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RECLAIMING MOTION BY K AGAINST GENERAL MEDICAL COUNCIL [2022] ScotCS CSIH_44 (27 September 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSIH_44.html
Cite as:
2022 GWD 31-452,
[2022] CSIH 44,
2022 SLT 1101,
2023 SC 1,
[2022] ScotCS CSIH_44
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 44
P408/22
Lord Justice Clerk
Lord Turnbull
Lord Tyre
OPINION OF THE COURT
delivered by LORD TYRE
in the Reclaiming Motion
by
K
Reclaimer
against
THE GENERAL MEDICAL COUNCIL
Respondent
Reclaimer: P Reid, D Blair; Medical and Dental Defence Union of Scotland, Glasgow
Respondent: M Lindsay, KC; Anderson Strathern LLP
27 September 2022
Introduction
[1]
The reclaimer is a doctor who is subject to a fitness to practise investigation by the
respondent ("the GMC"). On 25 November 2019 he was arrested and charged with the
crime of rape under section 1 of the Sexual Offences (Scotland) Act 2009. On 29 November
2019 he reported this to the GMC, which referred the matter to its Interim Orders Tribunal
("IOT").
2
[2]
The IOT determined that it was necessary in the public interest to impose an interim
suspension order on the reclaimer's registration for a period of 18 months. The interim
order was reviewed and maintained by the IOT on various dates in 2020 and 2021. As a
result of delays in criminal procedure caused by the Covid-19 pandemic, it was necessary
for the GMC to apply to this court for an extension of the interim order for a further period
of 12 months in order to allow for the outcome of the prosecution, before the GMC could
embark upon its own fitness to practise investigation. An extension to 19 June 2022 was
granted.
[3]
On 25 October 2021, following trial, a jury found the case against the reclaimer not
proven and he was acquitted. At the next review by the IOT on 19 November 2021, the
interim order was varied from suspension to the imposition of conditions.
[4]
By 19 June 2022 the GMC had not completed its investigation into the reclaimer's
fitness to practise. It accordingly brought the present petition to seek a 12 month extension
of the conditions order to 19 June 2023 to allow its investigations to conclude. Following a
substantive hearing, on 26 July 2022 the Lord Ordinary granted the prayer of the petition but
restricted the extension to a period of six months to 26 January 2023. The reclaimer invites
the court to recall the Lord Ordinary's interlocutor and to refuse the prayer of the petition.
Statutory framework
[5]
In terms of section 41A of the Medical Act 1983, the IOT may, where inter alia it is
satisfied that it is necessary in the public interest, make an order suspending a practitioner's
registration or making his registration conditional on compliance with such requirements as
it may think fit to impose. Such an order may be made for a period not exceeding 18 months
and must be the subject of periodic review by the tribunal. Where an interim suspension
3
order or an order for interim conditional registration has been made, the GMC may apply to
the court under section 41A(6) for the order to be extended, and may apply again for further
extensions. In terms of section 41A(7), any such extension may be granted for a period of up
to 12 months.
[6]
It is common ground that when deciding whether to grant an extension, the court
should proceed in accordance with the following principles enunciated in General Medical
Council v Hiew [2007] 1 WLR 2007 and applied by this court in B v General Medical Council
"(i)
The criteria for the exercise by the court of its power to extend an interim
order under section 41A(7) of the 1983 Act are the same as for the making of the
original interim order under section 41A(1), namely the protection of the public, the
public interest or the practitioner's own interests;
(ii)
The court can take into account the gravity of the allegations, the nature of
the evidence, the seriousness of the risk of harm to patients, the reasons why the case
has not been concluded and the prejudice to the practitioner if an interim order is
continued;
(iii)
The onus of satisfying the court that the criteria are met falls on the petitioner,
as it is the applicant for the extension, and the standard of proof is on a balance of
probabilities;
(iv)
It is not the function of the court to make findings of primary fact about the
events which had led to the suspension or to consider the merits of the case for
suspension;
(v)
Rather, it is the function of the court to ascertain whether the allegations
made against the practitioner justify the extension of the suspension, rather than
their truth or falsity;
(vi)
If the practitioner contends that the allegations are unfounded, he should
challenge by judicial review the original order for suspension or the IOT's failure to
review it under section 41A(2) of the 1983 Act;
(vii) The court has to reach its decision on the basis of the evidence on the
application, which includes evidence as to the opinion of the General Medical
Council and the IOT as to the need for an interim order;
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(viii) The court is not bound to follow or defer to these opinions, but should give it
such weight as in the circumstances of the case it thinks fit."
These principles apply mutatis mutandis to an order for interim conditional registration as
they do to an interim suspension order. The court's task is not to determine whether the
making of the order by the IOT was legally justified but rather to decide for itself whether
the statutory test for extending the order has been met.
