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Interim measures tribunal hearings

Considering interim measures in specific case types

  1. When deciding if an interim measure is needed, and where it is, what type of measure is a proportionate response, the tribunal should consider any specific case type guidance available, as well as the general principles that apply to all cases. 

  2. Specific guidance is provided for the following case types: 
    • Sexual misconduct 
    • Dishonesty 
    • Violent or abusive behaviour 
    • Discrimination 
    • Clinical concerns 
    • Impact of a health condition 
    • Insufficient knowledge of English 
    • Criminal charges, convictions, cautions, court sanctions and determinations by another body responsible for the regulation of a health or social care profession, and 
    • Freedom of expression. 

Sexual misconduct

  1. In addition to the guidance given on interim measures in the Introduction, the tribunal should consider the following. 

Is an interim measure needed?

  1. Where the concern involves sexually inappropriate behaviour towards patients or colleagues, or the PA or AA is under police investigation for a sexual criminal offence, particular consideration should be given to the public interest and the impact on public confidence if the PA or AA were to continue working unrestricted in the meantime.

  2. The following factors are likely to indicate that a case would raise significant public confidence issues if no interim action is taken:
    • information that a PA or AA is under investigation by police in connection to serious criminal offences such as rape or attempted rape, sexual assault or attempted sexual assault or sexual abuse of children, including accessing images of child sexual abuse
    • concerns that a PA or AA exhibited predatory behaviour in seeking or establishing a sexual or improper emotional relationship with a patient or a former patient where, at the time of the professional relationship, the patient was particularly vulnerable
    • concerns about a PA or AA’s sexualised behaviour towards a patient or a colleague that fall on the higher end of the spectrum of seriousness of sexual misconduct, including those arising in a single episode, or
    • concerns about a pattern of sexually motivated behaviour towards patients, their relatives or colleagues.
  1. There are also circumstances in which a departure from the more detailed guidance on Intimate examinations and chaperones may suggest that an interim measure is needed. This includes where there is a concern that the PA or AA did one of the following and there is evidence the conduct was sexually motivated or had no clinical justification:
    • performed an examination
    • failed to obtain informed consent before undertaking an examination or procedure
    • failed to offer or arrange a chaperone for an examination in accordance with the detailed guidance
    • failed to maintain professional boundaries when treating a patient, such as by making a remark of a sexual or inappropriate personal nature, or
    • failed to respect a patient’s privacy, such as when the patient was undressing for an examination.
  1. A single failure to offer a chaperone is, in and of itself, unlikely to require interim action in the absence of any information to suggest the examination was sexually motivated or inappropriate. However, persistent and repeated failures to follow the more detailed guidance on chaperones may support the need for an interim measure to be imposed.

  2. An interim measure may also be necessary where the concern or allegation relates to the PA or AA having departed from the more detailed guidance on Maintaining personal and professional boundaries. This will usually be the case where there is evidence to suggest a PA or AA has engaged in predatory behaviour towards a patient or a colleague.

  3. An interim measure is likely to be needed if there is information to suggest a PA or AA has: 
    • displayed sexual behaviour towards a patient or colleague, including any acts, words or behaviour designed to arouse or gratify sexual impulses and desires, or with the effect or purpose of causing offence, embarrassment, humiliation, distress or to exert power 
    • pursued or engaged in a sexual relationship with a patient
    • pursued or engaged in an improper emotional or financial relationship with a patient, or
    • pursued or engaged in a sexual or improper emotional or financial relationship with a former patient where at the time of the professional relationship the patient was particularly vulnerable. 

Type of interim measure

  1. The proportionate interim measure for a tribunal to put in place in response to a sexual misconduct concern or allegation will depend on the extent of the PA or AA’s behaviour and the impact it’s assessed as having on the protection of the public, the interests of the public and/or the interests of the PA or AA themselves.

  2. Whilst a range of behaviour can amount to sexual misconduct, the nature of the departure from the professional standards usually indicates a starting point of a high level of seriousness. Given the impact these cases will usually have on public confidence, the risk to the public interest may require consideration to be given to an interim measure of suspension. This is particularly the case where the PA or AA has been charged by the police in connection with a serious criminal offence. 

  3. In cases where the behaviour is isolated or limited in nature and the risk to the protection of the public or the interests of the public is assessed by the interim measure tribunal (IMT) to be lower, conditions may be proportionate. In those cases, careful consideration will need to be given to the workability and effectiveness of conditions before they are imposed.

