IOP Appeal: D v. General Medical Council [2015] EWHC 847 (Admin)

Dr D, a general practitioner, appealed an MPTS decision to impose an interim order of suspension on his registration.

Dr D, a general practitioner, appealed an MPTS decision to impose an interim order of suspension on his registration.

The facts

Dr D is being prosecuted for an offence of blackmail and is awaiting trial.  He was involved in an 11 year extra-marital affair with a wealthy woman, a relationship which was terminated by her when she became engaged to another man. Dr D made certain threats that unless the relationship was recommenced, he would show photographs of her in sexual poses to the police and her fiancé, photographs taken whilst they were together. The woman concerned refused and Dr D said that he would not leave her alone unless she paid him substantial financial payments. A £70,000 lump sum was paid, with additional £1,000 a month instalments promised thereafter over a period of two years. Further threats ensued and eventually the woman reported Dr D to the police, following which he repaid the money. The police pursued a prosecution for blackmail in August 2014 and Dr D is due to stand trial in June 2015. At an IOP hearing in October 2014 the MPTS panel imposed an interim order of suspension on ‘public interest’ grounds alone on the basis that whilst there is no patient safety risk, his conduct, if proven, had the potential to seriously damage/undermine public confidence in the profession.

The appeal

The alleged blackmail related to Dr D’s personal, rather than professional life, and it was on this basis that he brought the appeal: that the matter in question was unconnected with his clinical practice; there were no patient safety concerns and the issues arose in the unique circumstances of the collapse of the long-standing relationship. Reference was also made to previous cases involving allegations of criminal conduct and conviction which had not led to interim suspension. The appellant also sought to rely on his Article 8 rights protecting against interference with his private life.

Conclusion

The court considered the relevant case law on the imposition of an interim suspension on public interest grounds alone. Whilst noting there is no requirement of “necessity”, such action must be shown “to be, at the very least desirable… and there is some implication of necessity”. It also noted that as to desirability in the public interest, cases turned on their own facts and there are no fact-specific principles of general application (Dr E. Y v GMC [2013] EWHC 860 (Admin). The panel had to decide whether “serious damage” to public confidence would arise if the public were to know that a doctor who faced such allegations had been allowed to practise unrestricted whilst investigations were ongoing. The court, having considered the legal test and a considerable volume of available material relating to the details of the case concluded that the doctor’s alleged actions seriously called into question his judgment and integrity whilst also raising questions of intimidatory, threatening and vindictive behaviour, to such an extent that the public would be “surprised and dismayed” to learn that he was still permitted to practise pending trial, whether or not he was eventually convicted or acquitted. It was held that this was one of those rare cases where there was a real likelihood of serious damage to public confidence in the profession if he was allowed to continue to work. His alleged conduct fell far outside the spectrum of acceptable behaviour expected of the profession. His appeal was therefore dismissed.

Comment

This is not an unsurprising decision, in light of previous case law and the facts. Criminal or dishonest conduct not directly connected to professional practice is well-recognised as being of potential concern to a regulator. The decision also highlights the significant limits of a submission on behalf of a practitioner, that, when considering the public interest, the public would prioritise the principle of innocent until proven guilty. The whole interim orders jurisdiction is after all based on the assumption that the doctor may be innocent, but that the seriousness of the allegations requires action. The potential for acquittal is a valid consideration, but equally so is the potential for conviction (as per R (Sosanya) v GMC [2010] Med. LR 62). The panel needs to consider the seriousness of the allegations, including the nature of the alleged actions involved, and, in the court’s view in this case “must make a judgment on an interim basis, on the evidence available to it at that time, even though it may later turn out that the allegations are not proved”. It is assumed that the judge here was referring to the established need for the panel to consider the weight of the available evidence (when determining whether public confidence would be seriously damaged by no interim action) rather than determining the case itself; that said, his judgment does later contain more detailed observations on the evidence presented such as to leave the worrying impression that, on occasion, such distinction might become blurred.

The appeal judges also considered that Article 8 of the European Convention on Human Rights, the right to private life, was also likely to be engaged in this case, although they decided that this would need careful consideration and, in the absence of authorities and submissions, this was not the case in which to consider it. The judges no doubt had in mind that it is well understood that Article 8 ECHR is engaged by proceedings which impact on a professional’s practice; see for example R v ((Wright) v Secretary of State for Health [2009] 1 AC 739. Furthermore, the threshold for engaging Article 8 in terms of the consequences for the individual is “not a specially high one”; R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. It might be therefore that Article 8 could have been argued more fully in this case, and could be argued more frequently in other MPTS cases. However, it is important to remember that the right to private life under Article 8 is a qualified right, not an absolute one. Issues of patient safety could certainly therefore give rise to a lawful, proportionate interference with that right, although it is less certain when the rather more nebulous concept of public confidence would do so.  

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