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THE GENERAL MEDICAL COUNCIL FOR EXTENSION IN TERMS OF THE MEDICAL ACT 1983, SECTION 41A(6) AND (7), OF AN INTERIM ORDER IN RESPECT OF B [2023] ScotCS CSOH_54 (18 August 2023)
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_54.html
Cite as:
2023 SLT 1266,
[2023] CSOH 54,
2023 GWD 33-273,
[2023] ScotCS CSOH_54
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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 54
P275/23
OPINION OF LORD ERICHT
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 B
Petitioner: Lindsay KC; Anderson Strathern LLP
Respondent: Party
6 July 2023
Introduction
[1]
In this petition the General Medical Council ("GMC") seeks a 12 month extension, in
terms of the Medical Act 1983, section 41A(6) and (7), to 25 April 2024 of an interim order
suspending the respondent's registration. The extension is opposed by the respondent, who
appeared in person. The petition called before me on 6 July 2023 for a substantive hearing
on the petition and answers.
[2]
The period of the interim order expired on the day of the hearing. At the end of the
hearing I indicated that I would give my decision that day and issue reasons in writing in
due course in the form of a written opinion. I granted the prayer of the petition, extended
2
the period of the interim order until 25 April 2024 and reserved all questions of expenses in
the meantime. I now set out my reasons in this opinion.
Procedural history
[3]
On 26 October 2020 the Interim Orders Tribunal ("IOT") made an interim order of
suspension of the respondent's registration for a period of 18 months arising from the
respondent's arrest and subsequent detention on remand in relation to allegations that he
was involved in preparatory terrorist activities. That the interim order was reviewed and
maintained as an interim order of suspension on 14 April 2021 and on 4 October 2021. At
the hearing on 4 October 2021 the IOT took into account that the respondent had been
charged with the following criminal offences: (i) preparation of terrorist acts contrary to
section 5 (1) of the Terrorism Act 2006; and (ii) addressing a meeting for the purpose of
encouraging terrorism, contrary to section 12 (3) of the Terrorism Act 2000. The respondent
was released on bail on 10 December 2021 and returned to his home in Edinburgh. The IOT
reviewed the interim order again on 23 March 2022 and determined that it was necessary to
maintain the existing interim order of suspension on the respondent's registration, which
would expire on 25 April 2022. The GMC petitioned the court for an extension to 25 April
2023, under sections 41A(6) and (7) of the 1983 Act. The Lord Ordinary granted the
extension and the respondent reclaimed. On 24 August 2022 the Second Division recalled
the Lord Ordinary's interlocutor dated 11 July 2022 and, having considered the cause of
new, granted the prayer of the petition and extended the interim order until 25 April 2023
[4]
In the meantime the respondent had brought judicial review proceedings against the
petitioner seeking to quash the IOT's order of 23 March 2022. Permission to proceed was
3
refused by the Lord Ordinary 10 August 2022 on the basis that the decision challenged had
expired and the petition was academic. A reclaiming motion was refused by the
Inner House on 13 June 2023.
[5]
In this petition the petitioner seeks a further extension of the interim order from
25 April 2023 until 25 April 2024. By interlocutor of 25 April 2023 the Lord Ordinary, on an
interim basis, granted an extension until 13 June 2023. A further interim extension was
granted on 7 June 2023 extending the interim order until 6 July 2023, being the date of the
substantive hearing in this petition.
The decision of the Inner House in respect of the previous extension in respect of the
respondent
[6]
As certain of the issues raised by parties in their submissions have already been
considered by the Second Division in respect of the previous application for extension in
respect of this respondent, it is helpful to set out the decision of the Inner House in some
detail.
[7]
In B v GMC the Inner House set out (paragraph 8) the correct approach for a court in
considering an application for extension of a suspension order, approving the following
"(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;
4
(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;
(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."
[8]
The Inner House went on to say:
"[12] The respondent must satisfy the court that it is in the public interest for the
suspension order to be extended as sought (section 41A(1) of the 1983 Act). The
following may be taken from the MPTS Guidance in relation to interim suspension
orders: In an application which relates to the general public interest, it is necessary
to ask 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 decision maker must ask whether an order is desirable to maintain
public confidence and uphold proper standards of behaviour. The proportionality of
any action must be weighed together with the risk to public interest, and the
potential adverse consequences for the doctor, in respect of which the seriousness of
the charges should be considered, as should the potential public response to any
decision should the doctor ultimately be convicted or acquitted. The decision maker
should consider whether there are workable conditions short of suspension which
would meet the public interest concerns.
