Judgment Date: 28 September 2012

The Interim Orders Panel (IOP) of the General Medical Council (GMC) was not entitled to continue an interim conditional registration order on the grounds of public protection once it emerged that there were no public protection allegations being placed before the Fitness to Practise Panel.

The claimant, Dr. Hussain, was referred to the GMC for what were described as “quite low-level probity issues”, namely that he had completed feedback about himself on behalf of another health care professional, plagiarised online material within his reflective learning log, and re-recorded patient consultations. At the time, Dr. Hussain was suffering from a temporary stress-related illness caused by his father’s death.

The GMC referred the matter to its IOP, before which it placed a limited amount of material concerning a separate allegation relating to patient safety. The IOP imposed an interim conditions order, but was ambiguous in its reason for imposing this. In due course, the GMC issued a Rule 7 letter identifying the allegations against Dr. Hussain, none of which related to patient safety.

Following this, Dr. Hussain made an application to the Administrative Court pursuant to section 41A(10) of the Medical Act 1983 for an order revoking or varying his interim conditions order.

The Administrative Court considered the test for making an interim conditional registration order, as outlined in Hiew v GMC [2007] EWCA Civ 369 and Sandler v GMC [2010] EWHC 1029 (Admin). In relation to interim orders sought for the protection of patients, the test is one of necessity. In relation to interim orders sought for any other reason, the test is one of desirability, either in the public interest or the interest of the professional. In any event, the order must be proportionate.

The Court concluded that the IOP had drawn a distinction between the patient safety allegation and the probity allegations, and had issued an interim order based only on the former. The Administrative Court concluded that the probity allegations did not impact on patient safety, either individually or collectively; they were acknowledged by the IOP as “low level” and related to a time when Dr. Hussain was ill. The GMC no longer sought to rely on the separate patient safety allegation.

The Court held that there was no discernible benefit either to the public or to Dr. Hussain in continuing the interim conditions, and there was no realistic risk that the profession would suffer reputational damage as a result of discontinuing them. The interim conditions were neither desirable nor proportionate.

Obiter, HHJ Pelling QC noted that the letter notifying Dr. Hussain of the first IOP did not comply with Rule 15 of the GMC Fitness to Practise Rules Order 2004 in that it did not particularise the allegations or set out the reasons why it was necessary to make an interim order. He considered that this led to the IOP’s confusion and stressed that the protection afforded by the rules ought not to be ignored or departed from.

This judgment confirms the decision in GMC v Hiew [2007] EWCA Civ 369 and Sandler v GMC [2010] EWHC 1029 (Admin) that the Administrative Court’s powers under section 41A(10) of the Medical Act 1983 are not limited to that of judicial review. The Administrative Court is willing to come to a ‘fresh’ decision on the merits, taking into account events postdating the IOP’s decision. The importance of IOP hearing notices complying with the requirements of Rule 15 should also be noted.