High Court Quashes Interim Suspension Order – an aide memoire to Interim Orders – Proportionality, Reasons and the Regulators’ Reach

19 April 2022

MXM v GMC [2022] EWHC 817 (Admin)

Summary

At the material time, the Appellant Doctor had been working as a General Practitioner (‘GP’) as a Partner in a GP Practice (‘the GP Practice’) until August 2021; having qualified in 2004 and has practised for more than 15 years with no previous fitness to practise complaints or findings. On 09 November 2021, an Interim Orders Tribunal (‘IOT’) of the Medical Practitioners Tribunal Service (‘MPTS’) imposed an Interim Suspension Order (‘ISO’) on the Appellant’s registration for a period of 18 months. The Appellant appealed the imposition of the ISO. The Court agreed and overturned it whilst providing advice to the GMC that it may want to consider applying for a new Interim Order no more restrictive than conditions.

Background

The Appellant had been having an extra-marital affair with ‘ER’ for a period of over three years. The Appellant had first met ER in around 2013 outside of the GP Practice.  ER worked in the adjoining Pharmacy to the GP Practice and was described at the hearing as a ‘quasi-colleague’. The Appellant and ER started their affair in 2018 and this came to an end on 17 August 2021 when ER’s husband, ‘TR’, caught ER messaging the Appellant and she then disclosed the affair to her husband.

TR subsequently made complaints to the GMC on the same day and two days later, ‘AR’, TR’s mother also made fitness to practise complaints in respect of the Appellant to the GMC.

The GMC set out that its investigation concerns a number of serious allegations including:

  1. Having a sexual relationship with a patient over many years;
  2. Treating ER’s husband, TR, as one of his patients during the affair (including for depression);
  3. Undertaking sexual activity in a clinical setting (both alone and with ER) and whilst on call;
  4. Filmed and uploaded to the internet videos of his sexual activity with ER; and
  5. Sought to dissuade ER from seeking counselling and sought to persuade her to minimise the extent of their relationship.

Of note relating to the facts of the case, the judgment clarified that it is not in dispute that the relationship between the Appellant and ER was anything other than a consensual relationship between two adults and there is no allegation of any criminal misconduct on the part of the Appellant.

Additionally, it is accepted that ER was also a registered patient with the GP Practice and that during the period of the affair, ER had only one consultation with the Appellant, on 15 April 2019, for ‘an ear related matter’ which the Appellant accepts that he should not have undertaken.

 

Interim Order – the IOT’s determination

The GMC initially applied in the IOT for an Interim Order of Conditions as being necessary and proportionate in order to protect the public and that further the order was otherwise in the public interest.

In making its determination for imposing an ISO, the key paragraphs are noted as 30 and 31 of the IOT’s decision:

  [30.] “the concerns are serious and wide-ranging” and “The Tribunal considers that if later found proved, the serious nature of the allegations could indicate a real risk to patient safety and the public interest. The Tribunal also noted the impact of the allegations on the Practice and identified a consequent risk to public confidence from a GP who had allegedly demonstrated such serious poor judgement over a prolonged period of time. It considers that a reasonable and well-informed member of the public would be shocked and concerned to learn that Dr [MXM] had been permitted to practise unrestricted whilst these concerns remain under investigation by the GMC. In all the circumstances, the Tribunal is satisfied that the statutory test for the imposition of an interim order is met in this case.”

  “[31.] Whilst the Tribunal notes that the Order has removed Dr [MXM]'s ability to practise medicine, it is satisfied that the order imposed is the appropriate and proportionate response. After hearing detailed submissions from both parties, the Tribunal did not consider that conditions could address the risks identified, in particular the risk to the public, confidence in the profession and to the GMC as Dr [MXM]'s regulator. The Tribunal has therefore determined that sus-pension is both necessary and proportionate to manage the risks identified.”

With respect to the period of suspension, the IOT stated:

  “[32.] In deciding on a period of 18 months, the Tribunal accepted the submissions of Ms Duck-worth as to the likely timescales of the GMC investigation and the delays caused by the Covid-19 pandemic.”   

 

Grounds of appeal

The Appellant submitted that the ISO should be terminated, or alternatively, the period of suspension shortened and relied on the following 4 grounds:

1)The IOT failed to differentiate between those aspects of the allegations which are proper matters for consideration in fitness to practise proceedings and those which are of an intimate and personal nature removed from the practice of the Applicant’s profession, and irrelevant to the IOT’s consideration.

The Appellant relied on the recent case of Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin) in submitting that the IOT ought to have recognised matters which were not properly the concern of the IOT, including: the fact the extra-marital affair was conducted between two consenting adults; the nature of any sexual activities that they chose to engage in; engaging in sexual activity while on call (in circumstances where there is no allegation that the Applicant’s ability to respond in the event of a call was compromised and being on call is not akin to being on surgery premises); private filming or posting online of their sexual activity (subject to any concerns regarding the activity being on clinical premises / being with a patient / or for the purposes of earning money).

The Appellant submitted that the IOT failed to recognise the limitation of regulatory scrutiny and failed to recognise a doctor’s Article 8 (right to a private life) rights. Members of the medical profession are not prohibited by virtue of their profession from conducting extra-marital affairs nor does public confidence in the profession demand of them that they engage only in more conventional sexual practices.

2)Having regard to the nature of the allegations, the IOT misidentified, and erred in its assessment of the risk to (a) public safety and (b) the public interest.

