24 January 2023

Last week, the High Court issued a judgment which confirmed that, in considering whether or not a registrant has failed in their duty to comply with an interim order of conditions imposed on their registration, it is important to focus on the purpose of the condition, rather than applying a strict interpretation of its wording.

Background

Dr Kuzmin has been embroiled in the regulatory process for several years now, partly due to delays caused by COVID-19, but also due to him challenging the decisions made by the Medical Practitioners’ Tribunal (MPT). 

By way of background, in 2016, a GMC investigation was commenced following concerns about Dr Kuzmin's clinical performance. An Interim Orders Tribunal imposed interim conditions on his registration, including a condition (referred to as condition 8) that Dr Kuzmin had to advise any locum agency or out-of-hours service that he was registered with, of the conditions imposed on his registration. These conditions were maintained until the substantive hearing before the MPT in 2018 (where it was determined that there had been no misconduct and that Dr Kuzmin’s fitness to practise was not impaired).

For completeness, at the hearing before the MPT, Dr Kuzmin argued that the Tribunal could not draw an adverse inference from his decision not to give evidence. The Tribunal found that it could and that decision was ultimately upheld by the High Court following judicial review (see our blog: https://www.bto.co.uk/blog/judicial-precedent-court-rules-adverse-inferences-can-be-drawn-in-regulatory-proceedings.aspx). Thereafter, there was a further application for judicial review, however, permission for this was refused.

The facts surrounding the current appeal relate to the interim conditions imposed on Dr Kuzmin’s registration in 2016. By early 2016, Dr Kuzmin had reached the status of ST2 GP registrar. His intended progression to ST3 was delayed and his ST2 training extended for a period of six months due to issues meeting the requirements of the curriculum. As part of his training, and to enable him to continue through the registrar levels, Dr Kuzmin was required to undertake some out of hours (OOH) work under supervision, and he ultimately applied for registration with the Hampshire GP out of hours service (HDOCS). At this time, Dr Kuzmin provided several documents to enable his registration on the system and signed a document known as an "honorary contract" in relation to OOH training. Whilst Dr Kuzmin undertook a couple of sessions of OOH work, it soon became apparent that he had not achieved ST3 status (which was a requirement for this work) and he was no longer permitted to continue accessing the OOH training system (his username and password being cancelled/suspended). 

Dr Kuzmin ultimately achieved ST3 status in April 2017 and thereafter, in June 2017, emailed HDOCS requesting that he be allowed to resume his OOH training via their system. It’s important to note here that the substantive GMC investigation regarding concerns around Dr Kuzmin’s clinical work was still ongoing and that Dr Kuzmin failed to advise HDOCS that he was subject to various conditions. The GMC therefore charged Dr Kuzmin with dishonestly failing to comply with condition 8. The MPTS found the charges, including dishonesty, proved and suspended Dr Kuzmin for a period of six months.

Appeal

Dr Kuzmin appealed to the High Court on several grounds. One of these was that the Tribunal was perverse in its conclusion that Dr Kuzmin had been registered at the time of sending the email to HDCOS. Amongst other things, it was suggested that the Tribunal had purported to define “registration”, and in so doing made an error of law. There was no basis for the finding that registration was satisfied, and thus the duty to report the conditions, just because a link existed between HDOCS and the doctor. In contrast, the General Medical Council (GMC), argued that such findings were not matters of law because there was no legal definition as to what such an OOH registration scheme meant. Unlike registration with the GMC as a doctor, which was a formal legal process, there was no definition of "registration" within HDOCS or even within the conditions bank. Accordingly, when considering what registration meant, a flexible approach was required, setting out those matters which were considered to be relevant to the doctor's status.

The Court sided with the GMC, determining that Dr Kuzmin remained registered from 2016 to 2017 and was, therefore, registered in June when he required login details to allow him to continue with his OOH training. In its judgment, the Court explained that condition 8 provided a very broad spectrum of entities, agencies and individuals to be notified of the conditions imposed on the doctor's registration, and was clearly intended to be expansive or inclusive, rather than restrictive or exclusive. The Tribunal was said to have been correct to express its view that Dr Kuzmin would have known the very broad basis of the purpose of condition 8 to inform ‘all the people and organisations to whom he did, or intended to provide medical services’ of those restrictions. The Court stated that, “…elevating the concept of registration to a more formal process…is adopting an overly legalistic and unnecessary approach”.

Implications

This judgment highlights the potential difficulties for a registrant in applying an overly simplistic or strict interpretation of the conditions imposed on their registration during the fitness to practise process. It is important that the registrant understands the purpose of each condition.  

Sophie Lennox, Solicitor: sle@bto.co.uk / 0131 222 2939