MR JUSTICE LINDBLOM:
Introduction
- By this application under section 41A(10) of the Medical Act 1983 ("the 1983 Act") the claimant, a doctor in general practice, challenges the interim suspension order imposed on him by an Interim Orders Panel ("IOP") of the Medical Practitioners Tribunal Service ("the MPTS") of the defendant, the General Medical Council ("the GMC"), on 10 July 2012, the effect of which was to suspend his registration for 18 months.
The issues for the court
- The principal issue for the court to decide in these proceedings is whether the claimant's suspension should be terminated, and if not, whether some other period ought to be substituted for that specified in the order.
- The claimant contends that the IOP's decision to make an interim suspension order in his case was wrong: first, because it was neither necessary as a means of protecting patients nor otherwise in the public interest; secondly, because, in view of the nature of the allegations and the effect the claimant's suspension would have on him, the order was disproportionate; and thirdly, because the IOP gave no reasons for reaching a decision on suspension different from that of the Primary Care Trust ("the PCT") exercising its powers under the National Health Service (Performers Lists) Regulations 2004 ("the NHS regulations").
- The GMC resists the claimant's application. It maintains, as was submitted on its behalf at the hearing before the IOP on 10 July 2012, that an interim order suspending the claimant from practice for 18 months was necessary and proportionate, and was the only order appropriate in this case. It also contends that the IOP provided reasons for their decision, which were both adequate and intelligible. It says the IOP's decision was fully justified, notwithstanding the PCT's conclusion that the claimant should not at this stage be suspended from its Performer List.
Background
The claimant
- The claimant is 60 years old. He qualified as a doctor in Baghdad in 1976. He began his medical career in Iraq. In 1985 he came to the United Kingdom. He began working as a general practitioner in 1991. Since 2001 he has worked at the Rainham Health Centre in Essex, for most of the last seven years single-handed but latterly with the help of another doctor, who works at the surgery part-time. When the claimant joined the practice he had a list of 1,500 patients. The list now exceeds 4,000. He employs two nurses. He has a full-time practice manager and an assistant practice manager. Before the present disciplinary process was begun he had never been the subject of any complaint by a patient.
The complaint
- The claimant was referred to the GMC in June 2012 after one of his patients, Ms B, made allegations of sexual misconduct by him.
- Ms B's first complaint was made on 6 June 2012 to EJB, her Floating Support Officer at Family Mosaic, an organisation that was providing support for Ms B and her daughter after Ms B had suffered domestic violence and had needed to be re-housed. Among the allegations then made by Ms B was the assertion that, on an occasion when he was examining her in his surgery, the claimant rubbed her breasts. She did not give the date on which she said this had happened. She also alleged that when she went to the claimant's surgery one evening, on or about 17 April 2012, the claimant told her he would not give her a sickness certificate unless she had sex with him, and that she did so. She showed EJB a number of text messages from a mobile telephone number that she had recorded in her telephone as "Doc", requesting her to call or make an appointment.
- At the hearing on 10 July 2012 the IOP had before them EJB's witness statement of 12 June 2012, made in accordance with section 9 of the Criminal Justice Act 1967. It also had another version of Ms B's complaint, which had been provided by Ms B's Support Manager, NB, in a section 9 statement dated 9 June 2012. According to that version of the complaint, in the first incident the claimant had touched Ms B "down below" and on her bottom, and that in the second incident, which is said to have occurred at 8 p.m. on 16 May 2012, he had pinned her down and forced her to have sex with him.
- In her statement of 12 June 2012 EJB said that on 6 June 2012 she visited Ms B at her home. EJB described what happened when she met Ms B:
"[She] was visibly upset. She was crying and collapsed to the floor. She said to me 'I've been having sex with my GP for my sick notes'. It took about 20 minutes for [Ms B] to calm down, she was crying so much, she was hysterical. She kept repeating 'I wanted to tell you before, but I didn't know how to'. …".
EJB went on to relate what Ms B had said about the first incident:
"[Ms B] told me that she has a bad back and has injections from her GP for this. She normally goes with her daughter … but on one occasion went on her own. She did not say when this was. Usually at these appointments [Ms B] says she keeps her bra on and pulls up her upper clothing to have the injection. On this occasion [Ms B] said her GP told her to take off all her upper clothing and lay face down on the bed. He didn't ask a nurse to come in and assist him. He said he needed to massage her back but then started to rub the sides of her breasts asking her if she liked it. [Ms B] said she didn't answer as she was scared. After her injection she left without speaking to him."
EJB referred to what Ms B had told her about the calls she received from the claimant on her mobile telephone:
"… In April … [Ms B] said she went alone to pick up a repeat prescription of anti-depression tablets. He asked her for her new mobile number which she gave. About 2 days later, he called [Ms B] to make an appointment for her sickness certificate to be renewed. He asked her to go to the appointment alone but she refused as she was too scared. [Ms B] said he kept calling her and texting her to make an appointment. Approximately 1 week later, she realised that she needed her certificate otherwise her benefits would be stopped. She agreed to see him and he told her she would have to come at 8 pm after his appointments had finished.
Ms B said she went to the surgery. It was closed but the doors were open and there was no one else there. The GP asked her to have sex and she said no but he told her she will not get her certificate unless she does. [Ms B] said she then had sex with him, grabbed her clothes and ran out of the surgery. When [Ms B] was telling me this she was so upset I didn't want to press her for any more detail about what happened.
[Ms B] said he continued to text/call her during the day and approximately two days after it happened [Ms B] went to collect the certificate. He again asked her for sex and she said no. [Ms B] said he gave her the certificate and £40 in cash and told her that if she ever needed money to go to him. [Ms B] checked her diary and the day she got the certificate was the 19th April 2012."
EJB stated that Ms B had told her that the claimant continued to text and call her, but that she ignored the texts, and that if she spoke to him on the telephone she would "[say] no to his appointments". Although Ms B had made an appointment for 21 June 2012, she had done this through the receptionist at the surgery. EJB added that, while she was speaking to Ms B about this, her telephone rang twice and the name "Doc" appeared, and that Ms B also received a text from the same number, which said "Can you talk to me please". Ms B also showed her other texts on her phone "from this 'Doc', asking her to make another appointment or to call him". She said there "must have been at least 50 text messages".
- In her statement of 9 June 2012 NB said that, as a result of domestic violence she had a shoulder injury and suffered from depression, was unable to work and, "in order to get her benefit money she requires regular doctor's certificates by way of confirmation stating that she is still too unwell to work". NB referred to what EJB had told her of her meeting with Ms B in her home:
"[She] had disclosed that her GP had on a previous occasion massaged her shoulder, removed her bra, touched her 'down below' and on her bottom. She was then due to attend her next scheduled appointment on 18/5/2012 however the GP kept ringing her – asking her to come in – he then brought her appointment forward to 16/5/2012 at 8 pm. When she arrived there was no one else in the surgery, he pinned her down and forced her to have sex with him. (She later said when it was eventually reported to the police that he also gave her £40 in cash). [Ms B] said that she had been on her medication – but she felt she had not been functioning on her medication, so about a week before she said this to [EJB] she had stopped taking her medication. [Ms B] told [EJB] that once she was off her medication she realised what had happened to her was wrong. [Ms B] told [EJB] she was scared as she did not want to go back to her GP – but she needed to get a certificate for her benefits so she didn't know what to do."
NB said that she told EJB that they needed "to raise a safeguarding alert at once" and this was done. Ms B was advised that she should report what had happened to the police. She agreed to do this. The police were called. Ms B told the police what she had told EJB. She told the police the claimant had sent text messages to her telephone, and she showed these to them. Ms B also said the claimant had offered her a job in his surgery, told her he was separated, and called her "on a number of occasions".
The police investigation
- The police investigated the allegations made by Ms B. The details of the police investigation and its outcome are recorded in a letter dated 25 June 2012 from Detective Constable Jane Nelder of the Metropolitan Police to Mr Robert Jones of the GMC's Fitness to Practise Directorate.
