Extending interim orders, not a rubber-stamping approach

In IB v General Medical Council [2022] CSIH 38 the Inner House (Scotland’s appeal court) considered the General Medical Council’s application for a doctor’s interim order of suspension to be extended beyond 18 months. The court gave helpful criteria for granting extension applications – at the same time as heavily criticising the approach taken at first instance.

The doctor represented himself. He is subject to a fitness to practise investigation for charges of terrorist activities. An interim suspension was placed on his registration on 26 October 2020. The doctor sought to challenge the extension. 

At first instance the judge was satisfied that the order should be extended. The Inner House came to the same conclusion but was highly critical of the approach adopted. The court held that the correct approach was to apply the principles drawn from General Medical Council v Hiew [2007] 1 WLR 2007. These principles were not applied at first instance and instead the judge focused on whether the interim orders tribunal made the correct inquiries and were entitled to make the interim order in the first place. The court is to examine the matter as the primary decision maker applying the statutory test for an extension and considering the issue of proportionality.

The Lord Justice Clerk, Lady Dorrian (Scotland’s second most senior judge) then went on to apply the principles in Hiew to this case and concluded that:

• In considering the gravity of the allegations, it was apparent that the charges were extremely serious. It would be impossible for the court properly or adequately to examine the evidence upon which the charges were based. It is the court’s task to ascertain whether the allegations justify the extension of the suspension, rather than their truth or falsity.
   
• While the opinion of the GMC and the IOT as to the need for an interim order should be taken into account, this will have little bearing on the issue when the question is one going to the general public interest.  The matter will be different in cases where a risk to patients has been identified. In a case based upon the general public interest in maintaining confidence in the medical profession, and the existence of serious criminal charges against the practitioner, the question comes down to one of the proportionality of the extension sought, as well as the interests of the practitioner and the reasons the case has not been concluded.
   
• While suspension will have an adverse effect on the doctor’s ability to work, this was not a case in which the risk may be ameliorated by any conditions: the risk is not to patient safety but to the integrity and reputation of the medical profession.
   
• In addressing whether public confidence in the profession would be seriously damaged without an extension order, the court asked itself whether a reasonable and properly informed member of the public would be surprised and offended to learn that the doctor had been permitted to practise whilst under investigation and the subject of criminal proceedings in respect of serious charges of this kind. Having regard to the nature of the offences the only answer to that question was yes.
   
• The extension of the interim order of suspension was proportionate to the nature of the offence and the risk to the public confidence in the profession.

While the Inner House got to the same conclusions as the judge at first instance, it reminded the lower court of the principles that must be applied in considering extensions to interim orders and the court’s role as a reviewer of the primary decision. Particularly in cases where the interim order is imposed on the grounds of public interest, the court must assess the matter afresh. Their role is not to rubber stamp the previous decision of the IOT.