GMC guidance
[7]
The GMC has published guidance entitled "Imposing interim orders: Guidance for
the Interim Orders Tribunal, Tribunal Chair and the Medical Practitioners Tribunal" which
has been approved and followed by the courts when considering whether to grant an order
under section 41A(6) and (7). Paragraphs 23 and 24 of the guidance set out the test to be
applied when considering whether to grant or extend an interim order on the ground of
public interest. If the IOT is satisfied in all the circumstances that there may be impairment
of the doctor's fitness to practise which may adversely affect the public interest and, 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. In reaching its
decision the IOT should consider 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.
The conditions imposed by the IOT
[8]
The conditions imposed on the reclaimer's registration by the IOT on 19 November
2021 were as follows:
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"1.
He must personally ensure that the GMC is notified of the following
information within seven calendar days of the date these conditions become
effective:
a.
of the details of his current post, including:
i. his job title
ii. his job location
iii. his responsible officer (or their nominated deputy)
b.
the contact details for his employer and any contracting body,
including his direct line manager
c.
of any organisation where he has practising privileges and/or
admitting rights
d.
of any training programmes he is in
e.
of the organisation on whose medical performers list he is included
f.
of the contact details of any locum agency or out-of-hours service he is
registered with.
2.
He must personally ensure the GMC is notified:
a.
of any post he accepts, before starting it
b.
that all relevant people have been notified of his conditions, in
accordance with condition 4
c.
if any formal disciplinary proceedings against him are started by his
employer and/or contracting body, within seven calendar days of being
formally notified of such proceedings
d.
if any of his posts, practising privileges or admitting rights have been
suspended or terminated by his employer before the agreed date within
seven calendar days of being notified of the termination
e.
if he applies for a post outside the UK.
3.
He must allow the GMC to exchange information with his employer and/or
any contracting body for which he provides medical services.
4.
He must personally ensure that the following persons are notified of the
conditions listed at 1 to 3:
a.
his responsible officer (or their nominated deputy)
b.
the responsible officer of the following organisations:
i.
his place(s) of work and any prospective place of work (at the
time of application)
ii.
all his contracting bodies and any prospective contracting
body (prior to entering a contract)
iii.
any organisation where he has, or has applied for, practising
privileges and/or admitting rights (at the time of application)
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iv.
any locum agency or out-of-hours service he is registered with
v.
If any organisation listed at (i to iv) does not have a
responsible officer, he must notify the person with responsibility for
overall clinical governance within the organisation. If he is unable to
identify this person, he must contact the GMC for advice before
working for that organisation.
c.
the responsible officer for the medical performers list on which he is
included or seeking inclusion (at the time of application)
d.
the approval lead of his regional Section 12 approval tribunal (if
applicable) or Scottish equivalent
e.
his immediate line manager and senior clinician (where there is one)
at his place of work, at least 24 hours before starting work (for current and
new posts, including locum posts)."
The Lord Ordinary's decision
[9]
In deciding to grant an extension of the order, the Lord Ordinary had regard to the
terms of an affidavit by Ms Jenny McCourt, a solicitor and in-house legal adviser to the
GMC. That affidavit details the steps taken by the GMC, following the reclaimer's acquittal,
to gather information regarding the circumstances of the allegation. The Lord Ordinary
concluded:
"[7] ...(I)t is necessary to have regard to the whole of Ms McCourt's affidavit in
order to properly assimilate all the information she provides and put that into the
context of the decisions made by the IOT. When that is done it is, again in my view
plain that between paragraphs 6 and 41 Ms McCourt narrates in what I regard as
considerable detail the whole process of information collection that was carried out
after the respondents acquittal in October 2021 in order to provide the IOT with all
relevant information necessary to enable them to reach a determination on the issue
before them. I pause to observe that the process described appears to have been far
from straightforward, involved a number of legal issues and a number of agencies
and, having regard to those factors appears to have been conducted within a
reasonable timescale. When all that was achieved, which I infer from paragraphs 40
and 41 of the affidavit was only in about late June 2022, the petitioner's, and I quote
directly; that their legal team consider whether any further evidence is required and
if not, they have been requested to prepare the allegations for disclosure to the
respondent.' (sic)
[8]
It is against that background and in that context that I consider the decision
making of the IOT requires to be viewed and assessed. On that basis I am satisfied
7
that the relevant statutory tests have been met and that the conditions imposed are
both justified and proportionate."
[10] The Lord Ordinary went on, however, to observe that although he did not challenge
Ms McCourt's estimate of the time required to complete the investigation, he considered
that there was likely to be a degree of flexibility in such an estimate and that more
expeditious progress might be possible. He accepted a submission by counsel for the
reclaimer that the court might wish to exercise some degree of control, and granted an
extension of the conditions for a period of six months.
