GMC MPTS Interim Orders Hearings (IOT) Case Law

i. Duration of Interim Order, and ii. Relevance of NHS Trust Disciplinary Approach

Abdullah v General Medical Council [2012] EWHC 2506 (Admin) – The High Court determined that an interim order of 18 months was excessive, and substituted an order of 12 months suspension. The court was of the view that an investigation into sexual allegations against a doctor should not take more than 12 months. The court, however, rejected the doctor’s submissions that an interim order of suspension was disproportionate in all of the circumstances. The doctor was being investigated by the GMC as a result of allegations of sexual misconduct with a patient of his GP practice. The court held that the reasons for the interim order were sufficient and that the order was justified in order to uphold public confidence in the profession. The court reviewed [at 24]the authorities; referring to R (Sosanya) v General Medical Council [2009] EWHC 2814 (Admin) (October 2009), the court noted the GMC/MPTS guidance to IOT panels that it is “incumbent on the panel to consider the individual features of each case and the particular charges“, and that the IOT should have in mind the possibility of the practitioner’s acquittal as well as the possibility of his or her being convicted. The court (in Abdullah) observed that it was not necessary in every case to of alleged sexual misconduct to suspend a doctor.  Further, where the police had chosen not to prosecute the doctor it did not mean that the GMC could not be bring allegations of misconduct. The GMC was not bound by how the PCT had approached the case. Further the allegations were not so inconsistent or vague that the GMC could not bring its own proceedings. (September 2012)

i. Duration of Extension of Orders, and ii. Impact of High Court Refusal to Extend Period of Suspension

GMC v Dr Venugula Rao Srinivas [2012] EWHC 2513 (Admin) – The GMC made an application to extend the interim order period, imposed on a locum GP. The High Court extended the interim order by a period of four months, to allow the GMC greater time to investigate allegations of inappropriate examinations and falsification of clinical records. It recognised that delay had also been caused (not unreasonably) because the GMC were waiting for the conclusion of criminal proceedings exploring the same allegations of inappropriate sexual behaviour toward patients.. There had been three extensions of time granted by the court previously. The court was of the view that in the event that the period of suspension were not extended by the court, that such an occurrence would amount to new circumstances. In such a case the IOT panel could consider imposing Conditions of Practice. That did not arise in the current case. (Read: Full Law Report (external link)) (September 2012)

Threshold for the Imposition of an Interim Order – Prima Facie Case

Perry v Nursing and Midwifery Council [2012] EWHC 2275 (Admin) – Held: An interim order may be imposed by a panel using the NMC’s test of: Is there a Prima Facie case? Such a test is a fair one. A full merits hearing is not required. Article 6 is engaged and a nurse can attend the hearing. Article 8 is not engaged because of the nature of the hearing; however, if it were to be engaged the imposition of an interim order is proportionate the underlying principle of public protection. The imposition of an order out of necessity requires sufficient explanation and it was provided in the current case. The panel’s reasoning did not make it clear as to why the panel imposed an order of Conditions as opposed to The NMC guidance to panels did, however, fetter the panel’s discretion. The reference to the panel having regard to whether the nurse had an employer appears to have influenced the panel. The cooperation of an employer will rarely be necessary, especially where a nurse is not in current employment. Such an approach was an unnecessary fettering of the panel’s decision-making process. The court was not satisfied that an interim order of suspension was necessary.  The Appeal was allowed.  The suspension would continue until a new IOT panel could be convened within a few weeks. The powers of the High Court (on a plain reading of Article 31(12) of the Nursing and Midwifery Order) were construed by Counsel for the parties to not permit the judge substitute the order with conditions. The court determined that the case would need to be remitted back to a new NMC IOT panel for consideration. [Read: Full Law Report (external link)]  (August 2012)

Prima Facie Case

R (George) v General Medical Council (GMC) [2003] EWHC 1124 (Admin) at [42] – Findings of fact are not made by Interim Orders Tribunals (IOTs) when considering whether to make an order for public protection. A prima facie case will be sufficient to justify an order. (May 2003)

In Scholten v General Medical Council (GMC) [2013] EWHC 173 (Admin) – a doctor who had taken a photograph of a female patient’s genitals, without her permission, while she was under anaesthetic (albeit the doctor made colleagues aware at the time that it was for professional purposes), had been suspended by the MPTS/GMC Interim Orders Tribunal. The court held that, although the Interim Orders Tribunal’s view, that the doctor’s fitness to practise may be impaired [a prima facie case], the panel had insufficiently assessed the potential justifications for imposing an interim order of suspension and the impact of an ongoing suspension on the doctor. The suspension order, imposed some months before, had had a significant and detrimental impact on the doctor’s mental health, relationship with his partner, and his financial position generally. The appeal court judge’s observations would need to be considered at the next MPTS review (which was imminent) and so no quashing order was made. The judge had indicated that an interim order of conditions was suitable, as an alternative to suspension. (February 2013)

Criminal Charges

Fallon v Horse Racing Regulatory Authority [2006] EWHC 2030 (Admin) – The High Court confirmed that a regulator can take into account the decision of the Crown Prosecution Service to bring criminal charges, and in having done there is a sufficient evidence on which criminal charges have been brought (prima facie test) (unreported)

In Dr Dastagir v GMC [2015] EWHC 847 an interim order of suspension was upheld on appeal, where a doctor had been charged with blackmail, in the criminal courts (unreported).

