Sheela Jogula Ramaswamy v General Medical Council

This claim, pursuant to section 41A(10)(b) of the Medical Act 1983 (the “1983 Act”), asks the Court to revoke an “interim conditional registration” order (“ICRO”). The ICRO was imposed by an Interim Orders Tribunal (“Tribunal”), pursuant to section 41A(1)(b) of the 1983 Act, on 14 September 2021, after a two-day hearing. It was imposed for the statutory maximum period of 18 months (section 41A(1)(b)) to 12 March 2023. Since being imposed, the ICRO has subsequently been maintained by a Tribunal on statutorily-required reviews, pursuant to section 41A(2) of the 1983 Act, on 9 March 2022 and 25 August 2022. Provision regarding interim orders – including ICROs – is made in Part 7 (Rules 25-27) of the General Medical Council (Fitness to Practise) Rules 2004 (the “2004 Rules”). Certain alleged “non-compliance” aspects of the Claimant’s case were the subject of a three day hearing before Morris J in May 2021, culminating in a judgment (15.6.21): see Ramaswamy v GMC [2021] EWHC 1619 (Admin) (the “2021 Judgment”). The present claim for revocation first came before me for a substantive hearing on 29 March 2022 and I adjourned it at the Claimant’s request: see [2022] EWHC 732 (Admin). In the run up to the hearing, I declined the Defendant (“GMC”)’s application for a further adjournment to a date in early 2023. The Defendant submitted that such an adjournment was an appropriate course in circumstances where: (i) a substantive hearing on remitted issues of alleged “non-compliance” (2021 Judgment §155), had adjourned part-heard on 30 November 2022 to hearing dates on 9-11 and 25-27 January 2023; and (ii) the ICRO, being due to expire on 12 March 2023, was likely to require an application to this Court for an extension. The Defendant’s position was that it would make best sense for this claim for revocation of the ICRO to be considered, alongside those other matters and on an updated basis, early in 2023. That course was strongly opposed by the Claimant and I did not accede to it. I took the view that the Claimant was, in principle, entitled to have her claim for revocation heard on its merits, pursuant to her statutory entitlement of access to the Court. The substantive hearing before me was a “hybrid hearing”. That was because of travel difficulties caused by a National Rail Strike. I was in the courtroom. So was Mr Matovu, the Claimant’s barrister. The Claimant attended remotely. So did Mr Hare KC, the Defendant’s barrister. Arrangements were made to ensure that the Claimant could send mobile phone messages to Mr Matovu, to replicate the passing of notes had they been together in the courtroom. Members of the press or public could attend in person or, as published through the Cause List, remotely and open justice was secured.

There is relevant Guidance for the Tribunal on “Imposing Interim Orders”. The version of the Guidance relied on before me is dated 30 October 2018. Under a heading “Powers of the IOT” the Guidance provides as follows at §§6-7:

The Conditions of the ICRO imposed on the Claimant on 14 September 2021 are as follows:

In the cases which supply principled guidance as to the approach to be taken by this Court on a claim for revocation, what is now in this case the Tribunal is referred variously as the “Interim Orders Panel”, “IOP” or “Panel”; or the “Interim Orders Committee” or “IOC”. Both parties relied on passages from the judgment of Warby J in Martinez v General Dental Council [2015] EWHC 1223 (Admin), accepting the direct ‘read-across’ from dentists to doctors. Mr Matovu relied in particular on Martinez §20 (describing the need for a “risk assessment” paying “attention … to the nature of the allegations and the evidence … relied upon to support them”, including “the quality of the evidence and the possibility or prospect that it may not be sufficient to justify the view that there is a risk”, and with no applicable “threshold”). Mr Hare KC drew attention to the various points made earlier at Martinez §§16 to 19. I will set out all these passages here:

As to the background and context of this case I think it is helpful to start by identifying a number of strands, some of which overlap. First, in the 2021 Judgment at §§27-28, Morris J referred to a background relationship, contested concerns about mental health, and contested concerns about correspondence (here “the Appellant” is the Claimant):

In the 2021 Judgment at §§29-34, Morris J referred to “events between 2015 and August 2018”, involving allegations of bullying and harassment made by other employees (including the Doctor) at NHS Grampian. What Morris J records (2021 Judgment §30) is this: “On 2 July 2015, the Appellant self-referred to the GMC. In January 2016, the GMC confirmed that it would not be taking the matter further”. At that time, as Morris J explained (2021 Judgment §31):

On 28 August 2018 the GMC opened an investigation because of concerns arising out of correspondence which the Claimant had sent to the GMC in the context of its earlier investigation whose content and tone raised concerns about her health, on which basis the GMC would be undertaking a review of her fitness to practise: see 2021 Judgment at §35. That email correspondence was the subject of a First Expert Report of Professor Eilish Gilvarry on 16 April 2020 (2021 Judgment §§49-50) and a Second Report on 20 December 2021 (after the 2021 Judgment).