- In her letter Detective Constable Nelder said that she was the officer who had investigated an allegation of "serious sexual assault" made to the police on 8 June 2012 by a 41 year-old woman. This was Ms B. She had been registered as a patient of the claimant at Rainham Health Centre for "just under a year" since moving to Havering. She was a victim of domestic violence. She had been having treatment for a shoulder injury she had sustained as a result of that violence. She had also been treated for depression. As her GP the claimant had been providing her with medication and pain-relieving injections, and had also been issuing her with the sickness certificates she required if she was to obtain certain benefits. At first, Ms B had told the police that in January 2012 she had gone to the claimant's surgery for an injection, that the claimant had asked her to remove her upper clothing before he gave her the injection, and that while she was lying face down on the couch in his consulting room he started massaging her back, tried to touch her breasts, and stroked her bottom over her clothes. She had felt uncomfortable, but did not say anything. When she went for an appointment at the surgery in April 2012 the claimant asked her for her mobile telephone number. After this he started to call and text her, but not about her medical issues. In one of these calls he had "mentioned sex" and had suggested that she could come to his home if she was scared to come to the surgery. Ms B said she would not do that. On 16 May 2012 Ms B went to the surgery at the claimant's request after he had asked her to bring forward her appointment fixed for 18 May. He had said he would provide her with a sickness certificate. She went to the surgery alone. No one else was there when she arrived. The claimant kissed her. They went to his room. In his room Ms B took off her top when the claimant asked her to do so. He locked the door. She said "she then performed a sexual act on him at his request". She did not want to do this, but said nothing to him. She "did kiss him back". He lay next to her on the couch in his room. Afterwards she unlocked the door and left. The claimant gave her £40, which she took. She did not know why he gave her the money. He told her not to tell anyone. He did not use any physical force. Ms B said that after this the claimant rang her every day. She had done what she did because she feared he would not give her a sickness certificate, though he had never said as much to her. Ms B was "very scared that she would come to some harm" if the claimant found out that she had reported these matters.
- On 14 June 2012, Ms B provided her evidence, with the help of a Thai interpreter, in a video recorded interview with the police.
- On 15 June 2012, Detective Inspector Simon Ellershaw reviewed the case. He concluded that the evidence provided was not sufficient to support a prosecution for the offence of rape. However, Detective Constable Nelder went on in her letter to say this:
"… If … what [Ms B] describes has occurred in the way detailed by her, then this GP has clearly taken advantage of her and appears to have seriously breached her trust. As [Ms B] is neither a child nor mentally impaired, this again does not amount to a criminal offence but it is most certainly a matter which needs to be referred to [the GMC]".
The PCT's investigation
- The PCT launched its own investigation. This is described in its "Preliminary Report" of 27 June 2012, which was prepared by its Deputy Medical Director, Dr Eric Saunderson. On that day Dr Saunderson had interviewed the claimant and two members of his staff, both of them receptionists, at the claimant's surgery. The claimant was interviewed in his consulting room, which was described in the report as being "cramped with little room", with an examination couch "approximately 2 feet wide". It appears that this was the first the claimant knew of Ms B's complaint. He said he was shocked by it, and he firmly denied it. No such allegation had been made about him in his 30 years as a general practitioner. He said he always used "a chaperone" for breast and pelvic examinations. When he gave Ms B a steroid injection in her back in January 2012, there had been no chaperone present. But he denied "any inappropriate touching", and specifically denied having touched Ms B's breasts and bottom. He described the difficulties that he and his staff had had in contacting her. He had called her a few times and talked to her. She had told him that her daughter did not allow her to talk to anyone. He had never suggested that she should come to his home. He denied that they had ever discussed sex. He had seen her only a few times, always professionally and always at his surgery. The last time he had given her an injection in her back was on 19 April, at a consultation beginning at 1.14 p.m. and ending at 1.32 p.m. The surgery's records did not show a consultation with her on 16 May 2012. There was a consultation on 18 May, which had begun at 5.40 p.m. and concluded at 5.52 p.m. Another consultation took place on 23 May, beginning at 7.47 p.m. and concluding at 7.55 p.m. Ms B had had a consultation with the practice locum on 30 May. The claimant denied "ever having any type of sex act with [Ms B]". He also denied giving her any money. He said he always provided her with an appropriate certificate when this was required. The claimant admitted that he had telephoned Ms B on a mobile telephone. This, however, was the "practice mobile", not his own. All his calls to Ms B "were professional … and not personal". The calls had not been put on to Ms B's computer records, and the claimant accepted that it would be best to do this in the future. He accepted that he had sent [Ms B] text messages both during and outside working hours. These too were all professional, not personal. Many of them had not been recorded on the practice computer. When "the allegation of oral sex" was mentioned in the interview, the claimant said it was outrageous. He denied ever having engaged in sexual activity with any patient. The claimant's receptionists said that he never stayed in the surgery after 8 p.m. Dr Saunderson added this:
"Throughout our presence at the surgery, [the claimant] was open, honest and wanting to help while at the same time being visibly shocked by the allegations. He openly offered us the opportunity to inspect appropriate clinical records. When speaking of [Ms B], he felt that 'she must be confused'. This was stated in an empathetic way."
The PCT's report concluded with this summary:
"Serious allegations of an inappropriate sexual nature have been made against [the claimant]. These allegations were brought to the attention of NHS NELC by the Safeguarding Team. Although initially investigated by the Metropolitan Police, no charges have been brought as the criteria for prosecution have not been met. However, the police conclusion was that the doctor may be guilty of a serious breach of his professional duty if the allegations were substantiated. The police has informed the GMC.
An investigation of the allegations, including a visit to the practice and interviews with the doctor and receptionists [has] failed to substantiate these allegations. The investigation also included an inspection of [Ms B's] medical record including the appointment program and the patient drug chart.
This investigation has failed to satisfy the criteria for suspension from the Performer List as a neutral act pending a more thorough investigation.
[The claimant] is now subject to a GMC Interim Orders Panel on the 10th July."
The GMC's guidance to panels
- The GMC has issued guidance to panels, entitled "Imposing interim orders: Guidance for the interim orders panel and the fitness to practise panel". The current version of that guidance was issued on 14 February 2012. In paragraph 5 of the document the GMC considers the role and functions of the IOP, noting that cases should be referred to an IOP "where the doctor faces allegations of such a nature that it may be necessary … for the doctor's registration to be restricted whilst those allegations are investigated". Paragraph 6 of the document states that an IOP may make an order "when it considers it necessary to do so for the protection of members of the public or it is otherwise desirable in the public interest to maintain public confidence and uphold proper standards of conduct and behaviour", and that an order may also be made "where it is in the interests of the doctor". Paragraph 7 states that IOPs do not make findings of fact or determine the allegations against the doctor. This is underscored in paragraph 17, which says it is "important to keep in mind that the IOP do not make findings of fact or resolve disputes of fact". Generally they will not receive oral evidence, but will always hear from the doctor if he or she wishes to give evidence (ibid.).
- Advice is given on the statutory test for the making of an interim order in paragraphs 18 to 22 of the guidance. Paragraph 18 states that if the IOP are satisfied both that "in all the circumstances … there may be impairment of the doctor's fitness to practise which poses a real risk to members of the public, or may adversely affect the public interest or the interests of the practitioner" and that "after balancing the interests of the doctor and the interests of the public, … an interim order is necessary to guard against such risk", the "appropriate order" should be made. Paragraph 19 sets out the issues the IOP should consider in deciding whether to impose an interim order:
"
a. The seriousness of risk to members of the public if the doctor continues to hold unrestricted registration. In assessing this risk the IOP should consider the seriousness of the allegations, the weight of the information, including information about the likelihood of a further incident or incidents occurring during the relevant period.
b. Whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period.
c. Whether it is in the doctor's interests to hold unrestricted registration. For example, the doctor may clearly lack insight and need to be protected from him or herself."
- Paragraph 20 of the guidance says that in weighing these factors, "the IOP must carefully consider the proportionality of their response in dealing with the risk to the public interest (including patient safety and public confidence) and the adverse consequences of any action on the doctor's own interests".
- In paragraphs 23 and 31 to 34 the guidance outlines the approach to be taken to allegations of sexual misconduct.
- Paragraph 23 states:
"In general, where allegations involve sexually inappropriate behaviour towards patients or the doctor is under police investigation for a sexual criminal offence, particular consideration should be given to the impact on public confidence if the doctor were to continue working unrestricted in the meantime.
The following factors are likely to indicate, balanced alongside other considerations, that a case is likely to raise significant public confidence issues if no interim action is taken.
a. Information that a doctor is under investigation by police in connection to serious offences such as rape or attempted rape, sexual assault or attempted sexual assault or sexual abuse of children.
b. Allegations that a doctor exhibited predatory behaviour in seeking or establishing an inappropriate sexual or emotional relationship with a vulnerable patient.
c. Serious concerns about a doctor's sexualised behaviour towards a patient in a single episode.
d. Allegations of a pattern of sexually motivated behaviour towards patients."
- Paragraph 31 states that where allegations involve sexual misconduct "there may be a significant risk to patient safety and public confidence in the profession if decisions at the interim stage are not seen to reflect the seriousness of the individual case." Under the heading "Workability and effectiveness of conditions", paragraph 32 of the guidance lists three factors, one or more of which will be "a strong indicator that conditions requiring the use of a chaperone may not be workable or effective". Broadly, these relate to allegations or concerns about the doctor's compliance with chaperoning arrangements in the past or about his behaviour in the presence of a chaperone.
- "Public confidence" is dealt with in paragraphs 33 and 34. Paragraph 33 emphasizes that "[the] public has a right to know about a doctor's fitness to practise history to enable them to make an informed choice about where to seek treatment". It continues:
"… To balance this with fairness to the doctor, allegations leading to the imposition of interim conditions are not published or disclosed to general enquirers. It is therefore the responsibility of the IOP to consider whether, if allegations are later proved, it will damage public confidence to learn the doctor continued working with patients while the matter was investigated".