  4. Sometimes, a condition requiring the PA or AA to only see patients in the presence of a chaperone may be appropriate. This may include where the circumstances giving rise to the concern appear to be an isolated incident in respect of a single patient that fall at the lower end of the spectrum of seriousness. 

  5. However, one or more of the following factors are a strong indicator that conditions requiring the use of a chaperone may not be workable or effective:
    • any concerns that the PA or AA has not complied with existing chaperoning arrangements at their place of work
    • concerns that a PA or AA asked a chaperone to leave the room during an intimate examination
    • concerns that a PA or AA exhibited sexually motivated behaviour towards patients in the presence of a chaperone, or
    • concerns that indicate a possible pattern of behaviour of a PA or AA engaging or seeking to engage in a sexual or an improper emotional relationship with more than one patient. Chaperone conditions may not be fully effective in protecting patients from this type of behaviour since most contact of this nature is likely to occur in unchaperoned time, outside a consultation. 
  1. When considering the use of age specific chaperone conditions, the tribunal should reflect on the nature of the sexual misconduct concern or allegation. It should consider whether such conditions would adequately protect patients from predatory and opportunistic behaviour which may lead to alleged perpetrators offending against a wide age range of patients.14 

  2. When imposing chaperone conditions, the tribunal should ensure that any such conditions make it clear whether the requirement for a chaperone applies to all consultations, including video and telephone consultations, or only those where the patient is physically present.

  3. Chaperoning conditions may be less effective where the sexual misconduct concern or allegation relates to colleagues or where the concern took place outside of the clinical setting.

  4. Where a PA or AA carries out consultations remotely, the tribunal should consider the proportionality of a chaperone condition and whether this would unduly restrict a PA or AA’s practice. In doing so, they should carefully consider the individual circumstances of the concern or allegation to assess whether the PA or AA may still pose a risk to patients if the consultation is by video or telephone. 

  5. Whilst recordings of remote consultations can be made for teaching, training or assessment purposes, it will not usually be workable for a tribunal to impose a condition stipulating that telephone or video consultations with patients should be recorded. This is because it would require each patient to be fully informed of the reason for the recording (to comply with conditions arising from fitness to practise proceedings) and to provide clear consent which is unlikely to be feasible from a practical perspective for every consultation.   

Dishonesty

  1. In addition to the guidance given on interim measures in the Introduction, the tribunal should consider the following. 

Is an interim measure needed?

  1. Where the concern or allegation involves dishonesty in the workplace or otherwise arising from the PA or AA’s professional practice, or the PA or AA is under police investigation for a dishonesty offence, particular consideration should be given to the public interest and impact on public confidence if the PA or AA were to continue working unrestricted in the meantime. 

Type of interim measure

  1. The proportionate interim measure in response to a dishonesty concern will depend on the extent of the PA or AA’s behaviour and the impact it is assessed to have on the protection of the public, the interests of the public and/or the interests of the PA or AA themselves. 

  2. Whilst a range of behaviour can amount to dishonesty, the nature of the departure from the professional standards usually indicates a high level of seriousness as a starting point. Given the impact these cases will usually have on public confidence, where an interim measure is necessary, the risk to the public interest is likely to require consideration to be given to an interim measure of suspension. This is particularly the case where the PA or AA has been charged by the police in connection with a serious criminal offence. 

  3. However, there may be cases of dishonesty arising outside of a PA or AA’s professional practice that fall at the lower end of the spectrum of seriousness where the level of risk is lower and so suspension may be disproportionate. 

Violent or abusive behaviour

  1. In addition to the guidance given on interim measures in the Introduction, the tribunal should consider the following. 

Is an interim measure needed?

  1. Where the concern or allegation involves violent or abusive behaviour towards patients or colleagues, or the PA or AA is under police investigation for a violent offence, particular consideration should be given to the public interest and the impact on public confidence if the PA or AA were to continue working unrestricted in the meantime. 

Type of interim measure

  1. The proportionate interim measure in response to a concern or allegation about violent or abusive behaviour will depend on the extent of the PA or AA’s behaviour and the impact it is assessed to have on the protection of the public, the interests of the public and/or the interests of the PA or AA themselves. 

  2. Whilst a range of behaviour can amount to violent or abusive behaviour, the nature of the departure from the professional standards usually indicates a high level of seriousness as a starting point. Given the impact these cases will usually have on public confidence, where an interim measure is necessary, the risk to the public interest is likely to require consideration to be given to an interim measure of suspension. This is particularly the case where the PA or AA has been charged by the police in connection with a serious criminal offence.  

