Fitness to Practise in the age of COVID - Should we be opposing High Court applications to extend interim orders?.

COVID-19 has led to many Fitness to Practise ("FTP") hearings being adjourned, this in turn has led to regulators having to apply to the High Court to extend their Interim Orders in cases that will not conclude before their expiry. Frequently this delay can have difficult consequences for the Registrant – already subject to an Interim Conditions of Practice or Suspension Order for 18 months often facing a further 12-month extension. Unfortunately, from the authorities, it appears there is little to be gained from opposing many of these applications.

There are three main reasons not to oppose:

1. The test on the application is the same as at the original interim order hearing (GMC v Hiew 2007 EWHC Civ 369) and therefore if your Registrant is facing the same allegations and the same evidence that led to the Interim Order (‘IO’) being imposed then the High Court are not likely to interfere
2. If there was new evidence to assist the registrant since the IO was imposed (and since the last review) then the Registrant should apply to the regulator for an early review. The High Court has demonstrated an unwillingness to interfere with the IO because of their powers of review and believe this mitigates the prejudice the registrant would otherwise suffer (see NMC v Coombs [2020] EWHC 2571 (Admin))
3. If the principal reason for the delay is the COVID-19 pandemic it would be difficult to argue that the regulator could have acted any more expeditiously in the circumstances

Despite this there will be cases where there might be merit in opposing, particularly considering the length of time requested for the extension- does the regulator really need the full 12 months? If this might have a demonstrable prejudice on the Registrant then this might be a good reason to oppose. For Interim Orders imposed solely on public interest grounds, has the passage of time, or the pandemic itself, shifted the public interest away from the need for an Interim Order?

There also may be particular circumstances relevant to your Registrant which could make opposing the application worthwhile – perhaps your review panel did not take into account the rebuttal expert evidence provided, or did not take into account the additional courses/evidence to show the risk had significantly reduced. In some limited circumstances opposing may give a registrant the opportunity to challenge the grounds upon which the interim order was made, but one must remember if the High Court extends the order there are cost implications. These are often prohibitive where an early review is an available alternative.

If you would like further advice on whether to oppose an extension application our team at Crucible would be happy to assist.