Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
The General Medical Council (GMC), made an application to the Court for an extension of an interim order imposed upon Dr Ankur Chopra (AC) to suspend his practise for 12 months up to and including 22 March 2018. The interim order in place at the time was due to expire on 22 March 2017; which was the day of the application in the present case. This application was made pursuant to s41A(6) and s41A(7) of the Medical Act 1983 (the Act) which allows the GMC to apply for an interim order to be extended by up to 12 months.
AC submitted that, if the interim order was not expiring on that date, he would have made an application to the Court pursuant to s41A(10) to vary or dispense with the order on the basis that it was wrongly applied.
The case of GMC v Hiew  EWCA Civ 369 was referred to by both parties for guidance on the Court’s approach to the exercise of its powers under s41A(7) and s41A(10). This case establishes that, pursuant to s41A(7), the Court has the power to determine that there should be no extension or to refuse the extension sought by the GMC after allowing the parties to be heard. There is also the power under s41A(10) to terminate the suspension or to decrease the period of suspension. The exercise of the power pursuant to s41A(7) is discretionary; the criteria being the protection of the public, the public interest, or the practitioner's own interests. The Court can take into account the gravity of the allegations, nature of the evidence, seriousness of the risk of harm to patients, reasons why the case has not been concluded, and the prejudice to the practitioner if an interim order continues. The onus of satisfying the Court that the criteria have been met lies with the GMC as the applicant.
AC referred to the case of Dr Tubonye Harry v GMC  EWHC 2762 where a challenge was made to the reasons of the Interim Orders Tribunal (Tribunal) for imposing the interim order. After considering the way the Tribunal approached the matter, it was decided that it was wrong, in part because the Tribunal members had not properly considered the impact on the doctor and his patients beyond the impact of the doctor being unable to practise.
The Court noted that AC was subject to a different form of interim order until recently. The order had placed certain conditions on his practise, involving supervision of his actions. On 9 March 2017, the Tribunal was reconvened, at the request of the GMC, to review the interim order because further allegations had been raised against AC. This was despite the fact that it had been reviewed and maintained on 17 February 2017. The present application focused heavily on the reasoning and decision of this Tribunal.
Four matters were raised, but the Court in the present case only found two of them to be of significance in respect of the interim order. The first related to AC’s use of drug bags and former allegations made by the GMC in relation to the number of emergency drug bags he had been using. The new allegations included a statement and resignation letter from a former colleague suggesting she had been pressured into tampering with documents relating to the use of the drug bags. The second matter consisted of new allegations about AC’s probity; as members of staff stated that they had been asked to amend medical records about patient vaccinations. The Court also referred to new allegations about patient care, because it was suggested that a patient had been treated at home where they may have had an adverse reaction to medication, and there were concerns about the safety of that practice.
AC strenuously denied all of the new allegations and highlighted that some of the previous allegations had been found to be without foundation and accordingly had now been withdrawn by the GMC.
The GMC asked the Tribunal to vary the interim order from conditions to that of suspension. The GMC submitted that the new information indicated on-going concerns about AC’s clinical practice, and new probity concerns despite his work being subject to conditions. The GMC further submitted that a reasonable and properly informed member of the public would be concerned to learn that AC had been permitted to practise medicine unrestricted whilst the GMC investigation was on-going.
In the present case, the Court commented that the reference to "new probity concerns" was of some significance, because concerns in relation to AC’s probity and the alleged tampering with records were “part and parcel” of the allegations that he faced from the start.
The Tribunal's decision in favour of varying the order to one of interim suspension was expressed very briefly. It said it had reflected on the original concerns and the additional information raising further concerns about AC’s performance and probity, some of which arose whilst there was already an interim order imposing conditions on his registration. The Tribunal considered that there was information to suggest that patient safety may be at risk if AC was permitted to practise without restriction. The Tribunal stated “it considers that in the light of the number of concerns raised which are still under investigation, public confidence in the profession may be seriously undermined if no order were made."
The Tribunal stated that whilst it was aware that “the order has removed [his] ability to practise medicine, it is satisfied that the order imposed is the proportionate response. The Tribunal has borne in mind that the numerous probity concerns over a range of behaviours suggest a pattern of dishonest behaviour. It first considered if conditions could be formulated to address the risks identified. While a higher level of supervision may address the performance concerns, no conditions could be formulated to address the wider probity issues. The Tribunal therefore determined that an order of suspension is now the proportionate and sufficient response to manage the risks identified."