The next strand concerns Directions for Health Assessment (“DHAs”). Provision for DHAs is contained in rule 7(3) of, and Schedule 2 to, the 2004 Rules. Morris J referred to two DHAs: 2021 Judgment §35 (“the First Direction”) and §54 (“the Second Direction”). A first DHA notified on 28 August 2018 required the Claimant to undergo a health assessment: see 2021 Judgment §35. As Morris J explained (2021 Judgment at §35): the decision to make this DHA was said to be “‘based on information… which suggests your health may be affecting your fitness to practise due to’ certain identified mental disorders”; “medical examiners would be asked to report on [the Claimant’s] health and to give an opinion on her fitness to practise”; the “background” to the DHA being that “in July 2018 a medical case examiner had reviewed the emails which had been received and decided that the tone and content raised some concerns and so an investigation was opened inviting her to undergo a health assessment”. Morris J recorded (2021 Judgment §51) that on 12 May 2020 the GMC Assistant Registrar “made” a further direction for a health assessment and (2021 Judgment §54) on 29 July 2020 the GMC “sent” the Second Direction. A related strand concerns the Claimant’s alleged “non-compliance” with the DHAs. This was at the forefront of the 2021 Judgment. What had happened was this (see 2021 Judgment §2): in October 2020 the Defendant had referred “non-compliance” with the 29 July 2020 DHA to the Non-Compliance Tribunal which, on 12 January 2021 made a Non-Compliance Determination and then a Sanction Determination imposing an immediate 9-month Suspension Order (“SO”).

The SO was a “final” Order which had the effect of replacing (and revoking) the ICRO which had been in effect up to 12 January 2021. What had happened regarding “interim” orders was this. A first interim order had been imposed on 1 October 2018 (2021 Judgment §36). That was an “Interim Suspension Order” (“ISO”), pursuant to section 41A(1)(a) of the 1983 Act, suspending the Claimant’s registration and thus preventing her from practising as a doctor. The ISO was replaced on 10 September 2019 with an ICRO (2021 Judgment §43) which was subsequently maintained on review on 13 December 2019, varied on 11 February 2020 and maintained on review on 3 June 2020. In July 2020 the Claimant filed an appeal against the ICRO (2021 Judgment §52). The ICRO, as an interim order, now fell away given the imposition in January 2021 of the 9-month final SO. It was for that reason that Robin Knowles J (on 16 February 2021) dismissed the appeal against the ICRO (2021 Judgment §64). In doing so, he gave detailed directions recording detailed recitals with a view to facilitating an agreed health assessment. Correspondence ensued between the parties on the topic of the nomination of a psychiatrist for the purposes of any health assessment.

The Non-Compliance Determination and Determination on Sanction (imposing the SO) were challenged by appeal by the Claimant to this Court. In the 2021 Judgment Morris J found that the failure to adjourn the “non-compliance hearing” in January 2021 had been procedurally unfair. He quashed the Non-Compliance Determination and the SO. Since the previous ICRO had been revoked and replaced by the SO, the consequence of the 2021 Judgment was that no interim order – and no restriction on the Claimant’s registration – was in place from 15 June 2021. In those circumstances a decision was made on 24 June 2021 (communicated on 30 June 2021) to refer to the Tribunal the question of whether to impose an interim order. Then, on 14 September 2021, the Tribunal imposed the ICRO which the Claimant seeks to have revoked by this Court.

The final strand is this. A complaint was made on 13 April 2020 by the mother (known as “Mrs RC”) of a daughter (known as “AC”) who died on 18 March 2018 having previously been in the Claimant’s care in 2017. That complaint was the subject of a Report in November 2020 of a GP expert Dr Peter Davies. This did not feature in the 2021 Judgment. As it was described in the decision of 24 June 2021:

The claim for revocation of the ICRO arises out of the Determination of the Tribunal (14.9.21) imposing it. That Determination was preceded by “legal advice” from the Chair (see §42 below). The Determination occupies 12 pages and 45 paragraphs. There is an Introduction (§§1-12), a description of the Submissions made by Counsel for the Defendant (Ms Duckworth) (§§13-19) and by Counsel for the Claimant (Mr Matovu) (§§20-29), followed by the Tribunal’s Assessment (§§30-45) which contains a paragraph (§42) setting out the Conditions. Throughout the Determination the Claimant is “Dr Ramaswamy”. The Tribunal’s Introduction (§§1-12) contains the following:

It is not necessary for me to set out here – though I will need to return later to certain aspects of – the Tribunal’s lengthy description of the Submissions made by Ms Duckworth (§§13-19) and Mr Matovu (§§20-29). I will however set out in full the Tribunal’s Assessment (§§30-45), excluding paragraph (§42) which contains the Conditions already set out (see §3 above):

In this section of the Judgment I will seek to encapsulate the essence, as I saw it, of the arguments which were advanced by Mr Matovu on behalf of the Claimant, in support of her claim for revocation of the ICRO.