[13] Specifically on the issue of public confidence, it is necessary (para 40) 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. Para 41
goes on to state:
5
`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..'
[14] .... the court is not concerned with the validity or otherwise of the allegations.
Where the allegations consist in criminal charges the seriousness of the charges must
be considered. Although para 44 of the guidance states that `It is incumbent on the
Tribunal to consider the individual features of each case and the particular facts of
the criminal charges,' we do not read this as meaning that we must subject the
charges, or any information bearing on the basis upon which they were preferred, to
an evidential analysis: it is enough to look at the terms of the charges themselves
and form a view as to their apparent severity. As the court noted in Hiew (p2017) `In
general, it need not look beyond the allegations.'"
[9]
The Inner House went on to apply these principles to the particular circumstances of
the particular doctor in that case, who is also the respondent in this case:
"[15] .... it is apparent on the face of them that the charges are extremely serious
ones. It is not for us to go behind the charges or make any findings in fact about
them. Similarly, when the court in Hiew (point (ii) above) refers to taking account of
the gravity of the allegations and the nature of evidence, in a case such as this it is
enough to rely on the serious nature of the charges which have been made. It would
be impossible for the court properly or adequately to examine the evidence upon
which the charges were based. As is noted at point (v) from Hiew, the court's task is
to ascertain whether the allegations made against the practitioner justify the
extension of the suspension, rather than their truth or falsity.
[16] Further, when it comes to point (vii) which refers to taking account of the
evidence as to the opinion of the GMC and the IOT as to the need for an interim
order, this again will have little bearing on the issue when the question is one going
to the general public interest. The matter will be different in cases where a potential
risk to patients has been identified.
[17] In essence in a case based upon the general public interest in maintaining
confidence in the medical profession, and the existence of serious criminal charges
against the practitioner, the question comes down to one of the proportionality of the
extension sought, having regard to these factors as well as the interests of the
practitioner and the reasons the case has not been concluded.
...
[19] The reclaimer submitted that the bail conditions would not necessarily prevent
him from working. He had been offered a job which consisted of reviewing material
online, without seeing patients either in person or virtually; and the conditions
6
would not prevent his being able to attend certain hospitals or carry out certain types
of work.
[20] We recognise the force in the reclaimer's submissions that it might be possible
for him to carry out certain types of work. He also submitted that should suitable
work be found he would be entitled to seek to have his bail conditions revised. To
that extent the submissions for the GMC as to the impact of the bail conditions were
somewhat, though not entirely, weakened. We recognise therefore that the
suspension will have an adverse effect on the reclaimer's ability to work, even
though we consider that the stringent bail conditions will also be likely to restrict to
an extent his ability to do so. Moreover, we accept the submissions for the GMC that
this is not a case in which the risk may be ameliorated by any conditions: the risk is
not to patient safety but to the integrity and reputation of the medical profession. We
bear in mind para 41 of the guidance that serious criminal charges are a strong
indicator that conditions may not be adequate to maintain public confidence in the
profession or the medical regulator.
[21] The passage of time before proceedings may be concluded and thus before the
GMC investigation may be concluded and the reclaimer's ultimate fate determined,
is clearly a relevant factor for us to take into account. Nevertheless, the proceedings
against him are under a system whereby he is guaranteed the right to a fair trial
within a reasonable period of time. Moreover, any extension granted by the court
must be for a limited period of no more than one year. Any further requests for
extension would require to be addressed afresh on their own merits. As required by
the 1983 Act, any extension granted by the court would require to be brought under
review at least twice during that time, and at such review hearings new evidence or
changed circumstances could be addressed.
[22] It is important to note the precise nature of the charges against him. The charges
relate to
`Alleged conduct in preparation for giving effect to his intention of
committing acts of terrorism or assisting another to commit such acts,
contrary to section 5(1) of the Terrorism Act 2006; and addressing a meeting
for the purposes of encouraging terrorism, contrary to s12(3) Terrorism
Act 2000.'
The former charge carries a potential maximum sentence of life imprisonment; the
latter carries a potential maximum of 14 years imprisonment.
...
[27] In addressing whether public confidence in the profession would be seriously
damaged without an extension order, the court must ask itself whether a reasonable
and properly informed member of the public would be surprised and offended to
learn that the reclaimer had been permitted to practise whilst under investigation
and the subject of criminal proceedings in respect of serious charges of this kind.
