England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ Handed down at
		15 April 2013

JUDGE GILBART QC :

1. In this matter the Claimant, to whom I shall refer as Dr E Y, has applied under section 41A(10) of the Medical Act 1983 (as amended) to this Court for an order terminating the conditional registration imposed on him by the Interim Orders Panel ("IOP") of the Medical Practitioners Tribunals Service ("MPTS") on 29th November 2012.
2. I shall deal with this matters as follows

(i Background history

(ii Judgment and Order of Kenneth Parker J on 18th October 2012 (Y. v GMC [2012] EWHC 2779)

(iii Subsequent events, including the IOP order of 29th November 2012

(iv The role of the court under Section 41A Medical Act 1983

(v Preliminary observations on Claimant's case

(vi Submissions of Claimant Doctor

(vii Submissions of Defendant GMC

(viii Discussion and conclusions.

Background history

3. I respectfully and gratefully adopt paragraphs 2 to 18 of the judgement of Kenneth Parker J referred to above.

"Factual Background

2. The Appellant is an Egyptian doctor who moved to the United Kingdom in 1998. From October 2007 he worked as a salaried GP in Southall and for an out-of-hours service called "Westcall", based in Reading.

3. Dr Y faced charges in relation to two incidents before the Panel.

4. First, it was alleged that in January 2009 whilst on call at Westcall he knowingly misled Mrs F, the mother of patient DF, by stating

"Unfortunately we don't send a doctor with ambulance to see kids at home. This is a rule."

and that such action was dishonest.

5. The second set of allegations concerned a patient known as "Patient A". At the relevant time Patient A was a 56 year-old woman suffering from a hereditary disability (spastic paraplegia), causing her to have weakness and spasticity of her lower limbs. She used a wheelchair or crutches to mobilise. She had been widowed approximately ten years earlier. Although disabled, she did voluntary work for Rehab Tech, a supplier of specialist equipment to the disabled, for the Civil Service Benevolent Fund, and for Link which involved visits to elderly disabled people who lived alone. She had also been involved with the Girl Guides for over 30 years. Patient A lived alone, but had a partner "Mr B" and, according to her evidence to the Panel, was supported by a network of friends.

6. Dr Y made two visits to Patient A on Sunday 17 January 2010. The first was the result of a call by her to her local out-of-hours service, Westcall, to request a home visit as she was in pain following a fall. The call was taken by Dr Y, who confirmed that he would visit her home to carry out an examination. During the call Patient A told Dr Y that "the whole of [her] back ached from [her] neck, right, right the way down" and she wanted a physician to check that there was nothing seriously wrong with her back. Dr Y was driven to Patient A's home by a driver provided by Westcall and arrived about 11 minutes after the call at about 10 past 10 in the morning. He subsequently returned at approximately 7pm for a social visit, having called Patient A from his personal telephone to arrange the visit and driven his personal car to her address.

7. Dr Y was charged with misconduct in relation to both visits.

8. It was alleged that during the first visit Dr Y:

i) touched Patient A's bottom,

ii) put his hand between Patient A's thighs,

iii) inserted his finger into Patient A's anus,

iv) asked Patient A about her sex life,

v) said to Patient A

a) "you have a beautiful back for a lady with a disability",

b) "sometimes doctors have to do things patients think aren't necessary",

c) people with disabilities didn't gain much from penetration and asked whether this was true for her,

or words to that effect.

9. In relation to the second visit that evening it was alleged that Dr Y:

i) offered to bless Patient A with holy oil,

ii) made sexual comments and suggestions to Patient A,

iii) undressed,

iv) asked Patient A to touch his penis,

v) pulled Patient A to the floor,

vi) removed her trousers,

vii) attempted to vaginally penetrate Patient A,

viii) masturbated in front of Patient A,

ix) ejaculated on Patient A.

10. It was alleged that these actions (save for that in relation to the blessing) were sexually motivated and indecent.

11. The hearing of the case lasted for nine days (3-12 October 2011). The case was heard by a Panel consisting of two medical members and a lay member.

12. So far as the allegations in relation to Mrs F were concerned, Dr Y did not dispute using the words alleged, and the Panel was satisfied that he had knowingly misled Mrs F by referring to a rule which he knew to be non-existent. It went on to find that that action was dishonest, applying the Ghosh test for dishonesty.

13. In relation to the second set of allegations, the Panel heard from Dr Y and Patient A, the police officer who had interviewed Patient A following a call that she made to NHS direct on 26 January 2010 concerning Dr Y's visits to her, which had reported the matter to the police, and the police officer who subsequently met with Patient A and interviewed Dr Y in connection with the allegations. Patient A's evidence was heard in person, the Panel having refused the GMC's application for her to give evidence via video link on the grounds of her vulnerability on the basis that "the credibility of witnesses is likely to be central to its decision making process" and her physical presence would "enhance its ability to assess her demeanour and spontaneity and thus come to a just decision as to her credibility".

14. Against the background of that analysis, the Panel found that during the first visit Dr Y had touched Patient A's bottom and put his hand between Patient A's thighs but not that he had inserted his finger into her anus. It found that he had said to her words to the effect that sometimes doctors have to do things patients think aren't necessary, and that he knew people with disabilities didn't gain much from penetration, was this true for her, but not that he had said that she had a beautiful back for a lady with a disability.

15. So far as the second visit was concerned, the Panel found that, based on his own evidence, Dr Y had returned to Patient A's house and offered a blessing to her, that is, a picture of a Coptic Christian Saint with what he described as a smudge of oil on its reverse, rather than offering to bless her himself. It found that he had stayed in the house for a considerable period of time, during which he asked Patient A to switch off the television and remove a cat from her sitting room. He then undressed sufficiently to expose his penis, asked Patient A to touch it, removed her trousers and attempted to penetrate her vaginally. When he failed to do that successfully he masturbated in front of her, ejaculated on her, got dressed and left. The allegation that Dr Y pulled Patient A to the floor had been withdrawn by the GMC following Patient A's evidence.

16. The Panel concluded that Dr Y's actions were sexually motivated and indecent, save in relation to the touching of her bottom during the first visit which could have been part of a proper medical examination of her spine.

17. The Panel proceeded to consider whether Dr Y's fitness to practise was impaired by reason of his misconduct. It found that his dishonesty in relation to Mrs F was not so serious that it constituted misconduct capable of underpinning a finding of impairment, but that his misconduct towards Patient A amounted to gross violations of the fundamental rules relating to the professional relationship between doctor and patient, and concluded that his fitness to practise was impaired by reason of such misconduct.

18. As a result, it felt that

"the only sufficient and proportionate way in which patients, the public and the reputation of the profession can be protected, is by directing the Registrar to erase [Dr Y's] name from the Medical Register."

And ordered that he be suspended with immediate effect

"as it would be inappropriate to allow [him] to practise medicine in any capacity pending the outcome of any appeal."

4. An appeal was made against that decision. Kenneth Parker J allowed the appeal, quashed the findings of impairment in respect of patient A, quashed the erasure from the medical register, remitted the matter to the Defendant GMC to consider whether it was appropriate to pursue the complaint of A to a fresh panel, and ordered the Defendant GMC to pay 75% of the costs up to 4th October 2012.
5. Since then, the GMC has decided that it will proceed with A's complaint. It wrote to Dr E Y on 15^th November 2012 in the following terms

"I am writing to let you know that the Case Examiner appointed by the Registrar has considered information received that suggests your fitness to practise may be impaired.

A copy of the information received is attached.

The Case Examiner, under Rule 8(6) of the General Medical Council (Fitness To Practise) Rules 2004, considers that you should be invited to appear before the Interim Orders Panel (lOP) of the Medical Practitioners Tribunal Service (MPTS). The lOP will consider whether it is necessary for the protection of members of the public, or is otherwise in the public interest, or in your own interests, that an interim order should be made suspending your registration, or imposing conditions upon your registration, for a period not exceeding eighteen months. If the lOP decides to suspend your registration, your licence to practise will be withdrawn for as long as the suspension continues. If the Panel imposes conditions you will continue to be entitled to hold a licence to practise however you will need to comply with the conditions on your registration.

The Case Examiner has reached this decision after considering the allegations against you that, during a home visit to a female patient (Patient A) who is disabled, you made sexualised remarks and touched Patient A in a sexually motivated manner. Later the same day, you then made a further, private visit to Patient A during which you allegedly attempted rape and committed acts of gross indecency. The Case Examiner notes that you deny the allegations. A FTP panel found you guilty of gross misconduct and erased you with immediate suspension from the register. The panel's decision was overturned on appeal to the High Court and you have been reinstated on the register.

The High Court found that the FTP panel had not explained adequately why they accepted Patient A's evidence, given that her evidence about the nature of the alleged sexual misconduct changed over time. The High Court quashed the GMC's findings of sexual misconduct against you and the case was remitted to the GMC to consider whether or not it is appropriate to take the complaint of Patient A to a fresh FTP panel. The GMC has decided to consider the case again at a new FTP hearing.

Therefore, it remains that this case has been found by the Case Examiners, on the evidence currently available, to meet the RPT and is awaiting a further FTP hearing.

Given the serious nature of the allegations, the evidence supports a referral to IOP on the grounds of public protection.