The “test” which had to be “applied” by the Tribunal is identified in the Guidance at §23 (see §2 above). The starting point (Guidance §23(a)) was that the Tribunal needed to be “satisfied” that “in all the circumstances” there may be “impairment of the Claimant’s fitness to practise” which “poses a real risk to members of the public, or may adversely affect the public interest or the [Claimant’s] interests”. It is true that the Tribunal accurately recorded this in the opening paragraph of the Introduction (§1). But the Tribunal lost sight of the test when it came to its Assessment. Instead, at §38, the Tribunal said “the nature of the health and conduct concerns are such that Dr Ramaswamy may pose a real risk to patient safety if no interim order were in place”. That omitted the “impairment of … fitness to practise”. Again, at §40, the Tribunal spoke only of “concerns regarding Dr Ramaswamy’s fitness to practise which pose a real risk to members of the public and which may adversely affect the public interest”, which omitted the “impairment” element. The Tribunal failed to adhere to the rigours of the applicable test in other ways too. It was required to address the “seriousness of risk to members of the public if the [Claimant] continue[d] to hold unrestricted registration”, by an evaluation “assessing this risk” considering “the seriousness of the allegations, the weight of the information, including information about the likelihood of a further incident or incidents” (Guidance §24(a)); and whether public confidence in the medical profession was “likely” to be “seriously damaged” (Guidance §24(b)). So far as “misconduct” is concerned, it is only “serious” misconduct which would be relevant to a finding of “impairment”: see eg. Schodlok v GMC [2015] EWCA Civ 769 at §25. But the Tribunal’s “concerns” and “real risk” (at §§38 and 40) involved no assessment of “seriousness”. The Tribunal misdirected itself as to, and misapplied, the relevant test. It did not ask the right questions.

As explained in Martinez §20 (see §4 above), the Tribunal’s function – and now this Court’s “function” – is one of “risk assessment” which “necessarily requires that attention is paid to the nature of the allegations and the evidence which is relied upon to support them”, with a “need to pay attention to the quality of the evidence and the possibility or prospect that it may not be sufficient to justify the view that there is a risk”, and with no “threshold … other than the need to protect the public, the public interest and, where applicable, the interests of the registrant”. The Tribunal did not apply that approach. But in any event, this Court must do so. What this requires is a ‘qualitative assessment’ of risk and of seriousness. This is further supported by Guidance §52(a) and (b) (§2 above), which require that reasons “must include”, with “specific reference” to “distinct features and particular facts”, a “risk to patients … clearly identified” and “the risk to public confidence in the profession if the doctor continued working without restriction on their registration and the allegations are later proved”. The Determination (§§38, 40) speaks of “concerns” with no ‘qualitative assessment’ of risk or of seriousness.

The Tribunal, earlier in its Determination, set out in detail the submissions which had been made on behalf of the Defendant (§§13-19) and on behalf of the Claimant (§§20-29). But it did not then, in its Assessment, engage with those arguments or grapple with them in its reasoning. The central reasoning (§§36-41) does not do justice to the submissions, engage with the main points, or grapple with the evidence.

As the Tribunal recognised (at §§30 and 38) there were two central matters with which it was concerned. The first were “concerns … relating to … health, namely that Dr Ramaswamy may have an unmanaged health condition” (§30): the “health … concerns” (§38). The second were “concerns … relating to alleged misconduct …, namely that Dr Ramaswamy … was rude and unpleasant to patient AC and family, and that she cancelled the TOE scan” (§30): the “conduct concerns” (§38). The Tribunal was rightly not concerned with the distinct strand relating to alleged “non-compliance” with DHAs. That was a disputed matter in respect of which the High Court had recognised a defence having “some prospect of success” (2021 Judgment §154) based on the argument that the health assessment “was not necessary to investigate the fitness to practise concern” (2021 Judgment §141). That position is fortified by the fact that Professor Gilvarry’s First Opinion (16.4.20) (2021 Judgment §§49-51, 140, 150) did not identify a health assessment as being “necessary”; nor has the subsequent Opinion of Professor Gilvarry (20.12.21) identified such a necessity. The Tribunal was not entitled, in the circumstances of the present case, to rely on any suggested “non-compliance” with any DHA. For the same reason, the Tribunal introduced a legally irrelevant matter at the end of §36 of its Determination when it said: “Dr Ramaswamy appears to be unwilling to appropriately engage with her regulator to resolve the matter”.

Regarding the “health concerns”, it was wholly insufficient that the Claimant “may have an unmanaged health condition” (§§30, 37). This could only be a relevant health concern if the Tribunal were identifying a possible unmanaged health condition constituting an “impairment” of fitness to practise which could affect the Claimant’s ability to practise safely as a doctor. It would then need, on that basis, to identify and quantify a “serious” risk to the relevant public. The Tribunal, again, failed to ask the legally correct question. It failed to identify the prospect or possibility of a health condition of that nature. There was, moreover, no evidence before the Tribunal, and there is no evidence before this Court, that there is such a health condition or indeed any unmanaged health condition. The two Opinions of Professor Gilvarry, read in the light of the other evidence, are relevant. Neither of those reports, read fairly, identifies that the Claimant may have any unmanaged health condition, still less one which may affect her ability to practise safely as a doctor.

