Responding to an Interim Order Extension Application
In our recent article, “Responding to an Interim Order Extension Application”, we discussed the rights of health and care professionals to respond to, and challenge, applications by healthcare regulators to extend Interim Orders where fitness to practise investigations have not concluded in a reasonable period of time.
Dr K v GMC
The case of Dr K v GMC  CSIH 44 perfectly illustrates the value and importance of responding to an Interim Order extension application.
The background to the case relates to a Dr K who was arrested and charged with the crime of rape under section 1 of the Sexual Offences (Scotland) Act 2009 and consequently reported to the GMC that referred the matter to its Interim Orders Tribunal (“IOT”).
The IOT determined that it was necessary in the public interest to impose an Interim Suspension Order on Dr K’s registration for a period of 18 months. The interim order was reviewed and maintained by the IOT on various dates in 2020 and 2021. As a result of delays in criminal procedure caused by the Covid-19 pandemic, it was necessary for the GMC to apply for an extension of the Interim Order for a further period of 12 months in order to allow for the outcome of the prosecution, before the GMC could embark upon its own fitness to practise investigation. An extension to 19 June 2022 was granted.
On 25 October 2021, following trial, a jury found the case against Dr K not proven and he was acquitted. At the next review by the GMC’s IOT on 19 November 2021, the Interim Order was varied from suspension to the imposition of conditions.
By 19 June 2022 the GMC had not completed and it made an application to seek a 12-month extension of the conditions order to 19 June 2023 to allow its investigations to conclude which was granted but restricted to a period of six months to 26 January 2023.
Dr K, on the advice of his responsible officer, he had applied to join the Retainer Scheme with NES (NHS Education for Scotland) to allow him to resume general practice. It was not normally possible to do so if conditions were attached to registration, but NHS Greater Glasgow & Clyde had granted him an exemption.
However, because his PVG (protection of vulnerable groups) certificate indicated that he remained under investigation by the GMC, he was excluded from the Retainer Scheme. His opportunity to work had been severely restricted, which continued to have a significant financial impact on him and on the members of his family who relied on him for financial support.
Court overturn Interim Condition Extension
The Court of Session upheld the appeal against the extension of Dr K’s Interim Conditions Oder for the six months.
It commented that:
In the circumstances of this case, the question is whether a reasonable and properly informed member of the public would be concerned if the appellant was allowed to resume his career without an order imposing conditions which inter alia require him to report details of changes of employment to the GMC, and to disclose the existence of interim conditions to any new employer. We consider it more likely that such a member of the public would be concerned that a doctor who has been acquitted after trial of the charge against him, and against whom no allegation relating to clinical practice has been made, would be the subject of interim conditions which could render it difficult or even impossible for him to return to practice pending the outcome of the GMC’s investigation.
The Court considered it relevant that Dr K had been acquitted by a jury and that the alleged incident happened outside clinical practice.
Proportionality & Public Interest Tests
When considering whether to grant an Interim Order Extension, the “threshold test” requires the decision makers to establish, where there might be impairment of the doctor’s fitness to practise and this might adversely affect public interest, and, taking in to consideration, on balance, the interests of the doctor and public perception, an interim order is necessary.
The proportionality test require the decision makers to consider whether an interim order is proportionate based on the individual circumstances of each case.
In the case of Dr K v GMC, the GMC failed on both fronts. The Court held the reporting requirement exists notwithstanding the Conditions Order. It further ruled that the Conditions Order is disproportionate since the alleged sexual misconduct happened outside clinical practice and therefore the GMC’s focus on Dr K’s clinical practice was misplaced.
Kings View Barristers
With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence. We fully understand that fitness to practise defence is not merely about processes and procedures. We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.
We are proud to be rated ‘excellent’ by our clients. Our commitment to client care is genuine in both seeking the very best outcomes for our clients, but also ensuring we do what we can to support them through the process.