Houshian v General Medical Council [2012] EWHC

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This High Court decision serves as a reminder that suspension orders made on an interim basis by reason of protecting the public interest are at risk of being overturned on appeal. 

Where an Interim Suspension Order (“ISO”) is imposed on this ground, the Judgment should include full and detailed reasons to demonstrate that proportionality has been properly considered.

Background

Dr Houshian was employed by Lewisham NHS Trust (“the Trust”) between 2004 and 2008 as a Consultant Orthopaedic Surgeon. He was dismissed in 2008 for gross misconduct and the allegations related to his treatment of colleagues and accuracy of information provided to patients. Following his dismissal, Dr Houshian issued proceedings in the Employment Tribunal for unfair dismissal. Dr Houshian is alleged to have forged documents and presented them to the Employment Tribunal in support of his claim. A fitness to practise referral was made to the GMC, given the serious nature of the dishonesty allegations.

The GMC were notified of the dishonesty allegations in July 2011 but the matter was not considered by an Interim Orders Panel until August 2012, with the substantive fitness to practise hearing listed for January 2013.
 
It is relevant that when the Interim Orders Panel considered this matter, Dr Houshian was employed as a Consultant Orthopaedic and Trauma Surgeon, as he had secured employment since shortly after his dismissal in 2008.

Interim Order Panel Decision

In August 2012, the GMC’s Interim Order Panel imposed an ISO for 18 months under S41A (1) of the Medical act 1983. The ISO was imposed solely on the ground of there being a real risk to public interest if Dr Houshian was allowed to practise without restriction, pending the outcome of the fitness to practise proceedings.

Mr Justice King considered that the GMC’s guidance on interpreting S41A was sensible. The guidance states that where an Interim Order Panel is satisfied that there is a real risk that public interest may be adversely affected, they must secondly satisfy that after balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk (GMC Guidance on the Imposition of Interim Orders; paragraph 18).

Appeal

The High Court allowed Dr Houshian’s appeal and terminated the ISO. Mr Justice King was persuaded by comments made by Davis J in Sheikh –v- GDC [2007] EWHC 2972, that “In the context of imposing an Interim Suspension Order on this particular basis (referring to public interest), that the bar is set high and I think that in the ordinary case at least necessity is an appropriate yardstick. That is so because of reasons of proportionality.” (Sheikh –v- GDC [2007] EWHC 2972; paragraph 16).  Mr Justice King said at paragraph 12 of his Judgment that “It is likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest”.

With regards to proportionality, Mr Justice King considered that there are three key consequences for a practitioner when an ISO is imposed. There is an impact on their right to earn a living, it is detrimental to reputation and it deprives the practitioner of the ability to demonstrate his ability to practise competently ahead of the substantive fitness to practise hearing.

Mr Justice King concluded that although the Interim Order Panel outlined that the ISO was a proportionate response to the risk posed by Dr Houshian, the Judgment failed to expressly identify the risk or identify the degree of risk (Houshian –v- General Medical Council [2012] EWHC 3458; paragraph 34).  The risk of serious damage to public confidence in the profession by allowing Dr Houshian to continue to work with patients pending the resolution of the unproven allegations should have been considered.

At paragraph 28 of his Judgment, Mr Justice King concluded that “In my judgment, where no risk to the patients or public has been identified, it is not sufficient without more to explain or justify the proportionality of suspending the applicant from practising while these allegations remain unproven given the circumstances of the delay, the known timetable for the resolution of the allegations and the known lack of any other concerns regarding the applicant’s probity in the substantial time he has been in practice since leaving Lewisham.”

Mr Justice King concluded that in Dr Houshian’s case, if the allegations against him are upheld, public confidence in the profession can fairly be reflected by an appropriate decision by the Conduct and Competence Committee.  It is of note that Dr Houshian’s final hearing was conducted in January 2013, the dishonesty allegations were upheld and Dr Houshian has been struck off the register.