Dr Mxm v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 06 April 2022 |
| Neutral Citation | [2022] EWHC 817 (Admin) |
| Docket Number | Case No: CO/4126/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 817 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/4126/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Exeter Combined Court Centre
Southernhay Gardens, Exeter, EX1 1UH
Lydia Barnfather (instructed by MDU Services Limited) for the Applicant
Heather Emmerson (instructed by GMC Legal) for the Respondent
Hearing date: 17 March 2022
Approved Judgment
A. Introduction
By this application under section 41A(10) of the Medical Act 1983 (‘the 1983 Act’) the Applicant, a doctor in general practice, challenges the interim suspension order imposed on him on 9 November 2021 by an Interim Orders Tribunal (‘the IOT’) of the Medical Practitioners Tribunal Service of the General Medical Council (‘the GMC’). The effect of that order was to suspend his registration for 18 months.
The Applicant submits the order should be terminated or, alternatively, the period of suspension should be shortened. The Applicant relies on four grounds in support of his contention that the IOT's decision to make an interim suspension order in his case was wrong. In short:
i) The IOT failed to differentiate between those aspects of the allegations which are proper matters for consideration in fitness to practise proceedings and those which are of an intimate and personal nature removed from the practice of the Applicant's profession, and irrelevant to the IOT's consideration.
ii) Having regard to the nature of the allegations, the IOT misidentified, and erred in its assessment of the risk to (a) public safety and (b) the public interest.
iii) The IOT failed to give appropriate consideration to the principle of proportionality, both in respect of the nature and the duration of the order.
iv) In support of the first three grounds, the Applicant contends that the IOT failed to provide adequate reasons for its decision.
The GMC did not seek an interim suspension order before the IOT; it sought an interim order imposing conditions on the Applicant's registration. Nevertheless, the GMC resists the application contending that an interim order suspending the Applicant from practice for 18 months was necessary and proportionate. The GMC also contends that the IOT's reasons were adequate and intelligible.
I have been greatly assisted by the written and oral submissions of Ms Barnfather, Counsel for the Applicant, and Ms Emmerson, Counsel for the GMC.
B. Anonymity order
At the outset of the hearing I granted the Applicant's application for an anonymity order and gave reasons for that decision. In summary, the application was made on the grounds that certain matters raised in the complaints made against the Applicant regarding the nature of the sexual practices in which he and ‘ER’ engaged are liable to attract negative and potentially sensationalist publicity, which would be likely to have a detrimental impact on the mental health and welfare of his four children (of whom the younger three are between the ages of 10 and 16). The GMC took a neutral position on the anonymity application; and no member of the press or public made any representations on it.
CPR 39.2 provides that “ the general rule is that a hearing is to be in public”. CPR 39.2(4) provides:
“the court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”
Section 12 of the Human Rights Act 1998 applies whenever a court is considering whether to grant any relief which might affect the exercise of the right to freedom of expression. It was engaged in considering this application.
I approached the application in accordance with the guidance given by the court of Appeal in XXX v Camden London Borough Council [2020] EWCA Civ 1468. It is necessary to balance the article 8 rights to private and family life of the Applicant and his family against the article 10 rights of the press and the public. I did so applying the well established test described by Lord Steyn in In re S (A child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593 at [17]. I determined that, in this case, the article 8 rights of the Applicant and his young children outweigh the article 10 rights of the press and the public in being able to identify him as the Applicant in these proceedings.
In evaluating the interference with article 10 rights, I bore in mind the fundamental importance of open justice and the importance of the press interest in the names of parties as explained by Lord Rodger in Re Guardian News and Media Ltd [2010] 2 AC 697 at 723. I noted the scope of the restriction sought does not inhibit the press or public knowing any of the details of the case, other than identifying details.
In evaluating the interference with article 8 rights, I bore in mind the ages of the children which make them particularly vulnerable to being made aware by fellow pupils of the nature of the evidence, if the Applicant were to be identified in the press. I noted the evidence of the detrimental impact on the 16 year old child of being informed of these matters by TR. I assessed that the concerns for the welfare of the children were genuine and well-founded. I also bore in mind that at this stage the matter is under investigation and it is only because the Applicant considers the IOT has erred in imposing an 18 month suspension order that he pursues this application, bringing the matter into the public arena.
C. The legal and regulatory framework
The IOT's power to impose an interim order
The power of the IOT to impose an interim order on a doctor (of suspension or imposing conditions) is contained in s.41A(1) of the 1983 Act, which provides:
“Where an Interim Orders Tribunal … are satisfied that it is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Tribunal may make an order –
(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an “interim suspension order”); or
(b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Tribunal think fit to impose (an “order for interim conditional registration”).”
In this case, only the first two bases (“ necessary for the protection of the public” or “ otherwise in the public interest”) are relevant: there is no suggestion that an interim order was in the Applicant's interests. The test of ‘necessity’ attaches to the “ protection of the public”, rather than the “ public interest” limb of the test. The court must be cautious about superimposing additional tests over and above those which Parliament has set. Nonetheless, the implication of the provision is that for a doctor to be the subject of interim suspension “ in the public interest”, such suspension must be at least desirable in the public interest. See R (Sheikh) v General Dental Council [2007] EWHC 2972 (Admin), Davis J at [15]–[16], Sandler v GMC [2010] EWHC 1029 (Admin), Nicol J at [14], and Harry v GMC [2012] EWHC 2762 (QB), Burnett J at [2].
The IOT Guidance on the test to be applied
The Medical Practitioners Tribunal Service of the GMC has published guidance entitled “ Imposing interim orders: Guidance for the Interim Orders Tribunal, Tribunal Chair and the Medical Practitioners Tribunal” (‘the IOT Guidance’). The current version of the IOT Guidance was issued on 30 October 2018. The IOT Guidance does not have statutory force, but as Bennathan J observed in AB v GMC [2022] EWHC 186 (Admin) at [19]:
“it is the obvious starting point in considering how the power to suspend should be used, and reflects the accumulated knowledge, experience and wisdom of the medical profession's regulator.”
The IOT Guidance addresses the test to be applied in these terms:
“23 The IOT must consider, in accordance with section 41A, whether to impose an interim order. If the IOT is satisfied that:
a in all the circumstances that there may be an impairment of the doctor's fitness to practise which poses a real risk to members of the public, or may adversely affect the public interest …;
and
b after balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk,
the appropriate order should be made.
24 In reaching a decision whether to impose an interim order an IOT should consider the following issues:
a The seriousness of risk to members of the public if the doctor continues to hold unrestricted registration. In assessing this risk the IOT should consider the seriousness of the allegations, the weight of the information, including information about the likelihood of a further incident or incidents occurring during the relevant period.
b Whether the public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period.
…
25 In weighing up these factors, the IOT must carefully consider the proportionality of their response in dealing with the risk to the public interest (including public safety and public confidence) and the adverse consequences of any action on the doctor's own interests.” (Emphasis added.)
The protection of the public limb is further addressed at paragraph 28:
“ Allegations of poor performance/substandard clinical care
28 The test for imposing...
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