In Dr Bawa-Garba v the General Medical Council [2015] EWHC 1277 (QB) it was held that an interim order of suspension (for 18 months) was not necessary in a case where a doctor was charged with medical manslaughter, in the criminal courts. Conditions of practise were imposed instead. (unreported)

In R (Sosanya) v General Medical Council [2009] EWHC 2814 (Admin) tribunals were advised that ‘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...’ (October 2009)

Misconceived Allegations – IOT

General Medical Council (GMC) v Sheill [2006] EWHC 3025 (Admin) – A misconceived or trivial complaint should not be given weight by the Interim Orders Tribunal [35 – 36], Crane, J:  “In my judgment his submissions overlook the nature of these proceedings. They relate to an interim order. Neither the IOT nor the court is embarking on a fact-finding exercise. In my judgment the strict rules of evidence do not apply in the court hearing. Both the IOT and in turn the court must look at the allegations made against the doctor. The Panel and the court will expect the allegation to have been made or confirmed in writing, whether or not it has yet been reduced to a formal witness statement. The Panel and the court will need to consider the source and the potential seriousness of the complaint. A complaint that is trivial or clearly misconceived on its face will clearly not be given weight. The nature of the allegations will be highly relevant to the issue whether conditions are sufficient. [35] Provision is made in the rules for evidence from the doctor. It will be relevant to note any concessions by the doctor about the truth of an allegation. However, if an allegation is denied, it is not the function of the Panel or the court to resolve such a dispute. The doctor’s evidence will, however, be of great importance in assessing the effect of an order on the doctor, since it is common ground that the effect on the doctor must be taken into account and a balancing exercise performed. [36]” (November 2006)

Proportionality

Madan v General Medical Council (GMC) [2001] EWHC 577 (Admin) – The Interim Orders Tribunal must take a proportionate approach to the allegations and evidence, balancing the interests of the practitioner and public protection.

See, also, our article on Proportionality in GMC & MPTS Cases

Ongoing Risk – IOT

Harry v General Medical Council (GMC) [2012] EWHC 2762 (QB) – Interim Order of Suspension quashed.  There was no proper justification given by the panel in light of the history. The reasons given were lacking. There had been no assessment of ongoing risk and whether there was a real a risk of repetition [13-17]. Further, IOT panels should not be imposing 18 months duration of an order at the outset of a case as that was disproportionate [18]. Application by way of Part 8 CPR [2]. (October 2012)

When an Interim Order is Unnecessary – IOT

In Patel v General Medical Council [2012] EWHC 3688 (Admin) the High Court held that an interim order would be quashed where the alleged wrongdoing of a doctor (alleged conspiracy to defraud) was unrelated to clinical practice and where the absence of an interim order could not be said to create a risk to the public interest or public protection.  The case also requires tribunals to look at how the public would view a tribunal outcome, where there are allegations. In essence, the test is: Would a member of the public be offended by (or surprised by) a decision that allowed a registered medical practitioner to continue to practise with or without restrictions, or at all?  (December 2012)

In Houshian v General Medical Council (GMC) [2012] EWHC 3458 (Admin) the High Court held that an interim order would be quashed, where a doctor had been found to have fabricated evidence in an unfair dismissal claim but where there was no properly identifiable risk to patients of his continued practise as a doctor. An interim order was disproportionate. (December 2012)

IOT Panel Reasons

In Dr EY v General Medical Council (GMC) [2013] EWHC 860 (Admin) the High Court confirmed that an interim orders tribunal panel (IOT) does not need to give detailed reasons for imposing an interim order (para 47, and see also paras 21 onwards for a discussion of case law on reasons). (April 2013). By contrast, see the duty to give reasons in MPT hearings.

Challenging Interim Orders in the High Court – Revocation of Extensions

In General Medical Council (GMC) v Hiew  [2007] EWCA Civ 369 the Court of Appeal set out the test for challenging the extension of an interim order. (April 2007)

In K v General Medical Council [2022] CSIH 44 the appeal court quashed an extension of an interim order of conditions that had been imposed by a judge of first instance. The doctor had been acquitted of alleged rape, in the criminal courts. The appeal court held that it was not proportionate to impose an order of conditions, and that there was not evidence of a risk to patients, and the past alleged conduct was not in the clinical arena. Public perception was Lilly to be in the doctor’s favour.