You are invited to appear before the IOP at 10:30 on 29 November 2012 at the Medical Practitioners Tribunal Service St James's Buildings, 79 Oxford Street Manchester, Ml 6FQ, if you so wish to address the IOP on whether such an order should be made in your case……."

6. On 29th November 2012 the IOP , after hearing submissions, determined that he should be subject to the same conditions as had applied before his suspension, for a period of 9 months. This appeal is made against that order.

Judgement and Order of Kenneth Parker J on 18th October 2012 (Y. v GMC [2012] EWHC 2779)

7. The Claimant has laid great emphasis on this judgement. As will become apparent, much of his case on the effect of the judgement is to my mind quite irrelevant.
8. Kenneth Parker J summarised the grounds of challenged before him as follows

"Grounds of Appeal

28. By the time of the hearing of this appeal, the issues were in essence:

i) Were the Panel's findings of fact perverse?

ii) Did the Panel fail to give adequate reasons for its findings of fact?

iii) Did the Legal Assessor fail to direct the Panel appropriately on the evidence?"

9. The first ground failed entirely. Although the Claimant sought to point out significant inconsistencies in patient A's evidence (of which there were a number) Kenneth Parker J said this at paragraphs 47-57.

"The First Ground of Appeal: Perversity

47. In essence Ms O'Rourke QC, on behalf of Dr Y, submitted that, given the marked differences in the various accounts that Patient A gave, and the inconsistencies between the various accounts, no reasonable Panel could have found her credible, and no reasonable Panel could have had sufficient confidence to conclude that Dr Y had behaved, on either of the two visits, in a sexually inappropriate manner.

48. In the light of the authorities referred to earlier, Ms O'Rourke faced a very high hurdle on this first ground of appeal. Ms Kate Gallafent, who appeared on behalf of the GMC, submitted that the Panel had the considerable advantage of seeing and hearing how Patient A responded to questioning. She suggested that the present case was analogous to Chyc v General Medical Council [2008] EWHC 1025 (Admin), which concerned an allegation that during a home visit a doctor had behaved improperly and abused his position of trust by fondling the patient's breast during an examination and asking if he could kiss her.

49. The Court (Foskett J) recognised that the matters raised on behalf of the Appellant raised questions about the account given by the patient, and were legitimate areas for investigations before a tribunal of fact determining the truth or otherwise of what is alleged,

"but it is almost always […] how the witness against whom these kind of matters are raised deals with them in evidence that will shape the decision of the tribunal." (at paragraph 23)

50. He noted that the points raised on the appeal going to the patient's credibility had been put to the patient in cross-examination and the Panel would have had the opportunity to observing how Ms P dealt with them, and that all members of the Panel (including the Chairman) took advantage of the opportunity to ask the patient questions at the conclusion of her questioning by counsel (at paragraph 27). In particular, they would have seen her reaction when it was put to her that nothing improper took place at the examination, and plainly took

"proper advantage of ... having seen and heard the witnesses (per Lord Thankerton)." (at paragraph 29)

51. In the present case Patient A was examined in chief for the entirety of a day, and then cross-examined by Counsel for Dr Y until mid afternoon the following day after which she was questioned by all three members of the Panel and further cross-examined by Counsel for Dr Y. During that questioning the Panel had the opportunity to see how she dealt with points going to her credibility based on her various statements and as well as her reaction when it was put to her that nothing improper took place during either visit.

52. In my view, there was in these circumstances sufficient evidence, arising from what Patient A had said in examination in chief and under cross-examination, to support the essential findings of the Panel that were adverse to Dr Y. Patient A had consistently maintained from the outset that Dr Y had used inappropriate sexual language during both visits, and, on the basis that he had done so, it was a justifiable inference that his conduct was an attempt at sexual grooming of Patient A. Patient A had furthermore told a police officer that on the second visit Dr Y had performed an act of gross indecency in her presence, and she maintained that particular complaint both in her witness statement for the Panel proceedings and in her oral evidence to the Panel. She also said in her witness statement, and affirmed in her oral evidence, that on the second visit Dr Y had sought to have sexual intercourse with her without her consent.

53. I am not, in particular, impressed by an argument that the fact as such that certain details of Patient A's description of the act of gross indecency varied over time or that the Panel declined to find that Dr A had digitally penetrated Patient Y on the first visit fatally undermined her evidence. On the first element, as was stated in Mubarak v General Medical Council [2008] EWHC 2830 (Admin):

"The task [for the Panel] is to consider whether the core allegations are true. It is a commonplace for there to be inconsistency and confusion about details of varying importance." (at paragraph 20)

54. On the second aspect, it is again not unusual for a tribunal of fact (including a jury in a criminal trial who must be satisfied so that they are sure of guilt) to reject one allegation of misconduct by a complainant but to find that other allegations have been proved.

55. In considering the first ground of appeal, it is also very important to bear in mind that the Panel did not find that Dr Y was a credible witness, and in this appeal it was not suggested that the Panel had no reasonable basis for such a conclusion.

56. That conclusion was based primarily on Dr Y's own account, including his evidence concerning the first visit taken against his clinical notes of it, the reasons he gave for returning to visit Patient A, none of which the Panel found credible, his evidence to the Coroner regarding Patient F, and his evidence to the Panel regarding Mrs F.

57. Those findings were reached after Dr Y had been cross-examined by Counsel for the GMC for half a day and the Panel members questioned Dr Y for a further hour. Thus, the Panel had the opportunity to see how Dr Y responded to questioning, particularly when it was suggested that something improper had occurred."

10. On the second ground, the appeal succeeded. The relevant passages read as follows

"The Second Ground of Appeal: Inadequate Reasons

58. In respect of this ground, Ms Gallafent, relying on the authorities referred to earlier, emphasised that, even in exceptional cases, no more than brief reasons need be given why the account of a particular witness has been accepted or rejected. In this case, she contended, the Panel did give reasons for finding Patient A credible as to her core allegations against Dr Y, and these reasons were adequate. This Court, she forcefully argued, should be slow indeed to find that the reasons given by the Panel were legally inadequate.

59. However, notwithstanding the power of Ms Gallafent's advocacy, I have remained deeply troubled by this aspect of the case. In my judgment, this was not just an exceptional case (within the language of the authorities) but a very exceptional case, where justice required somewhat more developed reasoning on this central issue of Patient A's credibility than would ordinarily be required. I say that essentially for two reasons. First, this was not a case where, on close analysis, the details of Patient A's account had varied over time. This was a case where Patient A, over time, had developed a fundamentally different description of what she said had happened to her. When she reported the matter at first to NHS Direct she had said that Dr Y had, on both visits, used inappropriate sexual language and had, on the first visit, tried to touch her private parts during the examination of her back. At that stage Patient A's sole concern, as expressed to NHS Direct, was that in future only female doctors should be sent to her. She herself did not want to involve the police. There was no hint that Dr Y had performed an act of gross indecency in her presence and certainly no suggestion whatsoever that he had tried to rape her, let alone that he had in fact raped her.

60. Then, following a lengthy interview with the female police officer, Patient A alleged that both a sexual assault and an act of gross indecency had occurred on the second visit, an account essentially different from what she had told NHS Direct. However, there was still no mention of attempted rape, or of actual rape. However, in her witness statement, and in her evidence to the Panel, Patient A alleged that Dr Y had tried to rape her, but went on, before the Panel, then to allege actual rape. Looked at another way, as I have noted, her account had radically shifted from a description of conduct that was only at the margins of criminality through to conduct that constituted the gravest criminal sexual offences.

61. Secondly, this was a case where on some occasions Patient A's evidence, tending to incriminate and to prejudice Dr Y, could be objectively tested, and, when it was so tested, it did not then stand up well to scrutiny. For example, Patient A in her evidence maintained that Dr Y must have pre-read her medical notes, with the implication that he had then used the information to open up discussion of matters of her private life that had no legitimate purpose. Patient A also said in evidence (inconsistently with her statement to the police officer) that Dr Y had prescribed Tramadol, that a friend had obtained the medicine for her, and that she had taken the medicine (as well as painkillers before Dr Y visited), as a basis for saying that she was in a "dozy" state on the second visit, obviously making her even more vulnerable. Patient A in her evidence furthermore said that she had contracted a sexually transmitted disease which, on her account, could only have resulted from sexual relations with Dr Y, a potentially very damaging and prejudicial allegation that did not appear in any of her other statements. For the reasons explained earlier, none of this evidence stood up well to objective scrutiny. The Panel itself found that it was inherently improbable, on physical and medical grounds alone, that Dr Y had digitally penetrated Patient A on the first visit. That rejection of her account had then to be weighed, with the other matters to which I have referred, in evaluating Patient A's credibility. It was also notable that where, on Patient A's developed account, physical evidence might have been available that could potentially have strongly reinforced her grave allegations, she herself had done things that removed such physical evidence: washing the jumper twice in a relatively short period, and throwing away the condom wrapper. Patient A in cross-examination acknowledged that, as a long time helper in the Girl Guides, she well knew the importance of retaining any physical evidence that could throw light on a complaint of sexual misconduct.

