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29 MAY 2013

Dr EY v General Medical Council [2013] EWHC 860 (Admin); (2013) PLLR 066

Professional regulation - healthcare - doctors - General Medical Council - fitness to practise - Interim Orders Panel - section 41A(1) Medical Act 1983 - allegations of sexual misconduct - removal from register quashed - conditional registration - necessity - proportionality - adequacy of reasons

The Interim Orders Panel of the General Medical Council was entitled to impose restrictions on a general practitioner's registration where 4

15 April 2013

Administrative Court

HHJ Andrew Gilbart QC

(1)        The Claimant (EY) had been the subject of allegations of sexual misconduct made by a patient. Following proceedings before the Interim Orders Panel of the Defendant (IOP), it was directed that his name should be erased from the Medical Register and that he should be suspended immediately. This decision was quashed by Kenneth Parker J on the grounds that the decision had been insufficiently reasoned. The Defendant (GMC) proceeded with the complaint and EY was again called before the IOP. This hearing resulted in EY being made subject to conditional registration.

(2)        EY applied under section 41A(10) of the Medicine Act 1983 to have the decision quashed on the basis that the conditions imposed were unnecessary and/or disproportionate, and that the reasoning provided by the IOP was insufficient both in terms of justifying the conditions and for the choice of conditions.

(3)        HHJ Andrew Gilbart QC HELD: That the court's task under section 41A(10) of the Medicine Act 1983 was to determine whether the conditions should be varied. It had to take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk to patients, the effect on the public interest (including confidence in the profession) and the prejudice caused to EY. General Medical Council v Hiew [2007] EWCA Civ 369 considered). In considering public confidence the court was not required to apply a ‘reasonable onlooker' test (Patel v General Medical Council [2012] EWHC 3688 explained). The IOP had been correct in its assessment of likely harm to public confidence in the event of conditions not being imposed. That the allegations were uncorroborated should not lessen the weight given to them [37] - [38], [44] - [45].

(4)        Although first instance cases showed varied approaches to the reasoning to be adopted, this simply highlighted the context-specific nature of reasoning. It would be dangerous to read these cases as setting down principles of general application. It was irrelevant that the IOP had used a similar form of words in imposing conditions on EY as in other recent cases; the issue was not the frequency of the words used, but their appropriateness. The IOP's reasoning was clear: the submissions made before it were set out in its decision, which clearly answered the central issues. Although the IOP did not describe its approach to the proportionality of conditions, it was sufficient that it considered conditions to be necessary. The serious nature of the allegations meant that the IOP was not required to give detailed consideration to the question of risk, as even if the risk were small, the consequences of a second occurrence would be serious. It was not for the court to take a view on the credibility of the allegations. The decision to impose conditions was both necessary and proportionate, particularly given the lack of a practical alternative and the short period of time before the GMC hearing [38] - [40], [42] - [43], [47] - [49], [51] (General Medical Council v Hiew [2007] EWCA Civ 369 considered).

Application dismissed

Key paragraphs

[3] - [6] - Background history.

[7] - [14] - Judgement and order of Kenneth Parker J.

[15] - [19] - Subsequent events, including the IOP order of 29 November 2012.

[20] - [28] - The role of the court under Section 41A Medical Act 1983.

[28] - [31] - Preliminary observations on the nature of the claim, the relevance of the judgement of Kenneth Parker J and the role of the Fitness to Practise Panel.

[32] - [34] - Submissions of claimant doctor.

[35] - [36] - Submissions of GMC.

[37] - [55] - Discussions and conclusion.

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