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Perry v Nursing and Midwifery Council EWCA Civ 145 (Court of Appeal)

Sarah Ellson
16/04/2013
This case relates to the extent to which an interim orders panel is able to look into the merits of the evidence underpinning allegations in deciding whether interim measures are necessary.The This case relates to the extent to which an interim orders panel is able to look into the merits of the evidence underpinning allegations in deciding whether interim measures are necessary.

The Appellant was a registered mental health nurse who had been accused of serious misconduct by a patient (including allegations of a sexual nature). The NMC convened an Interim Orders Panel ('the Panel') and the Appellant was suspended for 18 months. He appealed to the High Court on the basis that the Panel had prevented his counsel from exploring the substance of the allegations in evidence before it. His appeal asserted that this was a breach of his Article 6 and Article 8 rights. Thirlwall J rejected the contention that the hearing before the Panel had infringed the Appellant's Convention rights, but held that a suspension order was unnecessary, and that an order imposing conditions of practice would be sufficient and appropriate.

There was no appeal in respect of Thirlwall J's decision that conditions of practice would be sufficient and appropriate. However, the Appellant took his case to the Court of Appeal, and relying on R (White & Others) v Secretary of State for Health UKHL 3, he submitted that the hearing before the Panel engaged Article 8 of the ECHR (on the basis that his suspension affected his relationships with patients, his ability to work and resulted in a stigma that affected his private life) as well as Article 6 (in that while it was in force it prevented him from working in the profession, therefore determining his civil rights within the meaning of that Article). The Court of Appeal was invited to find that the Panel had infringed the Appellant's Convention Rights in that fairness demanded that he should have had the opportunity to give evidence to the Panel addressing the substance of the allegations against him.

The Court of Appeal rejected this. In reaching its decision, the Court cited Micallef v Malta to the effect that interim orders are capable of engaging Article 6, and indicated that it was prepared to proceed on the basis that both Article 6 and Article 8 were engaged in the present case. However, notwithstanding that, the Court noted that Micallef makes clear that while certain procedural safeguards under Article 6 are inalienable (such as the right to an independent and impartial tribunal) others may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue.

Stanley Burnton LJ also cited a number of authorities relating to the GMC in reaching the view that:

'[a Panel] is entitled to discount evidence that is inconsistent with objective or undisputed evidence or which is manifestly unreliable. The committee may receive and assess evidence on the effect of an interim order on the registrant, and the registrant is entitled to give evidence on this. The registrant may also give evidence, if he can, to establish that the allegation is manifestly unfounded or manifestly exaggerated… what the Committee cannot do, and should not do, is to seek to decide the credibility or merits of a disputed allegation: that is a matter for the substantive hearing…'

To hold otherwise would require that the regulator call the complainant and any other evidence in support of the allegations and the result would be a trial before the trial which would go beyond what fairness requires at the interim stage. As such, the Court held that fairness in IOP proceedings does not require the respondent be allowed to give evidence on the substance of the allegations, and, as the Panel had therefore adopted the correct approach, the appeal was rejected.

Read the case here.

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