  3. However, in cases where the PA or AA’s behaviour is connected to the impact of a health condition or falls at the lower end of the spectrum of seriousness because it is isolated or limited in nature, and so the resulting risk to the protection of the public or the interests of the public is lower, conditions may be appropriate. 

Discrimination

  1. In addition to the guidance given on interim measures in the Introduction, the tribunal should consider the following. 

Is an interim measure needed?

  1. Where the concern or allegation involves discrimination towards patients or colleagues, particular consideration should be given to the public interest which will include the impact on the safe delivery of healthcare services as well as the impact on public confidence if the PA or AA were to continue working unrestricted in the meantime. 

Type of interim measure

  1. The proportionate interim measure in response to a discrimination concern or allegation will depend on the extent of the PA or AA’s behaviour and the impact it is assessed to have on the protection of the public, the interests of the public and/or the interests of the PA or AA themselves. 

  2. Whilst a range of behaviour can amount to discrimination, the nature of the departure from the professional standards where the concern or allegation relates to unlawful discrimination under the Equality Act will usually indicate a high level of seriousness as a starting point. Where discrimination is unlawful, the seriousness of the behaviour is likely to require consideration of interim suspension in the public interest given the impact it will usually have on public confidence. In other cases, interim conditions may be appropriate. 

Clinical concerns

  1. In addition to the guidance given on interim measures in the Introduction, the tribunal should consider the following. 

Is an interim measure needed?

  1. Where the concern or allegation involves a series of failures to provide a proper standard of care amounting to a departure from the professional standards, or one particularly serious departure, the IMT should carefully consider the impact on patient safety if the PA or AA were to continue working unrestricted pending resolution of the fitness to practise process.  

Type of interim measure

  1. A wide range of behaviour and/or poor performance can be seen in clinical concerns cases. Where an interim measure is necessary, the proportionate interim measure will depend on the impact that the PA or AA’s behaviour and/or poor performance is assessed to have on the protection of the public, the interests of the public and/or the interests of the PA or AA themselves.

  2. Interim conditions will often be a proportionate response to clinical concerns. Interim suspension is only likely to be needed where the concern or allegation falls at the higher end of the spectrum of seriousness.

  3. In a very small number of cases, a clinical failing by a PA or AA will be so serious that, even if it is unlikely to recur, an interim measure is needed in the public interest given the impact on public confidence in the profession. In these cases, consideration should be given to interim suspension. 

Impact of a health condition

  1. In addition to the guidance given on interim measures in the Introduction, the tribunal should consider the following. 

Is an interim measure needed?

  1. Where there are concerns about the impact of a PA or AA’s health condition on their ability to practise safely and provide care to a sufficient standard, the tribunal’s primary duty is to protect the public and the wider public interest, and not to assume responsibility for, or give priority to, the treatment or rehabilitation of the PA or AA. 

  2. Most concerns about the impact of a PA or AA’s health condition can be adequately managed at a local level. Interim action will not usually be needed where the PA or AA has insight into the extent of their health condition and is seeking and/or following treatment and advice. This includes following the advice of their treating healthcare professionals and/or occupational health departments in relation to their work and restricting their practice appropriately. 

  3. However, there will be cases where the impact of a PA or AA’s health condition poses a significant risk to patients or the PA or AA themselves. Where that risk is not being appropriately managed, a tribunal may need to impose an interim measure.  
  1. An interim measure is likely to be needed if the particular concern or allegation about the impact of the PA or AA’s health condition poses a serious and immediate risk to patient safety and:
    • there are also concerns or allegations about the PA or AA’s behaviour or performance that puts patients or public confidence in the profession at risk and the PA or AA’s health condition may be a contributory factor,
    • the PA or AA is working or likely to work and:
      1. there are, or have been, serious concerns about the clinical care the PA or AA has provided, and the health condition may have been a contributory factor
      2. the nature of the condition may affect the PA or AA’s behaviour or the clinical care they provide and they are not seeking and/or following treatment and advice, and/or are not engaging with local support and steps put in place to manage any risks to patients – this suggests the PA or AA may lack insight into any risk, or potential risks, their health condition poses, and/or
      3. the health condition has only recently been diagnosed, is not well controlled and it is too soon to know if risks to patients can be appropriately managed by the PA or AA seeking and following treatment and advice and/or engaging with local support and steps to manage risk.
    • a GMC health assessor has concluded the PA or AA is not fit to practise without restrictions.

