The Scottish Court of Session has upheld an application by the GMC to extend an interim suspension of a doctor accused of terrorism offences.

In the case of IB v GMC [2022] ScotCS CSIH_38 (24 August 2022), IB, is a doctor subject to a fitness to practise investigation by the General Medical Council (GMC). 

IB was referred to the Medical Practitioners Tribunal Service and on 26 October 2020 an Interim Orders Tribunal made an interim order for suspension of IB’s registration for a period of 18 months. The interim order was imposed following serious concerns arising from IB’s arrest and subsequent detention on remand in relation to allegations that he was involved in preparatory terrorist activities. IB had been remanded in custody as part of a police investigation into the New IRA. 

As required by the statute, the order was reviewed at subsequent hearings of the tribunal. After hearing submissions, including submissions as to the potential length of the criminal proceedings, the unlikelihood of any trial prior to 2024, and the potential effect on IB’s career, the tribunal maintained the order, on the basis that it remained necessary in the public interest.

The GMC sought further extensions, which the court had approved, with the last (to 25 April 2023) which is the subject of the appeal in this case.

The extension to 25 April 2023 was criticised by the Court for not correctly applying the principles set out in General Medical Council v Hiew [2007] 1 WLR 2007.  Lady Dorrian, The Lord Justice Clerk, said:

“The Lord Ordinary … identified the correct approach for a court in considering an application for extension of a suspension order, enumerating a number of principles which were drawn from the case of General Medical Council v Hiew … However, when one comes to look at the reasons given by the Lord Ordinary for reaching his decision it is apparent that he did not apply these principles. His reasoning, which is very limited in scope, is focused not on the question of whether an extension has been justified, but on whether the IOT made the correct inquiries and were legally entitled to make the interim order in the first place.”

This however was not the remit of the Interim Order review hearing.  Lady Dorrian commenting:

“This does not grapple with the issue which the court requires to address, namely, to decide for itself whether the statutory test for extending the order has been met.”

On the issue before the court, IB argued that the charges made against him were “in somewhat general terms”, and that a lack of a particularisation made it difficult to assess how serious they were. 

Lady Dorrian however rejected this argument, saying:

“… it is apparent on the face of them that the charges are extremely serious ones. It is not for us to go behind the charges or make any findings in fact about them. Similarly, when the court in Hiew (point (ii) above) refers to taking account of the gravity of the allegations and the nature of evidence, in a case such as this it is enough to rely on the serious nature of the charges which have been made.”

She further noted that “stringent nature of the bail conditions and suggested that these were such as would prevent the reclaimer from working in any event” and the length of time for the proceedings to come to a conclusion was a matter beyond the powers of the GMC, saying:

“it was not open to them to make inquiries into the allegations, and they required to be scrupulous to avoid prejudice to the criminal proceedings.”

Concluding her judgement, Lady Dorrian said:

“We recognise the force in the reclaimer’s [IB] submissions that it might be possible for him to carry out certain types of work. He also submitted that should suitable work be found he would be entitled to seek to have his bail conditions revised. To that extent the submissions for the GMC as to the impact of the bail conditions were somewhat, though not entirely, weakened. We recognise therefore that the suspension will have an adverse effect on the reclaimer’s ability to work, even though we consider that the stringent bail conditions will also be likely to restrict to an extent his ability to do so. Moreover, we accept the submissions for the GMC that this is not a case in which the risk may be ameliorated by any conditions: the risk is not to patient safety but to the integrity and reputation of the medical profession. 

“In addressing whether public confidence in the profession would be seriously damaged without an extension order, the court must ask itself whether a reasonable and properly informed member of the public would be surprised and offended to learn that the reclaimer had been permitted to practise whilst under investigation and the subject of criminal proceedings in respect of serious charges of this kind. Having regard to the nature of the offences and the definitions we have noted, it will be apparent that the charges are of the most serious kind, and in our view the only answer to that question is an affirmative one. An extension to the order for interim suspension, notwithstanding the effect on the reclaimer, is proportionate to the nature of the offences and the risk to public confidence in the profession. The matter will be under review as required by statute. We will therefore grant the order sought.”

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