Case Comment: Dr MXM and General Medical Council [2022] EWHC 817 (Admin)

Laura Paisley discusses the recent case of Dr MXM and General Medical Council [2022] EQHC 817 (Admin), highlighting the key parts of the judgment relevant to those appearing in interim order hearings before healthcare regulators, and the criteria that must be satisfied for the imposition of an interim order in respect of different regulators.

Background

Dr MXM was practising as a General Practitioner at the time concerns were raised to the General Medical Council (“GMC”). He had practised for more than 15 years. Concerns were raised with the GMC by ‘TR’ after finding out that his wife had been engaging in an extra-marital affair with Dr MXM. The affair had begun some three years earlier when Dr MXM and ‘ER’ had met in a non-clinical setting.

A number of concerns were raised to the regulator including:

i). “having a sexual relationship with a patient over many years;

ii). treating ER’s husband, TR, as one of his patients during the affair (including for depression);

iii). undertaking sexual activity in a clinical setting (both alone and with ER) and “whilst on call”;

iv). filmed and uploaded to the internet videos of his sexual activity with ER; and

v). sought to dissuade ER from seeking counselling and sought to persuade her to minimise the extent of their relationship.”

Hearing before the Interim Orders Tribunal

The GMC sought an interim order of conditions on the basis that this was both “necessary and proportionate to protect the public and is otherwise in the public interest.”

The IOT, however, imposed a suspension order for a period of 18 months.

Grounds of appeal

The Applicant, Dr MXM, appealed the IOT’s decision to the High Court on four grounds:

i). “The IOT failed to differentiate between those aspects of the allegations which are proper matters for consideration in fitness to practise proceedings and those which are of an intimate and personal nature removed from the practice of the Applicant’s profession, and irrelevant to the IOT’s consideration.

ii). Having regard to the nature of the allegations, the IOT misidentified, and erred in its assessment of the risk to (a) public safety and (b) the public interest.

iii). The IOT failed to give appropriate consideration to the principle of proportionality, both in respect of the nature and the duration of the order.

iv). In support of the first three grounds, the Applicant contends that the IOT failed to provide adequate reasons for its decision.”

Decision of the High Court

Mrs Justice Steyn’s judgment, handed down on 6 April 2022, resulted in the termination of the suspension order. The reasoning can be summarised as follows:

• In cases concerning allegations of sexual misconduct, the appellate Court is less dependent upon the IOT’s expertise than in cases involving allegations of a clinical nature, a deficiency in skill, or a lack of competence.

• In a case where the GMC sought an order of conditions, the IOT’s lack of reasons for their conclusion to impose a suspension was ‘striking.’

• The IOT’s reasoning for the length of the order (18 months) was inadequate in what is a relatively simple case.

• Ground 1 was not made out because the matters identified by the IOT as giving rise to concerns are properly fitness to practise concerns.

• Grounds 2 and 3 (and 4) were made out on the basis that the IOT’s evaluation of risk to patient safety, the public interest, and the length of the order was flawed.

• It is highly material that the extra-marital affair with ER did not arise as a result of a breach of trust in the doctor-patient relationship.

• There was no evidence of any pattern of sexualised behaviour with patients.

• None of the allegations concerned the Applicant’s clinical knowledge, skill or care, save for treating TR for depression while engaging in an affair with ER.

• The risks as outlined by the GMC are to public confidence in the profession or the Regulator and not to patient safety.

Commentary

This is an important case for a number of reasons. Perhaps the most important elements of the judgment confirmed that:

• when imposing an interim order on a Registrant’s practice, any decisions must be accompanied with clear reasons as to why a particular order has been imposed;

• the length of any interim order must be carefully considered and the period of time that the Registrant will be under restriction must be proportionate. The period of time of any such order must be considered in light of the facts of each case and should not merely be an automatic decision;

• in cases where there is no allegation concerning clinical knowledge, skill or care, the appellate Court will have less regard to the expertise of the tribunal hearing the application; and

• different considerations will apply when allegations would undermine public confidence as opposed to concerns regarding patient safety and the risks attached to such allegations.

Healthcare Regulators – a summary of Interim Orders

The General Medical Council

Pursuant to the Medical Act 1983 s.41A(A), an interim order may be made if it is

“…necessary for the protection of the public or is otherwise in the public interest, or is in the interests of a fully registered person…”

The Nursing and Midwifery Council

Pursuant to the Nursing and Midwifery Order 2001 s.31(2), an interim order may be made if it is

“…necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned…”

The General Optical Council

Pursuant to the Opticians Act 1989 s.13L, an interim order may be made if it is

“…necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a registrant…”

The General Dental Council

Pursuant to the Dentists Act 1984 s.32, an interim order may be made if it is

 “…necessary for the protection of the public or is otherwise in the public interest, or is in the interests of the person concerned…”

The General Pharmaceutical Council

Pursuant to the Pharmacy Order 2010 r.56, an interim order may be made it if is

“…necessary for the protection of members of the public or is otherwise in the public interest or is in the interests of the registrant…”

Advice to practitioners

The grounds that must be satisfied for the imposition of an interim order before the various healthcare regulators are virtually identical. The decision of MXM v GMC can be expected, therefore, to feature in many arguments during hearings in which an interim order is sought. The decision should be viewed positively by those that are regulated and reminds those hearing such applications that their reasoning must be clear and focus on the particular facts of the case before them.

It is important for practitioners to ensure that their submissions deal appropriately with the length of time that any order should be imposed for. Panels must focus on the facts of the case and should not automatically confirm the length that is sought by the regulator without proper consideration of why that period of time is justified in a particular case. It will also be appropriate for practitioners to draw out which elements of any allegations would simply impact upon how the public view the regulator and which of those concerns actually relate to the potential to put those receiving care at risk of harm. Ultimately, submissions that appropriately draw out the distinctions between these two different kinds of allegations may lead to an order of conditions rather than an order of suspension.