In Abdullah v General Medical Council  EWHC 2506 (Admin) the High Court upheld a decision of the Interim Orders Panel (“IOP”) of the Medical Practitioners Tribunal Service (“the MPTS”) of the General Medical Council (“the GMC”) to make an interim suspension order against a doctor alleged to have engaged in inappropriate sexual behaviour with a patient, but reduced the period of suspension from 18 to 12 months. In addition to providing a useful review of the relevant authorities regarding the role of the Court in appeals against decisions of the IOP, the case makes interesting reading for anyone appearing before the IOP where the allegations are of sexual misconduct.
In June 2012, allegations of serious sexual misconduct were made against the Claimant by a patient. The Claimant had never before been the subject of any criminal, regulatory or other disciplinary investigations in his thirty years of general practice. The allegations, which were said to have taken place both inside and outside the surgery, were investigated by the police. That investigation concluded that the evidence provided was not sufficient to support a prosecution for rape or for any other criminal offence. Nevertheless, the police reported the allegations to the GMC’s Fitness to Practice Directorate on the basis that if what the patient had described had occurred in the way detailed by her, then the doctor had clearly taken advantage of her and appeared to have seriously breached her trust. The Primary Care Trust (“the PCT”) then launched its own investigation, which concluded that the allegations could not be substantiated and the criteria for suspension (under Regulation 13(1) of the National Health Service (Performers Lists) Regulations 2004) were not met. The matter then came before the IOP. The IOP determined that the statutory test laid out in s.41A(1) of the Medical Act 1983 for making an interim order was met and it was appropriate to suspend for a period of 18 months.
The Claimant argued that the decision to make an interim suspension order was wrong. He argued that it was neither necessary as a means of protecting patients nor otherwise in the public interest. Further, the order was disproportionate given the “exceptionally flawed” case against him and the effect the Claimant’s suspension would have on him. The Court disagreed.
Lindblom J reviewed the authorities and noted that the scope of the Court’s jurisdiction under s.41A(10) of 1983 Act is well-established and the jurisprudence clear. Thus, when considering termination of an interim suspension order or the substitution of a different period, the Court is not constrained to considering whether the IOP committed an error of law as in a claim for judicial review. Rather, the Court is required to judge whether the decision to suspend pending investigation of the allegations was justified and proportionate.
The allegations facing the Claimant were of serious sexual misconduct and, as reflected in the GMC’s ‘Imposing interim orders: Guidance for the interim orders panel and the fitness to practise panel’ (“the GMC Guidance”), the need to maintain public confidence in the medical profession or the medical regulator was an important consideration. The IOP were obviously and rightly anxious about the impact that a decision not to suspend the Claimant could have on the trust that members of the public are entitled to place in the medical profession. Further, the IOP had been rightly concerned about the risk to which patients might be exposed if the Claimant was not prevented from practising whilst the patient’s allegations were examined. If the allegations were true, there was a real risk that patients could be exposed to great harm. However, whilst it was right for an interim suspension order to have been made, a period of 18 months (the maximum permissible) was excessive. There was no reason why a fair and proper investigation of the allegations could not be completed within 12 months of the date when the interim suspension order was made.
Whilst it is clearly wrong to say that suspension will automatically follow whenever an allegation of sexual misconduct is made, in reality there are likely to be few cases in which it will not be appropriate to make an interim suspension order while the allegations are investigated.