The Court reaffirms why it plays a vital role in critically analysing the need for interim orders

Summary

[2022] CSIH 44

An extension to an interim order of conditions made in the public interest on the registration of a doctor acquitted of a rape failed the test of likelihood of serious damage to public confidence in the medical profession and was disproportionate where there was no connection between the allegation under investigation and the doctor's clinical practice.

Background

In November 2019, Dr K was charged with rape. He self-referred to the GMC. An Interim Orders Tribunal (IOT) determined that it was necessary in the public interest to impose an interim suspension on his registration. In October 2021, following a jury trial, Dr K was acquitted.

In November 2021, an IOT varied the interim order from suspension to conditions. Standard conditions were imposed on his registration, including a requirement to report details of changes in his employment to the GMC and to disclose the existence of interim conditions to any new employer.

Subsequently, the GMC applied to the court to extend the interim conditions by twelve months. This was granted and the order was extended to June 2022.  

By June 2022, the GMC had still not completed its investigation and applied to the court for a further twelve-month extension of the interim conditions. The court granted an extension, but restricted it to six months.  

Dr K challenged the court’s decision to extend the interim order at all. He argued that the court had not conducted any independent assessment of whether the statutory test for extending the interim order of conditions had been met; it had simply relied on the efforts made by the GMC to progress its investigation to determine that the extension was justified and proportionate.

The test for granting and extending an interim order

When deciding whether to grant an extension of an interim order of suspension or conditions, the IOT must be satisfied that, in all the circumstances, there may be impairment of the doctor's fitness to practise which may adversely affect the public interest, and, after balancing the interests of the doctor and the interests of the public, an interim order is necessary to guard against such risk. In reaching its decision, the IOT should consider whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period (the “threshold” test). The IOT must also consider whether an interim order is proportionate (the “proportionality” test).

Judgment

The court overturned the decision to extend Dr K’s interim conditions by six months. It concluded that the GMC had failed to demonstrate that public confidence in the medical profession would be likely to be seriously damaged if Dr K was not subject to an order for conditional registration. It held that a reasonable and properly informed member of the public would be concerned that a doctor who had been acquitted by verdict of a jury at a criminal trial, and against whom no allegation relating to clinical practice had been made, would be the subject of interim conditions which could render it difficult or even impossible for him to return to practice pending the outcome of the GMC's investigation. The court had regard to the fact that the conditions had a damaging effect on Dr K’s reputation and his ability to work, because his PVG certificate stated that he remained under GMC investigation, thus excluding him from the Retainer Scheme which meant that he could not resume general practice.

In terms of the proportionality test, the court rejected the GMC’s argument that there was a rational connection between the conditions imposed and the risk they sought to address, namely they served a practical purpose to monitor where Dr K worked so that the GMC could inform any new employer of its fitness to practise investigation. The court held that Dr K was subject to an obligation to inform the GMC of details of his employment without the imposition of a condition to that effect. Further, there was no history of non-compliance by Dr K with his obligations to the GMC. This was evidenced by his self-referral.

Finally, the court could not find a rational connection between the interim conditions imposed and the reason for the imposition of conditions, namely the public interest. The allegation under investigation was one of serious sexual misconduct outside the clinical context. The GMC had not demonstrated that reporting and disclosure conditions relating entirely to Dr K’s clinical practice would address the concerns raised by that allegation in any way.

Commentary                                           

This is a helpful judgement for doctors across the UK who may find themselves under scrutiny of the GMC.

Firstly, it serves as a reminder that in cases where the GMC is relying on public interest, the threshold for extending an interim order is a high one. ‘Necessity’ is the appropriate measurement and applies equally to both interim conditions and interim suspensions.

Secondly, decision makers (whether an IOT or a court) should include in their determination an analysis of why the imposition or extension of an interim order meets the threshold test and, separately, why it meets the proportionality test, notwithstanding that considerations applicable to both tests are likely to overlap. Failure to do so may lead to challenge by the doctor under investigation.

Finally, recent case law suggests that the courts are undertaking a more critical analysis of the GMC’s reasons for seeking an extension of an interim order. The GMC must set out clear and cogent reasons why public confidence in the medical profession is likely to be seriously damaged if a doctor was allowed to return to unrestricted practice before the conclusion of the fitness to practise proceedings.

Further information

If you have any questions regarding this blog, please contact Georgia Rose or Shannett Thompson in our Regulatory team.

About the authors

Georgia Rose is an Associate in the Regulatory team, having joined Kingsley Napley in 2022. She is dual-qualified in Scotland, England and Wales. She specialises in defending doctors in regulatory proceedings before the General Medical Council (GMC). She is also responsible for investigating and presenting fitness to practise cases, primarily on behalf of the Health and Care Professions Council (HCPC). She regularly advises on health, conduct, probity and competence issues.

Shannett is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors.