Lasting Powers of Attorney: recent key developments
Judgment date: 12 October 2012
High Court terminates ‘heavy handed and disproportionate’ interim suspension order in absence of real continuing risk to members of public
Dr Harry made an application to the High Court pursuant to section 41 (A) (10) of the Medical Act 1983 to terminate the suspension of 18 months imposed by the Interim Orders Panel of the General Medical Council (‘the Panel’) on 4 April 2012.
It was rehearsed that on such an application, the courts will only terminate an order of suspension if it is satisfied that the order was wrong, giving due respect and deference to the specialist disciplinary panel. Whilst inadequate reasoning in itself does not amount to a reason to terminate the order, if reasoning is inadequate the weight to be given to that panel’s decision will be less.
The allegations that Dr Harry faces are that he wrongly provided NHS benefits to some of his private patients by putting blood samples through the Trust pathology lab and by raising NHS prescriptions for non-NHS patients. Further, it is alleged that he carried two samples of blood, one infected with HIV, in his hand luggage on a return journey from Nigeria in December 2010 and opened the package in which they had been transported at home. This was in breach of strict regulations relating to the transportation of human blood and the requirement that samples be opened in the laboratory, the rationale for which was obvious. When confronted about the issue regarding using resources for private patients, he asked a member of staff to amend the paperwork relating to a patient. Within half an hour, however, he aborted that request, realising the error in that course of action.
During the internal investigation, The Trust had commissioned a report from Price Waterhouse Cooper (PWC) to ascertain whether any fraud had taken place, as opposed to simply bad practice. It was found that the evidence did not support a conclusion of fraud on the part of Dr Harry. This finding corroborated Dr Harry’s contention throughout that he had a genuine belief the two patients concerned were entitled to NHS treatment. The Trust disciplinary panel found the allegations proved.
The matter was referred to the GMC, who invited an Interim Orders Panel to consider whether suspension or conditions of practice were necessary. Dr Harry was represented by Counsel who, in opposing the imposition of an order advanced detailed submissions, which included taking the Panel to the PWC report, referring to Dr Harry’s unblemished record, voluntary work in the third world, his publications, advisory work in the area of HIV and AIDS and testimonials. Notwithstanding that, the Panel found that ‘in light of the serious concerns in relation to Dr Harry’s conduct and probity along with the public safety risks in relation to the transfer of blood samples from Nigeria to the UK…it is necessary that an interim order be imposed’. It decided that it was necessary to protect members of the public and in the public interest, and that an 18 month order be imposed, given the ‘uncertainty of time needed to resolve all the issues in the case’.
In finding that the suspension should be terminated, Burnett J noted that the present case did not raise the concerns about ‘patient safety’ that are so often encountered in GMC cases. The only risk that could be foreseen would be in the inappropriate transportation of infected blood, whereas ‘suspension is concerned to protect against a real continuing risk’. There was nothing before the Panel that would suggest that he would repeat the error that he had made in the past. There was therefore, it was held, no real risk to members of the public in Dr Harry continuing to practise.
Further, it was held that it was not necessary in the public interest; the Panel had failed to give an explanation as to this aspect of their decision and why it was proportionate in the circumstances. It was held that ‘public confidence would not be damaged were he able to continue to practise pending the resolution of the disciplinary proceedings….an informed and reasonable member of the public would not, in my judgement, be offended by Dr Harry’s continuing in practise in the meantime’. He went on to say that even if it was in the public interest, if one applied the principle of proportionality in this case, considering the financial effect of Dr Harry being suspended, it was doubted that it would have been proportionate in this case. The suspension was ‘heavy handed and disproportionate’.
The length of the suspension was also criticized. Although the Panel had imposed an 18 month order to allow for the uncertainty as to the time needed to resolve the issues, this was a straightforward case where most of the work had already been done by the Trust. 18 months, it was said, should not be the default position and there will be many cases where a shorter period is a proportionate response.
The suspension order was terminated, there being no power for conditions to be substituted.
This case reinforces the importance of full and proper consideration given to both the imposition of an interim suspension order and its length. There must be a ‘real continuing risk’ to members of the public and a full consideration of whether public confidence would, on the facts of the case, be damaged if the doctor were not suspended. Further, although 18 months is the maximum length of such an order but there are many circumstances in which an order for a shorter period would be a more proportionate response.
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