62. The crucial issue, therefore, is whether against this background the reasons given by the Panel for finding Patient A a credible witness were adequate. In my view, they were not. The Panel stated that Patient A did not disclose "the full details" of her complaint from the start, and that "the details have escalated over time". With great respect to the Panel, this was not a case of changing "detail". I have already explained that I was not impressed by any argument that her description of an act of gross indecency alleged to have been performed by Dr Y in her presence varied to some extent over time. However, for the reasons that I have already set out, what occurred here was that Patient A fundamentally changed, over time, the nature of the sexual misconduct on the part of Dr Y, culminating in her evidence to the Panel that he had actually raped her on the second visit. In my view, the treatment of her evidence by the Panel does not with sufficient clarity and precision indicate that the Panel truly recognised the difficulty posed by such a fundamental shift, particularly in the light of the second set of matters that I have mentioned in paragraph 61 above. It appears to me that the reasons had squarely to address that difficulty and to explain, even if briefly, the basis upon which the Panel deemed it safe, notwithstanding the radical shift, to accept the account as developed by Patient A and as given in her evidence to the Panel. On this latter aspect the Panel simply stated that it was "not surprising" that "the detail of Patient A's complaint was made on a piecemeal basis and that she did not provide exactly the same account to each of the individuals who have interviewed". Again, that would suggest that the central core of Patient A's account remained basically consistent, and that only the "detail" was developed and varied over time. However, that was not the position here.

63. As I have said, I have anxiously considered this aspect of the case and, recognising that the duty upon a tribunal to give adequate reasons is ultimately underpinned by the need to secure justice, I do not find that the Panel's reasoning on what was a crucial issue was in all the circumstances legally adequate."

11. On the third ground, the Judge said at paragraph 65 that

"I find no force at all in any of the criticisms of the Legal Assessor's advice, and I can deal with this ground quite shortly."

12. He then set out his reasons for rejecting the Claimant's case. In the matters argued before me, nothing turns on his conclusions on that third ground.
13. It is quite plain that the appeal then made succeeded, but succeeded only, as a reasons challenge. I reject emphatically any idea that Kenneth Parker J expressed any view that the complainant's evidence was incapable of belief so far as the central allegations are concerned. If he had formed the view that her evidence was not capable of belief or that the GMC should not have accepted it, he could not have reached the conclusion which he did on the first area of challenge.
14. On the reasons issue, I express no view of my own on his approach to how a court or tribunal should address inconsistencies in the evidence of a complainant in a case where sexual conduct up to and including rape is alleged. For whatever reason, there was no appeal by the GMC against the decision of Kenneth Parker J. My task on this application is to consider whether the IOP decision of 29th November 2012 should stand.

Subsequent events, including the IOP order of 29th November 2012

15. After consulting patient A, who intimated that she would give evidence again, the GMC considered whether it would be appropriate to pursue the allegations relating to patient A before a fresh panel. It decided to do so, communicating that decision to the Claimant by letter of 8th November 2012. On 15th November 2012 GMC wrote again, setting out that the Case Examiner, acting under Rule 8(6) of the General Medical Council (Fitness to Practise) Rules 2004, considered that the Claimant should appear before an Interim Orders Panel, for the panel to consider whether it would be necessary for the protection of members of the public, or otherwise in the public interest, or in the Claimant's own interests, that an interim order be made suspending the Claimant's registration, or imposing conditions upon it, for a period not exceeding 18 months. I have set out the Case Examiner's letter above.
16. It will be seen that the Case Examiner did so having considered the facts that

i) Patient A had made allegations of improper sexual conduct towards her and of rape of her by him, together with associated gross indecencies;

ii) The Claimant had denied the allegations;

iii) The Fitness to Practice panel ("FTP") had found him guilty of gross misconduct and erased him from the Register with immediate effect;

iv) The decision had been overturned in the High Court on the basis that the FTP had not given an adequate explanation of why it accepted A's evidence;

v) The GMC had decided to consider the case at a further FTP hearing.

17. The Case Examiner concluded that

" Given the serious nature of the allegations, the evidence supports a referral to the IOP on the grounds of public protection."

18. It has at no time been suggested to me that that referral was in any sense unlawful or unreasonable. On 29th November 2012 the IOP conducted a hearing. The claimant was not present, but was represented by Miss O'Rourke QC. The IOP panel reached the following decision. It recites what the Chair of the IOP told Miss O'Rourke QC, Dr EY's Counsel at the conclusion of the hearing (I have changed the references to the Claimant to initials only)

"Miss O'Rourke: The Panel has taken account of all the information before it today, including submissions made by Mr Taylor on behalf of the General Medical Council (GMC), your submissions on behalf of Dr E Y and the documentation provided.

In accordance with Section 41A of the Medical Act 1983, as amended, the Interim Orders Panel is satisfied that it is necessary for the protection of members of the public and is in the public interest to make an interim order imposing the following conditions on his registration for a period of nine months:

1. He must notify the GMC promptly of any professional appointment he accepts for which registration with the GMC is required and provide the contact details of his employer.

2. He must allow the GMC to exchange information with his employer or any contracting body for which he provides medical services.

3. He must inform the GMC of any formal disciplinary proceedings taken against him, from the date of this determination.

4. He must inform the GMC if he applies for medical employment outside the UK.

5 (a) Except in life threatening emergencies, he must not undertake any consultations or examinations of female patients without a chaperone present. The chaperone must be a fully registered medical practitioner or fully registered nurse or midwife.

(b) He must maintain a log detailing every case where he has undertaken a consultation and/or examination with such a patient, which must be signed and dated by the chaperone. Any chaperone must also include their Professional Registration Reference Number.

(c) He must maintain a log detailing every case where he has undertaken a consultation and/or examination with such a patient in a life-threatening emergency, without a chaperone present.

(d) At least 14 days prior to any hearing he must provide a copy of these logs to the GMC or, alternatively, confirm that there have been no such cases during that period.

6. He must inform the following parties that his registration is subject to the conditions, listed at (1) to (5), above:

(a) Any organisation or person employing or contracting with him to undertake medical work

(b) Any locum agency or out-of-hours service he is registered with or applies to be registered with (at the time of application)

(c) In the case of locum appointments, his immediate line manager at his place of work (at least 24 hours before starting work)

(d) Any prospective employer or contracting body (at the time of application)

(e) The PCT in whose Medical Performers List he is included, or seeking inclusion (at the time of application).

The Panel had regard to the letter dated 8 February 2010, from......
Acting Director Quality Clinical Governance and Clinical Practice....of....PCT.

(The Acting Director) informed the GMC that the PCT had been notified that an allegation of sexual assault against Dr E Y was being investigated by the police. A vulnerable female patient, (A) had made a complaint to the police on 26 January 2010, that had acted in a sexually inappropriate way when undertaking a clinically indicated examination during a home visit on 17 January 2010, whilst working as a General Practitioner.

(A) had also alleged that Dr E Y returned to her home later in the day and made sexualised remarks and sexual advances. The PCT were informed that Dr E Y had advised the Police that he did return to the patient's house to provide spiritual support. It was subsequently decided that Dr E Y would cease all clinical practice until such time that further advice was sought and the action that (the) Police may take was known. The PCI also referred Dr E Y for an Occupational Health assessment.

Dr E Y was subject to an Interim Order with conditions on his registration from April 2010 to October 2011.

Dr E Y's case was heard by a Fitness to Practise Panel which concluded on 13 October 2011. That Panel determined to erase Dr E Y's name from the Medical Register on the grounds of misconduct, and that he should be suspended immediately.

Dr E Y appealed the Fitness to Practise decision, and the case was heard in the High Court on 5 October 2012, by Mr Justice Kenneth Parker. The decision of the Fitness to Practise Panel was quashed on the grounds of inadequate reasoning by the Panel. Mr Justice Kenneth Parker, identified the crucial issue before him was whether, against the concerns identified as to the credibility of LG, the reasons given by the Panel for finding (A) a credible witness were adequate. His conclusion was 'I do not find that the Panel's reasoning on what was a crucial issue was in all the circumstances legally adequate'

Having invited submissions as to the specific order to be granted, in light of its judgment the High Court ordered that Dr E Y's case be remitted to the GMC to consider whether or not to pursue the complaint of (A) to a fresh panel.

The Panel noted the letter dated 8 November 2012, from the GMC to Ms Victoria Lord, Nabarro Solicitors, confirming that the GMC considers that it is appropriate to pursue the complaint to a fresh hearing.

Mr Taylor submitted that Mr Justice Parker had considered three grounds of appeal in the case of Patient LG:

• Were the Panel's findings of fact perverse?

• Did the Panel fail to give adequate reasons for its findings of fact?

• Did the Legal Assessor fail to direct the Panel appropriately on the evidence?

Mr Taylor submitted that only the second ground of appeal had been upheld. Mr Taylor relied on the Judge's view that there was in the circumstances sufficient evidence arising from what (A) had said in examination in chief and under cross examination to support the essential findings of the Panel that were adverse to Dr E Y.

Mr Taylor further submitted that it is therefore necessary and proportionate in order for the protection of members of the public and is in the wider public interest, to impose an interim order of conditions on Dr E Y's registration. The Fitness to Practise hearing could not be scheduled until April/May 2013 and therefore a period of nine months would be reasonable.

You submitted that the Fitness to Practise decision had been quashed as a result of a wrongful determination, and submitted that this wrongful determination had resulted in Dr E Y being suspended for a long period of time. This had had a detrimental effect on both Dr E Y's career and finances.

