General Medical Council v Hiew

On an application to extend an interim suspension or conditional-registration order, the court is the primary decision-maker. It exercises an original statutory jurisdiction, rather than judicial-review jurisdiction. It must decide whether extension is justified by the statutory criteria: protection of the public, the public interest, or the practitioner’s interests.

The GMC bears the civil burden of satisfying the court. The court should assess the gravity and evidential basis of the allegations, the risk of harm, delay, and prejudice to the practitioner. Ordinarily it asks whether the allegations justify continued interim restriction, rather than determining their truth. The relevant GMC panel’s opinion attracts only such weight as its persuasiveness warrants; it is not entitled to automatic deference.

Dr Hiew appealed against Bean J’s order of 17 October 2006 extending for six months an interim suspension of his registration. The suspension had been imposed while allegations concerning NHS fraud, patient records, contracted hours and practice management were investigated. No finding of misconduct had been made.

The GMC had sought a 12-month extension under Medical Act 1983, section 41 A(7), relying on delay in obtaining material connected with criminal proceedings against another doctor. Bean J declined to grant the full period but held that some extension remained justified. Before the appeal, the Interim Orders Panel replaced suspension with supervised-practice conditions, but the court heard the appeal to give guidance on the statutory jurisdiction.

1. Appeal dismissed. Bean J was entitled to extend the interim suspension for six months.

2. Under section 41 A(7) of the Medical Act 1983, the court is not reviewing or endorsing the Interim Orders Panel’s decision. Parliament made the court the primary decision-maker on an extension beyond the original period. Its powers under section 41 A(10) are likewise original powers.

3. The applicable criteria are those governing the original interim order under section 41 A(1): protection of the public, the public interest, or the practitioner’s interests. The GMC, as applicant, bears the burden on the balance of probabilities. Relevant considerations include the seriousness of the allegations, the evidence, the risk to patients, reasons for delay, and prejudice caused by continued restriction.

4. The court must decide on the evidence filed for the application, which should itself give a clear, self-standing summary of the GMC’s reasons. It should not make primary findings of fact or decide the merits of the disciplinary allegations. There is no separate statutory requirement that the court be satisfied that there is a case to answer. A plainly weak case may be relevant, but challenges that allegations are unfounded ordinarily belong in judicial review of the original order or review decision.

5. The panel’s opinion is admissible and may be influential, but it receives no automatic deference. The court must attach appropriate weight after evaluating its persuasiveness, content, expertise and context. It was open to the judge to prefer the IOP’s more cautious assessment of the interim risk, notwithstanding the PCT’s different view.

6. The court rejected the proposition that Article 6 of the European Convention required the IOP itself to apply a distinct Convention proportionality standard. The suspension’s serious effect on reputation and livelihood nevertheless required the judge to ensure that it lasted no longer than necessary. The six-month period was within the judge’s discretion.

• Court of Appeal (Civil Division) — Dismissed Dr Hiew’s appeal and upheld Bean J’s six-month extension of the interim suspension order.

• High Court of Justice, Queen’s Bench Division, Administrative Court — Bean J, on 17 October 2006, extended the interim suspension order for six months rather than the 12 months sought by the GMC.