The reclaimer is a doctor, named K, who is subject to a fitness to practise investigation by the respondent (“the GMC”).
On 25 November 2019 K was arrested and charged with the crime of rape under section 1 of the Sexual Offences (Scotland) Act 2009. On 29 November 2019 he reported this to the GMC, which referred the matter to its Interim Orders Tribunal (“IOT”).
The IOT determined that it was necessary in the public interest to impose an interim suspension order on the reclaimer’s registration for a period of 18 months. The interim order was reviewed and maintained by the IOT on various dates in 2020 and 2021. As a result of delays in criminal procedure caused by the Covid-19 pandemic, it was necessary for the GMC to apply to this court for an extension of the interim order for a further period of 12 months in order to allow for the outcome of the prosecution, before the GMC could embark upon its own fitness to practise investigation. An extension to 19 June 2022 was granted.
On 25 October 2021, following trial, a jury found the case against the reclaimer not proven and he was acquitted. At the next review by the IOT on 19 November 2021, the interim order was varied from suspension to the imposition of conditions.
By 19 June 2022 the GMC had not completed its investigation into the reclaimer’s fitness to practise. It accordingly brought the present petition to seek a 12-month extension of the conditions order to 19 June 2023 to allow its investigations to conclude. Following a substantive hearing, on 26 July 2022 the Lord Ordinary granted the petition but restricted the extension to a period of six months to 26 January 2023.
In this case, K, invited the court to recall the Lord Ordinary’s interlocutor and to refuse the GMC application for extension.
In an affidavit to the court, K denied the allegation made against him and emphasised that he had been acquitted after trial. He claimed his reputation had been damaged.
On the advice of his responsible officer, he had applied to join the Retainer Scheme with NES (NHS Education for Scotland) to allow him to resume general practice. It was not normally possible to do so if conditions were attached to registration, but NHS Greater Glasgow & Clyde had granted him an exemption. However, because his PVG (protection of vulnerable groups) certificate indicated that he remained under investigation by the GMC, he was excluded from the Retainer Scheme. His opportunity to work had been severely restricted, which continued to have a significant financial impact on him and on the members of his family who relied on him for financial support.
He further argued that the GMC had failed to demonstrate that public confidence in the medical profession would be likely to be seriously damaged if the reclaimer was not subject to an order for conditional registration and that the imposition of an order for interim conditional registration failed the proportionality test.
On the behalf of the GMC, it was argued that the Lord Ordinary had correctly applied the statutory test and the guidance to the circumstances of the case and if no conditions were maintained upon the reclaimer’s registration pending the outcome of the investigation, public confidence in the medical profession would be seriously damaged.
However, the Court found that although the Lord Ordinary narrated the correct legal test at paragraph 1 of his note, he failed to apply it to the circumstances of the case.
In the circumstances of this case, the question is whether a reasonable and properly informed member of the public would be concerned if the appellant was allowed to resume his career without an order imposing conditions which inter alia require him to report details of changes of employment to the GMC, and to disclose the existence of interim conditions to any new employer. We consider it more likely that such a member of the public would be concerned that a doctor who has been acquitted after trial of the charge against him, and against whom no allegation relating to clinical practice has been made, would be the subject of interim conditions which could render it difficult or even impossible for him to return to practice pending the outcome of the GMC’s investigation.
The Court consequently granted the request.