Houshian v General Medical Council

On the 2 November 2012 I heard this application brought under section 41A (10) of the Medical Act 1983 seeking the termination of an interim suspension order imposed upon the Applicant by the Respondent’s Interim Orders Panel (‘IOP’) on the 28 August 2012 by which the Applicant’s registration was suspended for 18 months. The order was made pending the determination of a number of substantive allegations against the Applicant going to an alleged impairment of his fitness to practise which are listed to be heard by a Fitness to Practice Panel (‘FTP’) in January 2013, the hearing being listed for 20 days.

It was common ground before me that under section 41A (10) this court is exercising an original jurisdiction and is not confined to exercising a judicial review. It will show respect for and give appropriate weight to the decision of the Panel, given it is an expert body well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and confidence, but this court will nonetheless interfere with that decision if it is satisfied that the order was wrong. On this see GMC v Hiew [2007] 1 WLR 2007 at paragraph 27 per Arden LJ, and the observations of Davis J in Sheikh v GDC [2007] EWHC 2972 and those of Nicol J in Sandler v GMC [2010] EWHC 1029 (Admin).

At the end of the hearing I announced my decision to terminate the Applicant’s suspension. I now give my reasons.

The Applicant is a Consultant Orthopaedic Surgeon who has practised in that capacity in the United Kingdom since 2004. Between 2004 and 2008 he was employed by the Lewisham NHS Trust (‘Lewisham’) in that capacity at the University Hospital Lewisham until he was dismissed from that post for gross misconduct. The grounds for his dismissal did not relate to his clinical competence but rather to his treatment of colleagues. As was explained in the letter to the GMC from Lewisham dated the 4 July 2011 ‘the Trust was of the view that his treatment towards his fellow employees particularly junior members of staff was inappropriate and amounted to bullying and harassment. Having investigated the matter, the Trust dismissed Mr Houshian.’ The applicant’s appeal against the dismissal was unsuccessful but he was thereafter soon re-employed as a Consultant in another Trust. From December 2008 until June 2010 he was Locum Orthopaedic and Trauma Surgeon at the Queen’s Hospital Romford. Since May 2010 he has become an Honorary Consultant at Broomfield Hospital Chelmsford (‘Broomfield’), and a Consultant Orthopaedic and Trauma Surgeon at Braintree Community Hospital (‘Braintree’) since April 2011. Before the IOP there was supportive testimonial and appraisal evidence from those connected with his employment since 2008 the effect of which was that there was no evidence to suggest that the Applicant had conducted himself other than entirely appropriately in these posts. No concerns were raised as to his clinical competence. I should add however that the court was informed of information from Braintree of 13 September 2012 that an Initial Review Mechanism is being conducted in response to concerns arising since the making of the interim order regarding the standard of clinical work applicable in the case of 5 of the Applicant’s patients.

The allegations which the Applicant faces before the FTP include a number relating to his time at Lewisham concerning his treatment of colleagues and the provision of inaccurate information to patients. However central to the decision of the Panel in making the Interim Order is an allegation of dishonesty in the forging of documents (and the submission of them as authentic) for the purposes of Employment Tribunal proceedings - alleging unfair dismissal, race and religious discrimination, unauthorised deduction of wages - which the Applicant brought against his former employers Lewisham, as evidenced by the findings of an Employment Tribunal in a judgment running to some 80 pages, dated the 17 of February 2011 by which it dismissed the entirety of those claims, and in a judgment of the same tribunal dated the 18 July 2011 in which an order for costs was made against the Applicant on the basis that the claims had been unreasonably brought. The hearings leading to that judgment had taken place on an intermittent basis over an 11 month period between December 2009 and November 2010.

