2022-08-28 20:25:55
The GPhC’s Fitness to Practise Committee can impose on a registrant an interim suspension of up to 18 months pending a final hearing of fitness to practise allegations if it is necessary for the protection of members of the public or is otherwise in the public interest or in the interest of the registrant. Beyond this period, the interim suspension can only be extended by a High Court Order or, in Scotland, by an Order of the Outer House of the Court of Session.
Other healthcare regulators have very similar powers of interim suspension and it seems that almost every week, the courts are asked by healthcare regulators to extend the length of interim suspensions imposed on registrants until final fitness to practise hearings.
A recent Scottish case – IB v General Medical Council [2022] CSIH 38) – concerns a doctor who was arrested in August 2020 and charged with preparation of terrorist acts involving the New IRA. The charges are denied and his case was the focus of a play earlier this month at the Edinburgh Fringe Festival. The Medical Practitioners Tribunal made an interim suspension order for 18 months in October 2020. A fitness to practise case cannot be heard before the conclusion of the criminal trial, and the trial is unlikely to take place before 2024. The Outer Court of the Court of Session had extended the interim suspension from time to time, but the doctor, who is on bail (subject to restrictions), appealed to the Inner Court against the most recent extension.
On appeal, the Inner Session court held that the first instance judge, the Lord Ordinary, had considered whether the Medical Practitioner Tribunal had been correct to make an interim suspension order in the first place when the Lord Ordinary should instead have considered whether it was justified to extend the length of that order. The Lord Ordinary was criticised with the appeal judges saying that his task was “not simply to rubber stamp the decision of the tribunal” and that his task was to examine the matter afresh, applying the statutory test and considering the issue of proportionality.
The Inner Session, following earlier English case of GMC v Hiew [2007] EWCA Civ 369, said that the decision maker must ask whether an order is desirable to maintain public confidence and uphold proper standards of behaviour. The proportionality of any suspension must be weighed together with the risk to the public interest and the potential adverse consequences for the doctor, in respect of which the seriousness of the charges should be considered, as should the potential public response to any decision should the doctor ultimately be convicted or acquitted. The Lord Ordinary’s reasoning could not be upheld, so the Inner Court made its own decision saying that the question came down to the proportionality of the extension sought as well as the interests of the practitioner and the reasons the case had not been concluded. Extending the interim suspension would have an adverse effect on the doctor’s ability to work – he had been offered a job that consisted of reviewing material online, without seeing patients either in person or virtually.
The Inner House concluded that the charges against the doctor were so serious that an extension of time should be granted, equating the public interest with public confidence in the profession. Giving the judgment of the court, Lady Dorrian said:
“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 [doctor] 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…, 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 [doctor], is proportionate to the nature of the offences and the risk to public confidence in the profession.”