K v General Medical Council  CSIH 44: pointless conditions are not in the public interest
Dr K was arrested for rape in November 2019. He self-referred to the GMC and in due course was suspended by an Interim Order Tribunal (“IOT”) on a public interest basis alone. This was extended by the Court of Session for six months. Dr K was then acquitted and the IOT substituted his suspension order for one of conditions. The conditions amounted to nothing more than notification requirements.
Following further delay, the GMC then had to apply for a further extension, which was granted by the Outer House of the Court of Session. Having summarised the background for an extension, the Lord Ordinary simply commented:
“It is against that background and in that context that I consider the decision making of the IOT requires to be viewed and assessed. On that basis I am satisfied that the relevant statutory tests have been met and that the conditions imposed are both justified and proportionate”
Dr K appealed this decision to the Inner House.
The court enumerated the familiar principles underpinning interim order extensions. The criteria to extend an interim order are the same as for the making of the original interim order – the protection of the public, the public interest or the practitioner’s own interests. The court can take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm, the reasons why an extension is needed, and the prejudice to the practitioner. The court is not a fact finding body – “Rather, it is the function of the court to ascertain whether the allegations made against the practitioner justify the extension of the suspension, rather than their truth or falsity”. The court is entitled to have regard to the opinion of the GMC and the IOT. However, “the court is not bound to follow or defer to these opinions, but should give it such weight as in the circumstances of the case it thinks fit.”
Looking at the Lord Ordinary’s decision, the court commented that he had simply failed to apply his mind to the proper test. His judgment did “not contain any independent assessment of whether the statutory tests are met in relation to an extension of the interim order.” Nor indeed did the decision of IOT contain any analysis for the imposition of conditions.
The court endorsed the well-known observations in Sheikh that there was a high bar for imposing an interim order in the public interest – whether suspension or conditions. It then observed,
“The reasonable and properly informed member of the public would be aware that the allegation against the appellant has no connection to clinical practice and that the GMC has not sought to identify any clinical risk to the appellant’s patients. He or she would be aware that the charge against the appellant has been the subject of a criminal trial and that the appellant has been acquitted by the verdict of a jury. He or she would be aware that the appellant is subject to an obligation to inform the GMC of details of his employment without the imposition of a condition to that effect, and it is not suggested that there is any history of non-compliance by the appellant with his obligations to the GMC. We note that he reported the charge against himself to the GMC.”
The public would not, in short, require such conditions to be put in place. The conditions were pointless and cosmetic. As the court went on to add:
“we find it difficult, in the absence of any connection between the allegation under investigation and the appellant’s clinical practice, to see a rational connection between the conditions imposed and the reason for imposition of conditions, namely the public interest. The allegation under investigation is one of serious sexual misconduct outside the clinical context, and it has not been demonstrated that reporting and disclosure conditions related entirely to the appellant’s clinical employment would address the concerns raised by that allegation in any way. In the absence of a clinical connection, there is no demonstrable risk to patients to be assessed in the context of an interim order. For these reasons the proportionality test is not met.”
This is a welcome shot across the bows for all those tribunals considering sexual allegations against a doctor and who feel the need to impose some kind of interim order just to be seen to be doing something. It is usual for conditions to be imposed which often have little or nothing to do with the misconduct alleged. Conditions have to have some logical connection to the misconduct alleged. It is also refreshing to see the court take account of the fact a doctor has been acquitted in considering the need for an interim order. Whilst not determinative, it must be a significant factor in the minds of an informed observer, different standard of proof or not.