Decision making factors for interim orders

Reference: INT-2

Last Updated 02/10/2019

Overview

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There are two steps that the panel must follow when deciding whether an interim order may be necessary to protect the public, otherwise in the public interest, or in the nurse or midwife’s own interests.

First of all the panel must be satisfied that, on the face of the information presented, there’s sufficient evidence of a case against the nurse or midwife. This is sometimes referred to as finding a ‘prima facie case’.

If the panel is satisfied that there’s evidence of a concern, they should then go on to consider whether or not an interim order is necessary in light of this evidence, taking into account any information put before them by the nurse or midwife1.

A panel may decide that an interim order is necessary on more than one ground (for example an order may necessary to protect patients, and may also be in the nurse or midwife’s own interests), but each of the three interim order grounds has separate considerations, which the panel must carefully assess.

Evidence of the concerns

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The first thing the panel must consider is whether there’s enough evidence of a concern about the nurse or midwife.

The interim order panel can’t make findings of fact and is not deciding whether there’s a ‘case to answer’, which is a decision for the Case Examiners after a full investigation.

In order to take action the panel only needs to be satisfied there’s sufficient evidence to support the concern, even though this may later be disproved.

The panel should consider the nature and strength of the evidence. This means looking at both the evidence that supports a particular fact or version of events, and any evidence that contradicts or undermines it.

Unlike a final substantive hearing, witnesses do not normally attend to give evidence and the panel will make a decision on the papers2, taking into account representations from both the NMC and the nurse or midwife.

When assessing the overall strength of the evidence, the panel will need to consider a number of factors, including:

  • The source of the evidence. Where the evidence comes from may affect whether it’s reasonable for us to rely on it when deciding whether to impose an interim order.
    Evidence which comes directly from an identifiable source is likely to be more reliable than evidence from an indirect or unknown source. If the evidence is disputed, it will rarely be fair to rely on anonymous or multiple hearsay as the only basis for imposing an interim order.
    Where the police have charged someone with a criminal offence, this is likely to be sufficient for the panel to go on to consider the need for an interim order, even where the underlying material isn’t available to us.3
  • The accuracy of the information and whether it’s sufficiently clear for the registrant to understand the basis for concern. If all of the available evidence is vague or tenuous, the registrant may not be able to respond to it beyond a bare denial and so it may not be fair for us to rely on it;
  • The nature of any evidence which supports / corroborates the concerns being raised. Although the panel can’t make a decision on the facts of any disputed allegation, it can discount evidence that’s inconsistent with objective or undisputed evidence, or which is clearly unreliable.4

Having considered these factors, and anything else relevant, if the panel is satisfied there’s enough evidence to make out a concern, they should go on to consider whether, in light of this, one or more of the three grounds for imposing an interim order applies.

Necessary to protect the public

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For an interim order to be considered necessary for the protection of the public, it is not enough for the panel to consider that an interim order is merely desirable, the panel must be satisfied that there is a real risk to patients, colleagues or other members of the public if an order is not made.

Three factors are especially important to this consideration:

  • The seriousness of the regulatory concern. This will depend on how much harm the alleged conduct has already caused, or could have caused, to the public. Cases that involve dishonesty, sexual misconduct, or where the actions of the nurse or midwife may have caused the death of a patient are usually considered more serious. 

  • The likelihood of the alleged conduct being repeated if an interim order were not imposed. If the concerns are serious and it seems they are likely to be repeated, then this significantly increases the risk of harm to members of the public.
  • Each case will be considered on its own facts. There may be other relevant factors a panel needs to consider in a particular case to decide whether to make an interim order on public protection grounds.

A panel will weigh up the seriousness of the regulatory concern and the likelihood of it being repeated if an interim order were not in place.

The seriousness of the concerns and risk of repetition are then assessed with reference to the particular circumstances of each case. An assessment of the harm that was caused, or could have been caused, to the public by the alleged conduct will be vital when considering seriousness. This could include physical, mental, emotional or financial harm.

A panel must also consider how likely it is that the concerns could arise again in the future if the nurse or midwife’s practice was not restricted. This will be crucial in assessing the level of risk the nurse or midwife presents to members of the public.

A panel may find the guidance on remediation and insight to guidance on remediation helpful in assessing how likely it is that incidents may recur.

Otherwise in the public interest

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As part of their assessment of risk, a panel will consider all the elements of what constitutes the public interest.

One element is promoting and maintaining public confidence in nurses and midwives. It would be relatively rare for an interim order to be made only on the grounds that an order is otherwise in the public interest, if there is no evidence of a risk of harm to patients, so the threshold for imposing an interim order solely on this ground is high.

A panel would have to be satisfied that public confidence in the profession could be seriously damaged by the nurse or midwife continuing to practise without restriction while their case is being investigated, and where necessary, prepared for a hearing.

In which case the panel should set out the nature and seriousness of any damage to the reputation of the professions that would result if an order was not made.

Then it would weigh the likelihood of serious damage to public confidence in the professions if the nurse or midwife were allowed to continue to practise, against the interests of the nurse or midwife; this will ensure their decision is proportionate.

Considering the interests of the nurse or midwife includes considering their right to practise unrestricted, damage to their own professional reputation, and their ability to address any concerns through demonstrating safe practice (although this may be less relevant in cases that do not relate to the nurse or midwife’s clinical ability).

In the nurse or midwife's own interests

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In some cases there may be some evidence that the nurse or midwife’s work is adversely affecting their health and there is potential for this to impact their ability to practise safely.

Panels need to be aware of this as where this evidence exists it may suggest that an interim order is in the interests of the individual to protect their health.

1 George v GMC [2003] EWHC 1124 Admin
2 Fairness at the interim stage doesn’t require formal witness evidence to be presented. Perry v NMC [2013] EWCA Civ 145 at paragraph 33
3 This is because the prosecution services have made an independent decision, applying a higher evidential threshold, and it is reasonable for us to rely on their assessment of the evidence. The fact of police involvement on its own is unlikely to be sufficient to establish a case unless there has been a charging decision, or we have some information about the underlying evidence to support the concerns being investigated.
4 Perry v NMC [2013] EWCA Civ 145 at paragraph 20

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