MXM v General Medical Council [2022] EWHC 817 (Admin): High Court overturns interim suspension order imposed on GP accused of sexual misconduct
The High Court terminated an 18 month interim suspension order imposed by the Interim Orders Tribunal (‘the IOT’) in a case involving allegations of sexual misconduct by a GP.
Dr MXM was a partner at a GP’s practice. He had been practicing for more than 15 years and had never been the subject of any fitness to practise complaints or findings. He had an extra-marital affair with a woman who he had met outside of his work but who was also a patient at the practice and who worked in a “quasi-colleague” capacity at a pharmacy adjoining the practice.
It was alleged that Dr MXM had engaged in sexual activity at the practice, conducted an appointment with her at the surgery, treated her husband for depression and posted sexual videos online.
The court granted Dr MXM anonymity due to the “genuine and well-founded” concerns for the welfare of his four children and the fact that the matter was still under investigation.
In upholding the Applicant’s appeal, the court rejected the Respondent’s invitation to defer to the “particular expertise” of the Tribunal. It noted that “where allegations of sexual misconduct are raised” the court is “well placed” to assess what is needed to protect the public or maintain the reputation of the profession and is “less dependent upon the expertise of the IOT than would be the case if the allegations concerned questions of clinical knowledge, skill or competence”.
The decision also provides useful guidance on the need for clear reasons. The judgment acknowledges GMC guidance that “discourages the giving of long detailed reasons” but drew an important distinction between lengthy decisions and sufficiently targeted reasoning.
Whilst the court accepted that “inadequate or opaque” reasoning by a Tribunal could not, of itself, provide a ground for terminating an interim order, it found that it would “[diminish] the weight” to be attached to the Tribunal’s professional opinion.
Here, the scant reasoning of the Panel suggested that the principle of proportionality had not been applied properly either when considering the appropriate sanction or the proper length of any order. In relation to the question of which order to impose (if any), the court found that the lack of reasoning in relation to the imposition of an interim suspension was “particularly striking” in circumstances where the GMC had only sought interim conditions.
In relation to the appropriate length of any order, the court found that the Tribunal did not appear to have considered the issue of proportionality afresh at this stage as it should have. The court also noted that the decision to impose a suspension rather than conditions had a “profound effect on the proportionality of the timescale proposed”.
These remarks are an important reminder that the length of an interim order should not be determined unthinkingly with undue deference to how long an investigation might take or vague references to “COVID delays”. The impact on the registrant is a key consideration when determining this issue. The court here remarked a “greater urgency” in an investigation is “clearly required” if a registrant is to be prohibited on an interim basis from practising their profession.
The judgment emphasised the need to take a nuanced approach when analysing the “nature” of a sexual misconduct allegation. By way of example, here the court found that it was “highly material” that the relationship predated any professional connection. It agreed that continuing to treat both the patient and her husband during the affair and engaging in sexual activity in a clinical setting called into question Dr MXM’s “judgement in a clinical context” but ultimately found that, for a variety of reasons, the relevant risk was to public confidence rather than to patient safety.
The court had no power to substitute an order of conditions. It noted, however, it was open to the GMC to apply for a new interim order in those terms.
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