- Paragraph 34 identifies two factors, either of which would be "a strong indicator that conditions may not be adequate to maintain public confidence in the profession or the medical regulator". The first of these is that the doctor has been charged with a serious offence "such as rape or attempted rape, sexual assault or attempted sexual assault or sexual abuse of children"; the second is that he is alleged to have shown "a pattern of sexually inappropriate conduct towards patients". In exercising their discretion on the particular facts of each case the IOP "should also consider any immediate risk to patient safety …". However, the guidance recognizes that "there are circumstances in which it is necessary to take action to protect public confidence even when there is no risk to patients."
- Under the heading "Criminal Charges" and specifically in the context of allegations involving "serious criminal charges", paragraph 35 of the guidance cites a passage from the judgment of Davis J (as he then was) in R (on the application of Sosanya) v GMC [2009] EWHC 2814 (Admin). I shall refer to that when I come to the relevant jurisprudence. Paragraph 36 says that it is "incumbent on the panel to consider the individual features of each case and the particular charges", and that the IOP should have in mind the possibility of the practitioner's acquittal as well as the possibility of his or her being convicted.
- Paragraphs 41 and 42 highlight the IOP's duty under rule 27(4)(g) of the General Medical Council (Fitness to Practise) Rules 2004 ("the 2004 Rules") to give reasons for its decisions. Paragraph 41 notes that "[the] courts do not expect an IOP to give long detailed reasons but the reasons given must be clear and explain how the decisions were reached, including identifying the interest(s) for which the order is considered necessary". Paragraph 42 states:
"Although IOP decisions should be fairly concise, they must include the following information with specific reference to the distinct features and particular facts of each individual case.
a. The risk to patients should be clearly identified to support the proportionality of any action it was necessary to take.
b. The risk to public confidence in the profession if the doctor continued working without restriction on their registration and the allegations are later proved, to support the proportionality of any interim action taken.
c. Where an order is made primarily because it is desirable in the public interest to uphold public confidence and there are no concerns about clinical practice specific reasons should be given for why this is appropriate.
d. Reasons for the initial period of time for which an interim order is imposed.
…".
The IOP conditions bank
- In September 2011 the GMC published Version 5 of the "Medical Practitioners Tribunal Service – Interim orders panel conditions bank". This document contains examples of the restrictions and stipulations that an IOP can put on an order of interim conditional registration. Among the examples given are conditions forbidding a doctor to "undertake consultations" or to "undertake an intimate examination" of patients in particular categories – such as female patients – except in the presence of a "chaperone" (respectively IOP 44 and IOP 50).
The proceedings before the IOP
The Chairman's opening remarks
- On 10 July 2012 the IOP sat in private to consider the claimant's case. The IOP was a panel of three: two lay members – the Chairman, Mrs Fiona Barnett, and Mr Michael Brown – and a medical member, Miss Patricia Durning. When the hearing began the Chairman introduced herself and her fellow panellists, and the participants in the proceedings. The claimant was there, represented by a solicitor, Mr William Childs. The GMC was represented by counsel, Ms Chloe Hudson. A Legal Assessor, Mr Trevor Jones, was present, to provide the IOP with any legal advice it might need, but, as the Chairman made plain, not to play any part in the making of the decision.
- The Chairman explained how the proceedings were going to be conducted. She said the IOP had already read all of the papers. She emphasized that it was not their role to make findings of fact. They were not going to decide who was right and who was wrong, or who was to be believed. All that they had to decide was whether they should make an order on the claimant's registration. The Chairman referred to the material submitted by the parties, including Detective Constable Nelder's letter and other documents received from the police, details of the claimant's employment, and the bundle of papers presented on behalf of the claimant.
The case for the GMC
- The GMC counsel, Ms Hudson, then outlined the case for the GMC. She set out the details of the complaint facing the claimant, referring to the police investigation and the content of the witness statements of EJB and NB, and concluded with these observations:
"Clearly this matter is at a very early stage but this allegation is, in the submission of the GMC, a very serious one involving a doctor involved in alleged sexual impropriety at the general practitioner's surgery, potentially involving a vulnerable complainant who appears to have this doctor's mobile telephone number in her possession, and in light of those concerns about this doctor's conduct and actions with this patient, and in order to maintain public confidence, I would submit that, in accordance with Section 41A of the Medical Act 1983, as amended, it is necessary for the protection of the public, in the public interest and the doctor's own interests that his registration be made subject to an interim order of suspension. In my submission the Panel can be satisfied that there may be impairment of this doctor's fitness to practise which may pose a real risk to members of the public or may adversely affect the public interest or the interests of the doctor …".
The Chairman asked Ms Hudson why the IOP had not received a statement from Ms B. Ms Hudson said this might be because the transcript had not yet been prepared; Ms B had been interviewed only on 14 June 2012.
Mr Childs' submissions for the claimant
- The Chairman next asked Mr Childs to make his submissions on behalf of the claimant.
- Those submissions were lengthy and detailed. They were largely repeated in the argument advanced by the claimant's counsel, Mr Andrew Colman, in the application before me.
- Mr Childs stressed that the claimant had never before been the subject of any complaint of this kind. He had never been the subject of any criminal, regulatory or any other disciplinary investigation. He was "extremely shocked" by the allegations Ms B had now made. He rejected any suggestion that he had "acted in a sexualised manner" towards her, or that he had done anything without having her best interests at heart. She had a background of domestic abuse and depression, and a difficult relationship with her daughter, who was "extremely protective" of her. It had often been difficult for the practice to contact her. The claimant had asked her for her mobile telephone number. He thought he had done this at a consultation with her on 2 May 2012. Mr Childs went to what he described as probably "the most critical point, given the patient's allegations", which was that there was no consultation recorded for 16 May 2012. There was a consultation on 18 May, which, as the records showed, had been booked by one of the claimant's practice staff. Ms B had arrived at the surgery at 5.32 p.m., the consultation had started at 5.40 p.m., and it had ended at 5.52 p.m. Ms B returned on 23 May. There was a note about the need to await her results. But that was the last time the claimant had seen Ms B. The appointment had taken place "later in the day" but had finished "before the practice closes".
- Mr Childs said Dr Abdullah had first heard of Ms B's complaint on 27 June 2012, when he was told of it by the PCT. He had never been interviewed by the police. Mr Childs submitted that the PCT's conclusion that they did not need to take any action was "rather an important guide" for the IOP. As an "experienced Panel" the IOP would recall that "PCT's are rarely reluctant to suspend a practitioner who has been alleged to have acted in a sexualised way towards a patient, but the conclusion by them was that they did not need to take any action".
- Mr Childs made clear to the IOP that the claimant recognized "in hindsight that his communications by telephone with [Ms B] were, if well meaning, ill-advised when not recorded in the patient's records". It had been suggested that 50 text messages had been received by Ms B from the claimant's practice mobile telephone. The claimant accepted that he had sent text messages to Ms B, but not as many as had been alleged. His "best estimate" would be five to ten. He also would have called Ms B about ten times, though she would not always have answered the telephone. The only message Ms B had been able to produce contained a request for her to get in touch with the claimant. The claimant now understood that it had been "unwise" not to record the messages in Ms B's clinical records. Ms B was "the only patient that he had contacted in this manner". He had done so in the "highly unusual circumstances" of her case, because "she was isolated and depressed and [her] daughter was making life very difficult for the practice." The claimant had not kept these messages, but he knew they would almost certainly be obtained and was "quite content" about that. His error was in failing "to incorporate the messages into the records and to record the telephone calls", and he assured the IOP that this would not be repeated. Later in his submissions Mr Childs added that if the claimant had sent his text messages to Ms B intending to pursue her in an "inappropriate relationship", it made no sense for him to have used his practice's mobile telephone "rather than a more discreet personal number". There was no direct evidence of anything "inappropriate at all" in any of these messages.
- Acknowledging that the IOP had read the documents, Mr Childs asked them to digest the PCT's report thoroughly. He read out two passages from that report: the passage in which the claimant having been "visibly shocked" by Ms B's allegations was referred to, and the conclusions, in which Dr Saunderson had said that the criteria for suspension from the Performer List had not been satisfied.
- Mr Childs turned to the "difficulties" he said one could see in the allegations the claimant was facing, which, he submitted, "seriously undermine the credibility of this complainant". He dealt with the contention that seemed to amount to an allegation of "blackmail" – in the sense that the claimant had been providing Ms B with sickness certificates, which she needed if she was to retain her benefits, and that this was why she had "somehow felt obliged to perform a sexual act". Ms B's "work capability assessment" had declared her fit to work, but the claimant had nonetheless continued to provide her with sickness certificates even though they had, or may have had, "little if any value to her".
