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Interim orders tribunal hearings

Step 1b: consider if it is necessary to restrict the doctors registration

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Is it necessary to restrict the doctor’s registration?

  1. To decide whether it is necessary to restrict the doctor’s registration, the tribunal should consider whether one or more parts of the test for imposing an interim order are met. The test for imposing an interim order is whether it is necessary for the protection of the public or is otherwise desirable in the interests of the public and/or in the interests of the doctor.3

  2. The tribunal should be mindful that where the risk identified relates to the protection of the public, the doctor’s registration can only be suspended where it is ‘necessary’. However, there is no such qualification on suspension where it is desirable in the public interest to maintain public confidence.

  3. To be proportionate when considering the need for an interim order, the tribunal will need to consider any risk(s) to the protection of the public, the public interest and/or the interests of the doctor themselves and weigh and balance these against the adverse consequences that interim action has on the doctor.

  4. When considering whether it is necessary to make an interim order, the tribunal cannot accept any undertakings given by the doctor as it has no power to accept them and they are, in any event, unenforceable. 

Does the doctor pose a real and immediate risk to the protection of the public?

  1. In the context of interim action, an order may be necessary for the protection of the public where the concern or allegation about the doctor’s fitness to practise indicates there is a real and immediate risk to patient safety. Most often this will arise from concerns about a doctor’s behaviour, performance, or the impact of a health condition on their ability to provide safe care.  

  2. The seriousness of the concern, allegation or breach of conditional registration imposed by an MPT, will inform the tribunal’s view on whether there is any real and immediate risk to patient safety if the doctor were to continue to hold unrestricted registration while the concern is investigated, or the allegation is decided.  

  3. When considering whether there is any real and immediate risk to patient safety, the likelihood of the behaviour or poor performance giving rise to the concern or allegation being repeated will be relevant. The nature of a health condition and whether any impact it is having on the doctor is being effectively managed, is also a relevant consideration. 

  4. To decide if the doctor poses a real and immediate risk to patient safety, the tribunal should also refer to the guidance in the specific case types section. 

Is it in the interests of the public to restrict the doctor’s registration?

  1. The interest of the public incorporates three elements:
    1. the protection of patients and the public generally from a doctor whose fitness to practise may be impaired 
    2. the maintenance and promotion of public confidence in the profession, and/or 
    3. the maintenance and promotion of proper professional standards and conduct for doctors. 
  1. There is some overlap between the protection of the public and (a) given the impact on patient safety. However, (b) and (c) are also likely to be relevant in cases involving serious clinical concerns, particularly if the act or omission is persistent or repeated, or the circumstances surrounding the concern have attracted widespread public concern. This is because public confidence in the profession and the maintenance of professional standards and conduct would be undermined if the doctor’s registration was not restricted due to the serious nature of the risk to patients.

  2. Where an interim order is needed for the protection of the public because there is a real and immediate risk to patient safety, then it is likely that imposing it will also be in the interests of the public.

  3. In some instances, a doctor may not appear to pose a real and immediate risk to patient safety, but an interim order may still be needed on the basis that they pose a risk to public confidence. This is because public confidence in the profession may be seriously damaged if the doctor is allowed to continue in unrestricted practice while the matter is being considered. A risk to public confidence may arise from behaviour or poor performance in the doctor’s working life but can also arise from something unrelated to the doctor’s practice, such as a criminal charge or other serious alleged misconduct in their private life. 

  4. When considering whether an interim order is needed in the interests of the public, the tribunal should ask themselves whether trust in the profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration while the concern is being investigated or pending the allegation or outcome of a breach of conditional registration being determined. 

  5. A doctor practising in breach of a sanction put in place to protect the public will usually have the effect of undermining the public’s trust in the profession and therefore, pose a risk to the public interest.

  6. To decide if it is in the interests of the public to restrict the doctor’s registration, the tribunal should also refer to the guidance in the specific case types section.

Is it in the interests of the doctor to restrict their registration?

  1. When considering whether an interim order is needed in the interests of the doctor, the tribunal will need to consider if it is in the doctor’s own interests to hold unrestricted registration. When deciding this, the doctor’s insight into the concern or allegation will be relevant, particularly where it relates to the impact of a health condition.

  2. To decide if it is in the interests of the doctor to restrict their registration, the tribunal should also refer to the guidance in the specific case types section.

The relevance of whether a doctor holds a licence to practise

  1. Interim orders attach to a doctor’s registration and not their licence.

  2. Although doctors require a licence to undertake activities involving contact with patients, the fact that a doctor does not currently have a licence does not replace the role of the tribunal in ensuring patient safety.

  3. Submissions may be made suggesting that as the doctor is currently unlicensed, there are no patient safety issues, and that interim action is therefore not required. However, it is important to remember that:
    1. all registered doctors are expected to comply with Good medical practice, regardless of whether they hold a licence
    2. a registered doctor is entitled to a licence to practise unless their registration is currently suspended, and therefore the absence of a licence does not provide protection for patients, and
    3. taking action on a doctor’s registration in circumstances where there may be impairment of the doctor’s fitness to practise which poses a real risk to members of the public or may adversely affect the interests of the public or interests of the doctor will be important in maintaining public confidence and the integrity of the medical register.
  1. If a doctor’s registration is suspended by a tribunal the doctor’s licence will automatically be withdrawn. If conditions are imposed, the doctor will continue to be entitled to hold a licence to practise but will be expected to comply with any conditions.

  2. When considering whether to impose an interim order the tribunal should bear in mind that if it does not impose an interim order on a doctor that does not currently have a licence to practise, that doctor may later successfully apply for a licence and if granted, they would not be subject to any restrictions that would otherwise be needed to protect patients, or the wider public interest.

The tribunal’s decision on whether an interim order is needed

  1. The tribunal should give clear and adequate reasons for its conclusion on whether an interim order is needed to enable the doctor to understand their decision. In doing so, the tribunal must provide a clear explanation about their assessment of risk based on the information available at the time, and state which parts of the test for imposing an interim order have been met.

  2. The tribunal should also explain how their decision relates to any submissions received from the parties.

3 Section 41A(1) of the Medical Act 1983 (as amended).