The First Gilvarry Opinion (16.4.20) had described the email correspondence which “may form part of a psychotic illness” and which “suggests there could possibly be a delusional type disorder present”. But Professor Gilvarry’s First Opinion went on to explain that:

The Tribunal went wrong when it described (at §36 of the Determination) “a number of clinicians with relevant medical qualifications [who] have assessed Dr Ramaswamy as potentially having an underlying medical condition”. That characterisation of the evidence was never raised at the hearing before the Tribunal. It is insupportable. The advice of the Medical Case Examiners, as recorded in the decisions directing DHAs on 1 August 2018 (Determination §3) and 12 May 2020, do not fairly fall within the Tribunal’s description of “assessment” of the Claimant by “clinicians with relevant medical qualifications”. Reading this and the other evidence fairly and as a whole, and asking the correct question, there is no evidential basis for concluding that the Claimant may have an unmanaged health condition, still less such a condition which may affect her ability to practise safely. The quality of the evidence relied on did and does not support a finding of risk, still less serious risk, to patients. The evidence was and is not sufficient to justify the view that there is a risk. The correspondence is from 2018 and 2019. Leaving aside the periods when there was the ISO (1.10.18 to 10.9.19) and the SO (12.1.21 to 15.6.21), the Claimant has continued to work. There is no evidence of any concern in a clinical environment; any fitness to practise concern. The Defendant’s own pleaded Defence to this claim for revocation recognises that the email correspondence levelling accusations at the Defendant and its staff is “not entirely unusual”, where medical practitioners “have faced or are facing regulatory interaction … and are litigants in person” and “those elements of the Claimant’s correspondence” would not “give rise to a concern about the Claimant’s health taken alone”.

Turning to the conduct concerns, there are a number of serious problems. The first is that these were complaints raised by Mrs RC on 13 April 2020 which are vague. There is an allegation that the Claimant “cancelled the TOE scan” (Determination §30). But that is an allegation which is refuted by the contemporaneous documentary evidence. The Tribunal had, and this Court has, evidence from AC’s medical records. A letter dated 13 November 2017 from the Lead Consultant Interventional Cardiologist (Dr R Moore) to the Consultant Interventional Cardiologist (Dr J Barclay) states that the TOE scan did not proceed because the patient “failed to attend”. The 2020 Report of the expert Dr Davies refers to this evidence. Dr Davies also goes on to refer to an alleged exchange, in which the Claimant is said by Mrs RC to have told her that the Claimant had decided that the TOE scan was not needed, as “perhaps unlikely”. Be all that as it may, the point raised before the Tribunal was as to whether the Claimant was even working in post and on shift at the time that the TOE scan was cancelled. The Tribunal (Determination §24) summarised Mr Matovu’s submission that the Claimant “was not employed at the Copeland Unit at the material time”. The Claimant had stated this at the hearing. On that basis, the Claimant could not have cancelled the TOE scan, which fatally undermines Mrs RC’s claim about this, and about everything else. In any event, turning to the allegation that the Claimant had been “rude and unpleasant to patient AC and family” (§30), this is addressed by Dr Davies who reported that there was no evidence of rudeness or unpleasantness in the medical notes, and that the only evidence of rudeness or unpleasantness had come from the Mrs RC. Dr Davies analysed the contemporaneous documents including a note of a meeting with the family on 28 December 2017. Dr Davies described the records as constituting “no great evidence that the doctor was unpleasant or did anything to cause the patient stress and anxiety” and said that the notes “didn’t show anything other than expected standard of care”. The allegation of being rude and unpleasant is totally out of tune with the contemporaneous records. Those records, as Dr Davies observed, “could be a reasonable defence to the allegations” absent “corroboration from other sources”. There is no corroboration from any other source. The expert report of Dr Davies, read fairly and as a whole, supports the conclusion that the allegation of rude and unpleasant conduct is unlikely. The Tribunal’s point about the Notes of the consultation (28.12.17) (Determination at §37) was a new point, not raised with Counsel at the hearing, was untenable and irrelevant; which is why Dr Davies expressed no concern about it.

This needs to be put alongside the other evidence. That includes the recognition, in the referral by Case Examiners (on 24 June 2021) of these conduct matters to the Tribunal, for consideration of an interim order, that although a new investigation was being opened: “In itself the allegations under investigation would be unlikely to meet the threshold for a referral to IOT”. There is also the fact that Mrs RC’s complaint made in April 2020 relates to alleged events in 2017. Five years have now passed. As described above, the Claimant has continued to work. There is a positive body of feedback from employers, colleagues and patients. There is nothing in the evidence over the course of that time which indicates any similar such conduct. Reading the evidence fairly and as a whole, and asking the correct question, there is no evidential basis for concluding that there are evidenced conduct concerns, still less such a condition which may constitute an impairment or involve a risk to members of the public. The quality of the evidence relied on did and does not support a finding of risk, still less serious risk, to patients. The evidence was and is not sufficient to justify the view that there is a risk.