Having regard to the nature of the offences and the definitions we have noted, it will
7
be apparent that the charges are of the most serious kind, and in our view the only
answer to that question is an affirmative one. An extension to the order for interim
suspension, notwithstanding the effect on the reclaimer, is proportionate to the
nature of the offences and the risk to public confidence in the profession. The matter
will be under review as required by statute. We will therefore grant the order
sought."
Submissions for the petitioner
[10]
Senior counsel for the petitioner submitted that the maintenance of the existing
interim order is necessary in the public interest. The petitioner could not commence its
investigations until the criminal proceedings against the respondent had concluded. The
task of deciding whether or not to extend the interim order was not to assess the veracity of
the allegations, but to assess potential risk based on the information. Serious concerns were
raised involving a police investigation into allegations that the respondent may have been
involved in preparatory terrorist activities. A reasonable and properly informed member of
the public would be surprised and offended to learn that the respondent had been permitted
to practise whilst he was under investigation and the subject of criminal proceedings in
respect of serious charges of alleged preparatory acts of terrorism. Public confidence in the
profession would be seriously undermined if no order were made. After balancing the
respondent's interests and the interests of the public, an interim order remained necessary to
guard against such a risk. The respondent's bail conditions, for all practical purposes,
render the respondent unemployable. Whilst the interim order removes the respondent's
ability to practise medicine and the bar is set high for an interim order of suspension to be
imposed on the grounds of public interest only, in this case this high bar is met, given the
seriousness of the allegations and the strong and damaging impact they may have on public
confidence in the profession. Conditions could not be formulated to address the risks
identified in this case. Once the criminal proceedings have been completed the petitioner
8
will complete its investigations, it will inform the respondent of the allegations, stating the
matters which appear to raise a question as to whether his fitness to practise is impaired, in
accordance with rule 7 of the General Medical Council (Fitness to Practise) Rules 2004.
[11]
Counsel further submitted that the petitioner had carried out an assessment of
proportionality including a balancing exercise between the likelihood of damage to public
confidence on the one hand, and the impact on or prejudice to the respondent on the other.
The petitioner acknowledged that the suspension will continue to prevent the respondent
practising medicine and will continue to give rise to significant financial and reputational
prejudice to the respondent. The petitioner has had regard to the fact that the respondent
has now been suspended from medical practice since 26 October 2020 and that a further
period of suspension will extend that period. The petitioner has considered that if the case
was to proceed past a committal hearing it is likely to be 2024 before the trial will be heard
and this would, in effect mean an end to the respondent's career. The petitioner considers
that a further period of suspension of 12 months would not be disproportionate at the
present time when balanced against the seriousness and nature of the allegations.
Submissions for the respondent
[12]
The respondent submitted that he was in total disagreement with the majority of the
decision of the Inner House. He opposed the extension of the order for the following
reasons:
(a)
The first instance determination on 26 October 2020 and all the subsequent
reviews and renewals of that determination, and to include current application, all
were wrong in substance and the application of the correct tests stipulated in the
9
GMC own Guidance on imposing Interim Orders on Medical Practitioner's and
adopted by the courts in this country.
(b)
The GMC and IOT failed to consider the particular facts about the
respondent's case. He had been dragged to a meeting by a state agent in an
entrapment operation orchestrated and engineered by the UK security services.
(c)
The petitioner always applied the wrong tests stipulated by the GMC
guidance in imposing interim orders to include necessity, proportionality and
(d)
The petitioner failed to reason in a clear precise way his reasons for
imposition of the order or in his current application to extend it further for 12 months
as required by the guidance. The IOT failed to explain how the respondent posed a
real risk to public confidence in the profession. It failed to explain how public
confidence would be damaged during the period when the respondent was in
prison. It ignored that the stringent bail conditions were more than enough to guard
against any risk to the public or to the public confidence.
(e)
The petitioner in assessing the nature and seriousness of the alleged
allegations against the respondent, incorrectly and unlawfully equated his alleged
allegations with allegations of a sexual nature, which is not only wrong and
demoralising but may amount to a crime of defamation. While the nature of sexually
motivated crimes are the same, terrorist allegations vary in nature and seriousness.
(f)
The applicant failed to balance the interests of the respondent which are more
far reaching than just of their financial and reputational aspect, but also familial,
political and national interest among others versus the interest of the public.
10
(g)
The petitioner was wrong that the respondent's bail conditions render him
unemployable.
