General Medical Council v Mahinda

On an application to extend an interim suspension of a medical practitioner, the court is the primary decision-maker. It must independently decide whether extension is necessary for protection of the public, the public interest or the practitioner’s own interest. The court should not determine the truth of the underlying allegations, but should assess whether the allegations justify continuation of the order. Relevant considerations include the gravity of the allegations, the nature of the evidence, the seriousness of the risk to patients, the reasons for delay, and prejudice to the practitioner. Delay is important, but may be outweighed by patient-safety concerns and the short duration of the extension sought.

The General Medical Council applied for a two-month extension of an interim order suspending Dr Lucy Mahinda’s registration under section 41A of the Medical Act 1983. The order had followed concerns about prescribing errors, venipuncture and the practitioner’s lack of co-operation with a performance assessment. The defendant objected in writing but did not attend. Her fitness to practise hearing was underway and due to conclude shortly. The central issues were whether the statutory test for extension was satisfied and whether continued suspension was incompatible with Articles 3 or 6 of the European Convention on Human Rights.

1. The application was granted. The interim order of suspension was extended for two months, to 2 April 2014. Costs were summarily assessed at £1,400.
2. The court was the primary decision-maker on an application of this kind. The Interim Orders Panel’s view was an important consideration, but the court was neither bound by it nor required to defer to it.
3. The court’s role was not to make findings of primary fact about the events underlying the order. It had to determine whether the allegations, rather than their truth or falsity, justified prolonging the suspension.
4. Applying section 41A of the Medical Act 1983 and the guidance in GMC v Hiew [2007] EWCA Civ 369, the relevant considerations included the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case had not concluded, and prejudice to the practitioner. The GMC had to satisfy the court, on the balance of probabilities, that extension was necessary for protection of the public, the public interest or the practitioner’s own interest.
5. The allegations were serious and supported by good evidence. They potentially gave rise to a serious risk of harm to patients. The judge was concerned that the matter had taken 18 months to reach a hearing and accepted that the GMC had not dealt with the complaint as quickly as it should. That delay and the prejudice caused by suspension were taken into account, but the fitness to practise hearing was underway and only a short extension was sought.
6. Article 3 was not infringed. Although suspension had serious and distressing consequences, the materials disclosed no real issue that the short extension constituted torture or inhuman or degrading treatment. Article 6 did not prevent interim orders before trial. The statutory safeguards, including the need for court approval of an extension beyond 18 months, were relevant. The delay did not, at that stage and in the circumstances, justify refusing the extension under Article 6.