Argument for the reclaimer
[11]
In an affidavit to the court, the reclaimer denied the allegation made against him
and emphasised that he had been acquitted after trial. His reputation had been damaged.
On the advice of his responsible officer he had applied to join the Retainer Scheme with NES
(NHS Education for Scotland) to allow him to resume general practice. It was not normally
possible to do so if conditions were attached to registration, but NHS Greater Glasgow &
Clyde had granted him an exemption. However because his PVG (protection of vulnerable
groups) certificate indicated that he remained under investigation by the GMC, he was
excluded from the Retainer Scheme. His opportunity to work had been severely restricted,
which continued to have a significant financial impact on him and on the members of his
family who relied on him for financial support. His mental health had suffered.
[12]
On behalf of the reclaimer it was submitted that the Lord Ordinary, by focusing on
the information in Ms McCourt's affidavit as to the investigations that had been conducted
by the GMC, had failed to engage with the question whether the statutory threshold test for
an extension had been met. It therefore fell to the court to determine this issue.
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[13] The GMC had failed to demonstrate that public confidence in the medical profession
would be likely to be seriously damaged if the reclaimer was not subject to an order for
conditional registration. A reasonable and properly informed member of the public would
understand that a criminal investigation had taken place and that the evidence had been
presented to a jury who had acquitted him. Such a member of the public would not be
concerned that a doctor who had never been said to pose any risk to patients was allowed to
resume his career without the imposition of conditions. On the contrary, such a member of
the public would be concerned if such a doctor could not return to work after acquittal. The
reclaimer did not dispute that he remained answerable to his regulator in respect of the
allegations, but that was a different issue from whether an interim order ought to be imposed
while the investigation took place. The case of General Medical Council v Srinivas
[2012] EWHC 2513 relied upon by the GMC was distinguishable on its facts. The fact that a
substantial sanction may be imposed at the end of the investigation was not sufficient to
justify the maintenance of an interim order.
[14] Moreover, the imposition of an order for interim conditional registration failed the
proportionality test. In the first place, it was a fundamental aspect of that test that any
intrusion into a party's rights had to be rationally connected to the reasons said to justify the
intrusion (Bank Mellat v HM Treasury (No 2) [2014] AC 700 at paragraph 74). The conditions
imposed on the reclaimer did not address or regulate the issues which gave rise to his
referral; they were little more than a black mark against his name on the register. The
allegation against him had no connection to his clinical practice, and it was not suggested by
the GMC that there was any clinical risk. In the second place, they had an excessively
damaging effect on his reputation and on his ability to pursue remunerative employment.
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Argument for the GMC
[15]
On behalf of the GMC it was submitted that the Lord Ordinary had correctly
applied the statutory test and the guidance to the circumstances of the case. He had decided
the matter for himself and had not restricted himself to reviewing the decision of the IOT.
His reasoning made clear that he had addressed the issues of whether the conditions were
both justified and proportionate. If however the court considered it necessary to consider de
novo the merits of the GMC's application, it should grant the prayer of the petition and
extend the interim order until 19 June 2023 or for whatever shorter period appeared to the
court to be appropriate.
[16] If no conditions were maintained upon the reclaimer's registration pending the
outcome of the investigation, public confidence in the medical profession would be seriously
damaged. The allegation was a serious one which could affect the reclaimer's fitness to
practise and, in turn, the public interest. The reclaimer's acquittal had been recognised by
the substitution of an order for conditional registration for the previous suspension order.
While it was accepted that the allegation had not been found to be proved to the criminal
standard of proof, the standard to be applied in the GMC's investigations was the lower civil
standard of balance of probabilities. An investigation and assessment of risk was required.
As the court in Srinivas (above) had observed, an acquittal in the criminal court did not
mean that the reclaimer no longer had to answer allegations relating to sexual misconduct.
[17] The conditions were proportionate. They served a practical purpose because the
GMC would not necessarily know where the reclaimer was working. While his current
employer might be aware and supportive, if he started to work in another environment it
was important that the GMC was aware of this, so that it could promptly inform any new
employer of its investigation and ensure that it complied with its obligations under the 1983
10
Act. That would allow the new employer to take any local action it deemed relevant and be
particularly mindful of any similar allegations. The new employer might otherwise
conclude that information presented to it did not raise a fitness to practise concern requiring
prompt referral to the GMC, or might delay in referring until the conclusion of a local
investigation. Such information would be relevant to risk to the public and also to the
reclaimer's remediation and insight. For these reasons there was a rational connection
between the conditions imposed and the risk that they sought to address. The conditions
were not unduly onerous or disproportionate. They did not prevent the reclaimer from
working. As he acknowledged in his affidavit, his difficulty in obtaining employment
derived not from the imposition of conditions but from his PVG status pending conclusion
of the investigation.
