Controlling and Coercive Behaviour: Widening the Net
Decision date 13 August 2012
High Court uphold decision of Interim Orders panel of the Medical Practitioners Tribunal Service to suspend doctor alleged to have engaged in sexual impropriety with a patient, but reduces suspension from 18 to 12 months.
The claimant in this case, Dr Abdullah (A), challenged an interim suspension order imposed on him by the Interim Orders Panel (IOP) of the Medical Practitioners Tribunal Service (MPTS) of the General Medical Council (GMC) on 10 July 2012, suspending his registration for 18 months.
A is an experienced General Practitioner who had been working at a Health Centre in Essex since 2001. A complaint was made by Patient B (B) on 6 June 2012 that A had rubbed her breasts during an examination and that A had bribed her to have sex with him in return for a sickness certificate. The police investigated the allegations and it was concluded that there was not sufficient evidence to support a prosecution for the offence of rape, however the matter was referred by them to the GMC as they found that if what B says was true, then A had ‘taken advantage of her’ and ‘seriously breached her trust’.
The Primary Care Trust (PCT) carried out its own investigation, which included the interviewing of A. A was said to be shocked, given that it was the first time he had heard of the allegation. A stated that he always used a chaperone for breast and pelvic examinations. When he gave B a steroid injection in her back in 2012, there had been no chaperone present, but he denied any inappropriate touching. He admitted that he had telephoned B on the practice mobile telephone. It was decided by the PCT that their enquiries had failed to satisfy the criteria for suspension, given that the investigation of the allegations, including a visit to the practice and interviews with A and the receptionists, had ‘failed to substantiate these allegations’.
Interim Order Panel
On 19 July 2012 the IOP sat in private. A was in attendance and was represented by a solicitor. The GMC was represented by counsel and a legal assessor was present. After hearing submissions from both parties, including a lengthy submission on behalf of A, and after detailed consideration of the GMC’s guidance and advice from the Legal Assessor, the Panel decided to make an Interim Order for a period of 18 months. It found that ‘in light of the serious nature of the allegations, the Panel is satisfied that there may be impairment of your fitness to practise which poses a real risk to patients and may adversely affect the public interest…which includes the maintenance of public confidence in the profession and the declaring and upholding of proper standards of behaviour’.
It was submitted on behalf of A that;
It was submitted on behalf of the GMC that the decision was soundly based on all the material before the IOP, the advocate for A had had the opportunity to respond to/correct the GMC submissions at the hearing, the IOP had expressly considered whether conditions would be sufficient and that the IOP were entitled to come to a different conclusion from the PCT.
The case law relating to the role of the court in such appeals was considered at length. It was the role of the court to decide whether the IOP were right to suspend A while the allegations he faces are investigated; was their decision justified and proportionate, and how much weight should be attached to it?
Lindblom J held that the imposition of an interim suspension order on A was both necessary and proportionate. That they felt the order was necessary for protection of members of the public and that it was in the public interest were both proper reasons for making the order. It was not the function of the IOP to subject B’s complaint to the scrutiny it would in due course receive. They were right to be anxious as to what impact their failure to suspend the practitioner would have on the trust that members of the public are entitled to place in the medical profession and its practitioners; indeed this on its own would have been sufficient.
It was made clear that the judgement does not seek to lay down a principle that in every case where an allegation of sexual misconduct is made against a doctor, he or she must automatically be suspended while the investigation of the complaint runs its course; such a notion would not be in line with relevant authority or indeed the GMC’s guidance. Every case must be considered on its merits. In this particular case the allegation faced by A was not, in the learned Judge’s view, ‘so vague and inconsistent that his suspension from practice cannot be justified’. Whether or not B’s assertions are truthful will emerge in due course, however the IOP did not regard the evidence weaknesses in the case as fatal to the GMC’s request for interim suspension. The reasoning was, it was held, ‘complete and made perfectly good sense’. They were entitled to take a more serious view of the allegation than the PCT had done, as the two processes were different. The IOP rightly balanced the rights of A to continue unhindered in his chosen profession with the harm to the public confidence if he were allowed to remain in practise.
However, it was held that 18 months was excessive. The investigation should be completed in a shorter time than that. Accordingly, 12 months was substituted.
Whilst not every case of sexual misconduct alleged against a doctor will automatically result in suspension during the investigation, it is right that serious and weighty consideration be given to the impact failure to suspend would have on the trust that the public is entitled to place in the medical practitioners. Weaknesses in the case are not always fatal to such an application – conflicts and inconsistencies will be considered in due course.
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