, longer than the statutory maximum of 12 months. In Hill v General Medical Council [2018] EWHC 1660 (Admin), Mr Justice Kerr summarised the issue as follows (at paragraph 63):

In Aga, Mr Justice Ritchie noted that the point had not been fully argued and/or settled before, so he carried out a detailed analysis of the GDC’s statutory scheme, and concluded that it has been wrongly interpreted. Crucially, he determined that when a direction for suspension is made, and an immediate order is made, there is only one suspension made under the Act (paragraph 96) (my emphasis). He said:

97. “…I consider that the correct construction of the Sections in the context of this appeal is that: (1) the start of the suspension was when it actually started, namely when the immediate suspension order took effect. (2) When the immediate suspension order ceases to have any effect (when the order on this appeal is made) then the direction for suspension will “take effect”. The change over from the order having the effect to suspend to the direction having the effect to suspend makes no difference to the suspension, it remains exactly the same. In my judgment the end of the suspension occurs after 9 months of suspension have been served and it does not matter which piece of paper had the effect of causing the suspension. 

98. In any event, I consider that the only correct and lawful way for the PCC to pass a direction for suspension, when they may be going on to consider an immediate suspension order, is to ensure that it is worded so as to credit any time served under any immediate order for suspension against the duration of the direction for suspension.”

As a result of this ruling, those regulators whose legislation makes provision for immediate orders to be made (such as the GDC and the GMC) must now amend their approach to ensure it is consistent with Mr Justice Ritchie’s ruling. The GDC has today published its new guidance on interim orders, but this is specifically guidance for its Interim Orders Committee, and so does not cover immediate orders made at final hearings.

What about those regulators whose legislation gives their practice committee’s power to make an interim order (not an immediate order) pending appeal periods (such as the NMC and HCPC)? Although the same arguments about fairness apply, the wording of the legislation will make it more difficult, if not impossible, to conclude that the interim order is the same thing as the final order. In Aga, Mr Justice Ritchie concluded:

101. “I should make it plain that I have made no ruling in relation to the effect of interim suspensions (imposed before the final hearings) on the assessment of final sanctions. That is an issue for another case.”

The same applies to those other regulators – we’ll need to watch to see if they seek to review and amend their current approaches to give effect to Mr Justice Ritchie’s fairness arguments, or whether they consider they cannot do that because of the wording of their legislation. This may be another potential source of inconsistency and unfairness that can only be resolved by regulatory reform.

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