- Mr Childs reminded the IOP that it had no statement from Ms B, and that "the best evidence of her complaint is in a summary report from the police and hearsay statements from those involved in looking after her welfare following conversations with her". He submitted that it was apparent that Ms B had been "extremely inconsistent" on "fundamental aspects" of her complaint. This had begun as a complaint of "vaginal rape", had then become an allegation of "oral rape", and, later, an allegation of "consensual oral sex". The allegation that the claimant had actually touched Ms B's breasts had become an allegation only that he had tried to touch them. In one of the section 9 statements Ms B was said to have claimed that the claimant pinned her down, but elsewhere she was said to have acknowledged reluctantly consenting to the act. Nowhere in the section 9 statements did one see the suggestion that the claimant had offered Ms B a job. These inconsistencies were not to be explained by Ms B's inability to speak perfect English.
- Another "fundamental issue", said Mr Childs, concerned the dates on which the claimant was said to have acted as Ms B had alleged. Mr Childs highlighted the apparent inconsistencies in this part of the case against the claimant. He added that there was clear evidence from members of the surgery staff – Mrs Hutton and Mrs Hayes – to show that the claimant and patients are never left alone in the surgery and that he never remained on the premises after 8 p.m.. The evidence showed that "this aspect of [Ms B's] allegations was simply impossible". And this conclusion was reinforced by the fact that the couch in the claimant's consulting room was only two feet wide "and is not something on which two people could conceivably lie together". The allegation of "inappropriate touching at the consultation at which the injection was provided" was flawed. Ms B had put this incident "three months earlier than the consultation took place".
- Ms B had alleged that the claimant had offered to see Ms B at his home. But, said Mr Childs, for the claimant to have done this "might appear rather unwise" given that his wife and some of his five children live at home with him.
- Mr Childs asked the IOP to keep in mind that, if Ms B's account was correct, she had continued to see the claimant after January 2012 when the "inappropriate touching" allegedly took place. She did so despite being able to see the other doctor in the practice instead, or one of the locums.
- Before concluding his submissions, Mr Childs referred to the "testimonial letters" – including letters from patients – that had been provided for the claimant. All of these, said Mr Childs, had expressed "shock" at Ms B's allegations. And all of them attested to the claimant's "excellent manner, professionalism and care for his patients". Mrs Hayes, in her letter, had described the claimant as a "warm, kind hearted, caring, polite and respectful man". She had also said that his consultations were "appropriately chaperoned" and that "intimate examinations" were often delegated to female staff. Mr Childs pointed out that no significant complaints had ever been recorded against him.
- Finally, Mr Childs submitted:
"I invite you to conclude while, on its face, a serious allegation, on further analysis the allegations are really full of holes. Of course, the doctor understands that you are not a fact finding Panel but I have offered what I suggest is very strong evidence that demonstrates the most serious allegation simply could not have happened (a) in the way described, (b) at the time of day described and (c) on the date described. … [This] is assuming we really know what the allegations are, given the absence of any statement from [Ms B]. Those allegations we do have reported are incoherent, contradictory and … some are simply incredible given the information that I have provided to you.
To restrict a practitioner's registration … must always be a serious step that you take reluctantly, and I submit that the information you have before you today cannot meet the threshold to empower you to take such action. I suggest your judgment should be that there is not before you evidence that can demonstrate that there remains a real risk to members of the public so as to justify a restriction on the doctor's registration.
…[In] respect of the public interest, it is not … served by an otherwise well-liked and apparently capable doctor being either prevented from practising altogether, as would be the GMC's submission, or in some way restricted from servicing the totality of his patients. I would submit that to properly consider the public interest is not simply to think to oneself, 'What would a newspaper think if an allegation of sexual misconduct was met with no action?' but rather, "What would a member of the public who was made aware of all the information in this case, including my submission, be likely to think?'"
- Mr Childs reminded the IOP of paragraph 31 of the GMC's guidance, which says that where allegations of sexual misconduct are made against a doctor there "may" be a significant risk to the safety of patients and public confidence in the profession if decisions at the interim stage are not seen to reflect the seriousness of the "individual" case. This, Mr Childs submitted, was "a rather unusual complaint". A significant risk was "very unlikely" here. The course suggested by the GMC was not justified. Although the claimant understood the allegations would be investigated, the IOP "should have sufficient concern at the quality and the reliability" of the evidence before it that it should take "no action" against the claimant.
The Legal Assessor's advice
- The IOP then received advice from its Legal Assessor, Mr Jones. He guided the IOP on their approach to the PCT's decision, which Mr Childs had urged them to consider. The IOP was "concerned with the question of the practitioner holding unrestricted registration". It was for them to attach such weight to the PCT's decision as they saw fit. However, they would be aware that the PCT had "a different role".
- Mr Jones did not comment on the submissions that had been made to the IOP. They had to decide how much weight to give to those submissions. It was not their function to make findings of fact "nor to determine the veracity of any allegations" The statutory test for them to apply was whether "in all the circumstances, there may be impairment of the practitioner's fitness to practise which poses a real risk to members of the public or may adversely affect the public interest or the interests of the practitioner", and whether, "after balancing the interests of the practitioner and the interests of the public, … an interim order is necessary to guard against such a risk". As well as the protection of the public, said Mr Jones, "the public interest includes [the] maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour, which is often referred to as the wider public interest". Mr Jones referred to the GMC's advice in paragraphs 6, 7, 18, 19, 20, 23 and 33 of its guidance, laying emphasis on the advice about "proportionality" in paragraph 20 and about the treatment of allegations of sexual misconduct in paragraph 23, and urging the IOP "to have particular regard" to what is said about the public interest and public confidence in the medical profession in paragraph 33.
- Concluding his advice, Mr Jones said that if the IOP found the statutory test met, and decided an order was necessary, it would have to "act proportionately and make an order which is no more severe than is necessary to guard against any risks identified within the terms of the test". Any conditions imposed as an interim measure "must be workable and enforceable and meet the risks". If the IOP thought interim conditions would not be appropriate in this case, they must then consider whether to make an order of interim suspension. The IOP did not have to hold that an order was necessary in the public interest before it could make one; an order of suspension could properly be made in a serious case "where it was desirable to protect the public interest as an interim measure".
- After the Legal Assessor had given his advice the Chairman asked whether anybody wished to comment or raise any query on it. Neither Ms Hudson nor Mr Childs did.
The IOP's determination
- The IOP then retired to consider their decision. When they returned the Chairman said they had given the case "a lot of consideration" and had prepared a decision that had "a lot of reasoning". They had determined that the statutory test was met, and that the order would be one of suspension, for 18 months. The order would be reviewed within six months. It was open to the claimant to ask for an early review. The determination was then handed down.
- In their determination the IOP said they had carefully considered all the information before them, including Ms Hudson's submissions for the GMC and Mr Childs' on behalf of the claimant, and the documents provided.
- In accordance with section 41A of the 1983 Act, the IOP were satisfied that it was "necessary for the protection of members of the public and in the public interest" to make an order suspending the claimant's registration for 18 months.
- The IOP had noted Detective Constable Nelder's referral letter of 25 June 2012, in which she had told the GMC that the police were investigating an allegation of sexual assault made against the claimant by a vulnerable patient. As summarized in that letter, the specific allegations were these:
"
- Patient [Ms B] having recently moved to the area came to your surgery with shoulder pain sustained as a result of domestic violence.
- Sometime in January 2012 patient [Ms B] alleged that you massaged her back and touched her breasts when she attended for a pain relieving injection.
- Patient [Ms B] alleged that on 16 May 2012 she attended the surgery at your request so you could provide a sick certificate; once in the room you requested that she take her top off and at your request she performed a sexual act on you.
- No physical force was used but she feared that you would not otherwise give her a sick certificate, even though you never said this to her."
- Detective Constable Nelder had said that the evidence was not sufficient to support a prosecution for the offence of rape. But if what Ms B had alleged did happen, the claimant would clearly have taken advantage of her and seriously breached her trust.
- The IOP referred to the preliminary investigation report prepared by Dr Saunderson for the PCT. That report had noted that after the police had investigated the allegation no charges had been brought; the criteria for prosecution had not been met. The PCT investigation had not found substance in the allegations; the criteria for suspension from the Performers List were not satisfied.
- The gist of the submissions made on either side was recorded. Distilling the argument of Mr Childs, the IOP referred to his submission that there were "a number of peculiarities and inaccuracies" in Ms B's allegations, which "seriously undermine her credibility", and the PCT's conclusion that it did not need to take any action against the claimant. In summary, Mr Childs had submitted that the information before the IOP at the hearing "lacks credibility even at this early stage and it would be disproportionate to impose any order on [the claimant's] registration".
- The IOP noted the evidence of the claimant's "professionalism and good character" in the "very positive testimonials" provided for him. They said they had borne in mind that it was not their function to make findings of fact or to decide on the veracity of the allegations. However, they had given such weight as they thought appropriate to those allegations and to the submissions about them made on the claimant's behalf.
