Perry v Nursing and Midwifery Council [2013] EWCA Civ 145.

The matter was referred to the NMC. Although P admitted some aspects of the allegation against him, conceding that he had overstepped professional boundaries, P did not accept other more serious aspects of the case. Fairness, it was argued, required that P should be given an opportunity to give evidence addressing the substance of the allegations against him in the IC and in the present case the Committee had prevented him from doing so.

On behalf of the NMC it was submitted that Article 6 was not engaged but that if it was, the procedure applicable to interim measures satisfied the requirements of fairness under the Convention and at common law.

The case of Micallef v Malta (Application No. 17056/06) (2010) 50 EHRR 37, the most recent authority of the European Court of Human Rights (ECHR) on the applicability of Article 6 to interim orders, was considered by the Court. In that case the Court held that it ‘no longer found it justified to automatically characterise injunction proceedings as not determinative of civil rights or obligations’.

The Court of Appeal stated that it did not find it easy to determine from the Micallef judgment what test should be applied in order to determine whether interim proceedings result in an order that is determinative of a civil right. However, it was content to proceed on the basis that both Article 6 was engaged.

The Court distinguished the case of Wright v Secretary of State for Health [2009] UKHL 3

‘Wright is not authority for the proposition that fairness requires that a respondent to an allegation of unfitness to practise his profession must be given an opportunity to give evidence as to the substance of that allegation before a tribunal considering whether to make an interim suspension or other interim order under a legislative scheme as the present’.

If a registrant is to be given an opportunity to give evidence to an Investigation Committee on the substance of the allegations against him, with a view to the Committee rejecting those allegations on the merits, fairness would require that the NMC should have the opportunity to call the complainant and any other evidence in support of its allegations. The result would be a trial before the trial. That is not what the statutory scheme envisages or what fairness requires at the interim stage.

Thus, Article 6 rights are engaged by interim order hearings, however, fairness does not require that the registrant be able to give evidence.

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