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A look at recent appeals against the GMC’s Interim Orders Panel

In the last few months the High Court have been asked to look at various Interim Orders Panel decisions by the GMC and seem to have been sending a message which no doubt will be welcomed by doctors and by lawyers who defend doctors before the GMC. The message seems to be that the Interim Orders Panel should give more detailed reasons for their decisions. When an Interim Orders Panel suspends a doctor in reliance on the public interest, they should better balance the impact of a suspension order on a doctor against the protection of the patients and the public interest.

When an Interim Orders Panel is considering what risks, if any, exist for the public if a doctor is to continue with unrestricted registration, such risks should be clearly identified to enable them to be properly considered; to prevent suspension from being imposed in a manner which is heavy-handed and disproportionate.

Interim Orders Panels have also been encouraged when, minded to impose an interim suspension order, not automatically to impose one for 18 months, but to consider a shorter period where possible.

Lawyers from the MedicAssistanceScheme are experienced in defending healthcare professionals at Interim Hearings. Summarised below are some key cases recently determined by the appeal courts on interim orders.

Scholten v GMC (February 2013)

The Fitness to Practise Allegation

The doctor was a consultant plastic and cosmetic surgeon who had been suspended by an Interim Orders Panel of the General Medical Council. The allegation against him was that he had photographed the genitalia of an anaesthetised female patient on his iphone without her consent. A colleague informed the patient of the photograph and the doctor apologised and explained that he had taken the photograph, intending to subsequently seek her consent, for the purpose of discussing cosmetic work with other patients. The hospital reported the doctor to the GMC to investigate his fitness to practise as a result of his misconduct.

The Interim Orders Panel decision

The Interim Orders Panel made an interim order for suspension, on the grounds that the doctor posed a real risk to the public and due to public interest a suspension was necessary.

The Appeal

The doctor appealed against the suspension order on the grounds that the incident was isolated and there was no evidence of any risk to patients or to public confidence, sufficient to justify his suspension.

The High Court confirmed that the IOP’s conclusion that the doctor’s fitness to practise might be impaired may not be wrong but that the Panel’s reasons were inadequate. The Panel had failed to sufficiently balance the protection of patients and the public interest against the impact of a suspension order on the doctor. The Panel had also not indicated what considerations they had given to those matters, nor had it identified the risk that the doctor posed by continuing to remain in practice pending the resolution of the substantive allegation.

The High Court queried if an 18 month suspension was also appropriate and proportional, following the case of Harry v GMC (2012), which confirmed that an interim suspension lasting 18 months should not be the default position.

The High Court’s conclusion was to impose no order, given the proximity of the Panel’s next review, but gave an indication that conditions should be considered.

Houshian v General Medical Council (December 2012)

The Fitness to Practise Allegation

The substantive allegation against the doctor’s fitness to practise followed his dismissal for gross misconduct, following an NHS investigation into his treatment of colleagues. The doctor had sued the Trust for unfair dismissal and the employment tribunal had made findings against him that he had fabricated documentation. The GMC’s fitness to practise allegations therefore included an allegation of dishonesty.

The Interim Orders Panel decision

The IOP imposed an interim suspension order against his registration for 18 months, having concluded that a suspension was appropriate, on the basis that they should protect the reputation of the profession and maintain public confidence. The Panel decided that suspension was a proportionate outcome.

The Appeal

The Doctor successfully appealed the decision of the Interim Orders Panel, on the grounds that the suspension order was unfair and disproportionate. The High Court stated that the Interim Orders Panel had failed to identify the risk and the degree of any risk posed by the doctor remaining in unrestricted practice pending the resolution of the fitness to practise allegations, given that the public interest was the sole reason for the IOP’s decision.

The High Court stated that the IOP was wrong to have imposed a suspension order, as the public perception and public confidence issues could be dealt with appropriately by the Fitness to Practise Panel in due course, after all the facts had been fully explored and the position finally assessed.

Patel v GMC (December 2012)

The Fitness to Practise Allegation

The fitness to practise allegations did not relate to the doctor’s professional conduct, as he faced a criminal investigation relating to his duties as a school governor, regarding the authorisation of payments. He faced criminal charges of conspiracy to defraud and fraud by abuse of his position. The conduct was said to have occurred over a substantial period of time and involved over £1 million, although no personal gain to the doctor was alleged.

The Interim Orders Panel decision

The IOP suspended the doctor’s registration for 18 months to protect the public interest.

The Appeal

The High Court in overturning the suspension order stated that the nature of the wrongdoing did not relate to the doctor’s clinical competency. The doctor denied the allegations which remained pending before the criminal courts. There was no evidence of a threat to the public’s welfare and so allowing the doctor to continue to practice medicine in the meantime would not undermine the public’s confidence in the profession.

Harry v GMC (October 2012)

The Fitness to Practise Allegation

The doctor was a senior consultant who worked for an NHS Trust and also had a private practice, which included work in Nigeria. The doctor faced an allegation that he had breached regulations on the transportation of human blood samples, including 1 infected with HIV, on a return trip from Nigeria. The doctor had carried the samples in his hand luggage rather than putting them in the hold and had opened the packages at home rather than in a laboratory. It was also alleged that the doctor had used NHS resources for private patients and there was a concern regarding his probity.

Interim Orders Panel decision

The Interim Orders Panel ordered an interim order of suspension, stating that they were satisfied that there might be an impairment to the doctor’s fitness to practise and having considered the principle of proportionality they concluded that he posed a risk to the public.

The Appeal

The doctor appealed the decision on the grounds that the IOP had failed to give adequate reasons for its decision.

The High Court concluded that the allegations did not pose a concern regarding patient safety in the traditional sense. One of the purposes of suspension was to protect the public against a real continuing risk. This would only arise in this case if the doctor were to repeat his error, which was unlikely. There was therefore no real risk to the public in allowing the doctor to continue to practise with unrestricted registration.

The IOP had indicated it had considered the proportionality of suspension, without indicating the factors that weighed against it, beyond the doctor’s inability to practise medicine. The Court described the suspension as being heavy handed and disproportionate, stating that there would be many cases in which suspension was proportionate for a short period, but not for as long as 18 months, given the very serious consequences for the doctor.

If you face an Interim Hearing before your regulatory body, then please contact one of our experienced lawyers from the Medic Assistance Scheme, who will be happy to advise you regarding your situation.

For more information contact the MedicAssistanceScheme on 084 4804 4805, or request a call back using the drop down panel to the right of this page and we will be more than happy to assist you.