Kumar v General Medical Council

An application under section 41A(10) of the Medical Act 1983 gives the court an original jurisdiction, although appropriate respect must be paid to an expert Interim Orders Panel. The Panel does not determine the truth of allegations or finally assess a doctor’s fitness to practise. It assesses prospective risk and may act where there is a prima facie case raising a real risk to the public. Challenges to the investigation or evidence generally belong to the substantive Fitness to Practise hearing, unless a plain defect destroys even a prima facie case. Interim conditions are not disproportionate merely because they cause serious hardship, where the evidence establishes a real risk that unrestricted practice would be unsafe. An initial procedural irregularity does not invalidate later hearings conducted de novo where the practitioner had a full opportunity to present the case and suffered no prejudice.

Dr Kumar challenged conditions maintained by the Interim Orders Panel of the Medical Practitioners Tribunal Service on 11 September 2012. The conditions confined him to specified supervised hospital or general-practice work. He argued that the first hearing had proceeded without effective notice, that the GMC investigation and evidence were unfair and unreliable, and that the conditions were disproportionate.

The application was brought in the form of an appeal under section 41A(10) of the Medical Act 1983, although the proper form was a Part 8 claim. The court considered the limited risk-assessment function of the Panel, the court’s original jurisdiction, and whether the September decision should be revoked or varied.

1. Application dismissed. The conditions imposed by the Interim Orders Panel on 11 September 2012 were maintained. The claimant was ordered to pay the GMC £5,000 in costs, including VAT.
2. Under section 41A(1) of the Medical Act 1983, an Interim Orders Panel may impose conditional registration where necessary for public protection, the public interest or the practitioner’s interests. Its task is prospective. It assesses the risk posed by unrestricted practice and does not determine disputed facts or finally decide fitness to practise.
3. The Panel may need to be satisfied that the allegations disclose a prima facie case, including possible clinical incompetence at a particular level. It must not conduct the definitive investigation. Questions about competence and the fairness of the investigation ordinarily fall to the Fitness to Practise Panel. Only a plain defect capable of undermining even the prima facie case warrants intervention at the interim stage.
4. The court’s jurisdiction under section 41A(10) is original rather than a judicial review, as explained in Patel v General Medical Council [2012] EWHC 3688 (Admin). Appropriate respect is owed to the Panel’s expertise and familiarity with professional standards and public confidence, as recognised in R(Shiekh) v General Dental Council [EWHC] 2972 (Admin) and Sandler v GMC [2010] EWHC 1029 (Admin).
5. The failure to receive the original notice did not invalidate the later proceedings. The October 2011 hearing considered the conditions de novo, and the claimant thereafter had a full opportunity to present his case without demonstrated prejudice. Nor did the Panel’s mistaken suggestion that it had no discretion to hear oral evidence justify quashing the order.
6. The reports identifying possible serious clinical incompetence established a sufficient prima facie case. The unusual origin of the complaint, alleged investigative shortcomings, hearsay concerns, testimonials and an agency letter were either matters for the substantive hearing or non-central to the Panel’s decision. Once a real risk to the public from unsupervised practice had been identified, the restrictive conditions were not disproportionate, notwithstanding their serious personal and financial consequences.

First-instance application under section 41A(10) of the Medical Act 1983. The court treated the proceedings as an original application, despite their having been initiated as an appeal, and dismissed the challenge to the Interim Orders Panel’s decision.