In all the circumstances, the ICRO was and is not necessary. That includes after balancing the Claimant’s interests and the interests of the public (Guidance §23(b)). There is no impairment posing a serious risk to members of the public. There is no impairment adversely affecting the public interest. There is no likely serious damage to public confidence in the medical profession from unrestricted registration pending substantive investigation and resolution. Nor, weighing up all the relevant factors, is the ICRO a proportionate response (Guidance §25). The Tribunal’s reasons for the maximum duration of 18 months (§§39, 43) are in any event inadequate. All of this arises in a case where there is a significant impact on the Claimant. As the Tribunal rightly recorded, the ICRO “has restricted Dr Ramaswamy’s ability to practise medicine” (Determination §41). There has been a substantial passage of time and a striking lack of progress on the part of the Defendant. Like Houshian v GMC [2012] EWHC 3458 (QB), this is a case where the interim order should be revoked; the Court should conclude that the Tribunal has imposed an interim order “without expressly identifying” the “risk posed by the [doctor] remaining in unrestricted practice pending the resolution of the allegations” and, “perhaps more importantly the degree of that risk” (see §34); where the Determination does not really explain why an interim order was required (§37); and where all relevant public interest considerations can fairly be reflected by a substantive tribunal determination to decide the facts, and any issue of impairment, and any issue regarding final sanction (§39).

Whether or not the Court finds any error of approach on the part of the Tribunal – and there are many – this Court, exercising its “original” jurisdiction ought to reach a different view and conclude that the ICRO is unjustified and disproportionate. This Court has the fully up-to-date position. That includes the strong, positive evidence from patients, employers and colleagues. It includes, for example, Professor Gilvarry’s Second Report.

That then, as I saw it, was the essence of the arguments advanced by Mr Matovu in his written and oral submissions.

I am unable to accept these arguments. In my judgment, the Determination of the Tribunal, and the outcome at which it arrived, was fully justified. In my judgment, the Tribunal did not go “wrong” in its approach, in its reasoning, or in its conclusions. On the contrary – and taking my “original” jurisdiction at its most exacting in the Claimant’s favour – the outcome was, in my judgment, correct and I agree with it. I will explain why, by reference to the key submissions made by Mr Hare KC on behalf of the Defendant, I have reached these conclusions.

I can start with the question of “compliance” with DHAs and the absence of a health assessment. I accept, in the Claimant’s favour, that it was and is appropriate to put to one side concerns about whether, by her action of not submitting to a health assessment as directed in the DHAs, there was a regulatory “compliance” default. Mr Hare KC accepted, for the purposes of this claim in these proceedings, that the issue of “non-compliance” – currently pending in the adjourned hearing before a Non-Compliance Tribunal after the 2021 Judgment and the quashing of the Non-Compliance Determination – ought to be put to one side. He submitted that the “fact” that there has been no health assessment must, however, remain relevant to the “health concerns”. Mr Matovu, rightly, accepted that this is so. To test how there can be no “compliance” issue, but nevertheless a relevant “fact” of the absence of a health assessment, suppose this situation. Suppose there were no power (as is to be found in Rule 7(3) of the 2004 Rules) to “require by direction” that a doctor undergo a health assessment. Suppose, however, that the Defendant has “suggested” a health assessment – as a “good idea” – to assist its investigation of whether there was a health-based “impairment”. If the doctor declined the invitation, there may be no “compliance” question. But there may be an important “fact” concerning the absence of an up-to-date health assessment. This, in substance, is how the Tribunal approached the issue. The Tribunal identified as “the nature of the concerns in this case” (Determination §30) the alleged health concerns and the alleged misconduct concerns (Determination §§30, 38). The “concerns … relating to alleged misconduct” were the April 2020 complaints by Mrs RC that the Claimant “was rude and unpleasant to patient AC and family, and that she cancelled the TOE scan” (§30). As Mr Matovu emphasised, the Tribunal did not include “non-compliance” concerns. The Tribunal specifically recorded (§32) that the Claimant “robustly denies any allegations of non-compliance with the regulator”. However, in relation to the alleged “health concerns”, the Tribunal said it had “borne in mind Dr Ramaswamy’s unwillingness to undergo a GMC health assessment and noted that it does not have the benefit of up to date information on her current state of mental health” (§32). That was a relevant “fact”. I can find no error in that approach.

