Court of Appeal Published June 15, 2007

General Medical Council v Hiew

Before Lord Justice Tuckey, Lady Justice Arden and Lord Justice Lawrence Collins

Judgment April 30, 2007

It was not the function of a judge being asked to extend the interim suspension from practice of a doctor by the General Medical Council to make findings of fact that led to the suspension. If the reason for the suspension was to be challenged, the doctor should seek judicial review.

The Court of Appeal dismissed the appeal of Dr Stephen Chee Cheung Hiew against the order of Mr Justice Bean, dated October 17, 2006, extending, for six months, the suspension of his registration as a medical practitioner made by an interim orders panel of the GMC on April 29, 2005.

Mr Philip Engelman for Dr Hiew; Mr Robert Englehart, QC, for the GMC.

LADY JUSTICE ARDEN said that section 41A of the Medical Act 1983, as inserted by article 10 of the Medical Act 1983 (Amendment) Order (SI 2000 No 1803), gave the GMC powers to deal with the situation where there was an issue whether a medical practitioner should be permitted to practise, or should only be permitted to practise subject to conditions, but before any final decision had been reached as to his continued registration.

Under section 41A(1), an interim orders panel or fitness to practise panel of the GMC could make an order that the registration of a practitioner be suspended for up to 18 months or that his registration be subject to conditions.

If the GMC considered that an extension was required, it had to apply to the court. The maximum extension the court could give on any one occasion was 12 months: section 41A(7).

Section 41A(7) did not set out the criteria for the exercise by the court of its power under that subsection in any given case.

In her Ladyship’s judgment, the criteria must be the same as for the original interim order under section 41A(1), namely: the protection of the public, the public interest or the practitioner’s own interests.

That meant that the court could take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case had not been concluded and the prejudice to the practitioner if an interim order was continued.

The onus of satisfying the court that the criteria were met fell on the GMC as the applicant for the extension. The relevant standard of proof was the civil standard.

The judge must, however, reach his decision on the basis of the evidence on the application.

The statutory scheme made it clear that it was not the function of the judge under section 41A(7) to make the findings of primary fact about the events that had led to the suspension or to consider the merits of the case for suspension.

There was, moreover, no express threshold test to be satisfied before the court could exercise its power under section 41A(7), such as a condition that the court should be satisfied that there was evidence showing that there was a case to answer in respect of misconduct or any other matter.

On the other hand, if the judge could clearly see that the case had little merit, he might take that factor into account in weighing his decision on the application.

But that was to be done as part of the ordinary task of making a judicial decision, and a case where a statutory body had made an application on obviously wholly unsupportable grounds was likely to be rare.

The application would include evidence as to the opinion of the GMC and the panel as to the need for an interim order. It was for the court to decide what weight to give to that opinion.

The function of the court was to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justified the prolongation of the suspension. In general, it need not look beyond the allegations.

If the practitioner contended that the allegations were unfounded, he should challenge by judicial review the original order for suspension or the failure to review it and make some other decision in accordance with section 41A(2).

In the circumstances, the judge had been entitled to attach weight to the opinion of the panel and to exercise his discretion in favour of a further extension.

The judge had been right to be concerned that the suspension should last no longer than necessary.

Lord Justice Tuckey and Lord Justice Lawrence Collins agreed.

Solicitors: Edwards Duthie, Plaistow; Ms Toni Smerdon, Bloomsbury.

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