You told the Panel that Dr E Y had received a letter today, from the Independent Safeguarding Authority, stating that that they had lifted Dr E Y's listing, in light of the High Court decision to quash the hearing. However, you stated that conditions incorporating a requirement for a chaperone would render Dr E Y unemployable within his specialty as a General Practitioner, and that they would not therefore be practical, workable or proportionate.

You submitted that the case hinged on one unsupported and uncorroborated allegation from a single complainant and that this is highlighted in the High Court Judgment. You further submitted that this, together with other discrepancies in the information available, undermined the allegations against Dr E Y.

In particular you drew attention to the concerns raised by the High Court as to the quality of the evidence advanced by (A), which evidence you submitted was not credible.

Further you drew the Panel's attention to the Order made by the High Court, which did not remit the case back to the same Fitness to Practise Panel for amplification of the previous reasoning. You stated that the case was remitted to the GMC to consider whether or not to pursue the complaint of (A) to a fresh Fitness to Practise panel.

You submitted that Dr E Y had engaged with all the processes and had complied fully with the previous interim order. You also stated that to place further interim conditions on Dr E Y'S registration meant that he would have been subject to an interim order for approximately eighteen months, followed by suspension. You submitted that this would be disproportionate in the circumstances.

The Panel has borne in mind that it is not its function to make findings of fact, nor decide on the veracity of the allegations. The Panel has, however, given such weight as it considered appropriate to the allegations and to the comments on these.

The Panel considered all the material before it today, including the High Court Judgment which stated, notwithstanding significant concerns as to the credibility of various aspects of (A)'s evidence before the Fitness to Practise Panel, there was sufficient evidence to support its essential findings. The Panel is mindful that the allegations involve a vulnerable patient and that Dr E Y's alleged behaviour was inappropriate and unprofessional, in the light of the weight of all the information available, including the views expressed, and the serious nature of the allegations, the Panel is satisfied that there may be impairment of Dr E Y's fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest. The public interest includes the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. After balancing Dr E Y's interests with the public interest, the Panel has determined that an interim order is necessary to guard against such a risk.

The Panel first addressed whether or not conditions would be sufficient to protect patients and the public interest. The Panel determined that conditions could be formulated that are sufficient to guard against the risks that have been identified.

The Panel has taken account of the principle of proportionality and has balanced the need to protect members of the public and the public interest against the consequences for Dr E Y of the imposition of conditions on his registration. Whilst it notes that the above conditions restrict his ability to practise medicine, and notes the concerns you raised as to his ability to obtain employment if conditions are imposed, the Panel considers that, in view of the serious nature of the allegations involving a vulnerable patient, the conditions are necessary to protect members of the public and the public interest whilst these matters are resolved. It is therefore satisfied that the imposition of the above conditions on his registration is a proportionate response to the risks posed by his remaining in unrestricted practice.

In deciding on the period of nine months, the Panel has taken into account the uncertainty of the time needed to resolve this case.

The order will take effect today and will be reviewed within six months, or earlier if necessary.

Notification of this decision will be served upon Dr E Y in accordance with the Medical Act 1983, as amended."

The letter continued

"Your registration will therefore be subject to the conditions specified above for a period of nine months with effect from 29 November 2012. This order will be subject to review

within six months in accordance with section 41A(2) of the Act. You must comply with the conditions on your registration. Failure to do so may put your registration at risk.

During the period that the conditions remain in place, as long as you comply with them,

you will be entitled to hold a licence to practise………………"

19. The court was informed by Miss O'Rourke that the Police have since sought to interview Dr EY about the alleged sexual offences.

The role of the court under Section 41A Medical Act 1983

20. The leading case in the application and interpretation of section 41A is the Court of Appeal decision in General Medical Council v Hiew [2007] EWCA Civ 369 [2007] 1 WLR 2007. I refer to parts of the leading judgement of Arden LJ. Although that case relates to the power of extension of a suspension under section 41A(7) it is of application also to the exercise of jurisdiction under section 41A(10).

"Legislative Framework

4. The GMC was established as long ago as 1858. The Medical Act 1983 ("the 1983 Act") deals first with its organisation and internal management. The 1983 Act has been heavily amended and references in this judgment to the 1983 Act are to that Act as now in force. Schedule 1 to the 1983 Act refers to a number of committees of the GMC including the IOP.

5. The 1983 Act also deals with the registration of medical practitioners and their education and qualifications. The registration of medical practitioners is one of the matters for which the GMC is statutorily responsible. Certain qualifications obtained outside the United Kingdom, particularly in the European Community or in a contracting state of the European Economic Area, are recognised by statute and the holders of these qualifications may be entitled to be registered on one of the registers maintained by the GMC. Parts VI and VII of the 1983 Act deal with the privileges of registered practitioners, offences and miscellaneous matters.

6. Part V of the 1983 Act (covering sections 35 to 46) sets out the powers of the GMC with respect to professional conduct and fitness to practise. Section 41A(7) of the 1983 Act was inserted in 2002. Part V also provides for the investigation of allegations about the fitness to practise of medical practitioners registered with the GMC. It establishes a Fitness to Practise Panel, whose function it is to decide whether a practitioner's fitness to practise is impaired, whether on account of misconduct, deficient performance, health or any other of the prescribed grounds. A Fitness to Practise Panel can, if they think fit, direct that the name of a person be erased from the register or that his registration should be suspended. Part V also provides for an Investigation Committee and an IOP. Under section 35C of the 1983 Act, the Investigation Committee can refer to an IOP the question whether a suspension order should be made in relation to a registered practitioner pending the completion of an investigation.

7. Section 41A of the 1983 Act endows the GMC with powers to deal with the situation that can arise where it has become aware of an issue as to whether a practitioner should be permitted to practise, or at least should only be permitted to practise subject to conditions, but before any decision has been reached as to his continued registration. The GMC has to have powers to deal with this situation in order to provide protection for the public, or indeed in the interests of the practitioner himself. The scheme of section 41A is that an IOP or Fitness to Practise Panel may decide that the registration of a practitioner may be suspended for up to 18 months or that his registration should be subject to conditions. That order must be reviewed at least every six months. They must give the person in question an opportunity of appearing before them. However, the GMC cannot itself extend the period of time for which any order is in force. If it considers that an extension is required, it must apply to the court. The maximum extension that the court can give on any one occasion is 12 months. The court is also given power to terminate the suspension or to substitute a new period for the period in the original order.

8. Section 41A accordingly provides in material part as follows:

"(1) Where an Interim Orders Panel or Fitness to Practise Panel are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Panel may make an order –

(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an "interim suspension order"); or

(b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose (an "order for interim conditional registration.").

(2) Subject to subsection (9) below, where an Interim Orders Panel or Fitness to Practise Panel have made an order under subsection (1) above, an Interim Orders Panel or Fitness to Practise Panel

(a) shall review it within the period of six months beginning on the date on which the order was made, and shall thereafter, for so long as the order continues in force, further review it -

(i) before the end of the period of six months beginning on the date of the decision of the immediately preceding review; or

(ii) if after the end of the period of three months beginning on the date of the decision of the immediately preceding review the person requests an earlier review, as soon as practicable after that request; and

(b) may review it where new evidence relevant to the order has become available after the making of the order.

(3) Where an interim suspension order or an order for interim conditional registration has been made in relation to any person under any provision of this section (including this subsection), an Interim Orders Panel or a Fitness to Practise Panel may, subject to subsection (4) below

(a) revoke the order or revoke any condition imposed by the order;

(b) vary any condition imposed by the order;

(c) if satisfied that to do so is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, replace an order for interim conditional registration with an interim suspension order having effect for the remainder of the term of the former; or

(d) if satisfied that to do so is necessary for the protection of members of the public, or is otherwise in the public interest, or is in the interests of the person concerned, replace an interim suspension order with an order for interim conditional registration having effect for the remainder of the term of the former.

(4) No order under subsection (1) or (3)(b) to (d) above shall be made by any Panel in respect of any person unless he has been offered an opportunity of appearing before the Panel and being heard on the question whether such an order should be made in his case; and for the purposes of this subsection a person may be represented before the Panel by counsel or a solicitor, or (if rules made under paragraph 1 of Schedule 4 to this Act so provide, and he so elects) by a person of such other description as may be specified in the rules.

(5) If an order is made under any provision of this section, the Registrar shall without delay serve a notification of the order on the person to whose registration it relates.

(6) The General Council may apply to the relevant court for an order made by an Interim Orders Panel or a Fitness to Practise Panel under subsection (1) or (3) above to be extended, and may apply again for further extensions.

(7) On such an application to the relevant court the court may extend (or further extend) for up to 12 months the period for which the order has effect.

…

(10) Where an order has effect under any provision of this section, the relevant court may

(a) in the case of an interim suspension order, terminate the suspension;

(b) in the case of an order for interim conditional suspension, revoke or vary any condition imposed by the order;

(c) in either case, substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it)…

and the decision of the relevant court under any application under this subsection shall be final."

9. In the case of a registered person other than a person whose address in the register is in Scotland or Northern Ireland, the "relevant court" is the High Court of Justice in England and Wales (sections 41A(14) and 40(5) of the 1983 Act).