This was relevant to the “concerns relating to health and an unmanaged health condition”, to which I can turn next. Mr Matovu, rightly, accepts that these health concerns constituted a key topic for the Tribunal to consider. I have been able to consider the evidence with the assistance of Mr Matovu and that of Mr Hare KC. The starting point is the series of email communications which were the subject of the notification letter of 28 August 2018, sent because of “serious concerns” arising from “tone and content” of the communications (see 2021 Judgment §3). Mr Hare KC showed me items from that correspondence. One communication to the Defendant says:

Against that backcloth, I turn to the decision of 1 August 2018 to issue the first DHA. This was based – as the Tribunal recorded (Determination §3) – on this advice:

The next question is whether, for the purposes of assessing “risk” and considering interim orders, this assessment – of the Claimant “potentially” having an “underlying medical condition” – can be treated as having subsided, in light of the evidence of what has been observed by others. As has been seen, as at February 2020 and April 2020 Professor Gilvarry was saying:

Against that backcloth, I turn to the Second Report of Professor Gilvarry (20.12.21). This post-dated the 2021 Judgment and Morris J’s observations. For the Second Report, Professor Gilvarry was specifically provided with “patient feedback, multisource feedback and staff nurse feedback”. She was also provided with her First Report. If, having been provided with this “feedback” evidence, Professor Gilvarry considered that what was “not noticed by people” now served to eliminate the possibility of the delusional type disorder being present, that is what Professor Gilvarry would have said in the Second Report. But that is not what she says. Professor Gilvarry expressly considers the “feedback” evidence. She enters a caveat in describing the general positivity of that “feedback” picture, referring to “some developmental issues”, reflected in the recognition that the Claimant at times makes “derogatory comments”. Professor Gilvarry then concludes that the materials did not, by themselves, “support a diagnosis” and that she is not therefore able to offer one. Asked whether “the documents and case history raise concerns regarding the [Claimant’s] mental health”, Professor Gilvarry responds: “Yes, I would be concerned about some aspects of the documentation”. Asked whether, if there are such concerns, this could impact on the doctor’s fitness to practise medicine, Professor Gilvarry responds: “At times [the Claimant’s] behaviour appears to be obsessive and with elements of stalking, eg. continued emails, long repetitive statements and inappropriate language…” Referring again to the feedback, and the caveat, Professor Gilvarry says:

The Tribunal summarised Mr Matovu’s submission about Professor Gilvarry’s advice (Determination §21): that this “advice was of little assistance, it not being supported by any information from sources outside of the GMC”. In assessing risk, from the perspective of interim orders, the Tribunal clearly did not agree with that submission. Nor do I. Reading the evidence fairly and as a whole, Professor Gilvarry has maintained the previously expressed position: that, based on the communications, the Claimant is still assessed as potentially having an underlying medical condition which could impact on her fitness to practise medicine. The “feedback” picture does not, of itself, allay the concerns which arise. The reference to an underlying medical condition “which could impact on her fitness to practise medicine” is important. It links to “impairment”. It links to risk and harm. As the Tribunal later put it (§37), the concern – which I share – is:

At this point in the analysis, it is appropriate to identify potential ‘crossovers’ in the materials, viewed as a whole. A first potential crossover is to be found in Professor Gilvarry’s caveat when describing the “feedback” evidence, where she referred to “developmental issues” and noted “derogatory comments”. A second potential crossover is between Professor Gilvarry’s expert evidence and the matters which constitute the “conduct concerns”. For her Second Report, Professor Gilvarry was provided with Mrs RC’s “complaint” and Mrs RC’s “statement to the Coroner’s court”. Asked whether, if there were concerns regarding the Claimant’s mental health, this “could … impact on [the Claimant’s] fitness to practise medicine”, Professor Gilvarry referred to the note of Mrs RC’s complaint as one noting “concerns”. There is then this passage in the December 2021 Report, where Professor Gilvarry is asked:

Against this evidence, there is the factual point to which I have already referred: there is no post-2015 health assessment. I agree with the Tribunal (Determination §32). The Tribunal did not “have the benefit of up to date information on [the Claimant’s] current state of mental health”. Nor do I. The absence of an up to date health assessment is a clear impediment, when assessing risk and considering interim orders. Remembering that the Claimant “robustly denied any allegations of non-compliance” (§32), this was nevertheless an “unwillingness to undergo a GMC health assessment (§32), which means the issue remains “unresolved” (§36) in circumstances where the Claimant “appears to be unwilling to appropriately engage with her regulator” in order “to resolve the matter (§36). Viewed as a fact – that the Claimant has been unwilling to undergo the assessment which would provide the up to date information – that description of the position is also, in my judgment, entirely justified.

In my judgment, based on this body of evidence, there was clear and cogent justification for the Tribunal’s conclusions at Determination §36: that, bearing in mind the tone and content of the Claimant’s emails to the regulator and its staff spanning over three years and most recently in August 2021 there is a concern that this may be indicative of pattern of behaviour which may be related to a health concern. In the light of this evidence, in assessing risk and considering the necessity and proportionality of interim orders, there are very real concerns relating to very real risks. It is difficult to assess them – and to “quantify” them – precisely because of the “fact” that there is not the up-to-date medical assessment which would clearly assist. But as Mr Hare KC convincingly submits, the Tribunal, and this Court, when recognising risk and uncertainty in the context of public protection, are not obliged to wait until risk crystallises into harm, if it does, or until an assessment which clarifies the position is finally undertaken, if it is.

