High Court varies conditions imposed by Interim Order Panel of GMC to prevent them having practical effect of suspension.

The claimant General Medical Council (GMC) applied under section 41A of the Medical Act 1983 for an order extending by 12 months an interim order of conditions, first imposed on the defendant doctor (E) by the Interim Orders Panel (IOP) of the GMC on 23 April 2012.

The allegations faced by E in the case relate to his relationship with a vulnerable patient (KA). The GMC had been informed by a DC Meadows of Derbyshire Police of an on-going criminal investigation concerning an allegation that E had raped one of his patients, KA. Ultimately, no further police action was subsequently taken against E, as the evidential threshold was not met.

The GMC applied for an Interim Order, on the basis that although no further police action was taken, the case raised serious concerns with regards to E’s judgment and cast doubt on his ability to work with vulnerable adults. KA, with whom E had previously entered into a relationship, was quite clearly a person with mental health issues and E’s judgement seemed flawed bearing in mind his position of trust. The Panel imposed an interim conditions of practice order.

Condition 5 was that;

  1. Except in life threatening emergencies E must not undertake consultations with female patients without a chaperone present (the chaperone being a fully registered medical practitioner or fully registered nurse or midwife)
  2. He must maintain a log detailing every case where he has undertaken a consultation with such a patient which must be signed by a chaperone
  3. He must maintain a log detailing every case where he has undertaken a consultation with such a patient in a life threatening emergency without a chaperone present
  4. He must provide these logs to the GMC prior to any review hearing of the Panel, or alternatively, confirm there have been no such cases during that period.

E submitted that, for all practical purposes, the effect of this order was the equivalent of suspension because he had worked for most of his professional life as a GP and out of hours GP.

E appealed the decision of the IOP.

Determination

It was held that the evidence of KA appeared to be ‘sufficiently unreliable to be discounted, save where it is agreed or is supported by other evidence from an otherwise unimpeachable source’. The evidence available did suggest that E engaged in a relationship with KA and that he had a child by her, who now lives with him by order of the Family Court. It was held that the allegation that the relationship started while KA was a patient of E is denied and was not supported by KA in a statement she gave at the time of the investigation. Whilst the GMC maintained that the medical records support inferentially the allegation that the relationship started while E was KA’s GP, the learned Judge thought it would be difficult to infer an improper relationship on the basis of this evidence alone.

The Judge was rather more concerned with the issue of the probity of E; it was alleged that E, when asked by a colleague whether the former patient with whom he disclosed he was in a relationship was KA, had refused to give her name and had said that the individual was not a vulnerable adult, which was clearly not the case.

The Court regarded the uncorroborated evidence of KA that she was repeatedly raped over a number of years and became pregnant as ‘so inherently unreliable that it would be unsafe and unsound to proceed by reference to that allegation’. It nonetheless remained the case that E commenced a relationship with a former patient who he must have known was a vulnerable adult by reason of her mental health issues. E had also misled a number of his former colleagues on the issue. ‘Simply looking at the allegations that are made rather than arriving at any judgments concerning their truth or accuracy, it does mean that there is a risk that he might attempt to develop a relationship with a vulnerable patient and, if the only control was a log, then he would seek to disguise or conceal such an occurrence’.

The Court held that the appropriate course was to re-formulate the conditions so that they eliminated risk without having the effect of practical suspension. Condition 5 was therefore substituted with the following;

  1. Not to treat or have any personal contact with any female patient other than in a consultation fixed by prior appointment by the patient concerned to a GP’s surgery or other NHS unit
  2. Not to have any telephone contact with any female patient other than in response to calls from such patients to the surgery or other NHS unit at which the claimant is employed
  3. Not to make contact with any patient by e-mail or other electronic means other than to respond to emails received from a female patient sent to the surgery or other NHS unit of which the claimant is employed
  4. Except in life threatening emergencies not to treat or undertake a consultation with any female patient more than three times in any three month period
  5. Save to the extent provided by a) to c) above, not to make contact with any female patient or visit or meet with such patients
  6. On every occasion when E treats or conducts a consultation with a female patient, he must offer that patient a chaperone.

It was held that these conditions ought to enable E to practice as a locum GP during normal surgery hours but at the same time eliminate, to the maximum possible extent, the opportunities for developing inappropriate relationships with female patients in the way that is alleged by the GMC in this case. It was held that this was a proportionate response to the allegations that are currently available to the GMC – namely that E formed an inappropriate relationship with KA while she was, or after she ceased to be, a patient; and to the alleged lack of probity.

The order was extended, in this form, for 6 months only.

The Court also mentioned the delay that had taken place in this particular case. It was acknowledged that the unwillingness of KA to provide a statement had contributed to the delay that had occurred. The learned Judge said that ‘The GMC must be particularly astute to protect the interests of vulnerable people. Thus I reject the defendant’s submission that KA cannot be allowed to dictate the speed of the investigations if by that it is contended that the speed of the investigation can have no regard to the vulnerabilities of KA. However, I accept the point made on behalf of the defendant that there will come a point where, if there is no evidence from KA to support her complaints, the process must be brought to a conclusion on the basis that she cannot or will not provide a statement that supports the allegations that she has made’.

This case acts as an encouragement for regulators to narrow down the concerns that they say subsist and need to be met with an interim order, and to draft conditions that specifically address those specific concerns, and nothing further, to ensure they are proportionate. It is a further reminder that conditions must not be so stringent as to be tantamount to suspension.