Type of interim measure

  1. The decision on the proportionate interim measure will depend on the nature of the PA or AA’s health condition and the impact it is assessed to have on the protection of the public, the interests of the public and/or the interests of the PA or AA themselves. 

  2. Where an interim measure is necessary, interim conditions will often be a proportionate response. Interim conditions can help the PA or AA to manage their health condition and/or any related impact on their practice, while addressing the risk(s) identified.  

  3. Interim suspension is only likely to be needed in a health case where:  
    • the PA or AA’s judgment may be diminished due to the nature of the health condition and there is a risk to patients or themselves if they continue to practise, even with conditions, and/or 
    • the PA or AA is considered to lack insight into the impact of their health condition and will put patients or themselves at harm, either directly or indirectly, which means they are not currently safe to practise with conditions, and/or 
    • the PA or AA has not complied with previous restrictions or requirements put in place to manage the impact of their health condition. 

Insufficient knowledge of English

  1. In addition to the guidance given on interim measures in the Introduction, the tribunal should consider the following. 

Is an interim measure needed?

  1. The test for imposing an interim measure may be met where there is information that a PA or AA’s knowledge of the English language impacts, or is likely to impact, on their ability to provide care to a sufficient standard, and they pose a real and immediate risk to patients if they were to continue working without restriction. This may include where: 
    • the extent of the language deficiency is so severe that the PA or AA is unable to understand instructions from colleagues or obtain the necessary information from patients about their symptoms 
    • the language concerns are accompanied by other concerns about a PA or AA’s behaviour and/or performance, or 
    • the PA or AA has not achieved a satisfactory level of attainment as set by the GMC in an English language assessment. 

Type of interim measure

  1. Where an interim measure is necessary, the proportionate interim measure in response to a concern or allegation about insufficient knowledge of the English language will depend on the impact it’s assessed to have on the protection of the public, the interests of the public and/or the interests of the PA or AA themselves. 

  2. Interim conditions may be the proportionate response depending on the areas in which the PA or AA is deficient - speaking, listening, reading and/or writing - and the breadth of their deficiency. Interim conditions may need to include a requirement that the PA or AA works under increased supervision. 

  3. An interim measure of suspension may be needed in a case relating to the PA or AA’s insufficient knowledge of English where:  
    • the PA or AA lacks insight into their language deficiency, and/or 
    • the PA or AA has not complied with previous restrictions or requirements imposed in respect of their knowledge of the English language. 

Criminal charges, convictions, cautions, court sanctions and determinations by other health or social care regulatory bodies

  1. In addition to the guidance given on interim measures in the Introduction, the tribunal should consider the following. 

Is an interim measure needed?

  1. The considerations as to whether an interim measure is necessary is the same in all criminal cases and the tribunal must consider the individual features of the case and the particular facts and seriousness of the criminal charges. 

  2. Where the concern or allegation relates to criminal behaviour in the workplace or otherwise arising from the PA or AA’s professional practice, or the PA or AA is under police investigation, the tribunal should carefully consider the public interest, and the impact on public confidence if the PA or AA were to continue working unrestricted pending resolution of the fitness to practise process.  

  3. In evaluating whether an interim measure is necessary, the tribunal should have regard to the stage of the criminal process the matter is at, the seriousness of the underlying behaviour or performance and keep in mind the ultimate possibilities of both the PA or AA’s acquittal and their conviction of the particular criminal charges. 

  4. The threshold for making an interim measure in the interests of the public alone is likely to be high if a measure of suspension is the only outcome that will adequately address the risk posed. It is however likely to be met in cases where there are police investigations or convictions (or very rarely cautions) for serious offences such as murder, manslaughter, rape and sexual assault as well as offences involving serious violence, or harm to children or adults with care and support needs. 

Type of interim measure

  1. Where an interim measure is necessary, the proportionate interim measure will depend on the seriousness of the PA or AA’s behaviour resulting in the charge, conviction, caution, court sanction or determination and the impact it’s assessed to have on protection of the public, the interest of the public and/or the interests of the PA or AA themselves.

  2. Whilst a range of behaviour can be seen, the nature of the departure from the standards expected usually indicates a starting point of a high level of seriousness. Where it does, given the public interest and impact these cases will usually have on public confidence, they are likely to require consideration to be given to an interim measure of suspension. This is particularly the case where the PA or AA has already been convicted of an offence that has resulted in, or is likely to result in, a custodial sentence (immediate or suspended) or has been suspended or erased / removed from the register of another healthcare regulator. 