(h)
The petitioner, and IOT in their long history of the case committed wrong
doings which may impinge on the respondent universal right of fair trial and fair
legal proceedings enshrined in article 6 of human rights convention. The IOT had
failed to notify him in prison of the first hearing on 26 October 2020, and instead
posted the notice to his registered address. At that first hearing, the IOT refused an
adjournment application made by the respondent's lawyer.
For these reasons the respondent invited me to:
(a)
Refuse to extend the interim order as sought by the petitioner.
(b)
To declare all previous IOT determinations as being taken illegally and
unlawfully by implication of using the wrong public confidence test among other
wrongly applied tests.
(c)
To quash all previous expenses awarded to the petitioner regarding these
proceedings.
(d)
To declare all previous determinations regarding the respondent's case as
been taken illegally, including the determinations concerning the expenses awarded
to the petitioner.
Decision
[13]
The Inner House has already decided that a reasonable and properly informed
member of the public would be surprised and offended to learn that this particular
respondent had been permitted to practise whilst under investigation and the subject of
these criminal proceedings (B v GMC para [27]).
11
[14]
The question for me is the proportionality of the extension sought, having regard to
the general public interest in maintaining confidence in the medical profession, the existence
of the criminal charges, the interests of the practitioner and the reasons the case has not
concluded (B v GMC para [17]).
[15]
The Inner House has conducted that exercise in respect of the previous extension
sought in relation to this respondent and found that the previous extension was
proportionate (para [27]).
[16]
In conducting this proportionality exercise, I am required to reach my conclusion on
the basis of the evidence on the application (Hiew paragraph 29). That involves a
consideration of the position as it is today. It is not simply a matter of automatically
applying the same result as the Inner House came to on the proportionality exercise on the
previous application. If there has been a material change of circumstance, then a different
result may be appropriate. Conversely, if there has not been a material change of
circumstance, then the reasoning of the Inner House will remain applicable and may lead to
the conclusion that the proposed extension is proportionate.
[17]
Much emphasis was put by the respondent on explaining that he was the victim of
entrapment by an agent of the British state and in criticising the Police Service of Northern
Ireland. It is not appropriate for me to consider these matters: it is not for me to go behind
the charges and or make any findings in fact about them (B v GMC para [15]).
[18]
The Inner House considered the nature of the charges against this particular
respondent and concluded that the charges were extremely serious ones (paras [15], [27]).
The respondent now challenges that conclusion. He argues that the charges he faces are not
as serious as sexual offences: a terrorist is not going into hospital to rape patients. He
further submitted that there is a range of seriousness within terrorism offences, so that
12
speaking to a meeting (as he did) is not as serious as other terrorist activities. I do not agree.
Firstly, this is a case which goes to the general public interest, not to the risk to patients.
Secondly, I am in complete agreement (for the reasons given by the Inner House) with their
finding in para [27] that the particular charges against this particular respondent are "of the
most serious kind."
[19]
The Inner House recognised that suspension would have an adverse effect on the
respondent's ability to work, although his bail conditions would also be likely to restrict to
an extent his ability to do so (para [20]). There has been no change of factual circumstance in
this regard.
[20]
I accept, for the reasons set out by the Inner House in para [20], that this is not a case
in which the risk may be ameliorated by conditions.
[21]
I turn now to the passage of time before proceedings may be concluded and thus
before the GMC's investigation may be concluded and the respondent's ultimate fate
determined.
[22]
I was updated by parties on the current situation with regard to the criminal
proceedings in Northern Ireland. The proceedings are in two stages. Firstly, there is a
committal hearing, the purpose of which is for a magistrate in the Magistrates Court to
decide whether there is sufficient evidence to send the respondent for trial. If the magistrate
decides that there is not, that will be the end of the case against the respondent. If the
magistrate decides that there is, then the case will be sent for trial in the Crown Court. The
decision to prosecute was taken on 12 August 2021. The committal proceedings against the
respondent and others are taking place in the Magistrate's Court in Dungannon. A number
of the accused have exercised their right to call witnesses to give oral evidence in the
committal proceedings. Hearings on preliminary matters took place in the week
13
commencing 27 June 2022. The hearing of witness evidence commenced in October 2022. A
timetable has been set for a hearing of applications on the inadmissibility of evidence which
is proposed to be heard in the week commencing 28 August 2023. The respondent is also
making an abuse of process application on a number of grounds, and this will likely be
determined at the same time as the admissibility applications. If the abuse of process
application is successful, that will be the end of the case against the respondent. If not, the
Magistrate's Court will require to determine the substantive issues in committal, and will
most likely timetable written submissions from parties to be followed by an oral hearing,
which is likely to take place in the next court term.
