Case Update: R. (on the application of Scholten) v General Medical Council [2013] EWHC 173 (Admin)

11 February 2013

The High Court criticises the decision of the Interim Order Panel to order the 18 months suspension of a doctor found to have photographed a patient without her consent.

Dr. Scholten (“S”) 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 8th October 2012. On 4th February 2013, having heard the application, Mr. Justice Summerstone made no order but instead delivered his judgment immediately such that the Panel conducting the review of S’s suspension two days later on 6th February 2013 might have the benefit of the judgment. Perhaps it was hoped that, in particular, the Panel would have regard to the statement at [45], where his Lordship suggested, that, had he the power, he may well have substituted a conditional registration order for the suspension order.

S is a leading consultant and plastic surgeon practising in female genital plastic and cosmetic surgery. On 27th February 2012 S was due to perform breast augmentation surgery on a patient who had been anaesthetised. As the patient was being prepared for surgery S noticed through the patient’s net surgical underpants, that she had a very well developed clitoral hood. S commented on this to the staff present and said he intended to photograph it. Using the camera on his iPhone S took a single photograph of the patient’s clitoral hood, with the surgical underpants pulled aside. He did not have the patient’s prior consent to take the photograph. The incident was brought to the attention of the Matron. S apologised to the patient both in person and in writing within 2 days of the incident. S explained that he had taken the photograph firstly to offer the patient a consultation relating to this area of her anatomy and secondly to add the photograph to his portfolio of different female genitalia.

S challenged the Panel’s decision to suspend him on 5 grounds. In particular S contended that there was no evidence of a risk to patients or of a risk to public confidence and an order of suspension was, in the circumstances, unnecessary and disproportionate. S relied on substantial personal mitigation, stating that the consequences of the suspension had been nothing short of devastating and that short of losing his liberty, he had lost absolutely everything. S was on the verge of bankruptcy; he had been forced to sell his home; he had lost his family contact that he had previously enjoyed; his children’s attendance at private school was in jeopardy; his mental health had suffered; he had lost his long-term relationship of two years and his plastic surgery business had had to stop trading. 

The High Court found the Panel’s decision to be inadequate, in particular, at [34 – 36] that: (i) there was no sufficient balancing of the risk to members of the public and the public interest, and the impact of a suspension order upon Dr Scholten; that (ii) the Panel had failed to identify the risk posed by Dr Scholten remaining in practise or more importantly the degree of that risk and that (iii) the Panel had provided no explanation for rejecting the submission that there were workable and practicable conditions that could be formulated.

NB: On 6th February 2013 the Panel reviewed S’s suspension. The GMC’s List of Registered Medical Practitioners now shows that S is registered with a license to practise, with conditions. 

This case reinforces the importance of proper, thorough consideration of all relevant factors when considering both the imposition of an interim suspension order and its length. Of particular interest in this case is the importance of the requirement at section 41(A) to balance the interests of the doctor as well as the interests of the public. Further, Panels must give proper consideration as to whether or not conditions are practical and enforceable before dismissing such a sanction.

Katherine Tyler

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