In the light of the matters to which I have referred, I turn to focus on the “conduct concerns”. That was the approach taken by the Tribunal at §37, in light of what it had said at §36. The Tribunal had already recorded key submissions made by Counsel. Ms Duckworth’s position for the Defendant was (Determination §§13, 14):

The first key point made by the Tribunal in its assessment of the conduct concerns (§37) was this:

Turning to the “conduct concerns” themselves, the starting point is that Mr Matovu’s criticism of Mrs RC’s “complaint” as being “vague” is unpersuasive. The complaint referred to, and was accompanied by, the witness statement provided to the Coroner. That statement descended into considerable detail. So far as the cancellation of the TOE scan is concerned, the Tribunal was right to refer to this. The Tribunal, rightly, recorded that Mr Matovu was submitting that this Allegation was refuted by the fact that the Claimant was not working on the relevant unit at the relevant time. But the Tribunal was not required to adopt a fact-finding function and conclude that the Claimant had had no involvement in respect of the cancelled TOE scan. It would have been open to the Claimant, before the Tribunal or indeed in the claim before this Court, to produce the ‘hard evidence’ which is said to refute this part of the complaint. I was shown no document of that kind. In the circumstances, I decline to find as a fact that there can be nothing in this part of the complaint. Putting all of that to one side, there is the conduct concern relating to alleged rude behaviour to AC and the family (Determination §§30 and 33). I accept that there has been a substantial passage of time and that the Defendant does not have evidence which corroborates the allegations made. What it does have is the expert Report of Dr Davies (November 2020). That Report describes the alleged comments as being “perhaps unlikely”, describes the absence of support in the medical records, and identifies the records as documents which would “clearly” form an “important” part of the Claimant’s defence to the Allegations. But Dr Davies does not and cannot say that the alleged statements made by the Claimant to AC and the family were not made. One feature which is conspicuous in his Report is that he is addressing the threshold of “seriousness” of misconduct, which Mr Matovu has emphasised. Dr Davies repeatedly poses the question of whether the Claimant’s alleged actions would – if they happened – be “seriously” below the expected standard. On numerous occasions, by reference to what is alleged to have happened, Dr Davies says that if those events did happen then this would have been action “seriously below the standards expected”. This Court is not making findings of primary fact, nor applying any particular evidential threshold, and the materials do not enable me to “clearly see that the case has little merit” (GMC v Hiew [2007] EWCA Civ 369 [2007] 1 WLR 2007 at §31) or that the claim is manifestly incredible or bound to be rejected or involves no prima facie case (Martinez at §18). It is true that an important feature of the evidence is the contemporaneous documents, but on the other hand it may be unlikely that a clinician’s contemporaneous documents would record the sort of interactions which are described in the Witness Statement to the Coroner, featuring in Mrs RC’s complaint.

With all of this in mind, I arrive at the Tribunal’s Determination §§38-41 and 43. As has been seen, the Tribunal concluded: that the nature of the health and conduct concerns are such that the Claimant may pose a real risk to patient safety if no interim order were in place; that, were the allegations later proved, public confidence in the profession could be seriously undermined if the Claimant were permitted to practise medicine unrestricted whilst concerns regarding her health and conduct are unresolved; that, in all the circumstances, the statutory test for the imposition of an order is met in this case; that it was necessary to impose an interim order on the Claimant’s registration; that there are concerns regarding the Claimant’s fitness to practise which pose a real risk to members of the public and which may adversely affect the public interest; that, after balancing the Claimant’s interests and the interests of the public, an interim order is necessary to guard against such a risk; that although the ICRO restricts the Claimant’s ability to practise medicine, it is the proportionate response, with conditions formulated to meet the risks, a procedure in place to address issues of non-compliance; that the ICRO is sufficient as a proportionate, workable, enforceable and measurable means of addressing the risks presented, opening a channel of communication between an employer and regulator which will safeguard the public and the wider public interest while investigations continue and will permit the Claimant to remain in clinical practice; for a period of 18 months given the stage of the new investigation into Mr RC’s complaint. In my judgment, these conclusions were fully justified. I agree with them.

I do not agree with Mr Matovu that the Tribunal misdirected itself as to the test which it had to apply, that it lost sight of the test, that it ignored relevant adjectives in the Guidance, that it failed to conduct the necessary qualitative assessment of risk of seriousness, that it overlooked the evidence, or that it failed to grapple with the key points. More to the point, having carefully considered the materials on which reliance is placed on the submission that are made about those materials, I have concluded in my “original” jurisdiction that there is nothing “wrong” or unjustified in the Tribunal’s conclusion or the outcome. So far as the “legal test” is concerned, the Tribunal had opened the Determination (§1) by describing the test in precisely the terms of which Mr Matovu approves. The Tribunal had said:

What is more, prior to the Determination, and contained within the transcript at the hearing is the two-page description of the “legal advice” which the legally qualified Chair (Margaret Obi) gave openly at the hearing and on which the parties’ Counsel were able to comment (I have inserted the paragraph numbers):

