Case Update: Malik v General Medical Council [2013] EWHC 2902 (Admin)

4 October 2013

High Court allows appeal against continuation of Interim Suspension Order imposed by Interim Orders Panel of the Medical Practitioners Tribunal Service.

Judgement date: 8 August 2013

Background

The appellant Doctor (D) qualified as a Doctor in Pakistan in 2003. From December 2004 he was working in the UK, first as a junior doctor, then undergoing surgical training and in August 2012 he joined the General Practitioner Vocational Training Scheme (GPVTS). The GPVTS requires the prospective General Practitioner to move through a number of assessed clinical placements and have his competency progression reviewed annually. From 4 August 2010 until 30 November 2010 he was based in Warwick Hospital’s Trauma and Orthopaedic Surgery Department and later from 1 December 2010 until 05 April 2011 he was based in the Obstetrics and Gynaecology Department of the same hospital.

In a competency progression review held on 31 January 2013 it became apparent that between 04 August 2010 and 5 April 2011 D had submitted assessments, primarily Directly Observed Procedural Skills Workplace Assessments (‘DOPS’), in support of his e-Portfolio which he purported had been completed by either Mr Shepherd, a Consultant in Warwick Hospital’s Trauma and Orthopaedic Surgery Department, or Dr Nippani, one of D’s supervisors. Evidence on behalf of Mr Shepherd and Dr Nippani clearly indicated that the assessments were not completed by them.

D had initially stated to Dr Deighan, Head of School at the Wet Midlands Postgraduate School of General Practice that he had sat with consultants to enter assessments into his e-Portfolio and that he had helped them make entries not based on direct observation but on past episodes of clinical activity. Later, on 06 September 2012, he stated to Dr Parry, training programme director for GP training in Coventry and Warwickshire, that it was usual practice for him to fill in his own assessments and he believed supervisors would send an e-mail later to confirm the data was correct.

It was argued before the Interim Orders Panel that the above raised a serious concern as to D’s probity and that this led to clear concerns relating to public trust in the profession. On this basis an interim suspension order was imposed. 

Appeal

D appealed on the basis that the conditions set out in Section 41 A(1) of the Medical Act 1983 were not met. The test at Section 41 A(1) has two limbs, namely that an interim suspension order may only be imposed where:

  1. ‘It is necessary for protection of members of the public’
  2. ‘Or is otherwise in the public interest’.

Decision

His Honour Judge Raynor QC found in favour of D, allowed the appeal and made an order terminating the suspension.

In respect of the first limb of the test under Section 41 A(1) of the Medical Act 1983 it was held that; no real risk to patients arose as a result of D’s clinical competence and as such an interim suspension order could not be thought necessary for protection of members of the public. In coming to this conclusion the Court clearly had in mind the evidence of Dr Nippani, Dr Kathleen Wheatley, another of D’s clinical supervisors, and Professor Hughes, West Midlands Regional Postgraduate Dean, all of which made clear they had no clinical concerns about D’s practice. As such, it was held that suspension could not be justified under the first limb of the test.

With regard to the second limb of the test under Section 41 A(1) of Medical Act 1983 the Court took note of Mr Justice Davies comments in Sheikh v General Dental Council [2007] EWHC 2872 (Admin) that it was likely to be ‘a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest’. With this in mind, it was held that there was no evidence of lack of probity after the events with which the case was concerned, and that as such there could not be thought to be a serious risk of repetition of dishonest conduct and that therefore the public’s confidence in the profession was unlikely to be undermined by a suspension order not being imposed.

Additionally it was held that the risk ought to be one of serious damage to the public interest and that on the facts presented above this was simple not the case.

An interesting judgement, which makes clear that where probity relates to a single historic issue and where there are no live concerns about competence or the continued integrity of practitioner, suspension is unlikely to be appropriate. There must be a risk of serious damage to the public interest, which may be difficult to make out in cases where there is no current risk.

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