Arden LJ continued later:

" Discussion and Conclusions

(1) The function of the court on an application under section 41A(7)

26. I have already set out the scheme of section 41A, and the relevant parts of the section, in paras 7 and 8 above. Parliament could have provided that the IOP or Fitness to Practise Panel, rather than the court, should have power to determine whether the period of any interim suspension order or conditional order should be extended. The courts could then review that determination on an application for judicial review in an appropriate case. That is not, however, the scheme for which Parliament has provided. Parliament has not provided that the IOP or the Fitness to Practise Panel should in this respect simply operate in the shadow of judicial review, but rather that the courts should have the power and duty to consider whether any extension of time beyond the initial period is appropriate. Under this scheme, the exercise in decision-making is to be performed by the court as the primary decision maker. This was indeed the manner in which, albeit without detailed analysis of the position, the Divisional Court and the High Court have proceeded in earlier cases (see for example, Donnelly v GMC [2002] EWHC 1312 (Admin)(Kennedy and Forbes J); GMC v Malik [2002] EWHC 2338 (Admin) (Keith J); R... o/a GMC) v Walker [2005] EWHC 122 (Admin); R( o/a GMC) v Martin [2005] EWHC 3199 (Admin) (Walker J).

27. Under section 41A(7), the court has power to determine that there should be no extension or the extension sought by the GMC or (as in this case) some lesser extension. In an appropriate case, and having given the parties an opportunity to be heard, the judge also has power under section 41A(10) to terminate the suspension or to shorten the current period of suspension. The powers conferred by section 41A(10) are also original powers and not merely powers of judicial review.

28. Section 41A(7) does not set out the criteria for the exercise by the court of its power under that subsection in any given case. In my judgment, the criteria must be the same as for the original interim order under section 41A(1), namely the protection of the public, the public interest or the practitioner's own interests. This means, as Mr Englehart QC, for the GMC, submits, that the court can take into account such matters as 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. The onus of satisfying the court that the criteria are met falls on the GMC as the applicant for the extension under section 41A(7). Although Mr Engelman submitted that the standard of proof was the criminal standard, I prefer Mr Englehart's submission that the relevant standard is the civil standard, namely on a balance of probabilities. Proceedings for the extension of an interim suspension order are not criminal proceedings.

29. The judge must, however, reach his decision as to whether to grant an extension on the basis of the evidence on the application. He will need to examine that evidence with care. One of the difficulties in this case was that the witness statement in support of the application was relatively perfunctory with respect to the narrative of events and moreover set out the reasons for the application in summary form only: see paragraph 32 of the witness statement in support of the application, set out in paragraph 20 above. The evidence did not explain, to the requisite level of detail, the reasons why the GMC made the application and the judge had to elicit that information from the submissions of counsel and the large volume of contemporary documents with which he was provided. In my judgment, the witness statement should fairly explain, in summary, but as a self-standing document, the GMC's reasons for the application for an extension.

30. The power to grant an extension contained in section 41A(7) and the power to make the orders set out in section 41A(10) represent the limit of the court's express powers in relation to interim measures under section 41A. It is to be noted that Parliament has not given the court power to determine in the first instance whether an interim suspension order or conditional order should be made. Furthermore, the power to erase the name of a medical practitioner from the register is not conferred on the court. That power, together with the power to impose other disciplinary sanctions, is conferred on the various panels of the GMC: see sections 35D, 36, 36A, 37, 38, and 39. Section 40 provides for an appeal to the court in respect of some of these decisions. Parliament has clearly taken the view that the organs of the GMC are better placed than the courts to investigate such matters and evaluate them.

31. The statutory scheme thus makes it clear that it is not the function of the judge under section 41A(7) to make the findings of primary fact about the events that have led to the suspension or to consider the merits of the case for suspension. There is, moreover, no express threshold test to be satisfied before the court can exercise its power under section 41A(7), such as a condition that the court should be satisfied that there is evidence showing that there is a case to answer in respect of misconduct or any other matter. On the other hand, if the judge can clearly see that the case has little merit, he may take that factor into account in weighing his decision on the application. But this is to be done as part of the ordinary task of making a judicial decision, and a case where a statutory body makes an application on obviously wholly unsupportable grounds is likely to be rare.

32. The evidence on the application will include evidence as to the opinion of the GMC, and the IOP or Fitness to Practise Panel, as to the need for an interim order. It is for the court to decide what weight to give to that opinion. It is certainly not bound to follow that opinion. Nor should it defer to that opinion. All that is required is that the court should give that opinion such weight as in the circumstances of the case it thinks fit. Weighing up the opinion of a body that has special statutory responsibilities and relevant experience and expertise is again part of the ordinary task of judicial decision-making.

33. Mr Engelman relies on the proposition, regarded as axiomatic by Laws LJ in R(o/a D) v Secretary Of State for Health [2006] Lloyd's Rep Med 457, that, the more serious a public authority's interference with an individual's interest, the more substantial will be the justification which the court will require if the interference is to be permitted. But, in this case, the decision of the court is simply that there should be an extension of the period of suspension. The court is not expressing any view on the merits of the case against the medical practitioner. In those circumstances, the function of the court is to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension. In general, it need not look beyond the allegations. If the medical practitioner contends that the allegations are unfounded, the medical practitioner should challenge by judicial review the original order for suspension or the failure to review it and make some other decision in accordance with section 41A(2). On such an application, the decision of the IOP or Fitness to Practise Panel will then be examined on well-established judicial review grounds. I do not consider that a judge is bound to treat a medical practitioner's opposition to an application under section 41A(7) as if it were an application for judicial review on the grounds that the allegations are without foundation, and there is a danger if he does so, other than in a plain and obvious case (which I have already observed will be rare), that the wrong test will be applied. If the judge proceeds in the manner described above, he is unlikely to be diverted by the task of having to consider the seriousness of the risk to the public on the evidence provided by the GMC by contentions that the allegations are unfounded."

21. Miss O'Rourke QC made various submissions about the standard of reasoning required from the IOP, citing various unreported first instance decisions (set out below). It can be dangerous to argue from case specific conclusions to general principle, and in the way in which Miss O'Rourke approached it, there seemed to the court to be some considerable danger that some central principles of public law about reasoning would be overlooked. The standard of reasoning required must of course reflect the context in which the decision is taken - in this case the MPTS IOP- but that does not justify a departure from the principle that while adequate reasons are required, which deal with the principal points in issue, they can be shortly stated. Given the number of cases in that field where the point is raised, it is inevitable that the principles are most conveniently to be found in the field of challenges to Ministerial town planning decisions. A very useful guide appears in the judgement of Keene LJ in First Secretary of State & Anor v Sainsbury's Supermarkets Ltd [2007] EWCA Civ 1083 at paragraph 43, where he summarised the law on this topic, while explaining that he preferred the submissions in that case of Miss Nathalie Lieven for the Secretary of State

" The judge referred to this aspect in the final sentence of his decisive paragraph, when he observed that

"at least the reasoning of the Secretary of State did not explain why those disadvantages [of Option A] had to be accepted." (paragraph 73)

Both appellants challenge that proposition. The Secretary of State relies upon the leading case of South Bucks District Council v. Porter (No. 2) [2004] 1 WLR 1953, where Lord Brown of Eaton–under–Heywood summarised the principles applicable to this well-worn topic. At paragraph 36 he said:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

Miss Lieven emphasises the propositions that the degree of particularity required depends entirely on the nature of the issues and that decision-letters are addressed to parties well aware of the issues involved and the arguments advanced. She also refers us to a passage from Clarke Homes Ltd v. Secretary of State for the Environment [1993] 66 P and C R 263, cited with approval in the South Bucks case. In Clarke, another case involving a reasons challenge, Sir Thomas Bingham, M.R., observed at page 271 – 272:

"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

22. The principle there set out is not confined to the interpretation of decision letters in planning appeals, but has wider application. See for example R (on the application of Assura Pharmacy Ltd) v NHSLA and E Moss Ltd (t/a Alliance Pharmacy) [2008] EWCA Civ 1356 per Lawrence Collins LJ, who when dealing with decisions by a Primary Care Trust to list pharmacies which could dispense prescriptions, said at paragraph 59

"……decision letters such as the ones which are the subject of this appeal are to be considered on a "straightforward down-to-earth reading… without excessive legalism or exegetical sophistication ": Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P&CR 263 at page 272-3, per Sir Thomas Bingham MR), applied in, e.g. MR Dean & Sons (Edgware) v First Secretary of State [2007] EWCA Civ 1083, at [43].

23. It is also well established that, while a decision maker must have regard to all material considerations, he is not required to spell them all out in the decision letter. That appears from the speech of Lord Lloyd of Berwick in the leading case of Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others [1996] 71 P and CR 309. I referred to this authority during legal argument, although it does no more than set out long established principles. If true in a Town Planning case, where there is an express statutory duty to have regard to all material considerations (see section 70 Town and Country Planning Act 1990), so must it be true where the duty is implied by the common law relating to decision making. I draw attention also to the authorities relied on by Lord Lloyd which do not all derive from cases in town planning, but from the general principles relating to decision making. He said the following at 314-315:

"The correct approach

Before dealing with each of these challenges, I should first make some preliminary observations on the correct approach to decision letters in planning appeals, with which alone we are concerned in this case. This can be done very briefly, since the question was fully covered in the recent speech of Lord Bridge of Harwich in Save Britain's Heritage v. No. 1 Poultry Ltd. ([1991] 1 WLR 153)

Under section 70(2) of the Act of 1990, read with section 77(4), it was the duty of the Secretary of State to have regard "to the provisions of the development plan … and to any other material considerations". Under rule 17(1) of the Town and Country Planning (Inquiries Procedure) Rules 1988 (S.I. 1988 No. 944), it was the duty of the Secretary of State to "notify his decision … and his reasons for it in writing to all persons entitled to appear at the inquiry who did appear …" So the Secretary of State had to have regard to all material considerations before reaching a decision, and then state the reasons for his decision to grant or withhold planning consent. There is nothing in the statutory language which requires him, in stating his reasons, to deal specifically with every material consideration. Otherwise his task would never be done. The decision letter would be as long as the inspector's report. He has to have regard to every material consideration; but he need not mention them all.

