A doctor charged with, but not found guilty, of indecently assaulting a 17-year-old female unsuccessful in overturning the suspension order.

General Medical Council v Malik [2022] EWHC 332 (Admin)

In short, this is a case where the doctor was the subject of a complaint in August 2018 that he had indecently assaulted a 17-year-old female family member in August 2015. That was the subject of a police investigation, and he was charged in November 2019. At the trial which took place in the Crown Court in April 2021 after some delay because of the Covid pandemic he was found not guilty.

A GMC Interim Orders Tribunal made an interim order of suspension, which was varied to one of conditions.  The order of conditions contains what are standard notification and information sharing provisions, and also contains a substantive prohibition against carrying out intimate examinations of female patients without a chaperone except in life-threatening emergencies.

Dr Malik’s position before the court was that there is no justification for continuing the interim order of conditions. He referred to the guidance provided to the Interim Orders Tribunal dealing with allegations of sexual misconduct. Dr Malik argued that consideration should be given to interim action where there is an existing police investigation for a sexual criminal offence, which of course no longer applies here, or where there are other allegations which are connected with his role as a doctor and the sexual misconduct is directed towards patients, which has never applied here. He submits that on that basis and applying that guidance, the order should not be continued.

His Honour Judge Stephen Davies, delivering his judgement in this case, said:

“In my judgment this is a difficult case. On the one hand it is clearly right that the mere fact that the criminal prosecution has not resulted in a conviction is not in itself determinative. As Mr Usher has rightly reminded me, a criminal prosecution requires a higher standard of proof to succeed. Just because the prosecution has not succeeded does not mean that the Medical Practitioners Tribunal may not conclude to the appropriate standard after a full hearing that the conduct complained of has indeed occurred. It is also right to observe, as he has done, that the complainant is clearly willing to assist in this complaint. He also rightly submits that the guidance to the Interim Orders Tribunal is only that, guidance, and does not cover every situation, and in any event that this court in particular is not bound by it. He submits that in the circumstances of this case it would not be acceptable, either in terms of dealing with any risk to patient safety or in terms of promoting public confidence, for there to be no continuing interim order. He also observes, and of course this is right, that the interim order of conditions is by no means the same as an interim order of suspension and that the particular conditions are both standard and not onerous.

“Having weighed these matters I am satisfied that the appropriate and proportionate course is to extend the existing order of suspension by six months. This is on the basis that at this stage I am prepared to accept that the complaint is one which has a real prospect of being taken further on bona fide and credible grounds, that there are clearly allegations of a very serious nature being made, albeit not in a patient context, and that it is necessary and proportionate for patient safety and the promotion of public confidence for there to be some continuing conditions, which are themselves necessary and proportionate, on the doctor’s registration, and that the existing conditions fall into both those categories.”

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