General Medical Council v Khattab

On an application to extend an interim suspension order, the court applies the same test as the Interim Orders Panel. The focus is on the nature of the allegations, not their truth or falsity. Suspension is justified where the allegations indicate that it is necessary to protect the public, the practitioner, or the public interest. Credible independent expert evidence that conduct fell seriously below the expected professional standard may satisfy that test. The court must also ensure that any extension is proportionate and no longer than reasonably necessary. Administrative convenience cannot justify an excessive period. A further extension should be sought by application if the scheduled fitness-to-practise hearing is delayed, with an explanation for the delay and the steps taken to secure the earliest replacement hearing.

The General Medical Council sought, by Part 8 claim form, a further extension of an interim suspension order made by its Interim Orders Panel in September 2011 under sections 41A(6) and (7) of the Medical Act 1983. The defendant did not appear or participate.

The court considered whether the allegations and supporting expert evidence justified continued suspension pending a Fitness to Practise Panel hearing, and what duration of extension was proportionate. The court also addressed the unsatisfactory evidence of service and the appropriate costs order.

1. The application for a further extension was granted in principle, but the extension was limited to 21 March 2014. The order was to remain in the court office pending filing of a compliant witness statement confirming service and a certificate of service.
2. The applicable test was that under section 41A of the Medical Act 1983, as analysed by the Court of Appeal in GMC v Hiew. The court had to focus on the nature of the allegations rather than determine whether they were true or false. The question was whether, viewed in that way, suspension was necessary for the protection of the public, the practitioner, or otherwise in the public interest.
3. Although several allegations had weakened or could no longer be maintained, independent expert evidence concerning two patients unequivocally suggested conduct seriously below the standard expected of a competent consultant surgeon. The alleged incidents involved unaccounted-for swabs left in a patient and the incorrect insertion of a Sengstaken tube, together with subsequent conduct in the management of complications.
4. Those allegations satisfied the public-interest requirement for continued interim suspension. The court accepted that conditions might have been arguable given the isolated nature of the incidents, but the technical issues meant that substantial weight should be given to the Interim Orders Panel’s conclusions on necessity and proportionality.
5. A nine-month extension was excessive. Even allowing administrative flexibility for panel listing, the suspension should not continue materially beyond the anticipated completion and promulgation of the Fitness to Practise Panel’s decision. Two additional weeks, to 21 March 2014, were adequate.
6. If the listed hearing had to be vacated, the GMC would need to apply for a further extension. The court would require an explanation for the adjournment or vacation and evidence that the resumed hearing had been fixed for the first available time. Costs were assessed at £1,811.90.