"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
Judgment date: 20 December 2012
High Court quashes decision of Interim Orders Panel of the General Medical Council to impose 18 month interim suspension.
The Applicant (A), a 73 year old general practitioner, made an application to the court to exercise its power under s41A(10) to terminate an Interim Order of 18 months imposed by an Interim Order Panel (Panel) of the General Medical Council (GMC) on 4 July 2012.
On 7 July 2012, A was charged with conspiracy to defraud and fraud by abuse of position. It was alleged that A authorised substantial payments to members of staff at the school at which he was a member of the Board of Governors and Chairman of the Finance Committee to which they were not entitled. It is said that the unauthorised payments amounted to approximately £1.8 million and that the alleged wrongdoing extended over the period 2003-2009.
The matter went before the Panel, who considered a number of mitigating points, including that there had been no previous complaints against A, that it was not alleged that there had been any personal financial benefit from the alleged wrongdoing, that his role as governor was a voluntary one and that he had been involved in charitable work for a long period of time. Nonetheless, the Panel found that an interim order was ‘otherwise in the public interest’. They did not suggest that it was necessary for the protection of members of the public.
Submissions on behalf of A
On appeal, a number of arguments were advanced on behalf of A, but essentially it was said that A is a person of exemplary and unblemished character and that it was neither necessary nor proportionate to impose an interim order in this case, especially bearing in mind that the allegations did not have any bearing on clinical matters. It was argued that the Court was not confined to exercising a reviewing jurisdiction, but should exercise its own mind and determine what, if any, order is appropriate.
Further it was argued that when determining whether or not impose a suspension, including solely on the ‘public interest’ ground, the court should apply the test of necessity as being the ‘appropriate yardstick’ (R (Shiekh) v General Dental Council  EWHC 2972).
Public confidence would not be damaged if it were subsequently learned by a member of the public that A had remained in practice, and treating patients, whilst the matter was being investigated, even if he were ultimately to be convicted.
The nature of the charges faced is not insignificant, it was argued. The cases of Sosayna v GMC  EWHC 2814 and Shiekh were referred to by way of examples where respective allegations of money laundering and conspiracy to defraud, were not sufficient to justify suspension.
It was stressed that the allegation here did not impinge in any way on A’s professional or clinical duties.
Submission of behalf of the GMC
It was submitted on behalf of the GMC that the word ‘necessary’ in the provisions of s41A of the 1983 Act was expressly confined by the legislature to suspension for the protection of members of the public. However, it was accepted that in Sheik it was held that ‘necessity is an appropriate yardstick’.
The Court was invited to take into account fresh evidence which has emerged since the Panel hearing, namely the failure of A to report its outcome to the Primary Care Trust.
It was reiterated that the role of the High Court on such an appeal was to correct errors of law and fact and to ‘exercise a judgement, though distinct and firmly secondary, as to the application of the principles to the facts of the case (Rashid v GMC  1 WLR 1460).
The Court found that although the amount of money alleged to have been involved in the fraud was large, it would be wrong to suspend purely on that basis. It was held that the ‘reasonable onlooker’ who is asked what they think of a failure to suspend, ‘needs to have attributed to him knowledge of the relevant facts’. If not, ‘the danger is of proceeding on a superficial analysis or even mere prejudice’.
In this case, Mr Justice Davis concluded that the ‘reasonable onlooker’ would know that in 40 years of general practice, there had been no complaint on A’s clinical competence or his honesty, he would remain innocent until proven guilty, that it was no part of the prosecutions’ case that he made any personal gain and that the charges arose in administering a scheme that required examination.
In the judgment of the Court ‘no reasonable and properly informed member of the public…would be offended or surprised to learn, even following a hypothetical conviction at some point next year, that the Applicant has been permitted to go on serving his patient in the interim’. It was held that most citizens would well understand the notion that a person is to be treated as innocent until proven guilty.
The suspension was terminated.
This case, following on from Houshian  EWHC 3458, reiterates yet again that interim orders of suspension are a draconian step that must not be arrived at lightly. They will be scrutinised with care by the Courts on appeal. The case undermines those applications made purely on the basis that there is a serious criminal charge in the offing which would undermine public confidence. The ‘reasonable onlooker’, whose opinion must be considered, must be taken to have been apprised not just of the charge but of all relevant facts. They are also to be taken to appreciate that an individual is innocent until proven guilty.
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