General Medical Council v Hiew

On an application to extend an interim restriction on medical registration, the court acts as the primary decision maker. The General Medical Council must establish, on the balance of probabilities, that extension satisfies the statutory criteria of public protection, public interest or the practitioner's interests. Relevant considerations include the allegations' gravity, the evidence, risks to patients, reasons for delay and prejudice to the practitioner. The court generally assesses whether the allegations justify continued restriction, rather than determining their truth or requiring a case to answer. An obviously weak case may nevertheless inform its decision. Regulatory opinions receive appropriate weight following an independent evaluation of their persuasiveness. Extension must last no longer than necessary.

Dr Hiew, a registered general practitioner, practised with Dr X, against whom separate criminal proceedings were pending. Enfield NHS primary care trust investigated allegations concerning the practice, including fraud, falsification of patient records, contracted working hours and poor management. The General Medical Council's Interim Orders Panel imposed an eighteen-month interim suspension in April 2005 and maintained it following reviews. No finding of misconduct had been made.

The Crown Prosecution Service decided against prosecuting Dr Hiew. However, outstanding allegations remained, and documentation was withheld pending the criminal case against Dr X. The General Medical Council sought a twelve-month extension under section 41 A(7) of the Medical Act 1983. Bean J, sitting in the Administrative Court, granted six months.

Dr Hiew appealed, challenging the judge's approach to his decision-making role, the evidence and continued suspension. Before the appeal was heard, the panel replaced suspension with conditions requiring supervised practice. The Court of Appeal nevertheless heard the appeal to determine whether the extension had been justified and to clarify the court's statutory function.

Appeal dismissed unanimously. Arden LJ's judgment was agreed with by Lawrence Collins and Tuckey LJJ.

1. Under section 41 A(7) of the Medical Act 1983, the court exercised original jurisdiction as the primary decision maker. It could refuse extension, grant the period requested or grant a shorter period. Parliament had entrusted this decision directly to the court. The original powers under section 41 A(10) also permitted termination or shortening of suspension in an appropriate case after hearing the parties.

2. The extension criteria were those governing the original order under section 41 A(1): public protection, public interest or the practitioner's interests. The General Medical Council bore the burden of satisfying those criteria on the balance of probabilities. Relevant matters included the gravity of the allegations, the nature of the evidence, risks to patients, reasons for delay and prejudice to the practitioner. Supporting witness statements should explain the reasons for extension fairly and sufficiently as self-standing documents.

3. The court's function excluded determining primary facts or adjudicating the disciplinary merits. There was no statutory requirement to establish a case to answer. Generally, the court assessed whether the allegations justified prolonging suspension, rather than their truth. An obviously weak case could inform the decision, although wholly unsupportable applications would be rare. Challenges to the foundations of the allegations ordinarily belonged in judicial review of the original order or a failure to review it.

4. The court could receive regulatory opinion evidence and attach appropriate weight to it. Its persuasiveness required a holistic assessment of its content, the author's viewpoint and all relevant circumstances. Experience or status alone attracted no automatic weight. Where opinions conflicted, the judge could select one for the limited purposes of extension, provided sufficient reasons were apparent expressly or by implication. The reasons authorities, English v Emery Reimbold & Strick and Battista v Bassano, supported that approach.

5. In subsidiary Convention guidance, article 6 of the European Convention on Human Rights required proportionate restrictions on access to court but prescribed no particular substantive content for civil rights. The reasoning in Madan v GMC that article 6 itself required the panel's decision to satisfy Convention proportionality was erroneous. Whether common-law fairness and reasonableness differed from Convention proportionality in this context remained open. The court also left undecided whether imposing or extending interim suspension determined a civil right.

6. Bean J had independently assessed the application and was entitled to accept the panel's more cautious assessment of public risk. His reasons could be understood by implication. Given the substantial effects on Dr Hiew's reputation and livelihood, he correctly required suspension to last no longer than necessary. The six-month extension was within his discretion and was upheld.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 369 , unanimously dismissed Dr Hiew's appeal and upheld the six-month extension ordered by Bean J.
• High Court, Administrative Court: On 17 October 2006, Bean J granted a six-month extension under section 41 A(7) of the Medical Act 1983, rather than the twelve months requested by the General Medical Council. No citation for that judgment is stated.
• General Medical Council, Interim Orders Panel: Imposed an eighteen-month interim suspension in April 2005 and maintained it following reviews. On 19 January 2007, after Bean J's order, replaced suspension with conditions requiring supervised practice.