Inner House recalls conditions order made against doctor acquitted of rape

About this case:

• Citation:
  [2022] CSIH 44
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Tyre

The General Medical Council had brought a petition in June 2022 seeking to extend the order against the reclaimer, K, while it concluded its own investigation into the circumstances of his suspension. The reclaimer was required by the conditions to inform the GMC of the details of any post he accepted as well as ensure that relevant parties in his workplace were informed of his conditions.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Turnbull and Lord Tyre. P Reid and D Blair, advocates, appeared for the reclaimer and M Lindsay KC for the respondent.

Confidence in the profession

On 29 November 2019, the reclaimer reported to the GMC that he had been arrested and charged with the crime of rape under section 1 of the Sexual Offences (Scotland) Act 2009. The GMC’s Interim Orders Tribunal determined it was necessary in the public interest to impose an interim suspension order on his registration for a period of 18 months. The ISO was reviewed and maintained through 2020 and 2021.

As a result of the disruption to criminal proceedings during the Covid-19 pandemic, further extension was required to allow for the outcome of the prosecution to be determined before the GMC could embark on its own fitness to practice investigation. An extension to 19 June 2022 was therefore granted. In October 2021, a jury found the case against the reclaimer not proven and he was acquitted.

The order against the reclaimer was varied at the next review following the acquittal to the imposition of conditions to his registration. By 19 June 2022 the GMC had not yet completed its investigation into the reclaimer and accordingly sought a fresh extension to 19 June 2023. The Lord Ordinary granted the GMC’s petition, however reduced the extension to a period of six months to 26 January 2023.

It was argued for the reclaimer that the Lord Ordinary had failed to engage with the question of whether the statutory threshold for an extension had been met. The GMC had failed to demonstrate that public confidence in the medical profession would be likely to be seriously damaged if he was not subject to a conditional registration order. A reasonable person would be concerned that a doctor could not return to work following an acquittal, especially where it had never been said he posed a risk to his patients.

Impossible to return

Lord Tyre, delivering the opinion of the court, said of the Lord Ordinary’s decision: “Read in context, the ‘basis’ on which the Lord Ordinary was satisfied that the relevant tests were met can only have been the adequacy of the IOT’s decision making. Neither the affidavit of [GMC in-house lawyer] Ms McCourt nor the decision of the IOT imposing the order for interim conditional registration contains any analysis of why such imposition satisfies the relevant tests. It follows that the Lord Ordinary erred in law and that it falls to this court to act as the decision maker on the application for an extension.”

Addressing the likelihood of reputation damage to the medical profession, he said: “The reasonable and properly informed member of the public would be aware that the allegation against the appellant has no connection to clinical practice and that the GMC has not sought to identify any clinical risk to the appellant’s patients. He or she would be aware that the charge against the appellant has been the subject of a criminal trial and that the appellant has been acquitted by the verdict of a jury.”

He continued: “He or she would be aware that the appellant is subject to an obligation to inform the GMC of details of his employment without the imposition of a condition to that effect, and it is not suggested that there is any history of non-compliance by the appellant with his obligations to the GMC. We note that he reported the charge against himself to the GMC.”

Lord Tyre concluded on this point: “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.”

On the proportionality test, he added: “The allegation under investigation is one of serious sexual misconduct outside the clinical context, and it has not been demonstrated that reporting and disclosure conditions related entirely to the appellant’s clinical employment would address the concerns raised by that allegation in any way. In the absence of a clinical connection, there is no demonstrable risk to patients to be assessed in the context of an interim order. For these reasons the proportionality test is not met.”

The court therefore allowed the reclaiming motion and recalled the interlocutor of the Lord Ordinary.