The documents concerned were some seven letters which according to the Tribunal judgment the Applicant had alleged he had sent in 2007–8 to his hospital colleagues of some seniority in position, and an eighth letter which according to the Tribunal judgment the Applicant had alleged he had received in 2007 from such a colleague, for example the Clinical Director of Orthopaedics and the Medical Director and Head of Clinical Governance. The Tribunal findings are in particularly trenchant terms. For example at paragraph 54, the Applicant is described as ‘not a witness of truth’, at paragraph 57: ‘the Tribunal considers that aspects of the claimant’s evidence indicate improper motives on his part and a deliberate attempt to mislead the Tribunal’. At paragraph 63: ‘The Tribunal finds on a balance of probabilities that none of these documents were ever sent’. At paragraph 66: ‘the Tribunal considers that there is cogent evidence suggesting that these letters were concocted by the Claimant for the sole and improper purpose of misleading the Tribunal. The Tribunal finds that these letters were not sent on the dates contained within them and were provided to the Respondent for the first time only in the exchange of documents as part of the Employment Tribunal litigation.’ In the judgment on costs the Tribunal says at paragraph 24: ‘... the Tribunal has found that the claimant was not a witness of truth, and indeed the tribunal made a number of specific findings that the claimant deliberately fabricated evidence on a considerable scale, and made fanciful and unsubstantiated allegations against a wide range of his former colleagues’; and at paragraph 25: ‘He must plainly have been aware that he had fabricated evidence’.

The Applicant I hasten to add denies these allegations of dishonesty and fabrication, albeit he did not appeal the Tribunal’s dismissal of his claim. Moreover the Panel made clear in their Determination that they appreciated that it was not their function to make findings of fact, nor decide on the veracity of the allegations, but rather ‘to exercise its judgment on whether any of the statutory grounds for restricting your practice are made out’.

The chronology of the history whereby this matter came before the IOP in August 2012 only a matter of months prior to the date fixed for the substantive hearing of the FTP in January 2013 is of some importance in this case. It appears that the Employment Tribunal judgment, dated 17 February 2011, had been first drawn to the attention of the GMC by Lewisham by letter dated the 4 July 2011. That letter stated in its material parts:

No steps however were taken to bring the matter before an IOP until some 12 months later when the Case Examiner, on the 27 July 2012, wrote to the Applicant. The letter informed the Applicant that the Case Examiner appointed by the Registrar had ‘considered information … received from Lewisham Healthcare NHS trust that suggests your fitness to practise may be impaired’ and that pursuant to Rule 8(6) of the GMC (FTP) Rules 2004 he should be invited to appear before the Interim Orders Panel of the GMC. The letter continued:

What had been happening prior to this referral is that on the 26 July 2011 the GMC had written to the Applicant’s employers by whom he had been engaged since leaving Lewisham, enquiring as to whether there were any concerns as to his conduct or practice. None were reported (other than a reference by Barking and Havering to a few concerns about temperament). These letters of reply dated respectively 29 July 2011, 05 August 2011, and 9 August 2011, from respectively Braintree, Barking and Havering, and Broomfield, were all in the bundle before the IOP sitting some 12 months later. Then on the 29 March 2012 what is known as a Rule 7 letter was sent to the Applicant notifying him of the allegations to which on the 11 May 2012 a Rule 7 response was sent to the GMC from solicitors on the Applicant’s behalf, denying the dishonest fabrication and explaining the circumstances of the other allegations. On the 28 June 2012, a month before the referral to the IOP, the Applicant was sent what is known as a Rule 8 letter referring the allegations for determination by a Fitness to Practise Panel.

The interim order was made under section 41A (1) of the 1983 Act under which the panel may make such an order where it is satisfied that ‘it is necessary to make an order for the protection of the public or is otherwise in the public interest’, or in the interests of the registrant.

As will be seen this case concerns an order imposed solely on the grounds of the public interest. Although of course the statutory grounds are no more and no less than those set out in the statutory provision, I do not disagree with the approach of Davis J in Sheikh v GDC [2007] EWHC 2972 when at paragraph 15 having observed that as matter of strict language, no grammatical interpolation of the word ‘necessary’ fell to be applied to the phrase ‘or otherwise in the public interest’, he said that if ‘the public interest’ is to be invoked in this context, then ‘that does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability’ and when he further said at paragraph 16 that ‘in the context of imposing an interim suspension order, on this particular basis, … that the bar is set high; and I think that in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality.’ I accept also the observations of Nicol J in Sandler v GMC [2010] EWHC 1029 when he said (paragraph 14) in commenting upon these passages in Sheikh that the court should be cautious about superimposing additional tests over and above those Parliament has set, but I nonetheless agree with Davis J that it is likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest.