[23]
So the situation with the criminal proceedings is that the Magistrates Court may
bring proceedings against the respondent to an end after the abuse hearing in August 2023,
or after the committal proceedings are concluded sometime in 2023 or possibly into 2024.
If it does not bring the criminal proceedings to an end, then the case will proceed to trial in
the Crown Court, in which case it is not possible to say at this stage when the trial will be
concluded.
[24]
The extension sought is to April 2024. It is expected that the committal proceedings
will come to a conclusion within that time. The interim order will be reviewed by the IOT
within 3 months and again in 6 months, in accordance with section 41A(9)(b) of the 1983 Act.
The petitioner's position is that if the Magistrates Court discharges the respondent, bringing
the criminal proceedings to an end, the petitioner will invite the IOT to revoke the interim
order. If the Magistrate commits the respondent for trial, the situation can be reviewed by
the IOT.
[25]
The suspension is causing the respondent hardship. He is living on state benefits
and due to his age may have difficulty in resuming his career after a lengthy suspension.
14
However in my view the length of the suspension has not yet reached the stage where it
makes it disproportionate for the suspension to continue. In finding that the previous
extension was proportionate, the Inner House expected that it was unlikely that the trial
would take place until at least some time in 2024 (para [5]). The extension currently sought
is only to April 2024. During the period of the extension now sought, substantial progress is
expected to be made in the criminal proceedings and it is expected that the respondent will
either be discharged or committed for trial. If he is discharged, the petitioner will invite the
IOT to revoke the interim order. If he is committed for trial, a more realistic estimate can be
made of when the trial will take place and the length of time it will take to conclude the
criminal proceedings, and that estimate can inform a new proportionality exercise in due
course.
[26]
In all the circumstances of the case, I find that a reasonable and properly informed
member of the public would be surprised and offended to learn that the respondent had
been permitted to practise whilst under investigation and the subject of these criminal
proceedings, and that an extension to the order is proportionate to the nature of the offences
and the risk to public confidence in the profession. I am satisfied that it is in the public
interest for the suspension order to be extended as sought.
[27]
That is all that is required to deal with the motion for extension but I shall deal
briefly with two particular matters raised by the respondent.
[28]
Firstly, the respondent criticised the prior conduct of the GMC, in writing to him at
his home rather than his prison address, and in not adjourning a hearing on 26 October 2020,
which he maintained were a breach of the right to a fair trial under article 6 of the European
Convention on Human Rights. He also criticised the IOT for applying the wrong test. He
invited me to grant a declarator that all previous IOT determinations were illegal and
15
unlawful. All of these criticisms are unfounded. Writing to the home address was of no
prejudice as it did not prevent the respondent from instructing legal representatives and
defending the IOT proceedings. The decision as to whether or not to adjourn was an
exercise of the discretion of the IOT. The respondent has not shown that any prejudice has
resulted from the decision not to adjourn. The respondent's argument on the wrong test
was founded on GMC v MM. In that case the Lord Ordinary found that the wrong test had
been applied: the GMC had applied a test of impairment of fitness to practise which may
adversely affect the public interest, whereas the correct test was whether the public
confidence in the medical profession was likely to be seriously damaged if the doctor
continued to hold unrestricted registration (para [11]). However that is of no relevance to
the current case, as the IOT applied the correct test (paragraph 32 of its determination of
23 March 2022).
[29]
Finally, the respondent alleges that he has been defamed by the petitioner. That
allegation was made in the Judicial Review petition (which of course was not given
permission to proceed):
"The Analogy made by the Council and IOT between the allegations of [the
Respondent] and sexual assault offences to include sexual assaulting patients and
children is unlawful and amount to Libel Defamation".
The allegation was also referred to in oral submissions at the hearing in the current petition.
The respondent's position is that the petitioner has implied that he has committed a sexual
offence, and he submitted orally that his community, friends and children had been asking
him if it was true that he had committed rape. There is no basis at all for this false allegation
of defamation. The respondent has constructed it from a perverse misreading of the
petitioner's Guidance on Imposing Interim Orders. The Guidance gives particular guidance
on provision for sexual criminal cases in paragraphs 29 and 30, guidance on non-sexual
16
criminal cases in paragraph 31, and general guidance on serious criminal cases in
paragraphs 43 and 44. The respondent has conflated these provisions and come to the
inexplicable and entirely false conclusion that the GMC and IOT have accused him of a
criminal sexual offence.
