An application by the General Medical Council to extend an interim order of suspension upon a doctor for a further eight months was refused on the ground of incomprehensible and indefensible delay by the Medical Practitioners Tribunal, and a period of three months was substituted.
Transcript
The allegations against the doctor in the present case led to a hearing before the Medical Practitioners Tribunal which lasted for 55 days. Following submissions, certain allegations were withdrawn.
August:Although some allegations were admitted, in any event there would be findings of fact that would need further consideration and then the Tribunal would need to go on to consider whether the doctor’s fitness to practise was impaired and any subsequent order.
nal may not be complete until:The requested extension of eight months was intended to cover the period until determination of stage 1, the fact-finding stage, with a further period to allow any consequent application to extend the interim order.
During the course of the hearing, counsel for the doctor proffered undertakings which he contended should satisfy the court that the order of suspension need not be extended.
He submitted that the claimant could not justify an extension at all pursuant to the criteria laid down in Hiew , but even if it could in principle, an extension would be disproportionate given the undertakings offered by the doctor.
upon her registration in May:“In reaching its decision, the Tribunal has borne in mind the serious and multiple concerns raised in relation to Dr Webberley’s clinical conduct, performance and probity and that further clinical concerns have been raised involving two or more patients. It is noted with significant concern the new information provided that Dr Webberley has been convicted of running a medical agency without registered with HIW.”
The interim order had been maintained first by the Interim Orders Tribunal and most recently by order of the High Court.
The core allegations against Dr Webberley related to the alleged inappropriate treatment of young transgender patients, treatment which the claimant said fell seriously below the standard to be expected. There were differing opinions on this issue and strong feelings.
One could not read passages in the report before the court without realising the high levels of distress that issues relating to gender dysphoria may cause within patients and the harmful conduct and behaviours that may be associated with such distress. The court would be inhuman if it did not note those issues, but it had to approach them in a dispassionate way.
That there were two schools of thought and practise could not, without more, absolve a doctor from blame if the doctor did not follow a course of practise that should not be followed.
Without expressing an opinion, it seemed to the court that looked at in the round the evidence was of serious allegations not simply limited to the question of patient treatment. The associated allegations – which were no more than allegations – relating to probity and/or cooperation with the regulatory process fed in to an assessment of the overall seriousness of the situation.
There had been passing reference to the importance of maintaining confidence in the regulator as part of maintaining confidence in the medical profession, but a regulator whose processes led to considerable delays was likely itself to be accused of putting at risk the public’s confidence in the medical profession.
In Arkhangelsky the Master of the Rolls, and in Natwest v Bilta the Court of appeal, referred to the starting point of three months. A three-month period between the close of submissions and the delivery of judgment was not intended to be a target but was clearly intended by the Master of the Rolls to be the maximum.
He spoke of cases in particular in the commercial sphere; that was the sphere with which he was concerned in the Arkhangelsky case. This was a different context of a three-person tribunal whose members were not full-time judges and who may have logistical difficulties in terms of reconvening.
From the determination of the rule 17 application, the Tribunal Service was aware that there would be a need to determine factual issues before the Tribunal could go on to consider the question of fitness to practise and/or impairment. From that stage, a properly proactive system should have been considering how that was to be achieved within a reasonable period of time.
This was a case where the outcome the Tribunal was considering had a significant bearing upon the practise of the individual, where issues of dishonesty were raised which called for determination within a relatively short period. Delay was inimical to the fair determination of such issues.
It was simply not possible to justify a delay to April for the decision to be promulgated, and certainly not possible to justify further suspension for a period of time that would cover such a delay.
The delay in this case, which was suggested between the Tribunal convening to consider its determination in January but then not handing down its judgment until April was both incomprehensible and indefensible.
The undertakings proposed by the doctor were problematic. The court considered that the first category of undertaking offered by the doctor could not truly be said to be enforceable and workable in a realistic sense in an application such as this before the High Court.
On balance – and the court emphasised that it was a narrow balance – some form of suspension was proportionate but it could only be strictly limited in time.
It would be one that would have been sufficient to allow the Tribunal to promulgate its decision had it complied with the time limits referred to by the Master of the Rolls in the Arkhangelsky case. It was also one which was sufficient to allow some attempt to be made to re-refer the matter to an Interim Orders Tribunal to see whether in fact some form of restriction upon the doctor’s registration which could be said to be proportionate could be conceived of, consulted upon and considered.