Freedom of expression

  1. Specific considerations can arise relating to a PA or AA’s freedom of expression. 

Is an interim measure needed?

  1. Concerns may sometimes be raised about opinions that a PA or AA has expressed on social media or in other forums. This may include a concern or allegation that a PA or AA is promoting and/or spreading misinformation which has the potential to harm public health or seriously damage public confidence in the profession. Where this is the case, an interim measure may be needed in the public interest. 

Type of interim measure

  1. Where an interim measure is necessary, the proportionate interim measure in response to a concern or allegation that engages the PA or AA’s freedom of expression will depend on the impact it’s assessed to have on the protection of the public, the interests of the public and/or the interests of the PA or AA themselves. 

  2. In these cases, conditions will often be the proportionate response. When considering what conditions are needed in response to the risk(s) identified, in very rare cases, the tribunal may consider it necessary to impose interim conditions which would restrict the PA or AA’s right to freedom of expression under Article 10 of the European Convention of Human Rights (Article 10).  

  3. Tribunals should not attempt to impose blanket restrictions on a PA or AA’s freedom of expression in relation to a particular topic. Where the tribunal is considering imposing a specific condition which would restrict the PA or AA’s freedom of expression, it should bear in mind that its duty to protect the public and the wider public interest must be carefully balanced with the PA or AA’s right to freedom of expression. 

  4. If a specific condition will have the effect of restricting the PA or AA’s freedom of expression, Article 10 will be engaged. Article 10 is more likely to be engaged where a PA or AA expresses their opinion on a public platform, rather than privately. 

  5. The right to freedom of expression protects an individual’s right to hold their own opinions and express them freely without interference. However, this right can be restricted by a public authority if it is necessary and proportionate to do so. For example, in the interests of public safety, to protect health or to prevent disorder or crime. 

  6. Any of the following may justify interference with a PA or AA’s right to freedom of expression, particularly where they have identified themselves as being a PA or AA:
    • information that a PA or AA is encouraging members of the public to commit an offence
    • a concern or allegation that a PA or AA is promoting and/or spreading misinformation which has the potential to harm public health or undermine public confidence in the profession
    • information that a PA or AA is encouraging members of the public to engage in specified behaviours which expose them to a risk of harm
    • information that a PA or AA is encouraging treatments which are unproven or known to be ineffective
    • information that a PA or AA is discouraging treatments which are known to be effective, or
    • a concern or allegation that a PA or AA’s behaviour amounts to bullying or harassment.
  1. The tribunal must ensure that any condition(s) restricting freedom of expression are workable, enforceable and will protect the public, or are otherwise in the interests of the public or the PA or AA themselves. They must also be a proportionate response to the concern.  

  2. Before imposing interim conditions that restrict freedom of expression, the tribunal should apply the additional test under section 12(3) of the Human Rights Act 1998 (the Human Rights Act). The test means the tribunal must be satisfied that it is more likely than not that the case will be referred to an AT and that the AT will go on to make a finding which justifies the interim measure being made in the particular circumstances of the case.  

  3. In applying the additional test under the Human Rights Act, the tribunal may need more cogent evidence to support the concern than would usually be the case. This may sometimes require considering expert evidence, if this has been obtained by one of the parties at the time of the IMT hearing, on whether the PA or AA’s views have any credible basis or are likely to create a risk of harm to the public. The tribunal will not however need to make any findings of fact or make any determination on impairment. 

  4. Where the tribunal considers an interim measure of suspension to be the most proportionate response, this will not usually interfere with the PA or AA’s right to freedom of expression. However, the tribunal should consider any information provided about the impact of any suspension and, if satisfied that suspension would interfere with the PA or AA’s Article 10 rights, they should apply the additional test under the Human Rights Act. However, it will not be necessary to apply the additional test if the tribunal does not consider that the interim measure will have the effect of restricting the PA or AA’s freedom of expression, as Article 10 will not be engaged. 

14 The report by the Professional Standards Authority - Sexual Misconduct In Health And Social Care: Understanding Types of Abuse and Perpetrators’ Moral Mindsets found that some perpetrators limit their abuse to a small number of victims, while others take advantages of opportunities and pursue targets more widely. The latter group is separated into those who are unrelenting in their harassment of a few victims and those with a more inconsistent pattern to their behaviour, operating as the context allows.