The Appellant set out that the IOT identified that treating TR called into question his judgement in a clinical setting, but failed to recognise that the failure was limited to not ensuring that TR was seen by another GP. It was argued that the other allegations do not provide any basis for inferring that patient safety was compromised or would be at risk.

3)The IOT failed to give appropriate consideration to the principle of proportionality, both in respect of the nature and the duration of the order.

The Appellant’s case was that, after having undertaken the first part of the analysis (of determining whether it is necessary to impose an interim order to protect the public and/or desirable to maintain public confidence and uphold proper standards of behaviour); and having reached the conclusion that the Appellant should not be permitted to practise ‘unrestricted’ in the interim, there was not consideration of proportionality as between an order for conditions or suspension, nor in respect of the period of suspension. Further, any anticipated delays in respect of Covid-19 used to justify the duration of the interim order were not clearly identified.

4)In support of the first three grounds, the Applicant contended that the IOT failed to provide adequate reasons for its decision.

This argument was not put forward as a standalone ground, but the Appellant relied on it in support of the submission that weight should not be given to the IOT’s opinion. Specifically, the IOT failed to address the fact that the relationship between the Appellant and ER existed independently of the doctor / patient connection, did not involve abuse of position of trust, and was between two consenting adults.

 

Judgment

Mrs Justice Steyn held that IOT’s decision to impose an ISO was wrong, terminated the order and agreed with the Appellant’s arguments set out on grounds 2, 3 and 4. Mrs Justice Steyn advised that if she had the power to do so, she would have substituted an Interim Order imposing conditions.

First, Mrs Justice Steyn held that the weight to be given to the IOT’s decision in this case was limited for the following reasons:

  1. The court is well placed to assess where allegations of sexual misconduct are raised, versus requiring the specialist expertise of the IOT in respect of clinical matters; and
  2. The reasoning of the IOT was very thin at (a) at the second stage of the analysis (i.e. determining whether to impose an order for conditions or suspension order); (b) in assessing the proportionality of imposing an ISO; and (c) in assessing the proportionality of suspending the Appellant for 18 months on an interim basis.

At Paragraph 85 of the decision, the IOT’s lack of reasoning was criticised as ‘particularly striking in circumstances where the GMC sought an interim order imposing conditions’.

While Mrs Justice Steyn pointedly set out that she had some sympathy for the Appellant’s first ground and that although the IOT did not expressly differentiate those matters which are properly the subject of the regulatory proceedings and those that are not, ultimately she was not persuaded that the application should succeed on Ground 1. This was because:

  1. The three matters expressly identified by the IOT as giving rise to concerns are properly to be regarded as fitness to practise matters (in their paragraph 30 above); and
  2. The IOT did not identify either the fact that the Appellant engaged in extra-marital affair or the nature of the sexual practices in which he and ER are alleged to have engaged as matters of concerns.

Of significance, the Judgment sets out that the IOT’s evaluation of risk to patient safety and the public interest, and of the proportionality of the nature and duration of the order, was flawed. In particular, Mrs Justice Steyn emphasised that it was incumbent on the IOT to consider the seriousness of the allegations and the likelihood of any further incident during the relevant period. Mrs Justice Steyn rejected the GMC’s argument that the fact the Appellant had a relationship with ER predating their professional connection, occurring independently to the Appellant’s status as a doctor and involving only one ear infection consultation was immaterial. Mrs Justice Steyn concluded that that these facts were highly material and that as a result, there was no real risk of the Appellant engaging in this type of behaviour towards another patient before the conclusion of the fitness to practise proceedings.

Concluding her judgment, Mrs Justice Steyn expressed that the allegations are serious and did not consider that the IOT was wrong to take the view that the Appellant should not be permitted ‘to practise unrestricted’ whilst these matter remain under investigation, however did not consider that

“a fair minded member of the public appraised of the facts would be offended by the Applicant continuing to practise pending a full hearing fixed for resolution of the allegations at which he will have an opportunity to defend himself and his professional body will determine the appropriate sanction in respect of any fitness to practice allegations that may ultimately be found proved.”

 

Commentary

Mrs Justice Steyn’s judgment is particularly significant for the following reasons:

  • It restates the importance of setting out reasoning in an interim order decision;
  • The Judgment sets out a summary of the law in considering whether to grant a registrant’s application for anonymity;
  • It includes a comprehensive summary to the case law and guidance for interim orders;
  • The Judgment further inspects the relationship between a registrant’s private life and the boundaries of regulatory intervention post-Beckwith;
  • The Judgment sets out an important reminder of the principle of proportionality to be considered at two stages of any case where an interim order is being considered:
    1. In assessing whether an interim order should be imposed, and if so whether it should be a conditions or suspension order; and
    2. When determining the length of any interim order.
  • The Judgment also acts as a further reminder that when assessing proportionality at each stage, to be aware and properly set out the nexus between available evidence, the seriousness of the concerns and the resulting risk of repetition. 

FURTHER INFORMATION

If you have any questions about the issues raised in this blog, please contact Jessica Etherington, or a member of our Regulatory team.

 

ABOUT THE AUTHORS

Jessica Etherington is an Associate in the Regulatory team, having joined Kingsley Napley in 2021. Jessica specialises primarily in preparing cases in fitness to practise proceedings on behalf of the Health and Care Professions Council.

Jessica qualified as a Solicitor in September 2020. Prior to joining Kingsley Napley, she acted primarily on behalf of the Nursing and Midwifery Council and has undertaken multiple secondments with their fitness to practise directorate. As a result, Jessica is experienced in a wide-range of complex and sensitive cases.

 

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility