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Criminal investigation outside sphere of professional activity: Patel v GMC

Eleena Misra comments on the recent decision of Dr Indravadan Patel v. General Medical Council [2012] EWHC 3688 and its conseqences.

Facts

As well as working as a GP, 73 year old Dr. Patel also served as a governor of a school in Brent and Chairman of its Finance Committee. He had an unblemished professional record as a GP of some forty or so years’ standing. However, he was referred to the General Medical Council (“GMC”) by the Metropolitan Police following his arrest in connection with his alleged authorisation of payments totalling £1.8m to members of staff, in his capacity as a school governor, from 2003 to 2008, in circumstances considered to be improper. He was eventually charged with conspiracy to defraud and committing fraud by an abuse of position, though he is now due to stand trial for one count of conspiracy with several co-defendants also from the school. Dr. Patel was not alleged to have made any personal gain.

On 4 July 2012, the GMC’s Interim Orders Panel (“IOP”) suspended him from practice for the maximum period of 18 months pursuant to its powers under s.41A Medical Act 1983. The IOP had noted, in particular, the principle contained within the guide for doctors (“Good Medical Practice”) that all doctors should act with probity i.e. in an honest and trustworthy manner.

Dr. Patel applied to the Administrative Court under s.41A(10) for the interim order to be quashed. Referring to s.41A(1), Dr. Patel’s counsel argued that it was not necessary to suspend him “otherwise in the public interest” as the IOP appeared to have done. The criminal charges were wholly unrelated to his clinical or other professional work as a doctor and he denied them in full. The types of criminal offence listed in the IOP guidance were, broadly, offences of the person. It was neither necessary nor proportionate, he argued, to have suspended Dr. Patel.

Decision

Eady J noted that professional regulators would often be acting as specialist tribunals whose judgment did have a “special place”, the court was required to do no more and no less than to give such a panel’s decision such weight as it thought fit in the circumstances. Eady J also found that it was entirely appropriate, where the IOP had determined to suspend a doctor from practising for up to 18 months, to “examine the reasons with some rigour”.

While the value of the money said to have been paid over to teaching staff under an incentive or bonus scheme set up in 1995 was considerable, this was not determinative and it was the nature of the alleged offence which was of more significance.

Eady J found that most citizens would understand the notion that a person is to be treated as innocent until proven guilty and a reasonable but informed bystander would not lose confidence in the profession in Dr. Patel was not suspended pending the outcome of the criminal process which would consider whether there was any dishonesty at all in respect of the incentive/bonus scheme’s administration. His clean record and the fact that he made no personal gain from the disputed payments were material factors to be taken into account by the reasonable bystander in making this hypothetical assessment relevant to public confidence in the profession.

This judgment is a very useful example of the careful balancing exercise to be considered in IOP suspension order appeals where criminal conduct is alleged and this is wholly or substantially outside the sphere of medical practice.  It is also a helpful reiteration of the principle that while the court will pay due respect to the judgment of a specialist tribunal, it is not required to adopt a slavish or entirely ‘hands off’ approach in examining its decision.

The interim suspension order was terminated by the Administrative Court.
  
Related link:  Profile of Eleena Misra
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