Spinal Surgery Complications – A Change in the Law?
Judgment date: 4 April 2013
Interim Conditions of Practice imposed on doctor upheld by High Court
The Claimant, Dr E.Y., applied to the High Court, under section 41A(10) of the Medical Act 1983, for an order terminating the conditional registration imposed on him by the Interim Orders Panel (IOP) of the Medical Practitioners Tribunals Service.
Dr E.Y., a General Practitioner, appeared before a Fitness to Practise (FTP) panel of the General Medical Council (GMC) in relation to two incidents, the most serious of which involved an allegation that he had sexually assaulted a disabled patient (Patient A), on two occasions in one day.
The Panel found that Dr E.Y.’s misconduct towards A amounted to a gross violation of the professional relationship between doctor and patient, concluding that the only sufficient way to protect the public was to erase his name from the Medical Register.
Dr E.Y. appealed against the FTP decision and the case was heard in the High Court on 5 October 2012, where the decision was quashed on the grounds of inadequate reasoning. The matter was then remitted to the GMC to consider whether it was appropriate to pursue the complaint of A with a fresh panel.
The GMC subsequently decided that it would proceed with A’s complaint and referred the matter to the IOP to determine whether it was necessary for the protection of the public to impose conditions on Dr E.Y’s registration. The IOP determined that he should be subject to the same conditions as had applied before his suspension, including:
5(a) Except in life threatening emergencies, he must not undertake any consultations or examinations of female patients without a chaperone present.
The current appeal is made against that.
Submissions of Claimant Doctor
It was accepted on behalf of the Claimant Doctor that no argument could be made against the imposition of conditions in principle, as he was now the subject of an active investigation by the Police. It was argued, however, that condition 5 was unnecessary and disproportionate for the following reasons:
It was proposed that condition 5 could be replaced with a condition whereby the Claimant would be prevented from undertaking home visits and be forbidden to conduct consultations with female patients in isolated units. This would, it was argued, allow a patient to call for help should anything untoward occur and reduce any risk that he would wish to conduct himself improperly.
It was argued further that the standard of reasoning given by the IOP was generally deficient, both for the justification of the imposition of conditions and for the terms of the conditions themselves, and that the IOP had simply "parroted" its conclusions in the same form of words which had been used in other recent cases under section 41A.
Submissions of Defendant GMC
It was submitted on behalf of the GMC that the potential harm to the confidence of the public in the profession was self-evident. The Claimant was alleged to have conducted himself in a most improper manner towards a vulnerable patient in her own home, including acts of indecency up to and including rape. It was submitted that the IOP had made its view clear with adequate reasoning.
So far as the condition in issue was concerned, it was argued that the reasoning of the IOP was legally adequate, and that the alternative proposed by the Claimant was impracticable.
The High Court considered that the case for an interim order on the material before the IOP and before the Court was a very powerful one; the Claimant Doctor was alleged to have made serious sexual advances towards a very vulnerable patient in her own home, culminating in an alleged rape.
Gilbart J also considered that the IOP's conclusion that there would be harm to the public interest by reason of the effect on public confidence was entirely correct. If the allegations are true, he reasoned, the effect of not suspending him would be to permit him to treat female patients without restriction, very many of whom could be outraged to discover that they had been treated by a Doctor who is the subject of an allegation of so serious a nature. If any untoward event did occur, or was alleged, the consequent and understandable outcry would do great harm to the profession as a whole.
The alternative condition advanced on behalf of the Claimant was dismissed by the Court as impractical as it depends on the idea that others working alongside him will be in a position to interfere should anything untoward occur. He noted that colleagues may not even be aware of such an occurrence as a sexually inappropriate examination could take place without any signs outside the consulting room that anything was amiss.
Gilbart J noted that it follows that the imposition of the condition was necessary and proportionate given the absence of any practical alternative which would guard against the same risks.
The application was dismissed.
This case reiterates the proper consideration of an Interim Order Panel in fitness to practise hearings, in particular where there may be inconsistent evidence relied on by the Regulator. This is a case that comes down on the side of upholding public confidence, being at the forefront of Panels’ considerations.
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