- The IOP then said this:
"In the light of the serious nature of the allegations, the Panel is satisfied that there may be impairment of your fitness to practise which poses a real risk to patients and may adversely affect the public interest. After balancing your interests with the public interest, the Panel determined that an interim order is necessary to guard against such a risk. The public interest includes the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour."
- In making their decision the IOP had considered paragraphs 23 and 33 of the GMC's guidance, the relevant parts of which they quoted. They cited the second and third of the considerations mentioned in paragraph 23 as factors indicating that "significant public confidence issues" were likely to arise.
- The IOP said they had "considered whether an interim order of conditions would be sufficient in this instance". They said they were "mindful that any conditions must be workable and enforceable and should protect the public, and the wider public interest". They said that in their view
"there [are] no workable or practicable conditions that can be formulated in your case. This is because of the serious nature of the allegations in this matter, which include not only acts which are said to have occurred within your surgery, but also allegations of inappropriate telephone contact with the patient outside of the practice premises."
- The IOP next considered whether the claimant should be suspended from practice:
"Further, the Panel considers that your remaining in unrestricted practice could seriously undermine the trust that members of the public are entitled to place in the medical profession and its practitioners. Therefore, the Panel has decided to impose an interim order of suspension on your registration.
The Panel has taken account of the important principle of proportionality and has balanced the need to protect members of the public, the public interest and your own interests against the consequences for you of the suspension of your registration. Whilst it notes that its order has removed your ability to practise medicine the Panel considers that in all the circumstances of your case the order of interim suspension is a proportionate response.
In deciding on the period of eighteen months, the Panel has taken into account the uncertainty of the time needed to resolve all the issues in this case."
The order was to take effect immediately and would be "reviewed within six months, or earlier if necessary".
The legal framework
Section 41A of the 1983 Act
- Section 41A(1) of the 1983 Act provides the power for an IOP or a Fitness to Practise Panel to make interim orders:
"Where an [IOP] or a Fitness to Practise Panel are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Panel may make an order –
(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an "interim suspension order"); or
(b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose (an "order for interim conditional registration")."
- Subsection (2) of section 41A provides:
"Subject to subsection (9) below, where an [IOP] or a Fitness to Practise Panel have made an order under subsection (1) above, an [IOP] or a Fitness to Practise Panel –
(a) shall review it within the period of six months beginning on the date on which the order was made, and shall thereafter, for so long as the order continues in force, further review it –
(i) before the end of the period of six months beginning on the date of the decision of the immediately preceding review; or
(ii) if after the end of the period of three months beginning on the date of the decision of the immediately preceding review the person concerned requests an earlier review, as soon as practicable after that request; and
(iii) may review it where new evidence relevant to the order has become available after the making of the order."
- Subsection (3) provides the power for an IOP or a Fitness to Practise Panel to revoke or vary an interim suspension order.
- Subsection (6) provides for an application to be made by the GMC to the relevant court for an order made by an IOP or a Fitness to Practise Panel under subsection (1) or (3) to be extended. Subsection (7) provides that on such an application the court may extend, or further extend, the period for which the order has effect by up to 12 months.
- Subsection (10) provides:
"Where an order has effect under any provision of this section, the relevant court may –
(a) in the case of an interim suspension order, terminate the suspension;
(b) in the case of an order for interim conditional registration, revoke or vary any condition imposed by the order;
(c) in either case, substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it),
and the decision of the relevant court under any application under this subsection shall be final."
- In GMC v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369, a case in which the court had made an order under section 41A(7) extending an interim suspension order, Arden LJ, with whom the other members of the court (Tuckey and Lawrence Collins LJJ) agreed, noted (in paragraph 30 of her judgment) that the power to grant an extension contained in section 41A(7) and the power to make the orders set out in section 41A(10) represent the limit of the court's express powers in relation to interim measures under section 41A. Parliament has not given the court power to determine in the first instance whether an interim suspension order or conditional order should be made. The power to erase the name of a medical practitioner from the register is not conferred on the court, but on the various panels of the GMC. Arden LJ observed (ibid.):
"Parliament has clearly taken the view that the organs of the GMC are better placed than the courts to investigate such matters and evaluate them."
Arden LJ went on (in paragraph 31) to say this:
"The statutory scheme thus makes it clear that it is not the function of the judge under section 41A(7) to make the findings of primary fact about the events that have led to the suspension or to consider the merits of the case for suspension. There is, moreover, no express threshold test to be satisfied before the court can exercise its power under section 41A(7), such as a condition that the court should be satisfied that there is evidence showing that there is a case to answer in respect of misconduct or any other matter. On the other hand, if the judge can clearly see that the case has little merit, he may take that factor into account in weighing his decision on the application. But this is to be done as part of the ordinary task of making a judicial decision, and a case where a statutory body makes an application on obviously wholly unsupportable grounds is likely to be rare."
- On the approach the court should take to the views of the GMC and the IOP Arden LJ said this (in paragraph 32):
"The evidence on the application will include evidence as to the opinion of the GMC, and the IOP or Fitness to Practise Panel, as to the need for an interim order. It is for the court to decide what weight to give to that opinion. It is certainly not bound to follow that opinion. Nor should it defer to that opinion. All that is required is that the court should give that opinion such weight as in the circumstances of the case it thinks fit. Weighing up the opinion of a body that has special statutory responsibilities and relevant experience and expertise is again part of the ordinary task of judicial decision-making."
- At first instance in Hiew the judge said he had paid "great respect" to the view of the evidence taken by the IOP, given their "immense experience". However, Arden LJ preferred to say that the approach of the court to the opinion of the IOP was "not a question of giving respect but of attaching appropriate weight to the evidence in the ordinary way" (paragraph 41 of her judgment). Amplifying this, she said (ibid.):
"… In contrast to the giving of respect, there can be no automaticity about the attaching of weight to evidence. Weight does not attach to a person's evidence by virtue only of his experience or status. The giving of weight to opinion evidence entails a holistic evaluation of the persuasiveness of the evidence on the relevant issue, having regard to the relevant circumstances including its content as well as the viewpoint of the author of the opinion. …".
- In Hiew there had been a conflict between the view of the IOP and that of the PCT. Arden LJ indicated (in paragraph 42 of her judgment) the approach the court should take when such conflict arose:
"… [It] was open to the IOP to take a more serious view of the allegations against Dr Hiew than the PCT. It was not the function of the judge definitively to resolve this conflict. The judge merely had to consider whether it was appropriate for him to accept either and, if so, which opinion for the limited purposes of the application before him. The judge clearly accepted the view of the IOP for this purpose. He was entitled to do this provided that, expressly or by implication, he gave sufficient reasons. The judge did not in fact give express reasons in this case, but by implication his reasons must have been that when assessing the question of seriousness of the risk of harm to the public for the purposes of an interim order, he preferred the more cautious view of the IOP. …".
- The approach indicated by the Court of Appeal in Hiew has consistently been followed by judges considering applications under subsections (7) and (10) of section 41A of the 1983 Act and under the corresponding provisions in the Nursing and Midwifery Order 2001 (see, for example, Perry v Nursing and Midwifery Council [2012] EWHC 2275 (Admin), a case to which the parties drew my attention after the judgment of Thirlwall J had been handed down on 22 August 2012). Naturally, the outcome in each case turns on the particular facts. Little is to be gained by comparing the circumstances of one case with those of another.
- In Sandler v GMC [2010] EWHC 1029 (Admin), a case in which the court was asked to exercise its power under section 41A(10) to terminate an interim suspension order, Nicol J said this (in paragraphs 12 and 13 of his judgment):
"12. Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr Sandler's suspension (or to substitute a different period) is not dependent on showing some error of law on the part of the IOP. That is the point that I understand the Court of Appeal to have made in GMC v Hiew [2007] 1 WLR 2007 where at [27] Arden LJ said 'the powers conferred by s.41A(10) are also original powers and not merely powers of judicial review.' …
My consideration of the application [for termination of suspension under section 41(10)] must surely start from the position that the IOP has thought that interim suspension is the right course. … In R (Stephen James Walker) v GMC [2003] EWHC 2308 (Admin) Stanley Burnton J (as he then was) was also considering an application to terminate a suspension under s.41A(10). He said at [3] 'The terms of subsection (10) indicate that the appeal to the Court is a full appeal, that is to say, the Court does not interfere on a review ground but itself decides what order is appropriate.' To describe the process as an 'appeal' may not do full justice to the power of the Court. It would seem to me that the Court does have power to consider subsequent developments and (where appropriate) fresh evidence. However, in my judgment the term does correctly acknowledge that in this context, unlike an application under section 41A(7), the Court is faced with an extant order of the IOP which it would only terminate if it thought that order was wrong.
13. The exact analysis may not matter a great deal since both parties acknowledged that the opinion of the Panel was entitled to respect. As Davis J. said in [Sheikh v GMC [2007] EWHC 2972 (Admin)] at [10] 'in the ordinary way the court will show respect for the decision of a Panel in this context, given that the Panel is an expert body which is well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and public confidence.' …".
