Interim Order decisions on review must be consistent with earlier decisions in the case: Cook v General Medical Council [2023] EWHC 1906 (Admin)

On 22 May 2021, Dr Cook sent an email to the General Medical Council informing them that he had been arrested by the West Midlands Police for child sex offences. His case was referred to an Interim Orders Tribunal which convened on 28 June and imposed an Order of Conditions. On 2 July 2021, Dr Cook was charged by the Crown Prosecution Service. The charge precipitated a review of the Conditions of Practice Order on 5 August 2021 when an Order of Suspension was imposed.

In September 2022 Dr Cook stood trial on a four-count indictment, two related to child sex offences, and two related to breaches of the Obscene Publications Act. The jury failed to reach verdicts on the child sex counts on the indictment and they were subsequently abandoned by the Crown Prosecution Service. Dr Cook was convicted of the 2 lesser charges relating to the publication of obscene material. The Judge sentenced him to a conditional discharge.

On 10 March 2023, the Interim Order was reviewed. The GMC applied for a continued order of suspension on the basis that the material on which Dr Cook had been convicted for the obscenity offences was sufficiently shocking that an order was required to maintain public confidence in the profession. This was opposed by those who represented Dr Cook. It was submitted that following the outcome of the criminal trial no order was necessary or at the very most a conditions of practice order would be proportionate in the circumstances.

During submissions for Dr Cook, the Tribunal raised the possibility that the two alleged child sex offences (which had been abandoned by the CPS) might be revisited in the regulatory proceedings. In the end this possibility was a major component in the Tribunal deciding to continue the order of suspension.

Dr Cook appealed on the basis that the Tribunal was inconsistent in imposing an Order of Suspension when a conditions of practice order had been deemed sufficient prior to the criminal charges, that it had failed to take into account the objective evidence put before it on the negligible prospects of repetition and that it had predicated its decision to continue the suspension on the basis of a matter not advanced by the GMC in its submissions

In allowing the appeal Mr Justice Lane made the following observations:

1. Whilst an IOT does not have to provide “lengthy or elaborate reasons” in this case it had failed to engage with the case as a whole, in particular Dr Cook’s acquittal on the most serious charges, but also expert evidence suggesting his behaviour was caused by a mental health condition, rather than a sexual interest in children.
2. Mr Justice Lane accepted that an IOT has the ability to raise issues of its own motion during the course of a hearing, but the issue in this case which went on to be determinative of their decision had not been envisaged by or prepared for in advance by those representing Dr Cook (nor should they have anticipated the need to do so).
3. The Tribunal had placed too much weight on the nature of the “charges” (there were none at the time) and their reasoning had not adequately addressed the context and circumstances.
4. The decision to continue an order of suspension notwithstanding the conclusion of criminal proceedings was inconsistent with the approach the IOT had adopted at the start when conditions had been imposed prior to Dr Cook being charged by the CPS.

Although not included in the judgment, during the course of the hearing the Learned Judge set out that it was not sufficient to simply state that the submissions made on behalf of the Doctor had been taken into account and that his interests had been weighed against those of the public without setting out which interests of the doctor had been considered and why they were outweighed by the public interest.

The key issues to be drawn from this judgment are that whilst reasons don’t have to be lengthy or detailed, they must nonetheless be sufficient to enable the Doctor to understand why a decision has been reached. Moreover, notwithstanding the fact that each IOT considers an order afresh, decisions must be consistent over the life of the proceedings and finally, any new issues raised during the course of the hearing must be clearly explained and both the GMC and the registrant must be afforded full opportunity to consider them, take instructions and advance submissions on them.

Finally, however egregious the underlying allegations may be, a Tribunal must approach its determination with the same level of fairness and consideration.

Vivienne Tanchel