Interim orders and public confidence: when only suspension can be justified
NH v GMC [2016] EWHC 2348 (Admin)
A recent decision of the High Court considered the test to be applied on an application under section 41A of the Medical Act 1983 by a trainee doctor for his interim suspension from registration to be terminated. This case stands as an illustrative counterpoint to the recent case of Christou v NMC [2016] EWHC 1947 (Admin) (which we covered here) in showing how serious allegations of criminal conduct must be before it is appropriate for a panel to impose a period of suspension in order to maintain public confidence in the profession.
The application was brought by a trainee doctor (NH) who was made subject to an interim suspension from registration following criminal charges of false imprisonment and assault being brought against him. The charges relate to allegations made by NH's younger sister against him and eight other members of his family. It is said that the "motivation behind the alleged conduct was the family's view that the relationship she was conducting with her boyfriend was inappropriate and was bringing dishonour upon her and the family." One aspect of NH's alleged conduct highlighted by the Court was that he provided his sister with the morning after pill, without prescription and told her to take it.
In its judgment the Court made clear that it was treating the matter as an application by NH and not an appeal. It said that it could only therefore terminate the order made by the Interim Orders Tribunal if it considered that the order was wrong, and in doing so would need to give appropriate weight to the decision of the tribunal.
There was no issue about NH's professional competence and no previous complaints have been made against him. The GMC also did not submit that NH poses any "real risk" to members of the public. The GMC's submission in support of the continued suspension was simply that that due to the charges brought against NH it is in the public interest to maintain confidence in the profession. The parties did not agree about the test the Court should apply when determining whether the interim suspension should remain but the Court did not consider it necessary to determine that issue. The GMC considered that it is sufficient to find that the suspension is "desirable" to maintain public confidence, whilst NH argued that it must be "necessary". The Court held that the question is simply "would an average member of the public be shocked or troubled to learn, if there is a conviction in this case, that the doctor had continued to practice whilst on bail awaiting trial?". The Court thought the answer in this case would be yes.
In making its decision the Court took into account the impact the suspension would have on his career given its comparatively early stage and the fact that it would be proportionate to the potential damage caused to public confidence.
This case therefore serves to show that Court was therefore content to uphold an suspension, in circumstances where there are no concerns in relation to NH's practice but simply due to the severity of the allegations made against him and the impact that NH having been able to continue to practice may have on public confidence in the profession in the event that he is convicted of the offences with which he has been charged.
As an aside, NH's interim suspension was due to be reviewed only a few weeks after the hearing. The Court considered that might have been the more appropriate forum for NH to raise his submissions.