Nicol J accepted (in paragraph 14 of his judgment) that although the 1983 Act "allows suspension on public protection grounds only if this is necessary, there is no such qualification to the public interest limb". Having referred again to Davis J's judgment in Sheikh, he went on to say this (ibid.):
"I certainly agree that a doctor could not be the subject of interim suspension unless this was at least desirable in the public interest. I also agree that the [IOP] must consider very carefully the proportionality of their measure (weighing the significance of any harm to the public interest in not suspending the doctor against the damage to him by preventing him from practising) but I do … think that the Court must be cautious about superimposing additional tests over and above those which Parliament has set."
- In Sheikh Davis J expressed his view (in paragraph 15 of his judgment) that the invocation of the public interest "does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability". And then (in paragraph 16) he said this:
"At all events, in the context of imposing an interim suspension order, on this particular basis, it does seem to me … that the bar is set high; and I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality. It is a very serious thing indeed for a dentist or a doctor to be suspended. It is serious in many cases just because of the impact on that person's right to earn a living. It is serious in all cases because of the detriment to him in reputational terms. Accordingly, it is, in my view, likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest. … Ultimately, of course, all these things have to be decided on the facts of each particular case."
- Sosanya was a case in which a doctor had been charged with a criminal offence. But, as Davis J put it (in paragraph 25 of his judgment), the offence had "nothing to do with her abilities as a doctor". She had been suspended from practice on an interim basis because the IOP had concluded that this was in the public interest. However, the IOP had not said that interim suspension was required if public confidence in the medical profession was to be maintained. In paragraph 26 of his judgment – the passage quoted in paragraph 35 of the GMC's guidance – Davis J said this:
"The statutory test is there, and that is the one to be applied. One would like, all the same, to think that in all these kinds of cases of potential interim suspension an interim orders panel would at least be asking itself, as part of its thought process, the following: will it be acceptable for us not to suspend in a case of this kind if at the end of the day the charges are proved and the guilt of the applicant is established? That is one aspect. Another part of the thought process should be: will it be acceptable for us to suspend an applicant in a case of this kind if, at the end of the day, the applicant may be acquitted of all charges? Those considerations should form at least part of the thinking of an [IOP], as it seems to me."
Later in his judgment (at paragraph 30) Davis J considered the "degree of deference" the court should show to the views of the IOP. Parliament had entrusted the decision-making process to a body whose members would know the demands and expectations of the medical profession. But deference, he warned, "must not be subordinated into obsequiousness".
The 2004 Rules
- Rule 27(4)(g) of the 2004 Rules provides:
"At an interim orders hearing … the Interim Orders Panel shall announce its decision, and shall give its reasons for that decision."
- In Phipps v GMC [2006] EWCA Civ 397, a case concerned with a decision of the professional conduct committee of the GMC, the predecessor of Fitness to Practise Panels, the Court of Appeal saw no reason to think that doctors sitting in judgment on their peers should be exempt from the general rules as to the giving of reasons that apply to all other tribunals. Sir Mark Potter P said that the requirement for judicial and quasi-judicial tribunals to state their decisions in a form sufficient to make clear to the losing party why it has lost – in accordance with the principles recognized by the Court of Appeal in English v Emery Reinhold and Strick Ltd [2002] 1 WLR 2409 – will be satisfied:
"if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision. …".
- In Madan v GMC [2001] EWHC Admin 577 Newman J, considering the adequacy of the reasons given in that case, said (at paragraph 64 of his judgment):
"An essential point which, in my judgment, emerges from the cases is that adequate reasons will inform the recipient of the basis for the decision. A reason expressed as a conclusion will frequently not disclose the underlying basis for the decision. It follows that the applicant in this case, who had advanced a specific submission … to the effect that the public interest would be adequately protected and met by a conditional registration order as opposed to a suspension order, was entitled to expect illumination as to why that particular argument had been rejected. …".
The NHS regulations
- Regulation 13(1) of the NHS regulations provides:
"If a Primary Care Trust is satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest, it may suspend a performer from its performers list, in accordance with the provisions of this regulation –
(a) while it decides whether or not to exercise its powers to remove him …".
Submissions for the claimant
- Mr Colman made four main submissions.
- He submitted, first, that the basic details of the allegations about the claimant's conduct are vague and vary as to the most basic details – dates, the nature of the sexual activity alleged, and whether or not Ms B consented to or complied with what the claimant was said to have done to her. The IOP did not have any direct evidence from Ms B herself in the form of a witness statement or the transcript of her recorded interview, nor any contemporaneous notes of the complaints she had made. They merely had accounts of what she had said to others. And, as Mr Childs had submitted at the hearing, those accounts were unsatisfactory; they were mutually inconsistent in several important respects, and also irreconcilable with Ms B's clinical records. In the case put forward on behalf of the GMC at the hearing its advocate had left out important matters. For example, she had referred several times to the fact that Ms B had the claimant's mobile telephone number, without acknowledging that this was not the number of the claimant's own telephone but that of the telephone used by his practice. Mr Colman reiterated and relied on Mr Childs' close analysis of the allegations in the submissions he had made at the hearing, which had demonstrated to the IOP the discrepancies in Ms B's account. This was, Mr Colman submitted, an "exceptionally flawed" complaint. But when deciding whether they should suspend the claimant from practice while the allegations were investigated, the IOP had failed to consider the fatal weaknesses in them. To exercise their judgment in the way Davis J had suggested in Sosanya, they had to do that, and they had to do it by looking at the particular facts of the case they were considering. There was nothing in their determination to show that they had. The Legal Assessor had failed to draw their attention to the principles underlying the advice in paragraphs 35 and 36 of the GMC's guidance, which were derived from Sosanya.
- Secondly, the IOP generally failed to give proper and adequate reasons for its decision. Although the IOP had prefaced their determination by saying it contained "a lot of reasoning", much of it was composed of narrative, recitation of the arguments presented and a summary of the tests and guidance applied. No basis for the decision was expounded beyond "the serious nature of the allegations". This does not amount to "information with specific reference to the distinct features and the particular facts of each individual case", which is what paragraph 42 of the GMC's guidance requires. The IOP ought to have shown in their reasons how they had grappled with the inconsistencies in the allegations.
- Thirdly, the IOP misdirected themselves when considering whether in this case an order for interim conditional registration would suffice, and failed to explain adequately why they had chosen not to impose such an order rather than an interim suspension order. Here the reasons had been no more than conclusions, as in Madan. The only reason the IOP gave for suspending the claimant rather than imposing conditions on him was that there were allegations of "inappropriate telephone contact with the patient outside of practice premises". This was illogical. Suspension from the medical register would not prevent the claimant from getting in touch with Ms B. The concern could have been met by a suitably drafted condition, perhaps coupled with a "chaperoning" restriction of the kind one sees in the IOP conditions bank. Any breach could lead to suspension. Such conditions would have been enforceable, and sufficient to protect the public interest. The IOP had failed to recognize the effect the claimant's suspension from practice would have on him. They failed to give due weight to his professional history. As they had been told by Mr Childs, the claimant had had a long career as a doctor, with an unblemished professional record. No complaint such as this had ever been made against him in his many years in practice, and supportive evidence from his staff and patients had been produced for the hearing. In his case, therefore, an interim order of suspension was both unnecessary and disproportionate.
- Fourthly, Mr Colman submitted that the IOP were wrong not to arrive at the same conclusion as had the PCT, which was that the claimant's suspension from practice at this stage was unjustified. At the hearing, although the IOP had had the PCT's report in the material before them, counsel for the GMC had said nothing about it. The advice the Legal Assessor had given the IOP about the outcome of the PCT's investigation was misleading. Instead of telling them that the PCT had "a different role" from the GMC's, he ought to have drawn their attention to the similarity between their respective duties – under regulation 13(1) of the NHS regulations and section 41A(1) of the 1983 Act – to protect members of the public and to safeguard the public interest. Although the IOP noted the conclusions of the PCT investigation, they gave no reasons for their starkly different conclusion when applying a similar statutory test. As Mr Childs had submitted, the conclusion of the PCT investigation was "an important guide" for the IOP. It should have been at least persuasive, since the PCT had taken the opportunity to interview the claimant and members of his staff, had heard his denial of the allegations, and had been in a better position than the IOP to consider the evidence in his case. The IOP did not have the benefit of any evidence from the claimant himself. They failed to explain what weight, if any, they attached to the PCT's conclusion. And the decision they reached was neither correct nor fair. Having been suspended not by the PCT but by the MPTS, the claimant will not receive any financial support while he is unable to practise. He will have to pay for a locum to look after his patients.
Submissions for the GMC
- For the GMC Mr Simon Phillips QC made four main submissions in response to Mr Colman's.
