Dr EY v General Medical Council

On an application under section 41A(10) of the Medical Act 1983, the court makes its own decision whether interim registration conditions should be varied or revoked. It considers the gravity of the allegations, the evidence available, risks to patients, public confidence and prejudice to the practitioner. It must not determine disputed facts or decide the ultimate merits, except that a plainly meritless case may be taken into account. Serious allegations of sexual misconduct towards a vulnerable patient may justify interim conditions despite being unproved and unsupported by corroboration. The decision must address the principal issues and proportionality, but reasons may be concise. A chaperone condition may be necessary and proportionate where no practical alternative adequately protects patients and public confidence.

The claimant, a doctor, challenged conditions imposed by the General Medical Council’s Interim Orders Panel under section 41A of the Medical Act 1983. The conditions followed an earlier Fitness to Practise Panel decision concerning allegations of serious sexual misconduct towards a vulnerable patient. That decision had been quashed by Kenneth Parker J in [2012] EWHC 2779 because the panel had given inadequate reasons for accepting the complainant’s evidence, and the complaint was remitted for consideration by a fresh panel.

The Interim Orders Panel imposed conditions, including a requirement that the claimant use a qualified chaperone when consulting or examining female patients. The central issues were whether an interim order remained necessary and whether the chaperone condition was proportionate.

1. The application under section 41A(10) of the Medical Act 1983 was dismissed. The court’s jurisdiction was original rather than supervisory. It therefore had to decide for itself whether the conditions should be varied or revoked.

2. The relevant considerations were the gravity of the allegations, the nature of the evidence, the seriousness of the risk to patients, the effect on public interest and confidence in the medical profession, and prejudice to the practitioner. The court was not required to determine the credibility of the complainant or the truth of the allegations. Those questions belonged to the fresh Fitness to Practise Panel. The case was not one of the rare cases in which the allegations plainly had little merit.

3. The earlier judgment of Kenneth Parker J had quashed the first Fitness to Practise decision for inadequate reasoning only. It had not held that the allegations were incapable of belief or that the evidence could not support them. Nor was the earlier decision determinative of what a fresh panel would decide.

4. The Interim Orders Panel had adequately explained why interim protection was required. Serious allegations that a doctor had made sexual advances towards, and raped, a vulnerable patient in her home created a significant potential risk to female patients. The absence of corroboration did not reduce the weight properly attributable to the fact that such allegations had been made.

5. The conditions were necessary and proportionate. If the allegations were true, unrestricted consultations with female patients created risks to patients and to public confidence. The proposed alternative, restricting home visits and relying on other staff being nearby, was impractical and would not reliably prevent inappropriate conduct. The short-term impact on the claimant’s ability to practise did not outweigh the need for protection pending the forthcoming Fitness to Practise hearing.

6. The required reasoning was concise reasoning addressing the principal issues. The Panel did not have to answer every submission or explain its reasons for reasons. The order was maintained, and the claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

The judgment describes an earlier decision in the same litigation:

• High Court (Administrative Court) — Kenneth Parker J allowed the claimant’s appeal, quashed the Fitness to Practise findings and erasure order for inadequate reasoning, and remitted the matter to the GMC to consider a fresh hearing: [2012] EWHC 2779.
• High Court (Administrative Court) — The present application to terminate or vary the Interim Orders Panel’s conditional registration order was dismissed.