Case Update: General Medical Council (GMC) V Dr E [2014] EWHC 1620 (Admin)

5 June 2014

The High Court declined the GMC’s application for an extension of an interim order on the basis that there had been a failure by the GMC to address the principle matters as set out by the Court of Appeal in General Medical Council v Hiew [2007] EWCA Civ 369.

Judgement date: 16 April 2014 

An 18 month interim order of conditions was placed on Dr E’s registration by an Interim Orders Panel (IOP) in April 2012.  At the time of the IOP, Dr E faced allegations that he had raped and conducted an inappropriate sexual relationship with a vulnerable patient. Dr E denied all wrongdoing, but it was not in dispute that he had a sexual relationship with the complainant during which he fathered a child. The complainant alleged that she had become pregnant for a second time as a result of her relationship with Dr E and that he had forced her to terminate that pregnancy against her will.

An application was first made to the High Court for a 12 month extension of this order in October 2013.  His Honour Judge Pelling QC, sitting as a judge of the High Court, granted an extension of 6 months and varied the conditions that had previously been imposed.  The shorter period of extension was granted on the basis that the matter been subject to delays, some of which appeared to be responsibility of the General Medical Council.  The learned judge also concluded that some of the complainant's evidence fell to be discounted as unreliable and that other aspects of her evidence were suspect.

In about November 2013, between the date of the High Court extension in October 2013 and the GMC’s further application to the High Court in March 2014, the complainant stopped co-operating with the General Medical Council.

On 11 March 2014 the GMC sent their rule 7 letter to Dr E.  This letter made it clear that the GMC’s position on the allegations which could be substantiated had changed.  It was alleged that Dr E had been involved in a sexual relationship with Patient A, who had vulnerabilities, but the allegations of rape and pursuing an inappropriate relationship with the complainant while she was Dr E’s patient were not pursued. 

The GMC made a further application to the High Court in March 2014 for an 8 month extension to the interim order. 

Mr Justice Stuart-Smith summarised his approach in considering the GMC’s application as follows:

“…the starting point is that it is for the General Medical Council to satisfy the court  that the protection of the public or the public interest requires the conditions that are  now in place to be extended. The court is to take into account the gravity of the  allegations, the nature of the evidence, the seriousness of the risk of harm to  patients, the reasons why the case has not been concluded and the prejudice to the  practitioner if an interim order is continued [24].”

Mr Justice Stuart-Smith noted the fundamental change to the case between the date of the IOP and the date of this application for extension of the order.  He said of this:

On any view that involves a significant reduction in the seriousness of the allegations  against Dr E from those that were previously being advanced as justification for the  restrictions placed on his ability to practice by the IOP and the court. That said the  remaining allegations are far from trivial [19].

The GMC’s application for a further extension of the interim order was supported by a witness statement of Mr Colin Rafferty.  Mr Justice Stuart-Smith looked to that statement to see if it fairly explained the GMC’s reasons for its application. In doing so he applied the principles set down by the Court of Appeal in General Medical Council v Hiew [2007] EWCA Civ 369.

He made the following criticisms of this witness statement:

First, the statement did not address the seriousness of the allegations. This was particularly relevant given the fact that the most serious of the allegations that had been made against Dr E has been abandoned. It followed that the previous reference by the IOP to “serious allegations which you face and the inherent risk to patients and public interest these may impose [25],” did not address the current state of affairs.

Second, the statement did not address the nature of the evidence that was available. It did not explain whether the GMC shared His Honour Judge Pelling QC's assessment of the complainant's evidence or had now given up on the prospect of calling her as a witness.  There was no information about the nature of the evidence from three people who worked at Dr E's practice who had provided statements to the GMC, or even whether their evidence would be relied upon.

Thirdly, there was no evidence of the risk of harm to patients. The most serious charges had been dropped, and the allegation was now that the relationship started when Dr E was no longer in a doctor/patient relationship with the complainant. Dr E has been in practice for many years and there were no previous complaints of inappropriate or improper behaviour. It was not self-evident that all of the previous conditions were necessary for the protection of the patients or the wider public.

Fourth, the statement did not address the reasons why the case has not been concluded or for the delays in sending the rule 7 letter.

Fifth, the GMC’s evidence did not address the prejudice to Dr E. It merely asserted that the GMC was of the view that an interim order “…remains necessary and is proportionate to the serious concerns relating to [Dr E's] fitness to practise [14]”.  There was no balancing exercise as between the risk to patients on the one hand and the prejudice to the doctor on the other.

Dr E set out in his skeleton argument the consequences of the imposition of the conditions, which included that he had not worked in clinical practice since late April 2012, as well as significant financial difficulties he had suffered.  These consequences had not been taken into account by the GMC.

Sixth, the statement did not address the question of public interest other than to say that the IOP considered it was necessary in the public interest to impose the order.  Again, the position when they did so was fundamentally different to that when the application for extension was made in that the allegations being investigated included an allegation of rape.

Mr Justice Stuart concluded that Mr Rafferty's evidence failed to address any of the matters that the court should take into account. He said that this was all the more regrettable given that the GMC had already been warned about the unacceptable delay in this case. He went on to comment:

If, as appears to be the case, unacceptable delays such as have occurred in this case are common, the General Medical Council needs to conduct a significant review of its resources and procedures. Any cost of increasing the resources available to ensure the prompt prosecution of these important enquiries will be offset, at least to some extent, by savings in costs incurred by the need for repeated applications to the IOP and the court for extensions of orders [34].”

Mr Justice Stuart acknowledged that the residual allegations are serious, but concluded that there had been a total failure by the General Medical Council to address the matters on which the court must be satisfied if it is to grant an extension. In these circumstances, he ruled that it would be wrong in principle to grant any extension at all and declined to do so.

A salutary lesson highlighting the importance of ensuring High Court Interim Order extension application are backed up by cogent and detailed evidence which deals with each of the Hiew considerations.

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