Acting to stop harm: the FCA and Appointed Representatives
High Court provides guidance as to whether dishonesty cases fall within the ‘relatively rare’ cases where interim suspension order is necessary in the public interest.
Judgement date: 11 November 2013
The appellant Doctor (D) qualified as a doctor in 1986. Since 1998 D has been involved in the management of various private hospitals. Of relevance to his case D was the director of Birkdale Clinic (Rotherham) Ltd (the Clinic) from April 1999 until October 2009, when the Clinic went into administration.
In respect of the Clinic, it had previously been alleged that D’s management was deficient in various respects and that he had allowed endoscopy services to be provided when he knew he had not received written confirmation that he was allowed to do so, something that was required at the time. In these earlier proceedings, D admitted one of the allegations but in respect of the rest he claimed that he was not responsible for the day to day running of the Clinic.
In spite of this defence, many of the allegations against D were found proven and, as a result of this, in October 2009, a fitness to practise panel of the General Medical Council (the First Panel) found that D’s fitness to practise was impaired by reason of misconduct and imposed a suspension of six months.
In June and October 2009, the Care Quality Commission (CQC) inspected the Clinic and identified a number of areas of concerns. These concerns formed the basis of allegations the GMC laid against D on 11 August 2011. Again, D’s defence was that he was not responsible for the day to day running of the Clinic.
In the course of investigating the concerns raised by the CQC, the GMC were contacted by a former employee of D (NM) who made a number of further allegations against D and Dr M, whom he alleged was D’s mistress, in respect of the management of the Clinic. In brief, these allegations related to forging documents in respect of the work undertaken at the Clinic, fabricating documents considered by the First Panel, submitting forged documents to Clydesdale Bank and misrepresenting the Clinic’s financial position by so doing and a number of other matters relating to D’s relationship with Dr M and patient care at the Clinic.
NM’s allegations were ultimately added to the charge laid against D on 11 August 2011 following advice from Counsel that they were inextricably linked as were further allegations arising from his conduct when dealing with an investigation by a solicitor, SM, into a possible clinical negligence claim against one of the other clinics D was responsible for.
On 17 January 2013 an interim order panel (IOP) met to consider whether it was necessary in the public interest to suspend D’s registration. Ultimately, the IOP felt it was necessary and decided to suspend D for 12 months. In expressing its conclusions the IOP noted that the concerns currently before it were similar to previous allegations of dishonesty and came from a number of sources. It considered how the public would view the IOP if no interim action was taken in light of the widespread concerns about probity and made clear the principle of proportionality had been considered in arriving at its decision.
D appealed the imposition of the interim suspension order on the basis that it was unfair, disproportionate and wrong and alternatively, that the IOP gave inadequate reasons to explain its decision.
The Court stated that the issue before the IOP was whether the combination of the allegations made by the CQC, NM, SM and the findings of the First Panel justified a conclusion that suspension was necessary in the public interest.
The Court framed this consideration as a question that the IOP had to ask itself, this question being, what would a reasonable onlooker think, in the event of the doctor ultimately being convicted of formal allegations arising from the complaints, about his being allowed to go on practising in the meantime?
The Court stated that, if this hypothetical onlooker would expect the doctor to be suspended from practice, then it would be legitimate to conclude that it was necessary and that he should be suspended to maintain confidence in the profession.
The Court noted that there was no allegation that D had ever harmed a patient and asked itself, if a doctor has practised for many years without directly harming a patient, what justification exists for suspending him?
The Court answered this question, holding that where allegations of dishonesty arise in connection with a doctor’s practice and, in particular, where this dishonesty is calculated to pervert the regulatory process, an IOP would be justified in suspending said doctor.
In respect of the immediate case the Court held that D had demonstrated he was not to be trusted, had shown a persistent disregard for the requirements of good management and was prepared to resort to calculated dishonesty in order to get his way. In view of this, the Court dismissed the first three grounds of appeal.
In respect of the fourth ground of appeal, that the IOP did not give reasons or adequate reasons for its decision, the Court held that the reasons the IOP had given for its decision were perfectly clear.
In rejecting the appeal the Court cited with approval the comments of Davis J in Sheikh v General Dental Council  EWHC 2972; comments to the effect that it was likely to be a relatively rare case where a suspension order could be made on an interim basis on the ground that it is in the public interest. Nonetheless the Court held that in the immediate case, due to the very serious allegations of dishonesty, the reasonable onlooker would be concerned if D was allowed to remain in unrestricted practice and that as such this was one of those rare cases where an interim suspension order was justified.
Another useful interim order case, indicating what sorts of cases are likely to fit into the ‘relatively rare cases’ described in Sheikh where interim suspension is considered necessary and proportionate.
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