NH and General Medical Council  EWHC 2348 (Admin)
This case concerns the application of the doctor, NH, for the Court to terminate an interim suspension imposed by the Interim Orders Tribunal (IOT) of the Medical Practitioners Tribunal Service (MPTS).
Dr NH is a trainee doctor. On 5 April 2016 the IOT made his registration subject to an interim order for suspension for the period of 18 months pursuant to Section 41A of the Medical Act 1983 (the Act).
NH is currently a trainee doctor at Ashford and St Peters Hospital which is part of the Kent, Surrey and Sussex deaneries specialist training scheme. He was charged in relation to offences of false imprisonment and assault of his younger sister (the Complainant) who was a minor at the time. Specifically, it is alleged that NH along with eight members of his family held the Complainant against her will for a period of days during which she was assaulted. The event as alleged was said to have occurred due to a relationship between the Complainant and a boyfriend whom her family consider to be inappropriate and bringing dishonour to the family.
Evidence in the criminal proceedings
Whilst NH does not accept the allegation, the evidence in relation to the matter includes a video recorded account from the Complainant, a text or email the Complainant sent during the course of her detention naming NH, medical examination results and the Complainant’s police interview. It should be noted that there is no direct evidence against NH as to the assault, but the allegation involves joint enterprise between him and other members of the family.
The application to the Court
The application was heard by Honourable Mr Justice McGowan on 8 September 2016. The Judge noted that NH is highly thought of by his colleagues and superiors, a number of whom provided positive references on his behalf and confirmed that there has been no issue as to his competence or conduct in any other regard.
The IOT’s power to make an interim order of suspension is granted to the MPTS under Section 41A of the Act as follows:
Where an Interim Order Tribunal…are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest…the registration of that person to be suspended or to be made subject to conditions, the Tribunal may make an order –
that his registration in the Register shall be suspended (that is to say shall not have effect) during such period not exceeding 18 months as may be specified in the order, (“an interim suspension order”).
The Judge confirmed that the matter before him was an application and not an appeal and therefore the Court may terminate the order made by the IOT if and only if it considers that the order was wrong.
NH submitted that the IOT’s decision was wrong as there is no real risk to members of the public and further there is no public interest in him being suspended. He also contended that the decision to suspend his registration in the interim was unnecessary, disproportionate and flawed because the IOT failed to take into account material considerations.
In considering the application the Judge commented that the case raised a real “narrow issue”. The GMC was not seeking to suggest that NH posed a risk to members of the public, but rested the application in support of the interim suspension order on the public interest ground to maintain confidence in the profession. Further, the GMC submitted that the reasoning of the IOT was sufficient, and even if it was not, the order was not wrong and therefore should not be terminated by the Court. The GMC’s case was that the Court should consider whether the offences of NH were of such a serious nature that it would not be in the public interest for him to be able to practise in the interim and would public confidence in the medical profession be damaged if they knew that NH continued to practise whilst awaiting trial in relation to the offences.
On behalf of NH, Counsel submitted that the interpretation by the GMC of the test was incorrect. It was submitted on NH’s behalf that in relation to the public interest test the Judge must find the suspension to be “necessary” for the maintenance of public confidence whereas the GMC asserted that it was sufficient that the suspension be “desirable” in order to maintain public confidence. On this point, the Judge stated that it was not an issue he needed to determine, as on the facts of the present case, he found it necessary for the maintenance of public confidence in the medical profession that NH be suspended. At paragraph 12 of the judgment he stated:-
Would an average member of the public be shocked or troubled to learn, if there is a conviction in this case, that the doctor had continued to practise whilst on bail awaiting trial?
In response to this question the Judge found that a member of the public would so be shocked and therefore the interim suspension order remained necessary. He stated that the allegations in the case involve serious criminal offences; as NH, a trainee doctor, allowed himself to be part of a joint enterprise in which the Complainant, a minor, was held captive for a substantial period of time and was assaulted by others in the family group. Additionally, it is was alleged that NH obtained the morning after pill which he ordered the Complainant to take. At paragraph 13 of the decision the Judge stated:
“In my view these allegations are of such a nature and are sufficiently serious to warrant interim suspension better to maintain public confidence in the medical profession”.
In response to the submission by NH that the IOT’s reasoning was flawed or inadequate because they did not take into account all material considerations, the Judge stated that as this matter involved an application and not an appeal it was not necessary for him to conduct an analysis of the IOT’s reasoning. Notwithstanding, if he were so tasked he would find the reasoning to be perfectly adequate as there can be no doubt as to the reasons why the interim suspension order was imposed and further that the IOT properly took into account any consequential effects on NH.
Interim orders prior to any finding of fact can often be detrimental to regulated professionals because it may restrict their ability to earn and/or progress in their career. Nonetheless, in circumstances where the test is engaged, the Court will not overturn an interim order simply on the basis that it is detrimental to the regulated professional. In the present case, the Judge considered that as NH is a trainee doctor an interim order for suspension would not lead to the end of his career and that he would be able to progress to full qualification should he be cleared of the charges.
The point of contention between those representing NH and the GMC as to the test that should be applied in relation to interim orders on the ground of the public interest is interesting. The GMC’s case appears to be that as the word ‘necessary’ does not appear immediately before the public interest strand of the test, whereas it does before the protection of members of the public strand, there is a difference of interpretation.
In the case of Sheikh the Court found that in the context of imposing an interim suspension order on public interest grounds the bar is set high. More recently in the case of Bawa-Garba and the GMC which confirmed the 2012 case of Patel Knowles J stated
“The mere fact of the criminal charge, even a serious one such as manslaughter, does not, in my assessment, automatically mean that suspension is necessary or appropriate; there is a judgment to be made”.
These cases confirm that in the event of an interim order on the basis of the public interest, panels must give careful consideration to the circumstances before them and not simply impose an interim order because a serious criminal charge is in the offing. Nonetheless, the decision of a panel to impose an order will not necessarily be wrong if it is imposed solely on the public interest ground.