Decision making factors for interim orders

Reference: INT-2

Last Updated 26/11/2018

Overview

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There are a range of factors that the panel take into account in 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.

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.

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.

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