Interim Order Extension Appeals
Dr K v GMC perfectly illustrates the value and importance of responding to an Interim Order extension application.
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 [2022] 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.
Is legal representation the answer?
It is widely accepted and proven that legal representation makes a real difference to the outcome of investigations and results in lesser sanctions for doctors.
What is also unquestionably clear is that GMC investigations and MPTS hearings are complex, daunting, prolonged and legalistic leaving doctors stressed and anxious. Where legal advice and representation can have the biggest impact on this, is helping doctors understand the process, what to expect and how to engage with the GMC during an investigation and hearing.
Research has shown that registrant’s engagement and legal representation can impact on decisions about seriousness, and that the lack of legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases, stating:
“Legal representation was seen as important by participants because legal advice could support and guide registrants through the FtP process, which is complex and legalistic. Legal advice was seen as important in aiding registrants to understand regulators’ expectations, especially in terms of the need for registrants to demonstrate insight and perhaps to show evidence of remediation activities. Lack of legal representation was, therefore, seen to potentially have an impact in terms of the seriousness of the outcome for registrants who are perhaps unaware of how to present their case to best effect.”
A compassionate approach to legal representation
The right legal advice and representation is not just about the legalities and technicalities of a case. Our barristers fully understand the stress and anxiety that doctors experience during prolonged GMC investigations.
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 never lose sight of the human aspects of FtP investigations and hearings. We will always give an open and honest assessment of cases, but we will marry that with an approach that also supports health and care professionals through the duration of a case.
“I was not optimistic about the case, I felt that it is a lost case that we couldn’t do much about and especially just before the start of the trial I lost my confidence and was very nervous. Mr McCaffrey was there to prove me wrong. He turned everything around in a victorious , panegyric manner. I was stunned.” – CL
Catherine is professional, empathic and very knowledgeable. She provided all the necessary assistance throughout the long thorough investigation. – AR
A colleague recommended me to Catherine. She was very experienced , professional, empathetic , non-judgemental and listened to me. – Mel
I found myself consumed with dark thoughts, isolated and afraid. Stephen worked with me and slowly but surely formulated a plan not to just to fight my case and win, but to build me back up bit by bit so as to prepare me to face external scrutiny and present with confidence to panels where this was necessary. – FJ
What you can Expect when Instructing Kings View
All clients are entitled to an initial, no obligation and free telephone consultation about their case. During this consultation, we will outline the stages and next steps, including indicative timeframes and fixed price quotations for preparation and representation and confirmed in writing at each and every stage.
We understand that timescales are entirely dependent on the stage you are at in proceedings, what work needs to be done and dictated by internal investigations or hearing dates. We always meet those timescales however should more time be needed, then we will apply for such on your behalf and with your permission.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.
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