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Petition of The General Medical Council for an order in terms of section 41A(6) and (7) of the Medical Act 1983 (Court of Session)
Factual and Procedural Background
The Petitioner, the professional regulator for medical practitioners, sought a 12-month extension of an interim conditional registration order concerning the Respondent, a registered medical practitioner. The order followed a fitness-to-practise investigation arising from an allegation concerning possession of indecent images of children. Criminal proceedings concluded on 16 January 2026 after a plea in bar of trial was sustained. [1][2][3][4]
The interim order had been reviewed and maintained on several occasions. It was due to expire on 14 April 2026 and had been extended ad interim pending determination of the Petitioner's application. [3][4]
Legal Issues Presented
- Whether the statutory threshold for extending the interim conditional registration order was met, namely necessity for public protection and/or the public interest. [5][6]
- Whether continuation of the order was proportionate, having regard to the available evidence, potential risk, delay, and prejudice to the Respondent. [7][8][9][10]
Arguments of the Parties
Petitioner's Arguments
- The conclusion of the criminal proceedings did not remove the need for the regulator to assess whether the Respondent could return to unrestricted practice while the regulatory investigation remained live. [11][12]
- The allegation was serious, engaged public confidence, and potentially raised risks to young and vulnerable patients. The existing conditions allowed practice subject to safeguards and were less intrusive than suspension. [13][14][15]
- Further enquiries concerning the device, the search warrant, access to files, and related technical matters remained relevant to the regulatory investigation. [16][17]
- An acquittal or conclusion of criminal proceedings did not necessarily establish that no public-protection issue remained because criminal and regulatory proceedings served different purposes. [18]
Respondent's Arguments
- The criminal proceedings ended because there was no evidence that the Respondent used or possessed the device or could access the images. The lack of cogent evidence could not justify continuation of the interim order. [19][20]
- The allegations had no connection with clinical practice, and the Petitioner had identified no clinical risk or evidential basis for one. [21][22]
- The conditions were not rationally connected to the alleged conduct and caused reputational, employment, and financial prejudice. [23]
- The Petitioner had failed to progress its investigation with sufficient urgency or focus after learning that the criminal proceedings had concluded. [24][25][26]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| GMC v K 2023 SC 1 | Principles governing extension of interim orders, including the threshold test, evidential assessment, proportionality, and the court's original decision-making role. | The court applied the principles and found that the Petitioner had not connected the available evidence to a continuing public-protection or public-interest necessity. [7][27][28][9] |
| General Medical Council v Hiew [2007] 1 WLR 2007 | Applicable principles for extending an interim order. | The principles were identified as part of the governing legal framework. [7] |
| B v General Medical Council 2022 SLT 961 | Application of the principles governing interim orders. | The case was cited as part of the authorities informing the extension test. [7] |
| Bank Mellat v HM Treasury (No.2) [2014] AC 700 | Proportionality requires a rational connection between the measure and its objective and consideration of less intrusive alternatives. | The court used the proportionality framework in assessing the conditions, delay, and prejudice to the Respondent. [29][8][9][10] |
| GMC v MM 2022 SLT 600 | The public-interest threshold concerns the likelihood of serious damage to public confidence in the medical profession. | The court applied that threshold and held that the Petitioner had not shown why unrestricted practice by this Respondent would seriously damage public confidence. [30][28] |
| Patel v GMC [2013] 1 WLR 2694 | Public-interest assessment must consider the view of a reasonable person informed of all relevant facts, avoiding superficial analysis or prejudice. | The court considered the informed-public approach when assessing the public-interest basis for continuation. [30][28] |
| Ashraf v General Dental Council [2014] ICR 1244 | An acquittal does not, by itself, make disciplinary proceedings abusive; regulatory proceedings focus on standards, integrity, and public confidence. | The court accepted the general distinction between criminal and regulatory proceedings but held that the Petitioner still had to establish necessity on the evidence in this case. [18][27] |
Court's Reasoning and Analysis
The court exercised original jurisdiction and required the Petitioner to establish both the statutory threshold and proportionality. The court did not need to determine the truth or falsity of the allegation, but had to decide whether the allegations and presently available material justified continuation of the order. [6][27]
The evidence was insufficient to establish an evidential link between the Respondent and the images. The criminal proceedings had ended following submissions that there was no evidence that the Respondent used or accessed the device, and the prosecution had not opposed the plea. The Petitioner’s subsequent enquiries were limited and focused mainly on why the criminal proceedings ended rather than on evidence supporting its own regulatory allegation. [31][32][33]
Although the allegation was serious in general terms, the Petitioner did not identify evidence demonstrating a continuing risk to patients or explain realistically how such evidence could be obtained. The court therefore found no current basis for concluding that the order was necessary for public protection. [27][34]
The Petitioner also failed to establish the public-interest limb. It relied on general assertions concerning possession of indecent images by a medical practitioner but did not explain why, after the criminal proceedings had concluded, unrestricted practice by this Respondent would likely cause serious damage to public confidence. [28]
The court then assessed proportionality. It accepted that the condition preventing consultations with patients under 18 addressed the substance of the referral, but noted that the allegations had no connection with clinical practice, no clinical risk had been identified, and the Respondent’s practice did not involve children. The delay, the Respondent’s inability to practise unrestrictedly, and the absence of investigative urgency or focus weighed against continuation. [9][35][36]
Balancing the seriousness of the allegation and any potential patient risk against the evidential insufficiency, the lack of focus in the continuing investigation, and the prejudice to the Respondent, the court was not satisfied that the order was necessary or proportionate. The views of the interim tribunal were considered but did not alter that conclusion. [10]
Holding and Implications
The application to extend the interim conditional registration order was refused. The court was not satisfied that the statutory threshold of public protection or public interest had been met, and in any event found the proposed extension disproportionate. [34][28][10]
The direct consequence was that the interim order was not extended. The court reserved expenses. The opinion applied existing principles to the particular evidential and procedural circumstances and did not state that it created a new precedent. [10]
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