Judgement date: 2 November 2012

High Court terminates Interim Suspension Order imposed by IOP of GMC, finding that it was not a proportionate response in the circumstances.

Pursuant to section 41A (10) of the Medical Act 1983, those representing Mr Houshian (H) made an application for the termination of an interim suspension order which was imposed by an Interim Orders Panel (IOP) of the General Medical Council (GMC) on 28 August 2012. The interim order was made pending final determination of H’s case by a Fitness to Practise Panel (FTP) in January 2013.

The interim order was made on the public interest ground: ‘it is necessary to make an order for the protection of the public or is otherwise in the public interest’.

The interim order imposed by the IOP was terminated by Mr Justice King.

Background

H is a Consultant Orthopaedic Surgeon, who was employed by Lewisham NHS Trust (the Trust) between 2004 and 2008.  Following an internal investigation H was dismissed from his position at the Trust as a result of his behaviour towards his fellow employees, particularly junior members of staff.  It was found by the Trust that his behaviour towards them amounted to bullying and harassment.

H appealed the Trust’s decision to dismiss him, but was unsuccessful in his Employment Tribunal (ET) claim.

Subsequent to his dismissal from the Trust, H went on to work at two other hospitals in the United Kingdom. No similar concerns were raised about H’s conduct, and in fact supportive testimonials were written by colleagues and presented to the IOP on 28 August 2012.

The key issue considered by the IOP was that of dishonesty relating to concerns raised about H allegedly forging documents for the purposes of the ET proceedings.  The concerns had been articulated by the ET in their judgement.

The chronology is of some significance in this case. The key events are as follows:

  • The ET judgement dismissing H’s claims for unfair dismissal, race and religious discrimination and unauthorised deduction of wages was dated 17 February 2011;
  • The Trust became aware of the ET judgement on 21 February 2011;
  • The Trust brought the ET judgement to the attention of the GMC by way of letter dated 4 July 2011;
  • The GMC Case Examiners notified H of the concerns raised about his fitness to practise over a year later by way of letter dated 27 July 2012. It was at this time that he was invited to appear before the IOP.

Mr Justice King referred to the decisions in Sheikh v GDC [2007] EWHC 2972 and Sandler v GMC [2010] EWHC 1029. He accepted the approach of the judges presiding that in the ordinary case ‘necessity’ is the ‘appropriate yardstick’ in the context of imposing an interim order on the public interest ground.

Mr Justice King considered the GMC guidance on the imposition of interim orders. He noted that at paragraph 9 of the guidance in relation to imposition of interim orders on the public interest ground it states that IOP’s should consider:

b.  whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registrant during the relevant period

Further at paragraph 20 it is evident that in considering the factors pertinent to a case, the IOP must consider the ‘proportionality of their response in dealing with the risk to public interest…and the adverse consequences of any action on the doctor’s own interests’.

The crux of the guidance in public interest cases in contained in paragraph 33:

it is therefore the responsibility of the IOP to consider whether, if the allegations are later proved, it will damage public confidence to learn the doctor continued working with patients while the matter was investigated’.

Mr Justice King noted that in making its decision the IOP stated:

The panel has taken account of the principle of proportionality and has balanced the need to protect members of the public and the public interest against the consequences for you…..Whilst it notes that the above suspension removes your ability to practice medicine, it considers that in view of the seriousness of the allegations and the findings of the ET…..The panel is satisfied that suspension is a proportionate response to the risks posed by your remaining in unrestricted practice.’

Mr Justice King concluded that the IOP had not on the face of its determination turned its mind to the likelihood of serious damage to the public interest. It was not sufficient for the IOP to reiterate the seriousness of the allegations faced by H in relation to his probity and the findings of the ET as sound reasoning for imposition of an interim order.

Further, the delay in bringing the matters involving H to the IOP was of some considerable relevance to the assessment of future risk to public confidence.

Mr Justice King paid consideration to the damage to H that the imposition of a suspension order posed, including his ability to earn a living, the damage to his reputation and his ability to demonstrate his fitness to practise.

Mr Justice King accepted that the matters of probity alleged against H were serious, however reiterating simply that without any evidence of risk to patients or the public was not sufficient to justify his suspension from the register.  If a full balancing act was conducted, the imposition of an IO was disproportionate in the circumstances.

This case demonstrates the importance of the balancing act which must be embarked upon by IOP’s when considering whether it is a proportionate response to restrict a practitioner’s ability to practise on the public interest ground. The bar is set high for an interim order to be imposed of this ground. The IOP must clearly turn their minds to the risk they are guarding against in making an interim order. The reasons must not simply consist of a rehearsal of the serious of the allegations faced by the practitioner.  In turn, there must be a likelihood of serious damage to the public interest.