10 October 2022

The Inner House has allowed an appeal overturning the Lord Ordinary’s decision to extend an interim order of conditions imposed on a doctor.

This appeal emphasises that it is essential for the court to apply the statutory test when considering if an interim order is required in regulatory cases. The Lord Ordinary in this case made exactly the same error the Lord Ordinary made in the case of IB v General Medical Council [2022] CSIH 38. The court must examine the matter as the primary decision maker, applying the statutory test for an extension and considering the issue of proportionality.

Background

On 25 November 2019 Dr K was arrested and charged with rape.  He reported this to the GMC and was referred to the Interim Orders Tribunal.  The IOT imposed an interim suspension order for 18 months.  An extension to 19 June 2022 was granted. In October 2021 following jury trial, the doctor was acquitted. At the next review by the IOT on 19 November 2021 the Interim Order was varied to conditions.  However, by 19 June 2022 the GMC was still investigating and applied to seek a 12-month extension of the conditions order to 19 June 2023. Following a substantive hearing on 26 July 2022 the Lord Ordinary granted the Petition although restricted the extension to a period of only 6 months to 26 January 2023. Dr K appealed this decision.

Statutory Test

When deciding whether or not to grant such an extension the Court proceeds in accordance with the principals in the case of General Medical Council v Hiew [2007] 1 WLR 2007 and applied in B v General Medical Council 2022 SLT 961 at paragraph 9:

“(i) The criteria for the exercise by the court of its power to extend an interim order under section 41A(7) of the 1983 Act are the same as for the making of the original interim order under section 41A(1), namely the protection of the public, the public interest or the practitioner’s own interests;

(ii) The court can take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued;

(iii) The onus of satisfying the court that the criteria are met falls on the petitioner, as it is the applicant for the extension, and the standard of proof is on a balance of probabilities;

(iv) It is not the function of the court to make findings of primary fact about the events which had led to the suspension or to consider the merits of the case for suspension;

(v) Rather, it is the function of the court to ascertain whether the allegations made against the practitioner justify the extension of the suspension, rather than their truth or falsity;

vi) If the practitioner contends that the allegations are unfounded, he should challenge by judicial review the original order for suspension or the IOT’s failure to review it under section 41A(2) of the 1983 Act;

vii) The court has to reach its decision on the basis of the evidence on the application, which includes evidence as to the opinion of the General Medical Council and the IOT as to the need for an interim order;

viii) The court is not bound to follow or defer to these opinions, but should give it such weight as in the circumstances of the case it thinks fit.”

The court emphasised that its task is not to determine whether the making of the order by the IOT was legally justified but rather to decide for itself whether the statutory tests for extending the order had been met. 

The Lord Ordinary’s Decision

The Lord Ordinary had regard to an affidavit by a solicitor to the GMC detailing steps taken by the GMC following the doctor’s acquittal to gather information about the circumstances of the allegation.  The Lord Ordinary did not challenge the GMC’s estimate of the time required to complete their investigation, but he considered there could be flexibility in an estimate and that more expeditious progress might be possible and the extension was granted for 6 months rather than 12. 

The Appeal

In the appeal, the doctor denied the allegations made against him in an affidavit and emphasised that he had been acquitted after trial.  He considered his reputation had been damaged.  He tried to join retainer scheme within NHS Education for Scotland but due to his Protection of Vulnerable Groups Certificate indicating he remained under investigation by the GMC he was excluded from the retainer scheme which meant his opportunity to work was severely restricted which had a significant financial impact on him and his family as well as affecting his mental health.

The doctor argued that the Lord Ordinary focused on the information contained in the GMC solicitor’s affidavit and had failed to engage with the question of whether the statutory threshold test to an extension had been met.  The doctor argued that a reasonable and properly informed member of the public would understand that a criminal investigation had taken place and that a jury had acquitted him after hearing evidence. Such a member of the public would not be concerned that a doctor who had never been said to pose any risk to patients was allowed to assume his career unrestricted.  It was argued on the contrary a member of the public would be concerned if such a doctor could not return to work after acquittal.  The doctor accepted he remained answerable to his regulator in respect of the allegations but that was a different issue from whether an Interim Order ought to be imposed while the investigation took place.  The fact that a substantial sanction may be imposed at the end of an investigation was not sufficient to justify the maintenance of an Interim Order.  In regard to proportionality, it was argued that any intrusion into a party’s rights had to be rationally connected to the reason said to justify the intrusion.  The conditions imposed did not address the regulatory issues which gave rise to the referral, and they were little more than a black mark against his name.  The allegation had no connection to his clinical practice and the conditions were not proportionate.

The GMC argued that the Lord Ordinary had correctly applied the statutory test and the guidance to circumstances of the case.  The GMC considered his acquittal had been recognised by the substitution of an order for conditional registration for previous suspension.  It was submitted that the standard to be applied in the GMC’s investigations was the lower civil standard of balance of probabilities and an acquittal in the criminal Court did not mean the doctor no longer had to answer allegations relating to sexual misconduct and the conditions were proportionate.  The order served a practical purpose because the GMC would not necessarily know where the doctor was working.  The difficulty of obtaining employment derived from PVG status pending conclusion of the investigation.  It was estimated the investigation could take a further nine months to conclude and if the GMC’s investigation was to conclude before the end of the 12-month extension the GMC would invite the IOT to revoke the Interim Order. 

Decision

The Inner House found that the Lord Ordinary narrated the correct legal test however he simply failed to apply it to the circumstances of the case.  The Court considered that he addressed the decision making process of the IOT but gave no independent assessment of whether the statutory tests were met in relation to the extension of the Interim Order.  Neither the affidavit of the GMC solicitor nor the decision of the IOT contained any analysis of why such imposition satisfies the relevant tests.  The Lord Ordinary was found to have erred in law and it fell to the Court to act as the decision maker on the application for an extension. 

The Court considered that in a case such as this where only public interest is relied on the threshold for making or extending an interim order is high.  The Court agreed with the observation of Justice Davies in R (Shiekh) v General Dental Council [2007] EWHC 2972 (Admin) at paragraph 16 that in the context of a suspension order necessity will normally be the appropriate yardstick and the same applies in respect of conditions.   The Court considered the test of likelihood of serious damage to public confidence in the medical profession was not met.  The Court agreed with the submissions for the doctor and noted that a doctor was subject to an obligation to inform the GMC of details of his employment without any conditions to that effect and it was not suggested there was any history of non-compliance by the doctor with his obligations to the GMC.   Indeed, he reported the charge against himself to the GMC.

The Court considered that a member of the public would be concerned that a doctor who has been acquitted after 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.  Turning to proportionality, the Court also considered that in the absence of any connection between the allegations under investigation and the doctor’s clinical practice there was no rational connection between the conditions and the reason to impose the conditions namely the public interest - reporting and disclosure conditions related entirely to the clinical employment would not address the concerns raised by the allegation in any way.   The Appeal was allowed.

This is an important decision which underlines the need for the statutory test to be applied to the individual circumstances of each case, and the focus should not simply be on the decision of the IOT. Interim orders can significantly impact on a registrant, and the test for their imposition is high, particularly where only public interest is relied upon.

Natalie McCartney, Senior Associate and Solicitor Advocate: nem@bto.co.uk / 0131 222 2939