The use and abuse of Interim Suspensions

The General Medical Council’s (‘GMC’) powers to impose ‘interim orders’ on doctors by virtue of section 41A of the Medical Act 1983 are not benign and their effect should not be underestimated. Andrew Truby examines the impact of interim orders and grounds for challenge.

The Public Interest

An interim order is a serious measure and has been referred to in the case of Bradshaw v GSCC [2010] UKFTT 3 HESC as "draconian". The impact that an interim order of conditions or suspension can have on a practitioner’s right to pursue their professional career and earn a living is significant.

Yet despite the fact that the number of orders being imposed is increasing exponentially year on year (in 2009 a total of 427 orders were made of which 156 were suspensions; in 2010 a total of 469 orders were made of which 144 were suspensions) this is an area of the GMC’s activities which has attracted surprisingly little media scrutiny.

More importantly, although potentially ripe for legal challenge (interim justice is dispensed swiftly and reasons are often lacking), since the case of Sheikh v GDC [2007] EWHC 1029 (Admin), which dealt with an analogous scheme under the Dentist’s Act 1984, the jurisprudence in relation to the imposition of interim orders has been sparse in comparison to the numbers of orders which are now being made.

The statutory scheme permits an interim order to be made in relation to a doctor’s GMC registration on the basis of one of only three grounds. If it is:

1. Necessary for the protection of the public;
2. Is in the public interest; or
3. Is in the interests of the practitioner.

The public interest limb does not include a test of necessity, though the Court has found that when imposing an order in the public interest, "the bar is set high and, in the ordinary case at least, necessity is an appropriate yardstick" (Mr Justice Davis, para 16 Sheikh). It is generally accepted that the public interest includes both the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. How these two concepts are interpreted is a matter of some debate, as this article will explore.

A ‘public interest’ test is used as a yardstick in many legal arenas (e.g. the CPS Code for Crown Prosecutors) where the needs/rights of the individual need to be balanced against the welfare or well-being of the general public. Wikipedia (our modern-day Encyclopaedia Britannica) states that there is little, if any, consensus on exactly what constitutes the public interest, and questions whether the concept is a coherent one at all. This may encapsulate the problem in trying to apply the test in the field of medical regulation, and be the reason why things can go awry - with sometimes alarming consequences for the doctor.

The GMC’s Interim Orders Panels, who are tasked with making an order if they are satisfied that there may be impairment of the doctor’s fitness to practise on any of the three grounds above, may conflate concepts of public interest with punishment. A broad-brush risk analysis is where their involvement should end, but, as has been noted by other writers, there is a danger that the interim process acts as a punishment in and of itself, without the accordant safeguards which would attach to a full hearing at a Fitness to Practise Panel. The Interim Orders Panel does not make findings of fact and does not usually hear or test oral evidence.

The situation is not helped by there being no definition in the Medical Act of what the meaning of public interest should be within the context of interim hearings, or at all. Also the public’s opinion of what constitutes appropriate behaviour for doctors evolves continuously. For instance, the GMC’s Standards and Ethics Committee published research in 2006 finding that the public no longer appeared to expect doctors to demonstrate ‘moral excellence’ in all aspects of their lives: it was widely recognised that they were only human. Yet if the recent case of Dr W below is the bellwether of current opinion amongst the members of Interim Orders Panels, this research has not promoted a more forgiving analysis by Panels of what should properly constitute actions which would offend the public interest; if anything, the situation appears to be the reverse.

The Case of Dr W

Dr W was a hospital consultant. Prior to the events which resulted in her referral to the GMC she had enjoyed an unblemished and highly successful 33 year career. Her clinical competence has never been brought into question. It is no exaggeration to say that she was held in uniformly high regard by patients and professional colleagues alike.

Things began to go very wrong for Dr W when an altercation in the car park of the hospital where she worked in the summer of last year escalated out of control. It was not long before Dr W found herself facing serious criminal charges of Attempted Grievous Bodily Harm (‘Attempted GBH’) on the basis that she had driven her car at the two individuals at the scene of the altercation, causing one of them a minor injury. While Dr W accepted that an injury had been caused by her actions, she maintained (to the police on arrest, and subsequently to the GMC and the Court) that it was never her intention to cause harm, she was driving very slowly (less than 5mph) and, rather than attempting to flee the scene because of her guilt, she was alarmed and distressed and wanted to get away quickly as she feared for her own safety.

The CPS eventually reduced the charges against Dr W to common assault and dangerous driving, to which she pleaded guilty at the first opportunity, and in due course she was sentenced to a community service order (which she completed expeditiously), the Judge noting the uncharacteristic nature of Dr W’s actions in relation to these events.

Balancing the Public Interest

Dr W first appeared before the GMC Interim Orders Panel in August 2011, at which point the charge of Attempted GBH remained outstanding. Her GMC registration was suspended at that hearing on public interest grounds. To illustrate the struggle ahead for Dr W, she did not know at the time that there would be not only a further three Interim Orders Panel hearings but also an application to the High Court before her GMC registration would eventually be reinstated, in February 2012.