The importance of the principle of proportionality in determining whether an interim order should be made pending the resolution of as yet unproven allegations faced by the practitioner, cannot be overstated. A suspension has potentially three very important consequences for a practitioner. First there is the impact upon the person’s right to earn a living: in this case the Applicant’s pre-suspension salary was in the region of £150,000. Secondly, there is the obvious detriment to him in terms of his reputation. Thirdly it deprives the practitioner of showing that during the relevant period he has conducted himself well and competently and ‘so, as it were, enhanced his prospects in front of the panel undertaking the final hearing’ (per Davis J. in Sheikh at paragraph 18). I note that in Sandler Nicol J. agreed that ‘the Panel must consider very carefully the proportionality of their measure (weighing the significance of any harm to the public interest in not suspending the doctor against the damage to him by preventing him from practising)’.

The guidance issued by the GMC on the imposition of interim orders which was before the present panel contains the following guidance material to the issues raised in the present application. In considering this guidance I am mindful that the Guidance is not a statutory provision and has always to be seen in the light of the statutory provision in section 41A itself and cannot be used to give this provision an interpretation that it cannot otherwise bear. This said, I do consider the Guidance contains the framework of a sensible approach to be adopted when consideration is being given to the making of an interim order under section 41A.

Paragraph 18 of the Guidance deals with the test to be applied under section 41A. It suggests a two stage test with which I would agree, namely that the IOP has first to be both satisfied that ‘in all the circumstances 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 secondly that ‘after balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk’.

Paragraph 19 suggests that the relevant issue in the context of the public interest ground is for the Panel to consider:

Paragraph 20 makes plain that ‘in weighing up these factors’ the ‘IOP must carefully consider the proportionality of their response in dealing with the risk to the public interest (including patient safety and public confidence) and the adverse consequences of any action on the doctor’s own interests’.

Further assistance on the application of the public interest ground relevant to as yet unproven allegations unrelated to clinical practice, is given in the paragraphs 23 to 24 and in the Annex A (‘Guidance on referral to an Interim Orders Panel’). Although of course the examples there given of where it might be appropriate to consider making an Interim Order or making a referral cannot be exhaustive, it is of note that the Guidance concentrates upon situations where the practitioner is under investigation for serious sexual criminal offences such as rape or attempted rape, sexual assault or sexual abuse of children or for any other serious criminal offence when ‘particular consideration should be given to the impact on public confidence if the doctor were to continue working unrestricted in the meantime’ (see paragraph 24). Annex A at paragraph 3 speaks of ‘cases not directly related to clinical practice but where, if the allegations are substantiated, the doctor poses a risk to patients or public confidence in the profession if allowed to continue in unrestricted practice’. It then continues:

It then gives in paragraph 5, as examples of matters of this kind ‘which would normally already be under investigation by the police’ as including serious alleged offences including murder, attempted murder, human trafficking, blackmail, manslaughter, rape, attempted rape, sexual assault and sexual abuse of children.

Paragraph 33 contains further guidance as to the assessment in this context of damage to public confidence. Having recorded that out of fairness to the doctor, allegations leading to the imposition of interim conditions are not published or disclosed to general enquiries, it suggests the following approach be adopted:

This seems to be an entirely sensible approach to the question of whether an interim order is desirable in the public interest in the context of the allegations faced by the Applicant in relation to his forging of documents and the use of them for the purposes of the Employment Tribunal proceedings.

Rule 27(4) (g) of the material GMC (FTP) rules provides that when announcing its decision the IOP ‘shall’ give its reasons for that decision. The Guidance at paragraph 41 correctly states that the courts do not expect an IOP to give long detailed reasons but that the reasons given must be clear and explain how the decision was reached, including identifying the interest(s) for which the order is considered necessary.

Of note, for present purposes, is the guidance in paragraph 42 that although IOP decisions should be fairly concise they must (the emphasis is of this court) include ‘the following information with specific reference to the distinct features and particular facts of each individual case.’ That mandatory (according to the Guidance, of course and not per any statute) information includes material to the present case:

It is important to emphasise that the Panel in this case made the order it did solely on the ‘public interest’ ground. The second paragraph of their determination reads ‘In accordance with section 41A of the Medical Act 1983 as amended, the interim orders panel is satisfied that it is in the public interest to make an interim order suspending your registration for a period of eighteen months’. It did not do so on the basis that it was necessary for the protection of the public although counsel for the GMC, Mr Pitter, had submitted this was the case, nor did it do so on any basis that the forgery allegations meant that patients might be at risk or might perceive themselves to be at risk of the documents relating to them being fabricated.

