England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 September 2016

Mrs Justice McGowan:

1. The Claimant is a trainee doctor who, at a hearing held in private before the Interim Orders Tribunal ("IOT") of the Medical Practitioners' Tribunal Service ("MPTS") on 5 April 2016, was made subject to an interim order of suspension for 18 months under s. 41A of the Medical Act 1983. The hearing today is his application to have that interim order of suspension terminated pursuant to s. 41A(10).
2. The Claimant applies for anonymity; which order is granted unopposed. His future prospects as a doctor will depend at least in part on his good name and until these matters are resolved there is no public interest in his name being made public. In addition, and as a supplementary reason the grant of anonymity to the Claimant will also assist in preventing the identification of his wider family.
3. The Claimant is a trainee doctor at Ashford and St Peter's Hospital which is part of Kent, Surrey and Sussex Deanery's specialist training scheme. He has been charged in criminal proceedings with offences of false imprisonment and assault. The complainant in those proceedings is his younger sister, a minor at the time, and it is alleged that the Claimant and eight members of his family held her against her will for a period of days during the course of which she was assaulted. The motivation behind this alleged conduct was the family's view that the relationship she was conducting with her boyfriend was inappropriate and was bringing dishonour upon her and the family. It is not necessary to say more than to state the obvious which is that this is simply an allegation and the Claimant of course remains innocent until proved guilty. That is however always the position in cases of criminal allegations.
4. There is enough prosecution evidence to justify his being charged: the Complainant's account was video recorded and will stand as her evidence in chief; she sent a text or email during the course of her detention in which she names the Claimant as being involved, that may provide evidence of consistency and or recent complaint; she was medically examined and was found to have sustained injury and when the applicant was interviewed he declined to answer questions which also may, in the right circumstances, provide a basis upon which the jury can hold his silence against him. The case is one of joint enterprise in which a number of members of the family are said to have played different roles and it is right to note that there is no direct accusation of assault against this Claimant. He is alleged to have lent support to the detention and assaults by others and to have played his role in the alleged offences, in particular, at one stage by providing the morning after pill to the complainant, without prescription, telling her to take the pill.
5. The period of interim suspension did not commence until the Claimant was charged. On 24 July 2015 Peter Jackson J made a forced marriage protection order which was continued by Sir Peter Singer on 16 September 2015 with the agreement of this Claimant and the other eight members of his family. There has been no alleged breach of that order or any impermissible contact between the Claimant and the Complainant to date.
6. The Claimant is highly thought of by his colleagues and superiors and a number of positive references have been provided on his behalf. There is no issue as to his competence and there have been no other complaints about his conduct or professionalism to date.
7. The Claimant was legally represented at the tribunal hearing and the matter was fully argued on his behalf. It is essential to observe that the order of suspension will be reviewed at a hearing later in September 2016. It might very well be the case that he would have been better advised not to have brought these proceedings but simply to have argued on the review that the period of suspension was no longer necessary.
8. The power to make an interim order of suspension is granted to MPTS through an IOT under s.41A of the Medical Act 1983 as follows:

41A. (A1)Where a matter is referred under s.35 C(8) to the MPTS, the MPTS must arrange for an Interim Orders Tribunal … to decide whether to make an order as mentioned in that provision.

Where an interim orders tribunal… are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, ……… the registration of that person to be suspended or to be made subject to conditions, the Tribunal may make an order –

that his registration in the register shall be suspended (that is to say shall not have effect) during such period not exceeding 18 months as may be specified in the order, ("an interim suspension order")

………

(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….

9. This court deals with this matter as an application and not as an appeal. The court may terminate an order made by the IOT if and only if it considers that order was wrong. As in many areas of public law this court must give appropriate weight to the decision of the tribunal.
10. The Claimant submits that the tribunal decision was wrong as there was no real risk to members of the public nor any public interest in his being suspended. He further submits that the decision to suspend him was unnecessary, disproportionate and flawed because the tribunal failed to take into account material considerations.
11. This case raises a narrow issue. It is not submitted by the Defendant that this applicant presents any real risk to members of the public. The sole ground in support of the continued suspension from registration is that it is in the public interest to maintain confidence in the profession. The Defendant further submits that the reasoning of the Tribunal was sufficient but in any event that the order was not wrong and therefore should not be terminated by this court. It is said by the Defendant that the test in this case can be expressed quite simply: "were the offences of which the Claimant was charged so serious that it would not be in the public interest for the Claimant to be able to continue in his practice?" Would public confidence in the medical profession be damaged if they knew that the Claimant continued to practice whilst awaiting trial on these offences?
12. The parties do not agree on the test to be applied. The Claimant argues that I must find suspension "necessary" for the maintenance of public confidence. The Defendant submits that it is sufficient that suspension be "desirable" in order to maintain public confidence. That is not an issue that I need determine. On the facts of this case I do find it necessary for the maintenance of public confidence in the medical profession that the Claimant should be suspended. The question can be stated simply – would an average member of the public be shocked or troubled to learn, if there is a conviction in this case, that the doctor had continued to practice whilst on bail awaiting trial? In my view the answer would be in the affirmative and it is therefore necessary that he remains suspended in the interim.
13. The allegations in this case involve serious criminal offences. As an adult and a trainee doctor the Claimant is said to have lent himself to a joint enterprise in which his younger sister, a minor, was held captive for a substantial period of time and was assaulted by others in the family group. All it is said because she had behaved in a way which the family found to be inappropriate and likely to cause them dishonour. In addition, this claimant is said to have obtained for her and given to her the morning after pill which he ordered that she should take. In my view these allegations are of such a nature and are sufficiently serious to warrant interim suspension better to maintain public confidence in the medical profession.
14. I have no difficulty in determining that the inconvenience, expense and delay in the progression of his career is proportionate to the potential damage caused to public confidence. He is not an established practitioner who would lose his practice as a result of suspension. Rather his eventual progression to full qualification will be extended by some months and if he is cleared of the charges he faces he will return to continue his studies without any undue damage to his reputation. I am told that the trial is set down for January 2017 and at this stage he can expect the position to be resolved within the next six months.
15. In addition, the Claimant argues that the reasoning provided by the Tribunal was flawed or inadequate because they did not take into account all material considerations. As stated earlier this is not an appeal from the decision of that Tribunal accordingly it is not necessary at this stage to conduct an analysis of their reasoning process and its expression. If it were necessary to determine the same then it appears that in fact their reasoning is perfectly adequate and there can be no doubt as to why they imposed the interim suspension order that they did and that they properly took into account any consequential effects upon the claimant.
16. For the reasons given above the Claimant fails in his submission that the grant of the order was wrong. The order for interim suspension continues and will be reviewed in the normal course of events before the end of September 2016. That review hearing might well have been a better forum for these submissions. There is no reason why costs should not follow the event.