When the Tribunal spoke about “concerns relating to alleged misconduct and health” it was doing so in the context of the statutory test and the Guidance, which it clearly had in mind. I too have addressed the concerns, the evidence and the arguments made before me in light of that legal framework, together with the authoritative guidance relating to this Court’s function and jurisdiction. It was undoubtedly challenging to seek to specify the harm and quantify the risk, where the concern is that there is a “potential unmanaged health condition” which has “the potential to cause harm to patients”, where the Tribunal (and now the Court) lacks “the benefit of up to date information on [the doctor’s] current state of mental health”; where an expert has identified a potential “psychotic illness” and a possible “delusional type disorder”, and where the expert has identified “concerns regarding the doctor’s mental health” which “could impact on their fitness to practise medicine”, because of “behaviour” which “appears to be obsessive” and because of the nature of Mrs RC’s complaint. The Tribunal expressed itself as follows: that the Claimant “may pose a real risk to patient safety” if no interim order were in place. It also considered that if the allegations were later proved, public confidence in the profession could be seriously undermined if the Claimant had been permitted to practise medicine unrestricted while concerns regarding her health and conduct were unresolved. The “legal advice” spoke of a “comprehensive risk assessment”. It said: “the test is necessity”. The Determination concluded (§39) that it was “necessary to impose an interim order”; and the ICRO was “necessary to guard against” the “real risk to members of the public” (§40). The Tribunal was plainly well aware, as am I, of the question whether the “concerns” were linked to a relevant risk of relevant “harm”. It plainly had in mind, as have I, the question of whether the underlying or unmanaged health condition was one which could affect the Claimant’s ability to practise safely.

It is right to remember that this is not an ISO. Nor, as Mr Hare KC pointed out, is it a highly intrusive species of ICRO involving close “supervision” conditions. It was a measured set of, less intrusive, conditions giving an appropriate – but necessary – degree of safeguarding for the public and the public interest. As has been seen, the Tribunal explained (§41) the conditions including the restriction on the length of locum work and non-NHS practice, which stood as a sufficient and proportionate, workable, enforceable and measurable means of addressing the risks presented; and that it would open a channel of communication between employer and regulator, safeguarding the public and the wider public interest what investigations continued, while permitting the claimant to remain in clinical practice. As has also been seen, the legal advice recorded that “separate reasons” were required for imposing an order for a particular period; and the decision on length must be “informed by the current stage of the investigation, the complexity of the case and the extent of the further enquiries the [Defendant] would have to make in the interim”. The Tribunal (at §41) made clear that it had considered the question of length and, in my judgment, gave adequate reasons why 18 months (§39) was chosen, based on what the Tribunal had been told about the current stage of the new investigation which moreover was understandably linked to the prospect that the health assessment may take place (§43). The Tribunal recorded the fact that an ICRO would restrict – and the previous ICRO had restricted – the Claimant’s ability to practise medicine (Determination §41). It had earlier recorded Mr Matovu’s submission “that an interim order of conditions would make it ‘difficult’ for Dr Ramaswamy to obtain work” (§29). The Tribunal recorded (§41), correctly, that the ICRO would “permit Dr Ramaswamy to remain in clinical practice”. The Tribunal had well in mind, as have I, the impact on the Claimant.

Throughout my analysis in this case I have borne in mind the principled guidance in the authorities (§4 above), and that the Tribunal has a specialist front-line role. This case exemplifies the general truth, identified in the Guidance and in the authorities, that it is not the function of the Tribunal or this Court – in dealing with “interim” orders – to try to arrive at definitive conclusions on contentious factual matters. As the Tribunal recognised, the question of interim orders raises questions of risk-assessment, questions about the sufficiency of the quality of the evidence, questions of necessity and of proportionality. This claim is, as I have explained, a sustained challenge to the ICRO invoking a statutory entitlement to access this Court for that purpose. In my judgment, the outcome at which the Tribunal arrived was wholly justified. Indeed, I agree with it. In all the circumstances, and for all these reasons, the claim will be dismissed.

Having circulated this judgment as a confidential draft I am able to deal here with consequential matters. The Defendant, having succeeded, seeks an order for its costs of this hearing (£10,063.80, after the deduction of costs referable to the failed application for a postponement) and the costs (£3,462.00) of the skeleton argument (which I reserved) prepared for the March 2022 hearing. The Claimant submits that the additional £10k is unreasonable in circumstances where the Defendant was already prepared in March 2022. I do not agree. This was a sustained challenge on multiple grounds with voluminous materials in a complex factual setting. The work undertaken was necessary, appropriate and foreseeable. I will, however, apply a broad-brush reduction – as an exercise of discretion and judgment – to reflect the fact that I am not ordering costs on an indemnity basis. I order that the Claimant pay the Defendant’s costs of this hearing summarily assessed in the sum of £8,000 and the costs of the preparation of the skeleton argument for the hearing on 29 March 2022 summarily assessed in the sum of £2,750.

Mr Matovu seeks permission to appeal on three grounds – the first of which has 8 sub-grounds – framed by reference to what is said to have been wrong in the approach of the Tribunal, and which as I see it is effectively a root and branch re-run of the arguments advanced before me. I cannot see, in those grounds or otherwise, that there is a viable appeal to the Court of Appeal with a realistic prospect of success. I refuse permission to appeal.