Copy and paste here? Extending interim orders requires a case-specific approach
Legal Development 14 March 2022 14 March 2022
UK & Europe
Interim orders can have a draconian effect on professionals. They place restrictions on registration – sometimes even suspension – before any findings of fact. For that reason orders can only be imposed for a maximum period prescribed by statute (usually 18 months). Any extension requires the permission of the court.
Such extensions should be unusual. However where they are required the regulator must satisfy the court that there are clear and cogent reasons that the extension is necessary. In the recent Petition of the General Medical Council for Extension of an interim order for MM  CSOH 25 the Court of Session found that the GMC's application did not satisfy their own guidance. The court also issued a warning about a copy and paste approach to such applications.
An interim order was imposed on MM's registration in April 2019. In September 2020 the court extended the order for a further 12 months. The GMC then sought a further 12 month extension on the basis there may be impairment of the respondent’s fitness to practise which may adversely affect the public interest. For that reason it was said that the extension was necessary.
The GMC had not provided any evidence that the extension was necessary or proportionate, and further the delay in the GMC's investigation was relevant to the question of proportionality. MM also submitted that the GMC had in any event applied the wrong test.
The court refused the extension and agreed that the GMC had applied the wrong test. An order cannot be extended because there may be impairment of the doctor's fitness to practise which may adversely affect the public interest. That is not the test. The test, as set out in the GMC's own guidance, is:
For that reason the petition failed. However the court also commented upon the underlying merits of the application.
The court noted that the GMC had made no effort to engage with the specific facts of MM's case and apply those facts to the test. Rather the court agreed with the characterisation that the application was "little more than a recital or parroting of a general formula". The GMC had not attempted to evaluate whether the extension sought was proportionate.
It is trite to highlight that the past two years have caused all manner of disruption and delays to the medical professions and their regulators. That being so we are likely to see a greater number of applications to extend interim orders. In this case the court commented that the delays (some of which were caused by Covid) were legitimate reasons to explain why the GMC's investigation had taken so long.
This case serves as useful guidance when advising registrants of whether to agree to an extension or not. Their advisers should consider:
- Has the regulator applied the correct test when making the application?
- Has there been any attempt to set out why, in the specific facts of each case, such an extension is necessary and proportionate?
- Are there any other reasons – such as a manifest delay at the hands of the regulator – that point to such an extension being disproportionate?