High Court backs purposive interpretation of interim conditions: Kuzmin v General Medical Council [2023] EWHC 60 (Admin) 18th January 2023
If you think the name Kuzmin is familiar you would be right. Dr Kuzmin has been involved in GMC proceedings since 2018, represented throughout by the doughty Mary O’Rourke KC. Apart from lengthy MPTS proceedings, the case has involved a High Court challenge leading to the conclusion that a Tribunal can draw an adverse inference from the failure of a registrant to give evidence, another application for judicial review (permission refused) and now an appeal against the Tribunal’s determination.
Dr Kuzmin was a GP trainee. As long ago as 2016, the GMC investigated clinical concerns about him. In November 2016 an Interim Orders Tribunal imposed conditions on him including a fairly standard condition (Condition 8) which required him to inform the usual set of people he might work for about the existence of conditions 1 to 7, which included equally standard provisions for supervision.
Condition 8(f), which provided that one of the organisations the doctor had to inform was “any locum agency or out-of-hours service you are registered with”, became the centre of the appeal.
As part of his training, Dr Kuzmin had to do a number of out of hours (OOH) sessions. The sessions were organised by an entity called HDOCS, on behalf of the OOH service. Dr Kuzmin had to fill in forms and provide various information to HDOCS. When they were satisfied, they would provide him with a login, which would enable him to book suitably supervised OOH shifts. Importantly, while all the OOH shifts for trainees were supervised, they were not supervised in the way required by his conditions.
In 2016, before he was subject to conditions, Dr Kuzmin had provided all the required information and had done a few OOH shifts. He was stopped from doing shifts when it was realised that he had not passed his ST2 exams, and the work required him to be an ST3. According to evidence later heard at the Tribunal this was something that happened from time to time when people failed their ST2 exams and were given an extra few months to pass. Their login would be “deactivated” and then reactivated when they became an ST3.
Dr Kuzmin achieved ST3 status in April 2017, and in June 2017 he applied to have his login reactivated. He did not tell HDOCS that he was subject to conditions. The GMC investigated and charged Dr Kuzmin with a failure to inform HDOCS as required by Condition 8. He was further charged with dishonesty in relation to that failure. [It should be said that the allegations that led to the interim conditions in the first place had led to a finding of no misconduct at an earlier hearing.]
The MPTS found the breach charges, including dishonesty, proved and suspended Dr Kuzmin for six months. He appealed to the High Court on a number of grounds. One was that the GMC case was that his registration was suspended. There was no definition of what that meant in any of the papers, so the GMC had not discharged the burden of proving that he was still “registered”. Further it was argued on behalf of Dr Kuzmin that the Tribunal’s attempt to define “registered” was not legally sound, in particular insofar as it was said to be based on there being a “link” between Dr Kuzmin and HDOCS. The GMC denied that the definition of “registered” was a matter of law at all and defended the Tribunal’s interpretation.
The court sided decisively with the GMC. HHJ Wood KC took a firmly purposive approach to the conditions. He found [at para 62] that Condition 8 was intended to be “expansive or inclusive, rather than restrictive or exclusive”. The purpose of Condition 8 was to ensure that any of the bodies with whom Dr Kuzmin was likely to be in contact for purpose of doing medical work should be aware that his registration was restricted. He described Dr Kuzmin’s approach as “overly legalistic and unnecessary” and “dancing on the head of a pin”.
It is perhaps unsurprising that the court decided to take this approach. As HHJ Wood KC pointed out [para 62] interim conditions were a lesser restriction, and Dr Kuzmin could have been suspended on grounds of public safety. It was therefore appropriate for the Tribunal hearing the breach allegations to concentrate on the purpose which lay behind the requirement to notify. Practitioners defending doctors in breach proceedings will need to be aware that overly technical or legalistic defences are likely to receive short shrift in future.
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