25 March 2022

Under the Medical Act 1983, a practitioner under investigation by the General Medical Council (GMC) may have an interim order of conditions or suspension placed on their registration whilst allegations made against them are investigated by the GMC. Whilst interim orders can only be imposed on a practitioner’s registration for a maximum period of 18 months, many practitioners will not realise that the GMC can apply for permission from the court to extend the order up to a further period of 12 months.

Earlier this month the Court of Session issued their determination following the recent Petition of the General Medical Council for extension of an interim order for MM [2022] CSOH 25, which provides guidance around the evidence to be led for an application to extend an interim order. 

Background

In April 2019, the Interim Orders Tribunal imposed on the respondent’s (practitioner’s) registration the maximum length permitted for an interim order of conditions i.e. 18 months. This was based on the time required by the petitioner (the GMC) to complete their investigation and potentially refer the respondent to a Medical Practitioners Tribunal, if considered necessary.

In 2020, the petitioner sought an extension to the order from the Court for a further 12 months (the maximum period allowed) which was granted in September 2020. The GMC then sought a second extension, again for the maximum period permissible. 

The petitioner submitted, amongst other things, that the extension was justified on the basis that:

• There may be impairment of the respondent’s fitness to practise which may adversely affect the public interest;
• balancing the respondent’s interests and the interests of the public, an interim conditions order remained necessary; and
• the interim conditions order was a proportionate response because making no order would fail to maintain public confidence in the profession and the current conditions were a measurable, workable and an enforceable means of addressing the risks identified.

On the other hand, the respondent submitted that:

• The petitioner had not produced the required evidence and failed to set forth clear and cogent reasons justifying the imposition of conditions upon the respondent for a further 12 months;
• the petitioner had applied the wrong test when considering the issue of extension of restrictions on practice;
• in relation to proportionality, the petitioner had not carried out a balancing exercise between the likelihood of damage to public confidence and the impact on or prejudice to the practitioner, as they had suggested; and
• there was the absence of any cogent evidence explaining and justifying the petitioner’s own time estimate of three and a half years to conclude the investigation and complete any hearing following thereafter.

Findings

The Court refused the petitioner’s application for an extension on the basis that they had applied the wrong legal test. The test when considering the issue of the need for restrictions on a medical practitioner’s licence to practice is not related to the public interest (as the petitioner suggested in their pleadings) but rather, as the petitioner’s own guidance stated, ‘Whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period’. The Court noted that the true test to be applied has a higher threshold than that which the petitioner sought to rely on and accepted the respondent’s argument that the petitioner’s application must fail as a result of this.

Additionally, whilst not a live issue for the Court to consider due to the petitioner, ‘proceeding on an erroneous understanding of their own guidelines’, they found no clear and cogent reasons for the petitioner’s decision to request a further extension (having not related any of the factual material arising out of the respondent’s case to the test, albeit the petitioner had advanced the wrong test), including no attempt to evaluate whether the extension sought in respect of the interim order was proportionate.

For completeness, the Court also considered the respondent’s submissions in relation to delay in advancing the petitioner’s case and confirmed it would have rejected this aspect of the respondent’s case. The Court made clear the period of three and a half years had to be placed in the context of the restrictions caused by COVID-19 which they accepted would have, to some extent, stalled the petitioner’s enquiries.

Conclusion

The outcome of this case highlighted several important points regarding applications for extensions to interim orders:

• The regulator must have clear and cogent evidence to advance in support of their application for an extension;
• the factual circumstances of each case must be considered and applied to the relevant legal test;
• there must be clear attempts to evaluate the proportionality of any extension; and
• it is likely that, at least for now, the court will accept COVID-19 as a legitimate reason for potential delays. This point could be significant as applications for extensions to interim orders may increase given the backlog faced by regulators over the past couple of years as a result of COVID-19 restrictions.

Advice

Amongst other things, an interim order can impact a practitioner’s reputation, finances and professional progression. This case serves as a reminder that practitioners facing interim orders, applications for extensions of the same or any other aspect of the fitness to practise process, should take independent legal advice as soon as possible.

As lawyers specialising in Professional Discipline, we can advise on the appropriateness or otherwise of a regulator’s position in specific circumstances and identify any potential errors that may have been made, as in the case here.

Sophie Lennox, Solicitor: sle@bto.co.uk / 0131 222 2939