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URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022csoh25.html
Cite as: 2022 GWD 9-144, 2022 SLT 600, [2022] CSOH 25, [2022] ScotCS CSOH_25, (2022) 188 BMLR 193

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OUTER HOUSE, COURT OF SESSION

[2022] CSOH 25

P732/21

OPINION BY LORD BRAILSFORD

In the Petition of

THE GENERAL MEDICAL COUNCIL

Petitioner

for

Extension in terms of the Medical Act 1983, section 41A(6) and (7), of an interim order in

respect of MM

Petitioner: Lindsay QC; Anderson Strathern LLP

Respondent: Paterson; MDDUS

10 March 2022

[1]

The petitioner is the General Medical Council (hereinafter referred to as "the GMC").

The respondent is MM (hereinafter referred to as "the respondent"). The petitioner invites

the court to extend further, by a period of 12 months, the period of the interim order of

conditions imposed by the Interim Orders Tribunal hereinafter referred to as the "IOT") on

16 April 2019. The petitioner's application proceeds in terms of section 41A(6) and (7) of the

Medical Act 1983 ("the Act").

[2]

Section 41A of the Act provides as follows:

"(A1) Where a matter is referred under section 35C(8) to the MPTS, (`Medical

Practitioners Tribunal Service') the MPTS must arrange for an Interim Orders

Tribunal or a Medical Practitioners Tribunal to decide whether to make an

order as mentioned in that provision.

(1)

Where an Interim Orders Tribunal or a Medical Practitioners Tribunal in

arrangements made under subsection (A1), or a Medical Practitioners

Tribunal on their consideration of a matter, 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

Tribunal 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 Tribunal think fit to impose

(an `order for interim conditional registration').

(2)

Subject to subsection (9) below, where an Interim Orders Tribunal or a

Medical Practitioners Tribunal have made an order under subsection (1)

above, an Interim Orders Tribunal or a Medical Practitioners Tribunal --

(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

concerned 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 Tribunal or a

Medical Practitioners Tribunal 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;

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.

(3A) Where an Interim Orders Tribunal or a Medical Practitioners Tribunal have

yet to hold a hearing to consider a case in which they would have the power

to make an order under subsection (3) above, but the person concerned and

the General Council have already agreed in writing to the terms of such an

order--

(a) the Tribunal, on considering the matter on the papers, or the chair of the

Tribunal, on doing so instead of the Tribunal, may make an order on the

agreed terms; or

(b) if the Tribunal or chair (as the case may be) acting under paragraph (a)

determines that the Tribunal should hold a hearing to consider the matter,

the MPTS must arrange for a hearing of the Tribunal for that purpose.

(3B)

An order made under subsection (3A)(a) by a Tribunal or the chair of a

Tribunal is to be treated for the purposes of this Act as if it had been made by

the Tribunal under subsection (3).

(4)

No order under subsection (1) or (3)(b) to (d) above shall be made by a

Tribunal in respect of any person unless he has been afforded an opportunity

of appearing before the Tribunal

and being heard on the question of whether

such an order should be made in his case.

(5)

If an order is made under any provision of this section, the MPTS 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 Tribunal or a Medical Practitioners Tribunal under

subsection (1) or (3) above to be extended, and may apply again for further

extensions.

(7)

On such an application the relevant court may extend (or further extend)

for up to 12 months the period for which the order has effect.

(8)

Any reference in this section to an interim suspension order, or to an order

for interim conditional registration, includes a reference to such an order as

so extended.

(9)

For the purposes of subsection (2) above the first review after the relevant

court's extension of an order made by [an Interim Orders Tribunal or a

Medical Practitioners Tribunal or after a replacement order made by an

Interim Orders Tribunal or a Medical Practitioners Tribunal under

subsection (3)(c) or (d) above shall take place--

(a) if the order (or the order which has been replaced) had not been reviewed

at all under subsection (2), within the period of six months beginning on

the date on which the relevant court ordered the extension or on which a

replacement order under subsection (3)(c) or (d) was made; and

(b) if it had been reviewed under the provision, within the period of

three months beginning on that date.

(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 registration, revoke or vary

any condition imposed by the order;

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.

(11)

Except as provided in subsection (12) below, while a person's registration

in the register is suspended by virtue of an interim suspension order under

this section he shall be treated as not being registered in the register

notwithstanding that his name still appears in the register.

(12)

Notwithstanding subsection (11) above, sections 31A, 35C to 35E and 39

above shall continue to apply to a person whose registration in the register

is suspended.