- Mr Phillips' first and fundamental submission was that the decision the IOP made was not wrong. The IOP were right to conclude as they did. The claimant's suspension from practice while the complaint made against him was investigated was necessary for the protection of patients and the public interest. The decision was soundly based on all the material before the IOP, including the police report and the section 9 statements of EJB and NB. Though the police investigation had not resulted in a prosecution for rape or for any other offence, the police had not found Ms B's allegations to be exceptionally flawed (as Mr Colman had described them). They had concluded that if Ms B's allegations turned out to be true the claimant would clearly have taken advantage of her and seriously breached her trust. The IOP did not have to find whether or not the allegations were true. Indeed, it would have been wrong of them to try. It should be remembered that under section 41(2) of the 1983 Act the claimant, as a suspended registrant, could seek an early review of his suspension if he had new evidence to put before the IOP.
- Secondly, none of the criticism levelled at the IOP's decision-making was valid. The IOP conducted a fair hearing. They took account of all the material and argument presented to them. Extensive submissions were made on behalf of the claimant. His advocate had had the chance to respond to the submissions made for the GMC, to correct any errors he saw in them, and to fill any gaps. As the Chairman had said when the hearing began, it was not for the IOP to make findings of fact. And they did not do so. They stuck to their statutory remit. The advice given to them by the Legal Assessor was accurate. If he failed to mention every relevant paragraph in the GMC's guidance, this did not invalidate the IOP's decision. The IOP were familiar with the guidance and applied it. Having retired to discuss their decision, they produced a properly reasoned determination. The claimant was able to see why they had decided as they did.
- Thirdly, the IOP's decision was not only necessary but also proportionate. It reflected a fair balance of the relevant considerations. It recognized both the gravity of the allegations and the consequences for the claimant of his not being allowed to practise medicine for as long as the order remained in effect. His excellent professional record was not ignored. The IOP had expressly considered whether an order for conditional registration would be appropriate. Bearing in mind that any conditions "must be workable and enforceable and should protect the public, and the wider public interest", they had concluded it would not. This conclusion was well founded. The case against the claimant concerned both what he was said to have done in his surgery and what he was said to have done outside it. Chaperoning conditions would not have stopped him using the telephone to make "inappropriate … contact" with Ms B, or with any other patient. A condition designed to prevent him from doing that was not likely to work.
- Fourthly, Mr Phillips submitted, the IOP were entitled to come to a different conclusion from the PCT's, and the reasons they gave for doing so were adequate. They were obliged to come to their own view on the claimant's registration, and to decide whether or not to make an order under the statutory regime in the 1983 Act. They had to do this independently. As in Hiew, it was open to them to take a more serious view of the allegations than the PCT had done. At the hearing before the IOP both sides were present, and represented. By contrast, the PCT had not conducted a hearing, only a preliminary investigation. Knowing the IOP's process was imminent, they had concluded merely that the claimant should not be suspended form the Performer List "pending a more thorough investigation". Their conclusion was clearly a relevant consideration for the IOP, but it was not binding on them. The material available to the IOP was not the same as had been before the PCT. The PCT had been aware of the police investigation and its result. They had interviewed the claimant and two of his staff. But, unlike the IOP, they did not have the statements of EJB and NB, in which the matters disclosed to them by Ms B – including the allegations of sexual misconduct and about the telephone calls and text messages – were set out.
Discussion and conclusions
- The scope of the court's jurisdiction under section 41A(10) of the 1983 Act is well established. The relevant jurisprudence is clear. In a case such as this the court is not constrained by the principles of public law that govern a claim for judicial review. I must decide whether the IOP were right to suspend the claimant while the allegations he faces are investigated. I must judge whether their decision was, and is, both justified and proportionate. Suspension will have been justified if it was necessary as a means of protecting members of the public, or if it was otherwise in the public interest, or if it was in the interests of the claimant himself as a registered person. I must look at the IOP's determination and consider what weight I should give to it, remembering that Parliament has entrusted to them the power in the first instance to make decisions on a doctor's freedom to practise while his or her fitness to do so is investigated, that they bring to bear on this task their own experience and expertise and their own knowledge of the public's expectations of the medical profession, and that it is not their responsibility – or the court's – to make findings of fact or to resolve factual disputes.
- In Sandler Nicol J (at paragraph 14 of his judgment) cautioned against "superimposing additional tests" on those that Parliament has set. I do not believe Davis J did that in paragraph 26 of his judgment in Sosanya. He envisaged a question that an IOP would do well to consider in "cases of potential interim suspension": whether it would be right not to have suspended the doctor if the allegations against him were eventually proved, or wrong to have done so if in the end he was exonerated. This concept has been adopted by the GMC, in paragraph 35 of its guidance to panels. Although that part of the GMC's guidance specifically concerns cases where "serious criminal charges" have been brought, I think it can be used in every case where the allegations are serious, whether or not criminal proceedings have been begun or are likely to be. Plainly, however, as paragraph 36 of the guidance says, the individual features of each case must be considered. No two cases will be the same. The IOP, and in its turn the court, must focus on the particular circumstances of the case in hand.
- In this case the complaints that have been made about the claimant's conduct are not trivial; they are, indisputably, very serious. They are complaints of sexual misconduct with a patient. Such allegations are treated as a category on their own in the GMC's guidance. Where sexual misconduct has been alleged, as paragraph 23 of the guidance makes clear, the "impact on public confidence if the doctor were to continue working unrestricted in the meantime" calls for "particular consideration". This is necessary not only when the doctor is being investigated by the police for a "sexual criminal offence", but generally when "sexually inappropriate behaviour towards patients" has been alleged. In paragraph 31 of its guidance the GMC acknowledges that, where an allegation of this kind is made, there may be "a significant risk to patient safety and public confidence in the profession if decisions at the interim stage are not seen to reflect the seriousness of the individual case". An important consideration here, as the guidance recognizes (in paragraph 34), is the need "to maintain public confidence in the medical profession or the medical regulator". Action will sometimes have to be taken "to protect public confidence even where there is no immediate risk to patients".
- Paragraph 23 of the GMC's guidance lists four factors, any of which may indicate that a case is "likely to raise significant public confidence issues if no interim action is taken". Two of these – the second and third in the list – were discerned by the IOP in the claimant's case: allegations that he had "exhibited predatory behaviour in seeking or establishing an inappropriate sexual or emotional relationship with a vulnerable patient" and "[s]erious concerns about [his] sexualised behaviour towards a patient in a single episode".
- Of course, these are at the moment merely allegations. They have not been proved. The IOP did not find that they had been. It was not their function to subject Ms B's complaint to the kind of scrutiny it will have in a process where issues of fact are live. They were considering whether the claimant should be allowed to continue in practice until that process has been gone through.
- On the principle of the claimant's interim suspension I reject the submissions made by Mr Colman and accept those of Mr Phillips. In my judgment, the imposition of an interim suspension order on the claimant was, and remains, both necessary and proportionate.
- The IOP based their decision to make an interim suspension order in this case on two distinct conclusions. The first was that such an order was necessary for the protection of members of the public. The second was that it was in the public interest for such an order to be made. Both of these were proper reasons for making an interim suspension order, within the ambit of section 41A(1). In the circumstances of this case, and in the light of the GMC's guidance on the handling of allegations of sexual misconduct, I am in no doubt that each of these conclusions was not only reasonable but also right.
- As the IOP said in their determination, "[the] public interest includes the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour". They were obviously and, I think, rightly anxious about the impact that a decision not to suspend the claimant at this stage could have on "the trust that members of the public are entitled to place in the medical profession and its practitioners". This on its own, I believe, would have justified the making of an interim suspension order in the claimant's case. Yet it did not stand on its own. As one might expect, the IOP were also concerned about the risk to which patients might be exposed if the claimant were not prevented from practising while Ms B's allegations were examined. If those allegations were true, the risk was real and the harm could be great. Acting as the IOP did to preclude that harm was prudent and, in my view, just. They did so only after balancing the claimant's interests with the public interest. Implicit in their conclusion that he must be suspended was an answer – and in my view the right one – to the twofold question posed by Davis J in paragraph 26 of his judgment in Sosanya.
- In my view, therefore, the IOP's decision to suspend in this case was sound. Its rationale is cogent. And I agree with it.
- This is not to say that in every case where an allegation of sexual misconduct is made against a doctor, he or she must automatically be suspended while the investigation of the complaint runs its course. That notion would be misconceived. It would find no support in relevant authority or in the GMC's guidance. Had it come into the IOP's thinking when they made their decision to suspend the claimant, they would have misdirected themselves. But there is no hint of it in their determination. Nor, as I understood him, did Mr Colman suggest there was. If this was his submission, I would reject it.
- The essence of Mr Colman's argument on the merits of the IOP's decision was that Ms B's allegations are patently flawed, are bound in the end to be rejected, and so, even at this interim stage, could not warrant the claimant's suspension.
