High Court terminates interim suspension order imposed by Interim Orders Panel of the General Medical Council.

Judgment date: 17 May 2013

In this case, the claimant GP (K) made an application to the High Court, pursuant to section 41A(10)a of the Medical Act 1983 (the Act), for an order terminating an interim order of suspension imposed by the Interim Orders Panel (IOP) of the General Medical Council (GMC). 

Background

On 30 May 2012, an IOP (‘the First Panel’) heard an application by the GMC for the imposition of an interim conditions order as a result of K’s failure to refer a post-operative patient, Patient N, to hospital as an urgent admission after seeing him and identifying various notable and ‘sinister’ symptoms on 11th May 2007.  Patient N died on 16 May 2007.

An expert report had been commissioned by Her Majesty’s Coroner for Bedfordshire, and was provided by Dr Sean Cummings. Dr Cummings concluded that the consultation and examination of the patient on 11 May 2007 was ‘not safe’; the symptoms that presented warranted urgent admission to establish the underlying cause and in light of the recent surgery, to rule out pulmonary embolism.

The First Panel concluded that it was not necessary to make the order sought.  They noted that five years had elapsed since the incident in question and K had been working in unrestricted practice without further clinical concerns, such that there was nothing that suggested there would be a repetition.

The GMC commissioned an expert report from another expert, Dr Peter, concerning the treatment by K, which was dated 5 August 2012. Dr Peter set out in detail the failings in the care of patient N, and concluded that ‘in my opinion the overall care offered to the deceased by K on 11 May 2007 was a standard seriously below that expected of a reasonably competent general practitioner’. 

On 3 August 2012, K completed an application form for inclusion on the Tameside and Glossop NHS Trust Performers List. When asked whether he was the subject of any investigation by any licensing, regulatory or other body into his professional conduct or performance, he ticked the box that said ‘No’.

In January 2013, the GMC wrote to K inviting him to appear before a second IOP (‘the Second Panel’).  The letter of invitation made reference to the recent information received about the erroneous answer on the application form. The papers included Dr Peter’s report.

At a second IOP hearing on 11 January 2013, Counsel for the GMC applied for an interim order of suspension, on the basis of the new expert report and the fact that an incorrect answer was given on the application form.   It was submitted on behalf of K that the inaccurate response was an honest mistake.  No evidence was placed before them about how the form came to be completed.

The Second Panel decided to impose an interim suspension order of 12 months.  They stated that they had taken into account the ‘fuller report’ of Dr Peter, in addition to ‘further expressions of concern about various aspects of your clinical practice, which have been raised by both Care UK and Huddersfield NHS Foundation Trust’. This was a reference to a letter contained within the bundle from a Dr Aziz which suggested there were considerable complaints about K which included ineffective communication with patients, relatives and staff. The Panel stated that they were concerned that the material before it today that there were ‘wide-ranging concerns’ about K’s practice. They also noted their concern that the application form ‘may reflect a broader pattern in relation to openness and honesty’. 

K applied to the High Court to terminate the interim suspension order.

Approach to be adopted on appeal

Mr. Justice Pelling QC outlined the approach to be adopted in applications such as the present one, namely the test laid down by Arden LJ in GMC v Hiew [2007] EWCA Civ 369 and Sandler v GMC [2010] EWHC 1029. Whilst acknowledging the obligation of the court to accord due weight to the decision of the IOP, it was said that ‘the weight to be given will depend on the context’.  It was held that;

The importance of the decision of the Interim Orders Panel in a case of this sort depends on the quality of the analysis as disclosed by the reasons given for arriving at the conclusion to impose or continue the relevant interim order’.[10]

High Court’s Decision

Mr. Justice Pelling held that the Second Panel had acted ‘wrongly and unlawfully’ in imposing the order. Although Dr Peter’s report (before the second Panel) was fuller than that of Dr Cummins (before the First Panel), the substance was the same, such that the evidence before each Panel was the same. It was only when the Second Panel aggregated the clinical issues arising from the index complaint with the various other complaints not identified in the letter inviting K to the second IOP panel hearing (which had not been relied on by the GMC), that they concluded that suspension was necessary. This was held to be ‘particularly wrong’ since the ‘reasons identified by the GMC who had decided to take no action in relation to them, were so lacking in detail that no conclusions could safely been drawn from them, at any rate unless and until further investigations were carried out’.

The Second Panel had wrongly concluded that a different answer could be arrived at by reference to other material which was both not cogent in itself but also was not material relied upon by the GMC.

This having been decided, the key question was therefore whether the potentially fraudulent answer on the form was sufficient to justify suspension in and of itself.  The Court held that it was not. ‘The probity issue identified is one that on any view is of a low level nature.  It was a false statement that was always likely to be discovered, and in fact was'.

That having been decided, the GMC submitted that the Court should follow the approach adopted in the case of Scholten v GMC [2013] EWHC 173 and make no order, leaving it to a subsequent IOP panel to resolve the question on the basis of the Courts conclusion. HHJ Pelling QC refused to do so, distinguishing Scholten on the basis that;

  • In Scholten the review was in 2 days’ time, whereas in the present case it was not for months
  • It was not a case where conditions should be imposed in any event
  • The responsibility for the present situation lay with the GMC, who instructed counsel to seek a suspension when to do so was disproportionate. Further they included other material in the bundle that was not relied on in the letter inviting the claimant to attend the second IOP

The interim suspension order was therefore terminated and the GMC was ordered to pay K’s costs.

To be continued..

There was some conflict as between the parties as to what the Court should be invited to do in the eventuality that it found that the suspension was wrong but that conditions were necessary. It was submitted on behalf of K that the Court should approach the question by considering the suspension question in isolation; if the Court felt it was wrongly imposed, it should terminate it, leaving the GMC to apply for an interim conditions order if they considered it appropriate. The GMC argued that that there was no jurisdiction to make such an application (relying on GMC v Uruakpa [2007] EWHC 1454) and that the application should be dismissed on this hypothesis.  Mr. Justice Pelling QC considered that this was a question that was best left to be resolved in a case where the issue actually arises (unlike the present case). However, he stated at [11] that;

In principle, I consider the approach contended for by the claimant, namely that the question of the correctness or otherwise of the interim suspension order is one that has to be resolved on its merits and without regard to the availability or otherwise of an interim conditions order in the event that the suspension is terminated, is right.

This case acts as a salutary lesson for healthcare regulators to ensure that their instructions regarding interim orders are proportionate and fully reasoned, the High Court here showing that it is not afraid to interfere with decisions of a professional panel where necessary.  Panel’s must be careful not to, and indeed they should be guided away from, considering material that does not relate to the specific application made by the regulator.  It is also interesting to note that the Court decided that the potentially dishonest completion of an application form was not, in and of itself, sufficient for the imposition of an interim order.