(13)

This section applies to a provisionally registered person whether or not the

circumstances are such that he falls within the meaning in this Act of the

expression `fully registered person'.

(14)

In this section `the relevant court' has the same meaning as in section 40(5)

above."

[3]

Under section 41A(1) of the 1983 Act, the IOT can, where it is satisfied that it is

necessary for the protection of members of the public or is otherwise in the public interest or

the medical practitioner's own interest, make an order for the medical practitioner's

registration to be suspended or restricted by way of conditions. In the present case the IOT

imposed the maximum period permitted for an interim order, 18 months (section 41(1)(b)).

The reason given for this was "because of the time required for completion of the GMC

investigation and refer to a Medical Practitioners Tribunal, if it is decided this is

appropriate".

In 2020 the petitioner sought an extension from the court for the maximum

period that the court is empowered to grant, 12 months (section 41A(7)). That was granted

by interlocutor of this court on 9 September 2020. In the present petition the petitioner again

seeks from the court the maximum extension permissible.

[4]

The reason advanced by senior counsel for the petitioner in justification of the orders

sought in the petition were as a matter of pleading to be found in paragraph 9 of the

S ee Number 6/1/5 of process

petition.

These were adhered to, essentially without elaboration, in submission. It was said

that there may be impairment of the respondent's fitness to practise which may adversely

affect the public interest. It was submitted that balancing the respondent's interests and the

interests of the public, an interim conditions order remained necessary. A reasonable and

properly informed member of the public would, in the light of the concerns, be surprised

and offended were they to learn that the respondent had been permitted to return to

unrestricted practice whilst the regulatory proceedings remain on-going. Public confidence

in the profession may be seriously undermined if the respondent was allowed to return to

unrestricted practice before the conclusion of the regulatory proceedings. While the interim

order restricted the respondent's ability to practice medicine, the interim conditions order

was a proportionate response because making no order would fail to maintain public

confidence in the profession and the current conditions were a measurable, workable and

an enforceable means of addressing the risks identified. In that regard no issue had been

identified as regards the effective operation of the conditions presently imposed. In the

circumstances the council sought an extension of the interim conditions order for a period

of 12 months, from 15 October 2021 to 15 October 2022.

[5]

Counsel for the respondent, in answer, initially informed the court that there was no

reported Scottish authority dealing with an application under section 47A(7) of the Act, but

that applicable principles were authoritatively determined by the Court of Appeal of

England and Wales in the judgement of Arden LJ (as she then was) in GMC v Hiew.

interject to record that senior counsel for the petitioners took no issue with the immediately

foregoing propositions.

Petition as adjusted 22/10/2021

[2007] 1 WLR 2007 at paras [26]-[33]

[6]

Counsel then advanced on the foregoing authority five propositions he submitted

were derived from the decision of the English court and said to be equally applicable in a

Scots court determining an application under section 47A(7) of the Act. These were: (a) The

court is not exercising a review function but rather acts as a primary decision maker ; (b) The

criteria for the exercise by the court of its power is the same as for the original interim order,

namely the protection of the public interest; (c) The onus of satisfying the court that the

criteria are met falls on the petitioner; (d) The court requires to reach its decision on the

basis of the evidence on the application, which will include evidence as to the opinion of the

petitioner as to the need for an interim order; (e) The court is not bound to follow that

opinion, nor defer to it, but rather should give such weight to it as in the circumstances of

the case it thinks fit.

[7]

Applying these propositions counsel's submission was that the petitioner had

produced no evidence of the kind required (see paras [29] and [32] of Hiew (supra))

notwithstanding an onus resting on the petitioner to demonstrate the necessity and

proportionality of the conditions which it seeks to have imposed upon the respondent for

a further period of 12 months. The petitioner's articulation of those issues was said to be

restricted to matters averred in paragraph 9 of the petition, and solely on that basis the

petitioner's application ought to fail. On this chapter of his submission counsel further

observed that the petitioner failed to set forth clear and cogent reasons justifying the

imposition of conditions upon the respondent for a further 12 months.

[8]

Developing this further counsel observed that as a matter of pleading the petitioners'

position was that "Public confidence in the profession may be seriously undermined if the

respondent was allowed to return to unrestricted practice before the conclusion of the

regulatory proceedings.......".

In its own guidance the petitioners describe an issue for

consideration for the imposition of an interim order as follows: "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."

It followed that the petitioners had

applied the wrong test when considering the issue of extension of restrictions on practice.