- I disagree. The premise of Mr Colman's argument is in my view mistaken. The allegations faced by the claimant are not, I believe, so vague and inconsistent that his suspension from practice while they are investigated cannot be justified. Although, after their enquiry, the police had concluded that the evidence they had was not enough to support a prosecution for rape or any other sexual crime, they did not dismiss Ms B's allegations as fanciful. They found her complaint coherent enough to conclude that, if it were true, the claimant would have taken advantage of a vulnerable patient and would seriously have breached her trust. It is clear from their determination that the IOP took note of Detective Constable Nelder's letter, the conclusion of the PCT's process, the fact that Ms B was a vulnerable patient, and the submissions made by Mr Childs in which he had pointed to apparent inconsistencies in the allegations and to the testimonials lauding the claimant's professionalism and good character. All of these things the IOP clearly had in mind when giving Ms B's complaint the weight they thought they should. This is what they had to do if they were to follow the general advice in paragraphs 18 to 22 of the GMC's guidance and that specific to allegations of sexual misconduct in paragraphs 23 and 31 to 34. There was, I accept, no statement from Ms B herself, nor a transcript of her recorded interview. The claimant did not give evidence. Nor did anyone else. But the IOP had to base their decision on the information they had. And that is what they did.
- Whether or not the assertions made by Ms B are truthful will emerge when they are put to the test. They may prove to be; they may not. However, the IOP did not ignore the imperfections in the case against the claimant, which Mr Childs took pains to bring out at the hearing. They knew there were many disputes of fact. They heeded Mr Childs' submission that there were "[a] number of peculiarities and inaccuracies in respect of [Ms B's] allegations which seriously undermine her credibility" and that the information before them "[lacked] credibility even at this early stage". One can understand why this submission was made. But the IOP did not regard the evident weaknesses in the case against the claimant as fatal to the GMC's request for interim suspension. I think they were right. I am satisfied, as were the IOP, that the substance of the allegations made in this case is such as to make an interim suspension order necessary for the protection of the public, and also that such an order is required in the public interest.
- I see no force in Mr Colman's submissions about the way in which the IOP's process was conducted. The hearing was fair. Each side was able to put before the IOP the material and submissions it wanted them to consider. Mr Childs addressed them for the claimant after Ms Hudson had made her submissions for the GMC. Had he needed to, he could have drawn their attention to anything she had left out. He could, for example, have taken them to any particular passage in the GMC's guidance that he wanted them to think about. After the Legal Assessor had given his advice the Chairman invited comments or queries on it. Unsurprisingly, Mr Childs had none; the Legal Assessor's advice was, in my view, impeccable.
- I do not accept that the IOP misunderstood or misapplied the GMC's guidance. Their determination betrays no such error. The main principles relevant in this case, including those germane to allegations of sexual misconduct, had been referred to by the Legal Assessor. The IOP did not have to mention every part of the document they had considered in coming to their decision. They were familiar with the guidance. They were not bound to follow it. But in this case they had no need to depart from it. Their decision was entirely consistent with it.
- Nor do I accept that the reasons given by the IOP in their determination were inadequate or unclear. Paragraph 41 of the GMC's guidance discourages the giving of "long detailed reasons". What the IOP had to do – no more and no less – was to explain why their decision was the one they had announced. In most cases, probably in every case, this can be done briefly. The IOP were exercising a statutory power framed in simple terms. Three interests are embraced in that provision: first, "the protection of members of the public", second, "the public interest", and third, "the interests of a fully registered person". The IOP had to exercise their judgment within those statutory parameters. And it is in this context that the adequacy of their reasons must be assessed. The parties knew what the contentious issues had been. They could expect to be told how those issues had been resolved and why the decision went the way it did. The losing side could expect to learn why it had lost. But the IOP did not have to provide an elaborate explanation of their decision. Reasons were required, but not reasons for reasons.
- Because in this case they decided that an interim suspension order was required, the IOP had to identify in their determination the interest or interests "for which the order [was] considered necessary" (paragraph 41 of the GMC's guidance), referring specifically to "the distinct features and particular facts" of the case (paragraph 42). They started by relating their decision to the provisions of section 41A. They said they were satisfied that an interim suspension order was "necessary for the protection of members of the public and in the public interest …". Thus they identified the interests for which the order was considered necessary. They summarized the allegations precisely. They recorded the burden of the submissions made on either side. They noted the factual controversies in the case. They described the allegations as "serious". They expressed their concern about the possible "impairment of [the claimant's] fitness to practise which poses a real risk to patients and may affect the public interest". They cited two passages in the GMC's guidance – from paragraphs 23 and 33 – drawing out from paragraph 23 the particular factors they saw as relevant here. They referred to the two aspects of the case that made it impossible for them to avoid an interim suspension order, and why the option of interim conditional registration had to be rejected: "… not only acts which are said to have occurred within [the claimant's] surgery, but also allegations of inappropriate telephone contact with the patient outside of the practice premises". It should be remembered that the case for the claimant at the hearing was not that particular conditions should be considered or even that, in principle, conditions were appropriate, but that no restriction on his registration was justified and that "no action" should be taken against him at this stage. The IOP explained their conclusions on proportionality. And they said why they were making an order for a period of 18 months. In my view, they made clear why they had concluded as they did on the issues they had to resolve. The claimant was told why he was being suspended on an interim basis. Far from being deficient, the reasons given by the IOP in their determination were complete and made perfectly good sense.
- Mr Colman's submission that the IOP failed to give reasons for differing from the PCT is therefore untenable. In fact, they gave ample reasons for doing so – namely the reasons they set out for the decision they made. Those reasons encapsulated their own, independent judgment on the claimant's status as a registered person during the investigation of Ms B's complaint. Their decision was the outcome of a different process from the PCT's, conducted in a different way, with different information before them. The PCT had itself acknowledged that "a more thorough investigation" was going to take place, and that the IOP's process was still to come. Admittedly, though they were working under different statutory regimes, both bodies had to consider the protection of members of the public and the public interest. But they did not have to reach the same conclusions. As the Court of Appeal held in Hiew, the IOP were free to take a more serious view of the allegations than the PCT had done. Having considered the PCT's preliminary report, they did. I do not have to adjudicate on this disagreement. But it is the more cautious view of the IOP that I prefer. I do so because I agree with them that, in the particular circumstances of this case, suspension is necessary for the protection of the public, and that a decision not to suspend the claimant while Ms B's allegations are investigated would be damaging to public confidence in the medical profession.
- Was an interim suspension order a proportionate measure in the claimant's case? In my judgment it was – and is – provided the suspension lasts no longer than can reasonably be justified.
- I cannot accept the submissions Mr Colman made on this issue. The IOP undoubtedly did take account of "the important principle of proportionality". They did not do so in a perfunctory way. They considered whether the claimant's interim suspension would be proportionate by balancing "the need to protect members of the public, the public interest and [his] own interests against the consequences for [him] of the suspension of [his] registration". They grasped the consequences for him of his ability to practise medicine being removed. In weighing his interests against the public interest, they appreciated the importance of maintaining public confidence in the medical profession. They asked themselves whether an order for conditional registration, rather than an interim suspension order, would be sufficient in his case. Their view was that it would not. In their opinion this was not a case in which the protection of the public could be achieved, and the wider public interest served, by the imposition of conditions. I agree. This was quintessentially a matter for the IOP's own, expert judgment, and their conclusion on it is, in my view, unimpeachable. As Mr Phillips submitted, controlling the claimant's behaviour outside his surgery by means of conditions would have been difficult, to say the least. Suppose, however, that an enforceable condition could have been crafted to stop the claimant getting in touch with his patients by telephone – which I doubt – and that such a restriction had been included in an order for interim conditional registration, together with the stipulation that a chaperone attend the claimant's consultations with female patients. This, in my view, would not have overcome the harm to public confidence in the medical profession inherent in letting the claimant remain in practice while Ms B's allegations of sexual misconduct are investigated.
- In my judgment, therefore, the IOP were right to conclude that "in all the circumstances of [the claimant's] case the order of interim suspension is a proportionate response".
- This leaves the question of whether the length of the claimant's suspension – 18 months – was itself proportionate. I do not think it was. I think it was excessive. It is the maximum period of suspension permissible under section 41A(1)(a). The IOP imposed it, they said, in view of the "uncertainty of the time needed to resolve all the issues in this case". However, I see no reason why the investigation of Ms B's allegations, serious as they are, cannot be completed in a shorter time than that. With a due sense of urgency and without jeopardizing the fairness of the proceedings, this can surely be done within 12 months of the date when the interim suspension order was made: that is to say by 9 July 2013. The effect of an interim suspension order on a doctor's livelihood and reputation will always be grave. Here I must bear in mind the situation in which the claimant now finds himself, as the sole principal in his practice, unable to carry on his profession, and without any funding available to him to maintain care for his patients until the decision on his fitness to practise is made. I think that to suspend him for longer than 12 months at this stage would be disproportionate.
Overall conclusion
- For the reasons I have given I conclude that the interim suspension order made by the IOP on 10 July 2012 should not be terminated, but that, using the power the court has under section 41A(10)(c) of the 1983 Act, I should substitute for the period of 18 months specified in the order the period of 12 months.