[18]
It was estimated that the investigation would take a further nine months to
conclude, ie that the likely date for a hearing would be around June 2023. If the GMC's
investigation were to conclude prior to the end of a 12 month extension (or whatever shorter
period appeared to the court to be appropriate), the GMC would invite the IOT to revoke the
interim order.
Decision
[19] Although the Lord Ordinary narrated the correct legal test at paragraph 1 of his note,
he failed to apply it to the circumstances of the case. His conclusion is set out at paragraph 8
(above). It addresses the decision-making process of the IOT and does not contain any
independent assessment of whether the statutory tests are met in relation to an extension of
the interim order. It was submitted on behalf of the GMC that the second sentence in
paragraph 8 demonstrated that the Lord Ordinary had made the requisite assessment. We
11
are unable to accept that submission. Read in context, the "basis" on which the Lord
Ordinary was satisfied that the relevant tests were met can only have been the adequacy of
the IOT's decision making. Neither the affidavit of Ms McCourt nor the decision of the IOT
imposing the order for interim conditional registration contains any analysis of why such
imposition satisfies the relevant tests. It follows, for much the same reasons as explained in
B v General Medical Council at paragraphs 10 and 12, that the Lord Ordinary erred in law and
that it falls to this court to act as the decision maker on the application for an extension.
[20] Counsel for the appellant referred to the "threshold" test and the "proportionality"
test, and submitted that both tests have to be satisfied. We agree that as decision maker the
court must consider both whether the statutory test in relation to public interest is satisfied
and also whether the order for extension sought by the GMC is proportionate, although the
considerations applicable to both tests are likely to overlap. Among the facts of which the
reasonable and properly informed member of the public would be aware is that the option
of an order imposing conditions on registration is available as an alternative to interim
suspension. We do, however, find it appropriate to address each of the tests separately.
[21] In a case such as this where only public interest is relied on, the threshold for making
or extending an interim order is a high one. We agree with the observation of Davis J in
context of a suspension order, that necessity will normally be the appropriate yardstick; the
same applies in relation to the imposition of conditions. In the circumstances of the present
case, we are not persuaded that the test of likelihood of serious damage to public confidence
in the medical profession is met. The reasonable and properly informed member of the
public would be aware that the allegation against the appellant has no connection to clinical
practice and that the GMC has not sought to identify any clinical risk to the appellant's
12
patients. He or she would be aware that the charge against the appellant has been the
subject of a criminal trial and that the appellant has been acquitted by the verdict of a jury.
He or she would be aware that the appellant is subject to an obligation to inform the GMC of
details of his employment without the imposition of a condition to that effect, and it is not
suggested that there is any history of non-compliance by the appellant with his obligations
to the GMC. We note that he reported the charge against himself to the GMC.
[22] In the circumstances of this case, the question is whether a reasonable and properly
informed member of the public would be concerned if the appellant was allowed to resume
his career without an order imposing conditions which inter alia require him to report details
of changes of employment to the GMC, and to disclose the existence of interim conditions to
any new employer. We consider it more likely that such a member of the public would be
concerned that a doctor who has been acquitted after trial of the charge against him, and
against whom no allegation relating to clinical practice has been made, would be the subject
of interim conditions which could render it difficult or even impossible for him to return to
practice pending the outcome of the GMC's investigation.
[23]
It was submitted on behalf of the GMC that the present case was on all fours with the
case of General Medical Council v Srinivas (above), in which the court extended a suspension
order despite the doctor under investigation having been acquitted of criminal charges after
trial. There are significant factual distinctions between that case and the present one: the
charges of sexual misconduct in Srivinas arose in a clinical context, and there was a further
allegation of falsification of records. In the end we understood the GMC to rely on Srivinas
only for the observation of HH Judge Gilbart QC (at paragraph 16) that acquittal did not
mean that the doctor no longer had to answer allegations relating to sexual misconduct.
That proposition is uncontroversial.
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[24] Turning to the proportionality test, we find it difficult, in the absence of any
connection between the allegation under investigation and the appellant's clinical practice,
to see a rational connection between the conditions imposed and the reason for imposition
of conditions, namely the public interest. The allegation under investigation is one of
serious sexual misconduct outside the clinical context, and it has not been demonstrated that
reporting and disclosure conditions related entirely to the appellant's clinical employment
would address the concerns raised by that allegation in any way. In the absence of a clinical
connection, there is no demonstrable risk to patients to be assessed in the context of an
interim order. For these reasons the proportionality test is not met. That being so, it is
unnecessary for us to consider whether the conditions imposed are disproportionate in the
sense of being excessive or, in particular, whether the appellant will in any event be
prevented from working because of PVG requirements even if extension of the order for
interim conditional registration is refused.
Disposal
[25]
We shall allow the reclaiming motion, recall the Lord Ordinary's interlocutor dated
26 July 2022, and refuse the prayer of the petition.
