General Medical Council v Chopra [2017] EWHC 819 (Admin)
Another MPTS Tribunal failed to pay proper regard to proportionality
The MPTS had earlier imposed interim conditions on Dr Chopra. Shortly before this order was due to be considered by the High Court for an extension, the GMC sought for an early review and asked the Tribunal to impose an interim suspension order. Additional concerns had come to its attention, including allegations of the doctor attempting to amend patient records. Some of these allegations post-dated the imposition of the interim conditions. The GMC’s application succeeded. In coming to its decision the Tribunal provided only cursory reasons. It commented:
“in light of the number of concerns raised which are still under investigation, public confidence in the profession may be seriously undermined if no order were made today”
It went on:
“While a higher level of supervision may address the performance concerns, no conditions could be formulated to address the wider probity issues. The Tribunal therefore determined that an order of suspension is now the proportionate and sufficient response to manage the risks identified.”
Before the High Court, Andrews J did not merely address the propriety of the extension but the justification for the suspension order itself. In doing so she noted that the decision to suspend was not based on the question of public protection. The Tribunal accepted this risk could be met through conditions. The issue came down to the Tribunal’s concern over the Registrant’s probity alone.
In considering the appropriate course of action the Tribunal failed to balance the various competing factors which it had summarised earlier in its determination – not least, the hardship this order would cause the Registrant, and the impact it would have on his patients. This failure was entirely contrary to guidance set out in Harry v General Medical Council [2012] EWHC 2762 (QB) and the careful balancing exercise it endorsed. Moreover, the Tribunal’s assessment of risk was also inadequate. It did not explain why more regular audits, for example, would not act as a serious disincentive to the kind of behaviour that concerned it.
The High Court has no power to substitute interim suspension for conditions. In the circumstances, given Dr Chopra was not in the country and not in a position to resume practice, the High Court refused to extend the order and allowed it to lapse. It was understood a fresh Tribunal would then reconsider the issue of an interim order afresh.
Comment
The criticisms made are familiar. Tribunal determinations frequently regurgitate the submissions of the contending parties without adequately explaining why the Tribunal arrived at the decision it did.
Not only did Harry make this point. In Hussain v GMC [2012] EWHC 2991 (Admin) the court savaged the poor reasoning of that panel:
“To be of value, therefore, the reasons given must adequately meet the substance of the arguments advanced both by the GMC and, critically, the practitioner concerned. Merely summarising the facts relied on, or the submissions made by or on behalf of the respective parties before the IOP, before reciting general formulae or a statutorily-prescribed conclusion described in at least one case where this had occurred as “ritual incantation”, does not assist greatly in arriving at a conclusion on an application of the sort I am now considering.”
In Houshian v GMC [2012] EWHC 3458 (QB) the High Court ruthlessly exposed the lack of proper reasoning by the panel in suspending a practitioner on the basis of public interest alone. In relation to proportionality it laid down an important reminder:
“The importance of the principle of proportionality in determining whether an interim order should be made pending the resolution of as yet unproven allegations faced by the practitioner, cannot be overstated. A suspension has potentially three very important consequences for a practitioner. First there is the impact upon the person’s right to earn a living… Secondly, there is the obvious detriment to him in terms of his reputation. Thirdly it deprives the practitioner of showing that during the relevant period he has conducted himself well and competently”
The same failings were echoed In GMC v Scholten [2013] EWHC 173 (Admin). The panel determined the risk of repetition required suspension but it failed to articulate the nature and degree of that risk. It rejected proposed conditions as unworkable without explaining why. It considered such an order proportionate without regard to the impact on the doctor and family.
The failings in this instance strike a similar cord.
Christopher Geering
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