At the first hearing the Interim Orders Panel were concerned about the public interest given the very serious charges which Dr W faced at that time. In addition they noted that the events occurred on hospital premises and Dr W’s actions could have resulted in serious injury to two colleagues.

By the time of the second Interim Orders Panel hearing in October 2011, things had moved on considerably. The CPS had proffered a much less serious charge, to which Dr W had pleaded guilty (the Common Assault being on the basis of recklessness rather than intentionality). It was submitted on Dr W’s behalf that given these developments it was no longer in the public interest (if it ever had been) for Dr W’s GMC medical registration to be suspended. The Interim Orders Panel disagreed, placing particular reliance on the fact that Dr W had pleaded guilty to “serious offences carrying potentially custodial terms”. They maintained their view on the relevance of the public interest to the factual circumstances of her case.

Disappointed but not defeated, and notwithstanding the fact that as a result of the interim suspension Dr W had been unable to work and thus her employing Trust had stopped her pay, Dr W petitioned the Interim Orders Panel for a third time in December 2011, by which time not only had she received a non-custodial sentence, but was also making significant progress in completing her Community Service Order. The outcome seemed certain: after a long and difficult path the Interim Orders Panel would surely now appreciate that Dr W had paid a very heavy price indeed for her actions and would be allowed to practise medicine again. By this point even the GMC (via their counsel) did not actively argue that suspension of Dr W was required in the public interest.

The Interim Orders Panel, however, determined to maintain the suspension, citing similar reasons to the previous determinations, adding that the public interest was still at risk as Dr W had not yet completed her community sentence. Dr W was advised to issue an application in the High Court. Shortly before that application was due to be heard in February 2012, the GMC (of their own volition) listed a further Interim Orders Panel hearing where the suspension was at last revoked. The public interest argument in this case was therefore never tested before the Court.

Analysis

There are several concerns in relation to the Interim Orders Panel’s approach to this case. Firstly, their failure to identify with any clarity in their determinations the public interest that was said to be served by Dr W being prevented from practising as a Consultant. In relation to the first hearing it can be inferred that they were concerned by what the public’s perception would be of allowing a doctor to continue in unrestricted practice whilst facing serious criminal charges. It is much harder, however, to identify what the public interest was by the time of the second hearing, when the criminal charges had been substantially downgraded and Dr W had pleaded guilty. The only justification advanced by the Interim Orders Panel at that stage was that a custodial sentence may have been a possibility. This no longer applied by the time of the third hearing in December 2011. The Interim Orders Panel placed reliance throughout on the fact that these events occurred in a hospital car park involving colleagues, but this does not appear to have any bearing on why Dr W should be prevented from practising in the meantime whilst the allegations are investigated.

Section 41A of the Medical Act requires the Interim Orders Panel to undertake a proportionality exercise balancing the detriment to Dr W of preventing her from working against whether the public interest is offended in allowing her to continue to practise. The authorities are clear that a very careful approach is required. Undoubtedly the public would expect Dr W’s professional regulator to take a very serious view of her conduct, but, as per the case of Sheikh v GDC that is a function which should best be undertaken by a Fitness to Practise Panel, who will hear the evidence and make findings of fact. The role of the Interim Orders Panel is not to make findings of fact, nor to ‘send a message’ to the profession and the public as to the seriousness with which the GMC view particular types of conduct; nor form judgments on culpability or seek to punish doctors for their behaviour. Its role in fact is simple: to take appropriate interim measures to protect the public and (where relevant) the public interest.

Conclusion

A punitive approach at interim orders is a considerable worry to doctors and those who represent their interests given the increasing number of doctors who are coming before the Interim Orders Panel. Allied to this is the concern that in a significant number of cases pre-verdict sanctions exceed the final sanction. The Law Commission’s recent consultation paper on the regulation of healthcare professionals proposes a single unified test for all healthcare regulators imposing interim orders, namely: “it is necessary to protect, promote and maintain the health, safety and wellbeing of the public (and maintain confidence in the profession)”. The issue of public interest/confidence is not, then, one which is likely to go away.

The approach in Sheikh v GDC of effectively treating interim orders as an emergency measure is surely the right one to take, which fits with the current case law that the GMC’s role should focus on remediation. The opportunity for a suspended doctor to demonstrate remediation at a final hearing is severely compromised if they have been interim suspended for a long period of time, to say nothing of what Mr Justice Davis referred to in Sheikh v GDC as the seriousness of interim suspension in all cases because of the detriment to a practitioner in reputational terms.

The case of Dr W is illustrative that Interim Orders Panels do get it wrong and that those advising professionals in this area should not be reticent in their challenges.

Andrew Truby is a lawyer at national law firm Berrymans Lace Mawer LLP. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..