Health Professions Council, R (on the application of) v Gale

An extension of an interim suspension order under paragraph 31 of the Health Professions Order 2001 is determined by the criteria applicable to the original order. The applicant bears the burden of justification.

The court considers the seriousness of the allegations, the evidence, the risk of harm to patients or the public, the reasons for delay, and the prejudice to the practitioner. The court assesses seriousness and risk rather than deciding the allegations. Delay may be justified by the investigation, procedural steps and arrangements for the substantive hearing. Natural justice and Article 6 arguments concerning the professional disciplinary hearing do not ordinarily determine the court’s extension application.

The Health Professions Council sought a further extension of an interim suspension order imposed against a registered art therapist under paragraph 31 of the Health Professions Order 2001. The order had been reviewed and confirmed on five occasions and was due to expire after 18 months.

The defendant disputed the allegations, challenged the evidence and relied on delay, prejudice, adverse publicity and difficulties in defending himself. The issue was whether the statutory criteria for extending the interim order were satisfied, rather than whether the allegations were proved or whether the disciplinary hearing would comply with natural justice and Article 6.

1. The application was granted. The interim suspension order was extended for six months under paragraph 31(9) of the Health Professions Order 2001.
2. Applying General Medical Council v Hiew [2007] EWCA Civ 369, the court held that an extension is governed by the same criteria as the original interim order. The Council bore the burden of satisfying the court.
3. The relevant considerations were the gravity of the allegations, the nature of the evidence, the seriousness of the risk to patients or members of the public, the reasons why the substantive case had not concluded, and the prejudice to the practitioner.
4. The allegations concerned serious alleged breaches of trust and professional boundaries. The court made no finding on their truth. Its task was to assess whether their nature disclosed a public risk. On their face, the allegations were sufficient to establish that risk for the interim purpose.
5. The evidence relied on by the Council was sufficient at this stage. General assertions that witnesses were untruthful did not require the court to resolve credibility or conduct a merits hearing.
6. The delay was troubling but adequately explained by the receipt of further complaints, investigation, procedural reviews, preparation of the allegations and arrangements for a lengthy substantive hearing. The resulting prejudice did not outweigh the need for interim protection.
7. The defendant’s reliance on Wright v Secretary of State for Health [2007] EWCA Civ 999 concerned natural justice and Article 6 rights at the professional disciplinary hearing. Those matters were not determinative of the present application.