Harry v The General Medical Council

On an application to terminate an interim suspension, the High Court exercises an original jurisdiction. It must decide whether the order was wrong, while giving substantial respect to a specialist panel’s reasoned decision. Inadequate reasoning does not automatically justify termination, but it reduces the weight attributable to the panel’s professional assessment.

An interim suspension requires a real continuing risk to the public, or a properly demonstrated public-interest justification. The court must assess proportionality, including the duration and serious consequences of suspension. The statutory maximum of 18 months must not become a default period. The court may terminate or uphold suspension, but cannot substitute conditions for it.

Dr Harry applied under section 41A(10) of the Medical Act 1983 to terminate an 18-month suspension imposed by the General Medical Council’s Interim Orders Panel on 4 April 2012.

The suspension followed allegations concerning the use of NHS resources for private patients, the transportation and handling of blood samples from Nigeria, and a request that a colleague amend a patient record. The Panel made no findings of fact but concluded that suspension was necessary for public protection and the public interest.

The central issues were whether the Panel’s order was wrong, whether there was a real continuing risk or sufficient public-interest justification, and whether suspension for 18 months was proportionate.

1. Application granted. The suspension was terminated.
2. The jurisdiction under section 41A(10) of the Medical Act 1983 is original rather than supervisory. The court terminates suspension only if satisfied that the Panel’s order was wrong. It must nevertheless accord considerable respect to a reasoned decision of a specialist disciplinary panel. Inadequate or opaque reasoning does not itself require termination, but diminishes the weight given to the Panel’s professional opinion: [2003] EWHC 2308 (Admin); [2007] EWHC 2972 (Admin); [2010] EWHC 1029 (Admin); [2001] EWHC 577 (Admin).
3. The requirement of necessity in section 41A attaches to protection of the public rather than to the public-interest limb. The public-interest limb nevertheless involves an assessment of necessity or desirability. Suspension is a protective, forward-looking measure. A past breach cannot justify suspension without evidence of a real continuing risk that the conduct may be repeated.
4. There was no real continuing public risk. Nothing in the evidence suggested that Dr Harry realistically might again transport blood samples contrary to the applicable regulations. Nor did the admitted request to amend a record, considered with the sample-transportation issue, establish that suspension was required in the public interest.
5. Public confidence had to be assessed by asking how an informed and reasonable member of the public would react if Dr Harry continued practising while the disciplinary proceedings were resolved. On the facts, continued practice would not damage public confidence. The Panel had also failed adequately to explain why suspension, rather than a lesser interim measure, was proportionate.
6. Proportionality applies both to the decision to suspend and to the period of suspension. Eighteen months is the statutory maximum, not a default period. The suspension’s serious financial and professional consequences made it heavy-handed and disproportionate. The court’s jurisdiction did not permit it to substitute conditions for suspension.

This was a first-instance application to the High Court under section 41A(10) of the Medical Act 1983. The Interim Orders Panel had imposed the suspension on 4 April 2012.