Controlling and Coercive Behaviour: Widening the Net
High Court unwilling to terminate or reduce an 18 month interim suspension order where evidence demonstrates, “real, tangible, identifiable and present risks”.
Judgement Date: 20 March 2014
The Claimant, Dr M, was made subject to an interim suspension order (the Order) by the General Medical Council’s (GMC’s) Interim Orders Panel (the IOP) on 7 October 2013 for a period of 18 months. Dr M invited the Court to terminate the Order, or alternatively substitute it for a shorter period. His claim was dismissed.
Between August 2012 and January 2013, Dr M worked in a middle grade post in the A & E department at the Leighton Hospital Foundation. Thereafter, he worked as a locum in various A & E departments in various hospitals, being registered with different agencies during that period. In August 2013, a placement had been arranged at two hospitals, one of which was by Medilink at Morecambe Bay. The placement was cancelled almost immediately after booking due to suspicions raised by Morecambe Bay as to the veracity of two references which, on their face, originated from Leighton Hospital. The letters of reference were acknowledged to be forgeries.
Whilst Dr M accepted that both references were indeed forged, he asserted that he had no involvement in their creation and that they must have been obtained by the agency, Medilink.
Following a hearing, where Dr M was represented, the IOP imposed the Order under two of the relevant statutory limbs: 1. real risk to members of the public; and 2. otherwise in the public interest. The Panel were of the view that interim conditional registration would have been insufficient in Dr M’s case. The IOP decided that the Order was justified and proportionate in the circumstances.
Claim for termination or substitution
Dr M asked the court to terminate or reduce the Order on the following grounds:
(a) There was no evidence of risk to patients or to public confidence justifying a suspension order;
(b) It was unnecessary and disproportionate to suspend him for the protection of the public or on public interest grounds;
(c) An 18 months suspension was disproportionate.
Mr Michael Forham QC, sitting as a Deputy Judge in the High Court, was of the view that the evidence before the IOP was sufficiently cogent to implicate Dr M in the forged references, justifying the Order. In attempting to secure a medium grade post on the basis of forged references, Dr M would have knowingly worked within an A & E department in a capacity which he lacked the necessary competencies to properly fulfil.
The Court did not consider that only “clinical” issues could give rise to an interim order on the grounds of public protection but held that the present case did concern a clinical setting in any event . In arriving at the view that dishonesty in relation to provision of references is a clinical concern the Court held that, "a doctor prepared to act in that way… would be exhibiting one of two things. Either a reckless self-confidence in their own competence…or a reckless indifference" .
On that basis, the Court held that “a doctor who … is engaged in this kind of fraudulent activity would directly be placing the public at a real, tangible, identifiable and present risk” . As such, the IOP, having adequately captured these concerns within their reasoning, were justified in imposing a suspension order by reference to protection of members of the public.
The Court was satisfied that the IOP gave appropriate consideration to the question of proportionality, stating that the IOP’s reasoning was “worthy of considerable weight”  and concluded that, taking into account the various considerations including the consequences for Dr M, an interim order was both a necessary and proportionate measure.
Mr Michael Forham QC suggested that the less intrusive measure of conditions might have been appropriate in the present case. Despite this the Court recognised that, ‘on the face of the statutory scheme, the court has no jurisdiction on a statutory application to consider whether an interim suspension order ought instead only to have been an order for interim conditional registration. The court's function, in such circumstances as arise in this case, is limited to whether it is satisfied that no suspension is warranted’ .
A case which makes clear that where dishonesty is alleged against a Registrant in relation to the provision of a qualification or an assessment of ability, this is likely to be a matter of clinical concern in that it reveals either reckless self-confidence or reckless indifference on the part of the clinician.
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