AC stated that he was responsible for a large number of patients in a rural area, and he, his family, and his patients would be affected if he were suspended whilst the new allegations were being investigated. He stated that an audit had confirmed that his earlier prescribing was not done for financial gain. He further said that the investigations into the new allegations were at a very early stage, and that earlier investigations had found certain serious allegations to be unfounded. He also relied on a number of testimonials about his competence and importance in the medical community in his small rural medical practice.
AC submitted that at no stage had the Tribunal considered the balancing exercise incumbent with its power under s41A(7) by reference to all of the relevant factors and the related submissions. AC submitted that the Tribunal was wrong to suggest that no conditions could be formulated, because tighter conditions could be imposed that would supervise his practise to the extent that there would be a strong disincentive to him to alter or cause others to alter medical records. They had also missed the point that he was making about the decision in Dr Tubonye Harry v General Medical Council; which was that it is only after matters of dishonesty have been proven that it would be appropriate to impose an interim suspension order.
AC conceded that it would be appropriate for the Court to continue with the suspension for whatever period that it deemed suitable if it found the Tribunal's decision to be correct or that an application of the correct legal test would lead to the same result. However, AC also submitted that if the Court concluded that the suspension order should be terminated, or not renewed, then the matter would have to go back before a Tribunal to consider this.
The Court highlighted that undoubtedly the varied order that everybody was concerned with was an interim order for suspension and no-one was suggesting that the Tribunal had no power to impose such an order. However, it continued to say that the lack of clarity meant that the Court needed to be especially scrupulous in examining whether the Tribunal reached its decision by applying the correct legal test.
The Court felt the real difficulty to be that the Tribunal found that concerns about patient safety could be properly addressed by the imposition of conditions. It distinguished between patient safety arising from the performance concerns and questions of probity, but it did not justify the interim suspension on the basis that the risk to patients could not be managed by the imposition of conditions. The Tribunal had to consider a matter where the alleged behaviour was not only dishonest and said to have a direct potential impact on the health and safety of patients, but it was allegedly being committed where the doctor was already subject to interim conditions of practise. The conditions, therefore, did not appear to have acted as a deterrent. The Court was concerned with the fact that the Tribunal had concluded that no conditions could be formulated to address the wider probity issues which had arisen from allegations of an attempted cover-up of something that had already occurred. However, the Tribunal had not explained why additional regular audits of the practice records would not act as a very serious disincentive to repeat that behaviour.
The Court was conscious of this being a case where the Tribunal failed to articulate the balancing exercise that it appeared to have carried out and that it had not mentioned the limbs of the legal test that it should have applied. It should have asked itself what members of the public would think if the allegations were proven, but were told that AC had been able to practise unrestricted prior. However, it would then have to balance this answer against what would happen if he were suspended yet the allegations were unfounded. There was no indication of this being considered by the Tribunal or that it had considered the impact on AC and his patients beyond that he would be unable to practise.
The Court found that the Tribunal had failed to properly address all of the relevant factors which resulted in an interim suspension order which was disproportionate; in short, it had imposed a sanction before the new allegations had been proven.
In making its decision, the Court had regard to the fact that AC’s behaviour had not yet been proven and the allegations could have been entirely without foundation. To deprive him of his livelihood and his patients in the rural practice of his services could be quite serious, particularly since the period of suspension would be at least another nine months in order to get the matter before a Tribunal to be reviewed.
The Court could not be satisfied that the Tribunal had gone through all of the requisite steps in reaching their decision, but was keen to point out that it could understand why a Tribunal would be seriously concerned about the further allegations arising whilst AC was already subject to conditions. Yet it was not certain that if the Tribunal had approached the matter properly it would have necessarily reached the same conclusion; and applying the correct legal analysis, the Court would not necessarily reach the same conclusion.
Consequently, the application for an extension of the interim order was unsuccessful and the matter was referred back to the Tribunal for reconsideration.
This case acts as a salutary reminder to Tribunals to properly consider all relevant factors when considering interim orders, but also to carefully set out their decision making within the record so that it is clear to the informed reader that the proper legal test has been applied. The Court affirmed that suspension should only be ordered on an interim basis where there is a risk to the public which cannot be managed by way of conditions. Further, the Tribunal must perform a balancing act between protecting the public where new allegations are still under investigation and fairness to the doctor; bearing in mind the impact of suspension on their life whilst the allegations are as yet not proven.
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