Challenging Interim Orders – a risk-assessment, not a fact-assessment

Background

In August 2018, the General Medical Council (GMC) opened an investigation into Dr Ramaswamy’s fitness to practice. Dr Ramaswamy (the Claimant) had previously been the subject of allegations of bullying and harassment, leading to the GMC issuing her with a formal warning. The 2018 investigation was commenced due to concerns regarding the Claimant’s health. As part of the background to this, it was alleged that she “was delusional about the existence of [a] relationship with [another doctor]”.

An interim suspension order was subsequently imposed on the Claimant by an Interim Orders Tribunal of the MPTS (the Tribunal) on 1 October 2018, which was then replaced with an ICRO. The GMC proceeded to issue directions for a Health Assessment, which the Claimant was deemed to be non-compliant with. That, in turn, led to the imposition of a 9-month Suspension Order on 12 January 2021 (the SO).

In the intervening period, in April 2020, the GMC received a separate complaint from the mother of a deceased patient who had been in the Claimant’s care, leading to a separate investigation (the Conduct Complaint).

The Claimant subsequently issued proceedings in the High Court, challenging the decision to impose the SO, which was successful. The SO, and the decision to deem her non-compliant, were accordingly quashed.

As the SO had replaced the previous ICRO from 15 June 2021, there was no restriction on the Claimant’s practice.

Accordingly, the Claimant was again referred to the Tribunal and, on 14 September 2021, a further ICRO was imposed for the maximum period of 18 months. In doing so, the Tribunal relied upon both the health concerns and the Conduct Compliant as justification for the order. The ICRO included numerous conditions, such as notification requirements to the GMC and requiring the Claimant to inform any new employer of the conditions imposed upon her.

The Tribunal’s decision to impose the ICRO was challenged pursuant to these proceedings.

The Court's decision

The ICRO was subsequently reviewed and maintained by the Tribunal on 9 March 2022 and 25 August 2022. It was due to expire on 12 March 2023 and the Claimant’s claim to revoke the ICRO was heard before Mr Justice Fordham on 13 December 2022.

The Tribunal’s guidance in relation to the imposition of interim orders provides that an order will be imposed when it considers it necessary to do so for the protection of members of the public or where it is otherwise desirable in the public interest.

The applicable test is if the Tribunal is satisfied that:

• 1. In all the circumstances that there may be impairment of the doctor’s fitness to practise which poses a real risk to members of the public, or may adversely affect the public interest or the interests of the practitioner; and
• 2. After balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk.

The ICRO in this case was challenged by the Claimant on multiple grounds, including that the Tribunal had misdirected itself and misapplied the correct test. Further, it was maintained the ICRO was not necessary and the available evidence was not sufficient to justify the view that the Claimant presented a risk. The ICRO was said to be unjustified and disproportionate.

The Court rejected these arguments and dismissed the claim. The Tribunal’s decision to impose the ICRO was “correct” and “fully justified”. The Court held, in particular, that:

• The concerns regarding the Claimant’s health continued to be unresolved and the Tribunal was justified in concluding that there remained “very real concerns relating to very real risks”.
• There was no basis for concluding that the evidence concerning the Conduct Complaint was vague or unpersuasive such that the Tribunal should not have had regard to it. The Tribunal was not required to adopt a ‘fact finding’ role. It was not the function of the Tribunal to “try to arrive at definitive conclusions on contentious factual matters”.
• The Tribunal had not misdirected itself as to the correct test to apply and nor had it failed to conduct the necessary risk assessment or to grapple with the key points.

Key takeaways

The case is a reminder that Interim Order Panels/Tribunals are not in a position to arrive at definitive conclusions on factual matters.  Whilst, in this case, the Claimant had been critical of the Tribunal’s conclusions regarding the Conduct Complaint, she had produced no “hard evidence” to refute this aspect. Whilst the Tribunal was required to consider the sufficiency and quality of the evidence relied upon, it should not adopt a fact-finding function.

The Court will not interfere with such decisions unless there is evidence that will enable it to “clearly see that the case has little merit” (GMC v Hiew [2007] EWCA Civ 369) or that the claim is manifestly incredible, bound to be rejected or involves no prima facie case.