What then must be mentioned? The classic exposition was given by Megaw J. in In re Poyser and Mills' Arbitration ([1964] 2 QB 467) approved by this House in Westminster City Council v. Great Portland Estates Plc ([1985] AC 661)

"Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."

Ten years later, in Hope v. Secretary of State for the Environment ([1975] 31 P. & C.R. 120 at 123) Phillips J. said:

"It seems to me that the decision must be such that it enables the appellant to understand on what grounds the appeal has been decided and be in sufficient detail to enable him to know what conclusions the inspector has reached on the principal important controversial issues"

Lord Bridge in Save Britain's Heritage v. Number 1 Poultry Ltd ([1991] 1 W.L.R. 153 at 156C.) described this statement as being "particularly well expressed".

Coming to the present case, Glidewell L.J. put the matter as follows :

"In relation to two of these issues. Schiemann J. in the passages I have quoted said that it is 'fanciful to postulate' that the Secretary of State did not take these matters into account, nor give them appropriate weight. With all respect to a judge with great experience in this field, I do not think this is a proper approach. A decision letter must, in order to give proper and adequate reasons, refer to each material consideration, and explain why because or despite it the eventual decision is reached. At the least, if there is no express reference to some matter, it must be possible for the reader to infer that the words used implied such a reference."

It may be that in this passage, Glidewell L.J. was saying only that he disagreed with Schiemann J.'s conclusion. But in so far as he was saying that a decision letter must refer to "each material consideration" I must respectfully disagree. This seems to go well beyond Phillips J.'s formulation in Hope v. Secretary of State for the Environment . What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the "principal important controversial issues". To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden.

For the same reason, I have doubts about another passage in Glidewell L.J.'s judgment where he quotes from the speech of Lord Keith of Kinkel in Reg. v. Secretary of State for Trade and Industry, Ex parte Lonrho Plc.( [1989] 1 W.L.R. 525 at 540)

"The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of the different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision."

Glidewell L.J. adds,

"I add that in my judgment the same principle applies to a failure to refer in a decision to a material consideration, or to an indication that it is not material—the inference may be that the decision-maker has not fully understood the materiality of the matter to the decision."

Since there is no obligation to refer to every material consideration, but only the main issues in dispute, the scope for drawing any inference will necessarily be limited to the main issues, and then only, as Lord Keith pointed out, when "all other known facts and circumstances appear to point overwhelmingly" to a different decision."

24. In my judgement exactly the same approach applies to the way in which the IOP dealt with the issues before it. If it had considered them (and the transcript of the hearing sets out the submissions made to it), and dealt with the main issues in its conclusions in a way which told the parties, who were well aware of the issues raised and arguments advanced, of their conclusions, that meets the relevant tests. It follows that the IOP was not required to set out every argument in detail in its decision, provided that it is apparent on a sensible reading of the decision in question that they have been taken into account. Similarly, reasons may be shortly stated.
25. I note that in one of the first instance decisions cited to me, Abdullah v General Medical Council [2012] EWHC 2506 (Admin), Lindblom J, a very experienced public lawyer (both at the bar and on the bench) put it thus at paragraph 102

" What the IOP had to do – no more and no less – was to explain why their decision was the one they had announced. In most cases, probably in every case, this can be done briefly. The IOP were exercising a statutory power framed in simple terms. Three interests are embraced in that provision: first, "the protection of members of the public", second, "the public interest", and third, "the interests of a fully registered person". The IOP had to exercise their judgment within those statutory parameters. And it is in this context that the adequacy of their reasons must be assessed. The parties knew what the contentious issues had been. They could expect to be told how those issues had been resolved and why the decision went the way it did. The losing side could expect to learn why it had lost. But the IOP did not have to provide an elaborate explanation of their decision. Reasons were required, but not reasons for reasons."

I respectfully agree with him. The question of the extent of the reasoning required will vary from case to case. That some judges have thought it appropriate in some particular cases to require more reasoning does not override that general principle.

26. What is the context of this case? It is that allegations of serious sexual misconduct have been made against Dr EY by a vulnerable patient. They are denied, and the patient and complainant A has not given a consistent account. While the FTP panel made findings against him, they have been quashed because of inadequate reasoning. It follows that what remains are unresolved allegations of serious sexual misconduct, but which, as Kenneth Parker J ruled, are not such as to be incapable of belief. Whether they are accepted in the event is a matter for the FTP.
27. Some reference was made before me to a publication issued by the GMC "Imposing Interim Orders; Guidance for the Interim Orders Panel and the Fitness to Practice Panel." In its current form it was issued in February 2012. It is not published as a statutory code, but both parties treated it before me as consonant with good practice. It includes the following passages to which I was referred

"Test applied

18. The IOP must consider, in accordance with section 41A, whether to

impose an interim order. If the IOP is satisfied that:

(a) in all the circumstances that there may be impairment of the doctor's fitness to practise which poses a real risk to members of the public, or may adversely affect the public interest or the interests of the practitioner;

and

(b) after balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk,

the appropriate order should be made.

19. In reaching a decision whether to impose an interim order an lOP should

consider the following issues:

(a) The seriousness of risk to members of the public if the doctor continues to hold unrestricted registration. In assessing this risk the IOP should consider the seriousness of the allegations, the weight of the information, including information about the likelihood of a further incident or incidents occurring during the relevant period

(b). 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.

(c) Whether it is in the doctor's interests to hold unrestricted registration. For example, the doctor may clearly lack insight and need to be protected from him or herself.

20. In weighing up these factors, the IOP must carefully consider the proportionality of their response in dealing with the risk to the public interest (including patient safety and public confidence) and the adverse consequences of any action on the doctor's own interests.

21. In assessing whether or not it is appropriate to take action, the IOP should consider the seriousness of any police charges and the acceptability of their decision on interim action should the doctor later be convicted or acquitted (including public confidence issues as above).

22. When considering whether or not to make an interim order, the IOP cannot accept any undertakings given by the doctor as it has no power to accept them and they are, in any event, unenforceable.

Allegations of sexual misconduct

23. In general, where allegations involve sexually inappropriate behaviour towards patients or the doctor is under police investigation for a sexual criminal offence, particular consideration should be given to the impact on public confidence if the doctor were to continue working unrestricted in the meantime.

The following factors are likely to indicate, balanced alongside other considerations, that a case is likely to raise significant public confidence issues if no interim action is taken.

a. Information that a doctor is under investigation by police in connection to

serious offences such as rape or attempted rape, sexual assault or attempted sexual assault or sexual abuse of children.

b. Allegations that a doctor exhibited predatory behaviour in seeking or establishing an inappropriate sexual or emotional relationship with a vulnerable patient.

c. Serious concerns about a doctor's sexualised behaviour towards a patient

in a single episode.

d. Allegations of a pattern of sexually motivated behaviour towards patients.

Other serious criminal offences

…………………………………………………..

Sexual misconduct

31. Where allegations involve sexual misconduct, there may be a significant risk to patient safety and public confidence in the profession if decisions at the interim stage are not seen to reflect the seriousness of the individual case.

Workability and effectiveness of conditions

32. In cases involving allegations of sexual misconduct, one or more of the following factors are a strong indicator that conditions requiring the use of a chaperone may not be workable or effective:

a. Any serious concerns that the doctor has not complied with existing chaperoning arrangements at their place of work.

b. Allegations that a doctor asked a chaperone to leave the room during an intimate examination.

c. Allegations that a doctor exhibited sexually indicated behaviour towards patients in the presence of a chaperone.

Public confidence

33. The public has a right to know about a doctor's fitness to practise history to enable them to make an informed choice about where to seek treatment. To balance this with fairness to the doctor, allegations leading to the imposition of interim conditions are not published or disclosed to general enquirers. It is therefore the responsibility of the IOP to consider whether, if allegations are later proved, it will damage public confidence to learn the doctor continued working with patients while the matter was investigated.

34. With this in mind, the presence of one or more of the following factors are a strong indicator that conditions may not be adequate to maintain public confidence in the profession or the medical regulator.

a. Information that a doctor has been charged by police in connection to serious offences such as rape or attempted rape, sexual assault or attempted sexual assault or sexual abuse of children.

b. Allegations of a pattern of sexually inappropriate conduct towards patients.

In exercising their discretion in relation to the particular facts of each case the IOP should also consider any immediate risk to patient safety [Yeong 2009]. However, there are circumstances in which it is necessary to take action to protect public confidence even where there is no immediate risk to patients.

