Interim measures tribunal hearings

Step 2: where an interim measure remains necessary, decide what is a proportionate response

Deciding what is a proportionate response

Where a tribunal concludes that an interim measure remains necessary, they will need to decide what the proportionate response is. To do this, the tribunal should review their reasons for deciding that an interim measure remains necessary and consider any submissions received from the parties on the appropriate outcome.
Where the interim measure tribunal (IMT) decides that an interim measure remains necessary, they can:

allow the existing interim measure to continue;
extend the existing interim measure (up to the maximum of 18 months);
vary a condition to which the PA or AA’s entry is subject;
revoke the interim measure and impose a different interim measure (which can only run up to the maximum of 18 months from when an interim measure was initially imposed).

Where appropriate, it is open to the tribunal to take more than one of these actions. This may be necessary where the tribunal considers it is proportionate to extend the amount of time that an existing interim measure of conditions is in place for and considers it is proportionate to vary one or more individual conditions.
In making its decision, the tribunal must carefully consider the proportionality of its response in dealing with the risk(s) identified and the adverse consequences of any action taken on the PA or AA’s own interests.
What action is needed will depend on the individual circumstances of the case and is a matter for the tribunal’s judgment. The tribunal should provide reasons for their decision, and in doing so explain how it relates to any submissions made by the parties.

It will usually be proportionate to allow an existing interim measure of conditions to continue where:

the tribunal’s assessment of the risk to the protection of the public, the interests of the public or the interests of the PA or AA themselves has not changed or has not significantly increased; and
the length of time the measure is in place for remains appropriate ie it will not expire until after the relevant process (FtP, review or appeal) is expected to conclude.

It will usually be proportionate to allow an existing interim measure of suspension to continue where:

the tribunal’s assessment of the risk to the protection of the public, the interests of the public or the interests of the PA or AA themselves remains the same or has increased; and
the length of time the measure is in place for remains appropriate ie it will not expire until after the relevant process (FtP, review or appeal) is expected to conclude.

It will usually be proportionate to extend an existing interim measure of conditions or suspension where:

the assessment of the immediate risk to protection of the public, the public interest or the interests of the PA or AA remains the same or has increased; and
the relevant process (review or appeal) is unlikely to be concluded prior to the measure expiring.

An interim measure can only be extended for up to a maximum of 18 months from when it was initially imposed. When deciding how long to extend the interim measure for, the tribunal should take into account any information available about the time needed to complete the review of final measure or appeal process. Where an interim measure has been put in place for the maximum of 18 months and it appears that the process cannot be concluded within that time, the Regulator will have to apply to the Court for the period to be extended.

It may be proportionate to vary an existing interim measure of conditions on registration where:

the assessment of the immediate risk to the protection of the public, the interests of the public or the interests of the PA or AA themselves has not changed or has not significantly increased, and
the tribunal considers that one or more interim conditions are no longer needed, or that alternative or additional interim conditions are needed, to address the risk(s) identified.

It may be proportionate to revoke the existing interim measure and impose a different interim measure where:

the assessment of the immediate risk(s) to the protection of the public, the interests of the public or the interests of the PA or AA themselves has increased or decreased, and
the tribunal considers that an alternative measure is a more proportionate response.

A PA or AA practising in breach of an interim measure of conditions put in place to protect the public or put in place in the public interest will usually put patient safety at risk and/or have the effect of undermining public confidence in the profession. It may also put the PA or AA themselves at risk. Where this is the case, it will often be proportionate to replace an interim measure of conditions with an interim measure of suspension.
Where an interim measure of suspension is in effect, and at the review hearing the tribunal’s assessment is that the risk(s) to the protection of the public, the interests of the public or the PA or AA themselves has reduced since the last hearing, consideration should be given to whether an interim measure of conditions would now adequately address the nature of the risk(s) identified. Where it would, the tribunal should follow the guidance in the sub-section Interim conditions in Part A of Section two: IMT hearings.
Where the tribunal decides to revoke the current interim measure and impose a different interim measure, it can only run up to the maximum of 18 months from when an interim measure was initially imposed by a tribunal. The tribunal also need to specify the period for which the measure is to remain in place for.²²

To enable the PA or AA to understand the outcome, the tribunal should give clear and adequate reasons for its decision on what action to take when an interim measure remains necessary. In doing so, the tribunal should explain how their decision relates to any submissions received from the parties.

²² Article 12(5) of the Order.