Kumar v General Medical Council

Factual and Procedural Background

The case concerns an application under section 41A(10) of the Medical Act 1983 to revoke conditions imposed on the Appellant by the Interim Orders Panel (IOP) of the Medical Practitioners Tribunal Service (MPTS) on 11 September 2012. The Appellant is a doctor who, in late 2010, worked as a middle grade locum in the emergency department of The Hospital. Following complaints about his attitude and clinical management from a consultant, the Appellant's appointment was terminated in December 2010. The complaints were submitted to the Fitness to Practise Directorate of Company A.

The GMC decided to investigate the Appellant’s fitness to practise, notifying him on 26 September 2011 of an Interim Orders Panel hearing scheduled for 10 October 2011, which proceeded in his absence due to non-receipt of the notice. Conditions were imposed at that hearing. A review hearing on 27 October 2011, treated as a hearing de novo, confirmed the conditions. A further review took place on 14 March 2012, modifying the conditions to restrict the Appellant’s practice to certain supervised posts.

The current challenged decision was made at a further review hearing on 11 September 2012, where the Appellant was represented by a non-professional friend. The conditions were maintained with a further review scheduled for 7 February 2013. Meanwhile, a substantive Fitness to Practise hearing was set for 18 February 2013.

During the investigation, reports from a consultant in emergency medicine criticized the Appellant’s clinical competence based on patient case reviews. The Appellant responded in detail to these allegations. The Interim Orders Panel's role was limited to assessing risk to the public and not to making findings of fact on the allegations themselves, which are reserved for the Fitness to Practise Panel.

Legal Issues Presented

1. Whether the Interim Orders Panel's decision to impose and maintain conditions on the Appellant's registration was lawful and proportionate.
2. Whether the Appellant received proper notice of the initial Interim Orders Panel hearing on 10 October 2011 and whether the hearing should have proceeded in his absence.
3. Whether the investigation and handling by the General Medical Council was fair and impartial, and whether there was a prima facie case to justify the imposition of conditions.
4. Whether the Appellant was denied procedural fairness by being prevented from giving oral evidence before the Interim Orders Panel.

Arguments of the Parties

Appellant's Arguments

• The initial hearing on 10 October 2011 was invalid as the Appellant did not receive proper notice; the Panel failed to make "all reasonable efforts" to serve notice, particularly by not using email despite the Appellant’s willingness to communicate by that means.
• The investigation by the GMC was flawed and unfair, lacking a real complaint and relying heavily on hearsay evidence and the opinions of a single consultant rather than firsthand witness accounts.
• The Interim Orders Panel gave disproportionate weight to certain evidence, including a letter from an agency referencing previous complaints, some of which were resolved without criticism.
• The Appellant was denied the opportunity to give oral evidence before the Panel, which he contended was unfair.
• The conditions imposed were disproportionate, severely restricting the Appellant’s employability and resulting in serious personal and financial consequences.
• The Appellant relied on numerous testimonials supporting his competence and character, arguing that these contradicted the GMC’s allegations.

Respondent's Arguments (General Medical Council)

• The GMC contended that service by registered post to the Appellant’s registered address constituted “all reasonable efforts” to serve notice under the relevant rules.
• The Interim Orders Panel’s role was limited to assessing risk and not to making findings of fact or determining the fairness of the investigation, which is the remit of the Fitness to Practise Panel.
• The reports of the consultant expert established a prima facie case of clinical incompetence sufficient to justify interim conditions.
• The Panel’s refusal to admit oral evidence was consistent with the rules and guidance governing Interim Orders Panel hearings.
• The conditions imposed were proportionate to the risk posed to public safety, given the serious concerns about the Appellant’s clinical competence.
• The GMC sought an order for costs against the Appellant following the unsuccessful application.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the issue of service of notice for the initial hearing, concluding that sending notice by registered post to the Appellant's registered address complied with the relevant rules and constituted "all reasonable efforts." Although the Appellant argued that email should have been used, the court found no obligation to do so, referencing the precedent in Jatta v Nursing and Midwifery Council.

The court further held that even if there had been an irregularity in the first hearing, this was remedied by the de novo hearing on 27 October 2011, where the Appellant was represented and had full opportunity to contest the conditions. The current challenge related only to the 2012 decision, and any earlier procedural issues did not affect its lawfulness or fairness.

Regarding the fairness of the investigation and the evidence relied upon, the court emphasized the limited role of the Interim Orders Panel, which is to assess risk and the necessity of interim conditions, not to make definitive findings on the allegations or to resolve disputes about the fairness of the investigation. The court found that the reports from the consultant expert provided a prima facie case sufficient to justify the conditions.

The court rejected the Appellant's contention that the Panel relied solely on hearsay evidence and found no merit in allegations of unconscious bias or scapegoating. The testimonials supporting the Appellant’s competence were acknowledged but were not determinative against the expert evidence indicating a real risk.

On the procedural point of oral evidence, the court noted that the rules permit oral evidence only if the Panel considers it desirable, which is a rare exception. The Panel’s refusal to admit oral evidence was not found to be unfair, especially as the Appellant did not seek to give evidence until after the decision was announced.

Finally, the court considered proportionality and concluded that the conditions were justified given the risk to public safety and the Panel’s expert assessment. The serious personal consequences suffered by the Appellant were regrettable but did not render the conditions disproportionate.

Holding and Implications

The court DISMISSED the Appellant's application to revoke the conditions imposed by the Interim Orders Panel on 11 September 2012.

The decision confirms the limited scope of judicial intervention in interim orders imposed by regulatory panels, emphasizing deference to expert assessments of risk and public protection. The ruling reinforces that procedural irregularities in initial hearings may be cured by subsequent fair hearings. The court also clarifies that the Interim Orders Panel’s role is to assess risk on a prima facie basis rather than to determine the merits of the underlying allegations. The direct effect is the continuation of the conditions restricting the Appellant's medical practice until the substantive Fitness to Practise hearing. No new legal precedent was established beyond the application of existing principles.

The court also ordered the Appellant to pay costs to the General Medical Council, fixing the amount at £5,000 including VAT, reflecting a proportionality assessment of the costs incurred.