On the submissions made on behalf the GMC, in the transcript of the hearing at internal page 7F-8B, Mr Pitter, who appeared for the GMC, is recorded as saying:

The Panel who at the start of their determination state that they had taken account of the submissions made both on behalf of the GMC and those made on the Applicant’s behalf by Mr Hyam, summarise in the course of that determination, the GMC’s submission as being:

The submissions made by Mr Hyam to the Panel are also recorded in the transcript of the hearing. He is recorded as submitting that any decision to suspend would be disproportionate, was unnecessary and ‘the facts themselves demonstrate that to be the case’. ‘The facts themselves’ is a reference to the chronology of events which I have already highlighted. Mr Hyam pointed out that the Trust employer had not referred the matter to the GMC until July 2011 some three months after the time for appealing the tribunal decision had expired in the April, but thereafter the matter was not referred to the IOP until late July 2012; that the referral had come nearly four years after the dismissal for gross misconduct, over a year after the matter was referred to the GMC and over 18 months after the employment tribunal decision said to raise issues of probity that make suspension necessary. He pointed out that there was a 20 day FTP hearing listed in four months time. He emphasised the outcome of the GMC’s own enquiries as to the applicant’s conduct and clinical competence with his subsequent employers, all positive in favour of the Applicant. He reminded the Panel of the Guidance and that they had to ask themselves what was the risk that they were now guarding against, if they made an interim order. The following passages appear:

Mr Hyam specifically referred the Panel to the Guidance in this context given at paragraph 33, and emphasised that based on that Guidance any perceived damage to public confidence in the profession had to be serious damage which was a threshold which could not be shown to have been crossed.

The Panel in their determination expressly stated:

The Panel also rehearsed the detail of the chronology of events and the delay in bringing the matter to themselves highlighted by Mr Hyam. They expressly refer to the positive appraisal reports and the letters from the subsequent employers.

I have set out the submissions recorded as having been made to the Panel as I accept that in considering those reasons and the adequacy of them, they have to be seen in the light of those submissions (and indeed the advice given to the Panel by the legal assessor as to which no complaint is made). The Panel I should add expressly stated they had taken into account the Employment Tribunal’s ‘Reasons for Reserved Judgment’ and the ‘weight’ of views expressed by the tribunal in those reasons, giving examples from paragraphs to which I have already referred, and the reasons in the tribunal’s Costs Order determination to which I have already referred.

The core of the Panel’s reasons is then to be found at the following paragraphs (any emphasis is the emphasis of this court):

I can now state my reasons for terminating the suspension reasonably shortly. Mr Hyam submitted that the decision of the panel was unfair, disproportionate and plainly wrong with no adequate reasons being given to explain the decision.

It is on the question of proportionality that I primarily depart from the decision made by the Panel and in so disagreeing I inevitably do pay some attention to the adequacy of the reasons given by the Panel for coming to the opposite conclusion. They say that they were satisfied that the suspension was a proportionate response to the risk posed by the Applicant by his remaining in unrestricted practice pending the resolution of the allegations against him, but without expressly identifying that risk or perhaps more importantly the degree of that risk. The risk has to have been one to the public interest rather than to the safety of the public since the public interest ground is the sole ground for their order. By inference from what is said in the preceding paragraphs they must be taken to have concluded that the risk was to the maintenance of public confidence in the profession, but in order to carry out the balancing exercise called for when considering the question of proportionality it is necessary to consider the degree of risk and in this context the likelihood of serious damage to public confidence in the profession and hence to the reputation of the profession, if the Applicant were allowed to continue to work with patients pending the resolution of the unproven allegations against him.

I agree with Mr Hyam that the Panel do not on the face of their determination expressly focus upon this question of the likelihood of serious damage to the public interest. It cannot be sufficient in my judgment simply to reiterate the seriousness of the allegations faced by the Applicant going to his probity and the weight of the reasoning and findings of the Tribunal. It has to be remembered that the findings of the Tribunal are not the findings of a criminal court before whom the Applicant faced charges alleging dishonesty nor are they the findings of any internal disciplinary investigation into his, the Applicant’s, conduct (as for example in the position in Bradshaw v GMC [2010] EWHC 1296) and as Mr Hyam submitted, the evidential burden of proving the charges now faced by the Applicant remains on the GMC. The questions raised on the documentation before the Employment Tribunal, were not it seems the subject of any proper address by the applicant’s then legal representation (see the reference in tribunal judgment at paragraph 62 to ‘very limited submissions’) and may yet be open to entirely innocent explanation or substantial mitigation. The evidential status of the findings of the tribunal or of any transcript or notes of evidence for the purposes of the hearing before the FTP, is not a matter upon which it would be wise for this court to express an opinion and I do not do so although I do have very much in mind the observations of Lord Atkin in Spackman v GMC [1943] AC 627, at 637 to which I was referred. Nor has the IOP in terms sought to identify any risk to patients as such or to suggest (again as was the case in Bradshaw) that the findings call into question the relationship between the Applicant and his patients.

