Purposive approach to interim orders: Kuzmin v GMC [2023]
A purposive approach to interim orders was used in Kuzmin v General Medical Council (GMC). What is the benefit of this approach? This is a method used by judges to interpret what laws mean and requires a court to look at the purpose of the statute. The case was an appeal against the determination of the Medical Practitioners’ Tribunal (MPT) following regulatory proceedings brought by the GMC against Dr Kuzmin. Dr Kuzmin’s fitness to practice was found to be impaired and he was suspended from practice for six months as a GP.
History
Dr Kuzmin reached ST2 GP status in 2016, which meant he could only undertake out of hours (OOH) work under supervision. Dr Kuzmin applied for registration with the Hampshire GP OOH service (HDOCS) and later carried out two OOH sessions whilst he was still an ST2 registrar. When HDOCS became aware that Dr Kuzmin was only ST2, his access to the online booking system was suspended.
At this time, the GMC were investigating concerns about Dr Kuzmin’s clinical performance. An interim order was imposed on 15 November 2016 which imposed conditions on his practice until January 2018, when it was determined that Dr Kuzmin’s fitness to practice was not impaired.
In April 2017, Dr Kuzmin achieved ST3 status and contacted HDOCS to resume the OOH training. HDOCS was aware of the ongoing GMC investigation and that Dr Kuzmin was subject to interim order conditions.
One interim condition was that Dr Kuzman inform any OOH service about the interim order conditions, which included provisions for supervision. Although the OOH shifts were supervised, they were not supervised in a way that satisfied Dr Kuzmin’s conditions of practice. Following an investigation, the GMC formed new allegations, and held that Dr Kuzmin’s failed to inform HDOCS of the interim order conditions and that his actions were dishonest.
MPT proceedings
During the stage 1 hearing, the MPT rejected the submission that they could not draw an adverse inference from Dr Kuzmin’s decisions not to give evidence and to withdraw his statement from consideration. This decision was challenged by judicial review and this decision can be found at [2019] EWHC 2129 (Admin). In July 2019, the High Court concluded that the MPT could draw an adverse inference, unless it would be procedurally unfair to do so.
The proceedings progressed to determination and sanction. The MPT concluded that, as Dr Kuzmin was aware, the purpose of the condition was to ensure that any employers were aware of the restrictions in place on Dr Kuzmin’s registration. Additionally, as Dr Kuzmin was registered with HDOCS between August 2016 and 7 June 2018, he had a duty to inform them of his interim order conditions.
The Appeal
The overarching argument put forward by Dr Kuzmin in the appeal was that he had no duty to notify his interim order conditions, as there was no active registration. Dr Kuzmin submitted that the MPT made an error of law in purporting to define registration. He suggested that there was no basis for finding that registration was satisfied and that it was reasonable to regard the contract with HDOCS and Dr Kuzmin as having been terminated in November 2016.
The GMC stated that there was no definition of registration within HDOCS and therefore when considering what registration meant, a flexible approach was required. The GMC submitted that there was no reason to consider the difference between deactivation and deregistration.
HHJ Wood KC's comments
HHJ Wood KC dismissed the appeal, citing the case of Sastry and Okpara v GMC [2021] EWCA Civ 623. HHJ Wood stated that an appellate court will only interfere with a decision in the absence of an obvious error.
The appeal focused narrowly on the notification duty imposed on Dr Kuzman by condition 8 of the interim conditions in the context of his OOH arrangement with HDOCS.
Dr Kuzmin’s challenge to the GMC’s case that undertaking OOH training as part of his ST3 training was not a registration process was without foundation for the following reasons:
- 1. Condition 8 of the interim condition order was to be interpreted in the broader sense rather than a restrictive approach;
- 2. The act of defining ‘registration’ was purely an assessment by the MPT of the evidence provided; and
- 3. The purpose of the condition was to ensure that those Dr Kuzmin was likely to provide medical services for were made aware of his restriction of practice.
HHJ Wood commented that the order for conditions was a lesser sanction than could have been imposed, on the basis of the need to protect the public, maintain confidence in the protection and uphold professional standards on the prime facie case of misconduct. HHJ Wood confirmed that the MPT’s approach to concentrate on the purpose of the imposition of the condition was the correct one. Dr Kuzmin would have known that condition 8’s purpose was to inform all people and organisations to whom he did, or intended to, provide medical services.
HHJ Wood’s concluding judgment on Dr Kuzmin’s arguments was that it was “overly legalistic and unnecessary” to consider registration as a more formal process.
Key Point to Note
The court supported the purposive approach to interim orders. Where there is an allegation for breach of condition, counter-arguments should not be overly technical or legalistic, but take a contextual view of that condition. Specifically, investigations should focus on the the condition’s purpose, and the Registrant’s understanding of that purpose.
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