Mental Health Assessment Considerations

In Ramaswamy v General Medical Council [2023] EWHC 100 (Admin) the High Court declined to overturn an interim order (related to alleged non-compliance), where there were concerns about a doctor’s mental health. Costs awarded against the claimant £8,000 (GMC’s substantive appeal costs) and £2,000 (for the GMC’s further skeleton argument) (January 2023)

Extensions by Way of Application of the GMC

In General Medical Council v Mwambingu [2023] EWHC 324 (Admin) the High Court deemed it appropriate to extend an interim order of conditions, by six months. Also, an order for maintaining the confidentiality of the documents filed in the High Court, was refused, as the documents did not disclose information that needed to be kept confidential. Open justice principles applied.   She was ordered to pay the GMC £1,200 in costs. The GMC had sought over £1,800. The judge held that the doctor could have consented to the extension, and the court noted that the doctor had not participated in the extension application hearing. (February 2023)

NMC High Court Extension of Period of Interim Order – by way of example

NMC v Donga (September 2012 unreported) – The Nursing and Midwifery Council (which has similar fitness to practise provisions, to that of the GMC) applied for an extension of an interim order of suspension (at the end of the statutory period in which the NMC could of its own volition impose an interim order). The High Court extended the period of the interim order by four months. The allegations were serious, relating to a nurse who had disappeared after she was questioned about her identity and whether she was a real nurse – false documents having been submitted. (Unreported)

The Public Interest

In R (Sheikh) v General Dental Council [2007] EWHC 2972 (Admin) at [16] – the threshold is a high one where the only ground to justify an interim order is the public interest. (November 2007)

In Bhatnagar v GMC [2013] EWHC 3412 (Admin) the High Court considered how the Interim Orders Tribunal was to approach the concept of acting in the public interest. The judge opined that the panel had to ask itself what a reasonable onlooker would think if the GMC/MPTS (at the Fitness to Practise substantive stage) were to subsequently find the allegations proved, in circumstances where the Interim Orders Tribunal had not taken action, so having allowed the doctor to practise for many months. The judge held that, if a reasonable onlooker would expect the doctor to be suspended from the register, it would be legitimate for the panel to conclude it was necessary to suspend so as to maintain confidence in the profession, while the case is being investigated. [N.B. This judgment has made it more likely that a doctor will be suspended at an Interim Orders Tribunal (IOT) hearing in certain classes of cases.]

In Christou v Nursing and Midwifery Council [2016] EWHC 1947 (Admin) the High Court set aside an interim order of suspension, holding that a final sanction at a fitness to practise hearing would be sufficient. The nurse had received a police caution for assault and had failed to disclose it to the Nursing and Midwifery Council (NMC). The court opined that there ought to be a serious risk to the public interest for an interim orders tribunal to impose an interim order of suspension. The case has relevance in GMC/MPTS interim orders proceedings.

Doctor Without Capacity can Apply through Litigation Friend – extensions of interim orders

In General Medical Council v Paterson [2014] EWHC 201 (Admin) the appeal court judge proceeded to extend an interim order but directed that the doctor could make an application to the court by way of a Litigation Friend within the following ten days. (January 2013)

Interim Orders and Freedom of Speech

In White v General Medical Council [2021] EWHC 3286 (Admin) an interim order restraining speech on the subject of Covid19 was quashed. Section 12(3) of the Human Rights Act, and Article 10: Freedom of Expression, a convention right under the European Convention on Human Rights) should have been considered. The judge also remarked (at para 28) that” “Amongst other matters, any condition proposing to curtail freedom of expression on an interim footing, in order to be proportionate, is likely to need to be specific as to what views or opinions the person subject to the order is precluded from expressing.”  (December 2021)  It will be interesting to see how the GMC approaches freedom of expression cases in the future.

Financial Effect of Interim Order: Hardship

In Dr MXM v General Medical Council [2022] EWHC 817 (Admin) the High Court quashed an interim suspension order of 18 months, holding that the case was one of public confidence rather than public protection. In doing so, the court held that hardship was a relevant consideration:

1. In the circumstances of this case, the risk is not such as to render it proportionate to impose an interim suspension order, still less for a period of 18 months, bearing in mind the grave effect of an interim suspension order on the Applicant’s ability to earn a living, to support his family, and on his reputation and ability to demonstrate when any charges are determined that he can practise without incident. Accordingly, I will terminate the interim suspension order.

(April 2022)