General Medical Council v Paterson

An interim order of suspension may be extended for a substantial period where the statutory test is satisfied and the investigation is unusually complex. The number of patients, continuing review, concurrent criminal investigation and difficulties obtaining the practitioner’s instructions may justify an extension, despite the overall duration of interim measures. Where there is a credible indication that a party lacks capacity, an order should include a practical mechanism allowing a properly appointed Litigation Friend to apply to vary or set it aside.

The General Medical Council applied under section 41A of the Medical Act to extend an interim order of suspension against a surgeon for 12 months. The allegations concerned numerous breast-cancer patients, allegedly substandard surgical techniques, inadequate records, breaches of undertakings and potentially unnecessary surgery involving proposed insurance fraud.

The defendant’s solicitors had withdrawn because they considered that he lacked capacity to give instructions. No medical evidence had been filed, and discussions with the Official Solicitor about a Litigation Friend were continuing. The court considered whether the suspension should be extended and what procedural protection should accompany the order.

1. The application was granted. The interim order of suspension was extended for 12 months, from 4 January 2014 to 3 January 2015.

2. Applying the statutory test and the approach required by the Court of Appeal’s decision in Hiew, the court was satisfied that an extension was appropriate. The allegations were serious and involved a very large number of patients. The patient-review process was identifying further cases, and at least some matters were subject to a concurrent police investigation.

3. The fact that the defendant would have been subject to interim conditions and suspension for about three and a half years by the expiry of the new order did not make the extension inappropriate. The complexity of the case, the continuing review and the investigative timetable justified the period sought.

4. The court accepted, for present purposes, the experienced solicitors’ assertion that the defendant lacked capacity, although there was no objective medical evidence before it. Existing statutory mechanisms for challenging or varying interim orders did not fully address the problem.

5. The order was therefore to include a provision enabling the defendant, through a Litigation Friend if appointed, to apply to vary or set aside the order within 10 days after service of the order or appointment of a Litigation Friend, whichever was later. The court also directed that the papers be retained for any further application and that no costs order be made.