Criminal Charges

35. Where the allegations involve serious criminal charges the panel should consider recent case law in relation to the proportionality of their response. 'The statutory test is there, and that is the one to be applied. One would like, all the same, to think that in all these kinds of cases of potential interim suspension an interim orders panel would at least be asking itself, as part of its thought process, the following: will it be acceptable for us not to suspend in a case of this kind if at the end of the day the charges are proved and the guilt of the applicant is established? That is one aspect. Another part of the thought process should be: will it be acceptable for us to suspend an applicant in a case of this kind if, at the end of the day, the applicant may be acquitted of all charges? Those considerations should form at least part of the thinking of an interim orders panel...' [Sosanya 2009]

36. It is incumbent on the panel to consider the individual features of each case and the particular facts of the criminal charges. In evaluating the acceptability of intervening or declining to do so, the lOP should have in mind the ultimate possibilities of both the practitioner's acquittal and his/her conviction of the particular charges."

Preliminary observations on Claimant's case

28. I must start by identifying what this claim actually relates to. The Claim Form argues only one ground, namely that the conditions imposed were disproportionate and unnecessary, and that the IOP had failed to consider proportionality. Given the fact that the original FTP decision was quashed, and on a reasons basis only, the main issue before me is whether the IOP order was unnecessary and/or disproportionate. Nothing has occurred since which would add to the case against the making of the Order. Arguments about the credibility of evidence before the original FTP, or of its admissibility, are irrelevant at this stage, unless they in some manner inform the discussion about the actual issue. While the court can consider whether the case against Dr EY has any merit, it is not for this court to assess the consistency or quality of the evidence against the Claimant. That accords with the approach in Hiew at paragraph 31.
29. It is true that in some respects Kenneth Parker J was concerned about the consistency of the complainant, and in some areas expressed views about whether a piece of evidence given by her could be true. But with respect to him, the views of Kenneth Parker J of the credibility of the witness are not relevant now. He was not the fact finding tribunal, and indeed he disavowed such a role. He rejected the first ground of challenge, and only accepted the reasons challenge. His views on the reasoning as applied to the consideration of evidence given before the earlier FTP cannot be applied to what may happen when another FTP hears the evidence given before it. What can be taken from his judgement, and importantly so, is that

i) Patient A's evidence to the original FTP panel was in some parts inconsistent and required (and no doubt will require) careful scrutiny and consideration;

ii) Patient A's evidence to that FTP panel had not been shown to be incapable of belief, nor did he find that a decision that the allegations were true was perverse;

iii) An appropriately careful standard of reasoning would be required from the new FTP when it considered the case. It would of course do so on the basis of the evidence as it stood before it;

iv) It would be wrong to treat the first FTP decision as in any sense determinative, or even indicative, of what the new FTP would decide.

30. But it must be noted also that when the FTP considers the case, it will not be sitting as an appellate or reviewing body considering what happened at the previous FTP. It can only determine the case on the basis of the evidence before it. While evidence of what was said by witnesses or parties at that first FTP may well be admissible evidence at the second FTP (for example if a witness gives evidence inconsistent with that which the witness had given to the first Tribunal), the decision and reasoning of the original FTP will be irrelevant, and for all practical purposes irrelevant and inadmissible, unless it becomes admissible because of some events during that hearing. Kenneth Parker J's conclusions on any of the three grounds argued before him will also be irrelevant to the FTP's task in determining the complaints, as mine (if I expressed them) would be also; see Hiew at paragraphs 30- 31. That may assist both sides of the case. Kenneth Parker J's conclusion that the findings against the Claimant were not perverse and that patient A's evidence was capable of belief does not in any sense bind the next FTP to reach the same conclusion: nor do his expressed views on consistency, inconsistency or credibility. My conclusions in this judgement will also be irrelevant on such issues.
31. Against that background I turn to the submissions made on the actual issue before me.

Submissions of Claimant Doctor

32. Miss O'Rourke QC accepted at the outset that she could not argue against the imposition of conditions in principle, as her client was now the subject of an active investigation by the Police. Her case, doughtily argued, was that condition 5 (that relating to the use of chaperones) was unnecessary and disproportionate. However she also argued that the standard of reasoning given was generally deficient, both for the justification of the imposition of conditions, and for the terms of the conditions themselves.
33. She argued that

i) the case against Dr EY consisted of an allegation of sexual conduct on one day;

ii) the only evidence was that of the patient, whose evidence had been shown to be inconsistent or likely to be untrue in several respects, and could not be regarded as cogent;

iii) the IOP conclusions did not address the level of risk he would pose to patients were he to be able to work as a Doctor;

iv) the claimant had lost his job as a result of the proceedings and was living on Jobseekers' Allowance. Until cleared, he was unlikely to get employment as a GP. The only work he was likely to be able to obtain was working in a hospital or medical centre dealing with accident and emergency cases (the former) or with less serious cases at a drop in medical centre. The inclusion of the "chaperone" condition would effectively prevent him from getting such a post;

v) it could be replaced with a condition whereby he would be prevented from undertaking home visits, and would be forbidden to conduct consultations with female patients in isolated units- i.e. they should take place must be in a suite of rooms where others are working, so that the patient could call for help or make a complaint should anything untoward occur. That would also, it was argued, reduce any risk that he would wish to conduct himself improperly;

vi) it was a proper condition given the fact that the case made against him was not of sexually improper examinations in a hospital or medical centre, but of sexual advances and of rape within the woman's home;

vii) he would only be subject to conditions until the conclusion of the hearing in June 2013. Bearing in mind the " catastrophic" effect on him of the conditions (as Miss O'Rourke put it) they were unnecessary and disproportionate.

34. She submitted that the IOP had simply "parroted" its conclusions in a form of words, which it always used as a " mantra" and pointed out that the same form of words had been used in other recent cases under section 41A or its equivalent relating to other professions. She referred to the following unreported first instance decisions: (R(Sosanya) v GMC [2009] EWHC 2814 (Davis J) , Rashid v GMC [2012] EWHC 2862 (Judge Gosnell), Hussain v GMC [2012] EWHC 2991 (Judge Pelling QC), Harry v GMC [2012] EWHC 2762 (Burnett J) , Houshian v GMC [2012] EWHC 3458 (King J) , Patel v GMC [2012] EWHC 3688 (Eady J), Scholten v GMC [2013] EWHC 173 (Supperstone J ).

Submissions of Defendant GMC

35. Miss Gallafent submitted that

i) the powers conferred by section 41A(10) are original powers and not powers of judicial review (Hiew at para 27).

ii) The Court should only terminate the extant order of the IOP if it considers that the order was wrong (Sandler v GMC [2010 ] EWHC 1029 (Nicol J) at para12, Abdullah para 70).

iii) In the ordinary way the Court will show respect for the decision of a Panel in this context, given that the Panel is an expert body which is well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and public confidence (Hiew para 32, R(Sheikh) v GMC [2007]EWHC 2972 (Davis J) at para 10, Sandler para 13, Abdullah para 70).

iv) Inadequacy of reasoning does not in itself provide a ground for terminating an order of suspension but if the reasoning is inadequate or opaque the weight to be attached to the professional opinion of the Panel will be diminished (Hussain para 11-12, Harry para 2).

v) The test in relation to an interim order sought for the protection of patients is one fairly and squarely of necessity (Hussain para 41).

vi) If an order is to be imposed either because it is required otherwise than for the protection of patients in the public interest, or in the interest of the registered person, then it must be shown to be at least desirable that such an order be imposed and there is some implication of necessity (Sheikh para 15, Sandler para 14,Hussain para 41, Harry para 2).

vii) It is likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest, although ultimately these things need to be decided on the facts of each particular case (Sheikh at para 16, Abdullah at para 7, Houshian at para 12).

viii) In considering the risk to the public interest it is necessary to consider the degree of risk and the likelihood of serious damage to public confidence in the profession if a doctor were allowed to continue to work with patients pending the resolution of unproved allegations against him (Houshian para 34).

ix) Whether the protection of the public could be achieved, and the wider public interest served, by imposition of conditions is (Abdullah para 106)

"quintessentially a matter for the IOP's own, expert judgement."

x) What the lOP cannot do, and should not do, is to seek to decide the credibility or merits of a disputed allegation: that is a matter for the substantive hearing of an allegation; the IOP must also be extremely cautious about rejecting or discounting evidence on the basis that it is incredible or implausible (Perry v Nursing and Midwifery Council [2013] EWCA Civ 145 para 20).

xi) The IOP must consider very carefully the proportionality of the measure, weighing the significance of any harm to the public interest in not suspending the doctor (or imposing conditions upon his registration) against the damage to him by preventing him from practising (or limiting his ability to practice medicine) (Sandler para14, Hussain para 41).

xii) A question that an IOP would do well to consider in cases of potential interim suspension is whether it would be right not to have suspended the doctor if the allegations against him were eventually proved, or wrong to have done so if in the end he was exonerated (Sosanya para 26, Abdullah para 88).

xiii) In considering what the reasonable onlooker would think in those situations, the reasonable onlooker needs to have attributed to him knowledge of the relevant facts (Patel para 28).

xiv) Whilst the GMC's Guidance on the imposition of interim orders is not a statutory provision and has always to be seen in the light of the statutory provision in section 41A itself, the Guidance contains the framework of a sensible approach to be adopted when consideration is given to the making of interim order under section 41A (Houshian para 14).

xv) The Court exercising the section 41A(10) jurisdiction has the power to consider developments occurring after the relevant IOP decision (Sandler para 12, Patel para 21).

