Scholten, R (on the application of) v General Medical Council

When reviewing an interim suspension order, the court’s jurisdiction is original, but it must accord considerable respect to a reasoned decision of a specialist disciplinary panel. The panel must identify the risk to patients or the public interest, assess its seriousness, consider whether workable conditions would address it, and balance that risk against the consequences for the practitioner. An interim suspension must be proportionate. The statutory maximum of 18 months is not a default period and its length must be considered when reviewing proportionality. Inadequate reasoning does not automatically require termination, but it diminishes the weight attributable to the panel’s professional judgment.

Dr Scholten, a consultant plastic and cosmetic surgeon, applied under section 41 A(10) of the Medical Act 1983 to terminate an 18-month interim suspension imposed by the General Medical Council’s Interim Orders Panel. The suspension followed his taking, without consent, a photograph of an anaesthetised patient’s clitoral hood during surgery. The Panel maintained the order on review, finding a possible impairment of fitness to practise and considering suspension necessary for patient protection and the public interest.

The application challenged the finding of possible impairment, the existence of risk, proportionality, the adequacy of reasons, alleged pre-judgment, and the duration of the order.

1. The application was not granted. The court made no order on the application.
2. Under section 41 A(10) of the Medical Act 1983, the jurisdiction is original. The court terminates an interim suspension only if satisfied that the order was wrong. It must nevertheless accord considerable respect to a reasoned decision of a specialist disciplinary panel. Inadequate reasons do not themselves require termination, although opaque or inadequate reasoning reduces the weight given to the Panel’s professional opinion.
3. The Panel was entitled to conclude that Dr Scholten’s fitness to practise might be impaired. The incident involved an unauthorised photograph of an anaesthetised patient’s genitalia and amounted to a serious breach of the trust fundamental to the doctor-patient relationship.
4. The Panel’s reasons for maintaining suspension were inadequate. It did not identify the risk posed by unrestricted practice, or its degree, explain why proposed conditions were unworkable, or sufficiently address the evidence of an isolated incident, the audit of the practitioner’s records, the professional testimonials, and the proposed safeguards.
5. The Panel also failed critically to balance patient protection and the public interest against the serious personal and professional consequences of suspension. The length of an order is a relevant proportionality factor. The statutory maximum of 18 months must not become a default position, particularly where the investigation concerns a single admitted incident and the final fitness-to-practise hearing remains distant.
6. The challenge based on apparent pre-judgment failed. Considering the transcript as a whole, the Panel had not given the appearance of having predetermined the matter. The court observed that, had it possessed jurisdiction to do so, it might have substituted conditional registration, but section 41 A(10) did not permit that substitution.

Prior to the application, the General Medical Council’s Interim Orders Panel imposed an 18-month interim suspension on 10 April 2012 and maintained it on review on 8 October 2012. The High Court made no order on the application.