Further, the delay in bringing these matters before the IOP and the likely future timetable for the resolution of the allegations again in my judgment cannot be wholly irrelevant in any determination of the proportionality of the interim suspension despite the contrary submission of Mr Phillips QC on behalf of the GMC that delay can have no relevance to the assessment of future risk to public confidence with which the Panel were concerned. There can be no doubt that the damage to the Applicant’s professional and personal interest by any suspension preventing him practising will be profound on all three grounds which I have already identified (ability to earning a living; reputation; ability to demonstrate fitness to practise) and it is to be doubted in my judgment whether a fair minded member of the public appraised of the history of this case before it reached the IOP, the absence of any concerns as to the Applicant’s probity in his professional practice over the four years since leaving Lewisham, and the fact that there was to be in the not too distant future a full hearing fixed for the resolution of the allegations, would necessarily find it offensive to discover that before any step was taken to suspend the Applicant, he was to be given the opportunity to defend himself before his professional body and have his fate determined by the facts as found by the professional body.

Unlike the panel in Abdullah (see Abdullah v GMC [2012] EWHC 2506 at 98 and 103), which I might add concerned allegations of sexual misconduct within the surgery, the present Panel do not in terms refer to the paragraphs given in the Guidance concerning the approach to be adopted when the public interest ground is under consideration absent any concerns as to the risk posed to patients or public, or draw out any particular factors they deemed relevant in the present case other than that the allegations go to the Applicant’s probity. In particular no reference is made to the question set out in paragraph 33 (‘it is the responsibility of the IOP to consider whether, if allegations are later proved, it will damage public confidence to learn the doctor continued working with patients while the matter was investigated) although I accept the question had previously been drawn to their attention by Mr Hyam’s submissions, nor more importantly is there any real explanation given why in the circumstances of this case the answer has to be that any damage to public confidence will be so serious so as to outweigh any damage to the Applicant’s interests. I accept of course the cogent exposition of principle by Lindblom J in Abdullah at paragraphs 102 – 103 that only reasons were required for the decision to make an interim order and not reasons for reasons, but unlike in Abdullah (see again Lindblom J at paragraph 103) I do not consider the present decision really explains why an interim order was required in the public interest.

I of course accept the seriousness of the allegations which the Appellant faces and if the alleged lack of probity is ultimately established against him it will be for the FTP with their particular expertise, to make the appropriate findings on fitness to practise and sanction. No doubt in such circumstances the submission made to me by Mr Phillips that the requirement, rehearsed in paragraph 1 of the GMC Good Medical Practice, to be ‘honest and trustworthy and act with integrity’ is a fundamental tenet of the medical profession, will have particular resonance. However, the rehearsal of this proposition in itself in my judgment where no risk to the patients or public has been identified, is not sufficient without more to explain or justify the proportionality of suspending the applicant from practising while these allegations remain unproven given the circumstances of the delay, the known timetable for the resolution of the allegations, and the known lack of any other concerns regarding the Applicant’s probity in the substantial time he has been in practice since leaving Lewisham.

Like Davis J in Sheikh at paragraph 23, and notwithstanding my acceptance of the Panel’s position as an expert body well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and confidence, it does seem to me that the considerations of public perception and public confidence raised by the allegations which this Applicant faces, can fairly be reflected by an appropriate decision by the FTP, if so minded, at the final hearing when all then facts have been fully explored, all explanations and mitigation fully advanced and the position has been finally assessed at that stage, rather than by the suspension of the Applicant from practice before that exercise has been undertaken.

It is for all these reasons that I was satisfied the decision of the Panel to make the interim order was wrong, and accordingly terminated the suspension.