36. Miss Gallafent submitted that in this case the potential harm to the confidence of the public in the profession was self evident. The Claimant was alleged to have conducted himself in a most improper manner towards a vulnerable patient in her own home, including acts of indecency up to and including rape. She submitted that the panel had made its view clear with adequate reasoning. So far as the condition is issue was concerned she submitted that its reasoning was legally adequate, and that the proposed alternative was impracticable.

Discussion and conclusions

37. The court's task is to determine whether the conditions applied should be varied pursuant to section 41A (10) of the Act. In doing so, this court must consider the gravity of the allegations, the nature of the evidence, the seriousness of the risk to patients, the effect on the public interest (including confidence in the medical profession) of imposing or not imposing conditions, and the prejudice to the practitioner Claimant of the conditions being in force. (Hiew para 28).
38. I did not find the Claimant's approach to questions of the principles to be applied to be of much assistance. I prefer, and adopt, Miss Gallafent's synthesis of the decisions as set out above, subject to three important caveats

i) The principal guide to the approach of the court must remain the clear guidance in Hiew;

ii) None of those first instance authorities on the nature of the reasoning to be adopted should be seen as more than illustrations of how the fundamentals of decision making and reasoning have been applied in individual cases, and they should not be seen as identifying any new or different approach. In any event, the court's jurisdiction under section 41A is not that of exercising a supervisory public law jurisdiction, but of making a decision of its own (Hiew paragraph 33);

iii) I do not accept that the IOP must apply a "reasonable onlooker" test, which is said to be derived from Patel. In that case Eady J unsurprisingly held that it was unnecessary to suspend a Doctor because of a rather technical fraud alleged against him in his role as a school Governor, and expressed the view that, given the facts of the case in question (and they were quite specific and particular), no member of the public would be offended or surprised to learn that he had been permitted to continue in practice. Public confidence in the profession, and the varying effect upon it of knowing the facts in issue, may be very different when the allegation is of sexual misconduct against a patient as opposed to a fraud which had nothing to do with the man's practice as a doctor. The IOP (and the Court under section 41A) must take a view of the effect on public confidence on the information it has before it. The "reasonable onlooker" test may be one which it chooses to adopt, but it is not the only one, nor need it be deployed in any and every case.

39. The Claimant's case drew heavily on the outcome of other applications under section 41A. In my judgement it can be very dangerous to seek to establish principles of general application from individual cases. Insofar as one can, one must winnow out such features as are case specific. For example in Houshian v GMC [2012] EWHC 3458 per King J, which was heavily relied on by Miss O'Rourke, the judge was there dealing with a case where the complaint related to the claimant's treatment of staff, not to his treatment of patients. No risk to the public was alleged, and given the nature of the complaint King J was critical of the lack or attention by the panel to the issue of why the public interest required an interim suspension. His criticism was wholly justified on the facts of that case, but I do not consider that his doing so establishes any general principle.
40. I also reject Miss O'Rourke's robust and floridly expressed criticism of the IOP for using the same form of words in different cases. The question is not whether they are often used. It is whether they are aptly used in the case in question. But in any event the issue under section 41A is not that of whether the decision by the IOP passes muster on public law grounds (Hiew para 33). Miss O'Rourke's attack on the reasoning of the IOP decision, even if her attack reflected the relevant legal principles on the giving of reasons (which it did not), is relevant only insofar as it affects the weight which I should give the views of the IOP when making my decision (Hiew para 30).
41. With those matters in mind, I turn to the case in issue. There were two stages to the decision

i) Is the risk to patients and/or the risk of harm to the public interest (including the maintenance of confidence in the legal profession) such that an interim order is required ?

ii) If so, what should its terms be ?

42. I reject the Claimant's attack on the decision by the IOP that an interim order was required. In my judgement the terms of the reasoning for making the order are clear and appropriate. This man is alleged to have made serious sexual advances towards a very vulnerable patient in her own home, culminating in rape. I resist the invitation of Miss O'Rourke to form my own views of the credibility of the complainant patient, for the reasons given in Hiew at paragraph 31, and in Perry v Nursing and Midwifery Council [2013] EWCA Civ 145 at paragraph 20. This is not one of those rare cases where the case against the Claimant has little merit, as per Hiew at paragraph 31.
43. If the allegations are true, it was quite reasonable for the IOP to conclude that his dealing with female patients would put them at risk. Miss O'Rourke's argument that it was only a single occasion may be relevant to determining the level of risk, but it certainly does not negate it altogether. Given the very serious consequences for her of a female patient being treated thus, I do not consider that it was necessary at the stage of an interim order to engage in a particular assessment of risk. I give weight to the IOP view on this matter. But even if its reasoning is to be criticised, I find that a risk of significance to female patients must be found to exist, on the basis of the allegations made. Even if the risk of another sexually inappropriate or unprofessional episode occurring were thought to be small, the consequences on the patient in question of it occurring would be grave.
44. I also consider that the IOP's conclusion that there would be harm to the public interest by reason of the effect on public confidence is entirely correct and is properly reasoned. I give weight to it, but even if I did not I would have reached the same conclusion. If the allegations are true, the effect of not suspending him would be to permit him to treat female patients without restriction. No doubt some female patients would be sanguine about the matter were they to know the background. But very many, and especially those who are vulnerable, or worried by illness, could well be outraged to discover that they had been treated by a Doctor who is the subject of an unresolved allegation of so serious a nature. If any untoward event did occur, or was alleged, the consequent and understandable outcry would do great harm to the profession as a whole.
45. I reject the idea advanced by Miss O'Rourke that the fact that the complainant's evidence is uncorroborated should diminish the weight to be given to the fact that the allegation has been made. The need for corroboration in sexual cases was properly abolished many years ago in the criminal courts, even though the standard of proof is higher there than before the IOP or FTP. The effect of the old rule was to apply special rules on credibility to complainants in sexual cases, but not (for example) in robberies, which was patently unfair given the fact that most sexual offences involve just the perpetrator and the victim.
46. I also reject Miss O'Rourke's reliance on Kenneth Parker J's observations on credibility, for the reasons given above. The arbiter of credibility here is to be the FTP when it hears the case next June.
47. I consider that no sensible complaint can be made of the reasoning deployed. The IOP had heard all the submissions made, which it set out in its decision. It had no need to go through them one by one in its reasoning, which dealt with the principal issues, and left the parties in no doubt of what had been decided and why. But even if I considered the reasoning inadequate, I consider that the case for an interim order on the material before the IOP and before this Court was and is a very powerful one indeed.
48. Like the Panel, I consider that there must be terms in an Interim Order to guard against that risk. I accept that the Panel did not spell out how it weighed the importance of guarding against the risk as against the effect of it on Dr E.Y.'s ability to practice. In my judgement it did not have to do so, because the fact that the IOP regarded it as "necessary" must imply that they considered that its importance overcame such concerns. I consider that the Panel gave proper reasons for the imposition of the condition, and that they were right on the material before them in finding it to be necessary and proportionate. I therefore give its decision weight. But I would in any event have reached the same view. Indeed, if he is to be kept from being in a position where he would be alone with female patients, one wonders what other condition could be imposed.
49. But in any event the judgement of this court is that it was and is essential to guard against the identified risks (both to patients and to public confidence), notwithstanding the fact that it will affect his practice, or effectively prevent him from practising at all. The hearing before the GMC is just two months away. In my judgement the potential for harm is so great that the undoubtedly serious consequences for Dr EY for that short period are not such as to justify declining to make an Order, or to justify terminating it.
50. I regard the suggested condition advanced by Miss O'Rourke as quite impractical. It depends for its success on the optimistic idea that other persons working in the suite in question will have the time, or be in the circumstances, to be able to interfere should anything occur, even assuming that they were aware of its doing so. A sexually inappropriate consultation or examination could take place without any signs outwith the consulting room or cubicle that anything was amiss. One asks again - what reaction would a vulnerable anxious woman patient have when discovering that she had been consulted or been examined by a doctor privately when there was an unresolved allegation against him of serious sexual misconduct ? The fact that there were others in the same unit doing other work with other patients would provide her with little reassurance that her protection from harm was being taken seriously.
51. It follows that I consider that the imposition of the condition was necessary. I have again considered whether the adverse effect on Dr EY's ability to work for 2 months is such that it would be disproportionate. Given the absence of any practical alternative which would guard against the same risks, I regard it as quite proportionate.
52. I have a great deal of sympathy for Dr EY. If the allegations are found to be untrue, he will have lost the opportunity to practice as a doctor during the period of investigation and the consideration of the case by the GMC. But the court's sympathy for him must be tempered by the need to guard against possible risks to patients, to the public interest and to the public's confidence in the medical profession.
53. Nothing has happened since the IOP decision which would justify terminating the Order, nor which would justify varying its conditions.
54. I therefore dismiss this application.
55. I circulated this judgment in draft and invited submissions on costs and on permission to appeal. The order agreed between counsel is that the Claimant do pay the Defendant's costs of these proceedings to be subject to detailed assessment if not agreed.