The High Court had overturned a GMC interim suspension order in a case involving an Anonymity Order to protect the doctor.
The doctor, known as Dr MXM, appealed 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.
Dr MXM was granted an Anonymity Order “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.”
Grounds for Appeal
He submitted that 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.
The Applicant had an extra-marital affair with ‘ER’ for a period of over three years. The affair came to an end on 17 August 2021 when ER’s husband, ‘TR’, caught ER messaging the Applicant, and she then disclosed the affair to her husband. The fitness to practise proceedings against the Applicant arose out of complaints made to the GMC the same day by TR and two days later by TR’s mother, ‘AR’. Subsequent emails have added to the matters that are the subject of investigation.
The IOT set out the nature of the complaints made by TR and AR in some detail, as well as ER’s message. They noted that Counsel for the GMC, Ms Duckworth, “submitted that an interim order of conditions is necessary and proportionate in order to protect the public and is otherwise in the public interest” (emphasis added). The IOT noted that Ms Barnfather submitted that “these are unique circumstances and something that Dr [MXM] is at no risk of ever repeating“, and that “the allegations do not involve any concerns regarding Dr [MXM]’s clinical competence and his ability to provide safe care to his patients“. They noted that she submitted that whilst it was not denied that it was inappropriate for him to treat ER, “the fact that he was a doctor and she was a patient was incidental and was not contributory to the relationship“.
Mr Justice Steyn, in overturning the IOT decision commented:
“In my judgement, the weight to be given to the IOT’s decision in this case is limited. First, where allegations of sexual misconduct are raised, the court is well placed to assess what is needed to protect the public or maintain the reputation of the profession and is less dependent upon the expertise of the IOT than would be the case if the allegations concerned questions of clinical knowledge, skill or competence. Secondly, the reasoning of the IOT is very thin (a) at the second stage of the analysis (i.e. determining whether to impose a conditions order or suspension order); (b) in assessing the proportionality of imposing an interim suspension order; and (c) in assessing the proportionality of suspending the Applicant for 18 months on an interim basis.
“In relation to duration, the reasons were also inadequate. The IOT accepted the GMC’s submissions as to the likely timescale, but the proportionality of such a lengthy period of suspension had to be considered and was not. An 18 month period might have been proportionate if, as the GMC sought, the IOT had imposed an interim order imposing conditions. The IOT’s decision that an interim suspension rather than an interim conditions order should be imposed had a profound effect on the proportionality of the timescale proposed. This is a relatively simple case. Greater urgency was clearly required if the Applicant was to be prohibited on an interim basis from practising his profession.
“A key aspect of the assessment involved considering the nature of the sexual misconduct alleged. While I accept Ms Emmerson’s submission that the IOT were entitled to view ER as a patient, and consider the allegations in that context, it was incumbent upon them to consider the seriousness of the allegations and the likelihood of any further incident during the relevant period (see paragraph 14 above). I reject the GMC’s contention that the fact that the Applicant’s relationship with ER predated any professional connection, commenced independently of the Applicant’s status as a doctor, and involved one consultation for an ear infection, is immaterial. On the contrary, it is highly material. It is significant that there is no allegation that the relationship arose or continued as a result of a breach of trust in the doctor-patient relationship by the Applicant or that any of the factors identified in paragraph 30 or 41 of the IOT Guidance (see paragraphs 16 and 20 above) are engaged.
“The allegations are serious and I do not consider that the IOT was wrong to take the view that the Applicant should not be permitted “to practise unrestricted” whilst these matters remain under investigation (i.e. without any interim order being imposed). However, on proper analysis, the risk in the relevant period is to public confidence in the profession or the regulator, rather than to patient safety. I do not consider that a fair minded member of the public appraised of the facts would be offended by the Applicant continuing to practise pending a full hearing fixed for resolution of the allegations at which he will have an opportunity to defend himself and his professional body will determine the appropriate sanction in respect of any fitness to practice allegations that may ultimately be found proved.
“In the circumstances of this case, the risk is not such as to render it proportionate to impose an interim suspension order, still less for a period of 18 months, bearing in mind the grave effect of an interim suspension order on the Applicant’s ability to earn a living, to support his family, and on his reputation and ability to demonstrate when any charges are determined that he can practise without incident. Accordingly, I will terminate the interim suspension order.
“If I had the power to do so, I would have substituted an interim order imposing conditions. In particular, I consider that the standard conditions to which I have referred, providing as they do for the doctor to be subjected to greater monitoring and scrutiny than would otherwise be the case, are such as to address the risk to public confidence that I have identified. I do not have the power to impose conditions, but it is open to the GMC to apply for a new interim order.”