[9]

In relation to proportionality the submission was that it was necessary for the

petitioners to carry out a balancing exercise between the likelihood of damage to public

confidence on the one hand, and the impact on or prejudice to the practitioner on the other.

The petition, it was said, failed to carry out this exercise. Whilst the petitioners

acknowledged that the conditions imposed affected the respondent's ability to practice

medicine, the financial and reputational prejudice to the respondent, details of which were

set forth in an affidavit by the respondent,

were not explored in the petitioners' case. An

assessment of proportionality could not have been carried out without the petitioner s

identifying and taking those matters into account.

[10]

The last part of the substantive argument for the respondent related to delay in

advancing the petitioners case. Delay was used both as a factor in relation to the argument

advanced relative to the proportionality exercise and as a standalone argument. It was

submitted that on the petitioners own time estimate it would take 3½ years to conclude

investigation and complete any tribunal hearing following therefrom. There was said to be

an absence of any cogent evidence explaining and justifying such delay. Further, there was

said to be an obligation incumbent upon the petitioners to provide all information relative

Petition (as adjusted 22.10.21) at paragraph 9

Paragraph 24b of GMC Guidance

Number 7/16 of process

to the delay whether or not that information was supportive of the case for an extension of

restrictions.

Conclusions

[11]

The basis upon which the petitioners seek an extension of the period during which

the respondent is subject to restrictions in his practice is set forth in paragraph 9 of the

petition. The opening sentence of that paragraph is as follows: "That there may be

impairment of the respondent's fitness to practice which may adversely affect the public

interest." Thereafter there are averments, albeit stated relatively briefly and in general terms

which purport to identify reasons which might cause concerns to the general public if the

restrictions imposed upon the respondent did not remain in place. The primary problem is

that in the first sentence which I have quoted the petitioners set forth the wrong test which

requires to be applied when considering the issue of the need for restrictions on a medical

practitioner's licence to practice. As was identified and advanced by counsel for the

respondent the petitioners' own guidance in relation to the appropriate test is; "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." In my view it is

tolerably clear as a simple matter of language that the test in the petitioners' guidelines has a

higher threshold than that which they stated in their pleadings to be appropriate and which,

the court must assume, was applied in consideration of the application to extend the period

of restriction. The submission on behalf of the respondent was because of that error the

petitioners' application "must fail". I agree with that submission.

[12]

My above finding is sufficient to determine the present application in favour of

the respondent. I should however, simply as a matter of completeness, indicate that I

considered there was merit in the remainder of the respondent's submissions, with the

exception of delay which I will deal with briefly subsequently.

[13]

I am satisfied that no clear and cogent reasons for the petitioners' decision were

advanced. Counsel for the respondent in his written submission described the reasons

provided in the petition as amounting "... to little more than a recital or parroting of general

formula." I am bound to state that I recognise some force in that categorisation. In the

pleadings I can determine no attempt to relate any of the factual material arising out of the

respondent's case to the test, albeit the test they advanced was the incorrect one, with which

it was necessary to engage in determining the question of whether or not an extension of

time was justified. An inevitable result of such failure to engage was that there was no real

attempt to properly evaluate as to whether or not the extension sought was proportionate.

The averments and supporting submission amounted, in my view, to no more than an

assertion that an extension of the period of restriction was a necessary and proportionate

step to take.

[14]

The one area where, had it remained a live issue, I would not have preferred the

respondent's position was in relation to delay. It is correct that in chronological terms the

investigation into the respondent has been lengthy, counsel for the respondent put forward

a period of 3½ years and I did not understand that to be challenged by senior counsel for the

petitioner. I do however consider that the period must be placed in context. That context is,

first, the fact that a significant proportion of the whole period has been during the Covid

pandemic. Whilst I accept that it is difficult to determine how much of a given delay was a

direct result of restrictions necessitated by regulatory provision enforced during the Covid

pandemic I am prepared to accept even as a matter of generality that this feature occasioned

some delay. The second factor is that there has been a police investigation into the

respondent in relation to his medical practice. During the currency of that investigation the

petitioners' position was that they could not progress their own enquiries. Whilst it is again

difficult to determine exactly how much delay this occasioned, primarily because the police

were under similar problems in relation to the Covid pandemic, I am again prepared to

accept that it is a legitimate reason for considering that the petitioners' enquiries might have

been lengthier than would have occurred in a period when there was no national pandemic.

For these reasons I am not satisfied that the case in relation to delay has been made out.

[15]

As I have already indicated my first finding, the petitioners' proceeding on an

erroneous understanding of their own guidelines is sufficient to determine this application

in favour of the respondent. I refuse that application.