By Ruth Peters, 20th April 2023
The role of an Interim Orders Tribunal (IOT) is to consider whether a doctor’s registration should be restricted either by suspending the doctor or by imposing conditions upon their registration.
Section 41A of the Medical Act 1983 provides for an IOT to make such an order suspending or imposing conditions upon a doctor’s registration for a period of up to 18 months.
IOT hearings are held in private although a doctor can request for it to be heard in public or the IOT may consider the same to be appropriate.
When would a case be referred to the IOT?
The Registrar can refer a case to the IOT at any stage during a GMC investigation if they are of the opinion that the IOT should consider making an interim order. Case examiners and the Investigation Committee also have powers to direct the Registrar to refer a case to the IOT.
Cases should be referred to an IOT where a doctor faces allegations of ‘such a nature that it may be necessary for the protection of members of the public, or otherwise be in the public interest or in the interest of the doctor, for the doctor’s registration to be restricted while those allegations are investigated’.
Cases may also be referred where doctors have appeared before an MPT, had their registration made subject to conditions (but without immediate conditions being imposed), or been suspended or erased but without immediate suspension being imposed and the GMC order in line with the agreed submissions made by the parties.
Does the doctor need to attend an IOT?
The absence of the doctor does not preclude proceedings from taking place. An IOT however may only make an interim order if the doctor has been given an opportunity to attend and be heard on the question of whether such an order should be made.
If a doctor does not appear and is not represented, the tribunal should proceed only if it is satisfied that all reasonable efforts have been made to serve the doctor with notice of the proceedings.
The rules require that notice of the hearing be served ‘in such time before the hearing as is reasonable in the circumstances of the case’.
Ordinarily doctors will receive at least seven days’ notice but in some cases notice could be shorter where the case is particularly urgent.
The IOT does not need to be satisfied that the doctor is aware of the proceedings, only that all reasonable efforts have been made to serve the doctor with notice of proceedings at it is the doctor’s responsibility to maintain an effective registered address.
Can an IOT be adjourned?
The IOT may, at any stage in its proceedings, adjourn the hearing either upon application of either party or because it considers the same is necessary. Applications for postponement should be made to the case manager before the opening of a hearing. Where a doctor makes an application for postponement prior to the opening of a hearing and this is rejected by the case manager, the doctor may then make an application for adjournment at the hearing.
Where an application for adjournment is made, the IOT should, carefully consider the submissions made and invite the other party to respond to such submissions as to whether the case should be adjourned. It is important that both parties are given reasonable opportunity to make representations, but, parties should be reminded of the importance of keeping these submissions brief and addressing why an adjournment is considered necessary.
Information available to the IOT
Prior to the hearing, papers and supporting documents are sent to the IOT, the doctor and the parties’ legal representatives as well as the legal assessor. These documents must, where possible, be read by tribunal members before they hear any submissions in the case.
Every effort should be made by all parties to ensure that documents are submitted in advance of the hearing to enable the tribunal to consider them.
Both the GMC presenting officer and the doctor or their legal representative may make submissions and adduce evidence. These submissions should be limited to the question whether, given the circumstances of the case, it is necessary to impose/maintain an order either imposing interim conditions or suspension on the doctor’s registration.
The IOT does not make findings of fact or resolve disputes of fact.
Accordingly, no person may give oral evidence before an IOT unless the Tribunal is satisfied that ‘such evidence is necessary to enable it to discharge its functions’. Historically the IOT has rarely found it necessary to hear oral evidence from witnesses but each case must be considered on its own merits. The IOT will always hear from the doctor if they wish to give evidence.
What is the test for the IOT to apply?
In considering whether to impose an interim order in accordance with Section 41A, if the IOT is satisfied that:
- in all the circumstances that there may be an impairment of the doctor’s fitness to practice which poses a real risk to members of the public, or may adversely affect the public interest or the interests of the practitioner; and
- after balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk,
the appropriate order should be made.
The IOT should consider the following issues;
- The seriousness of risk to members of the public if the doctor continues to hold unrestricted registration. The IOT should consider the seriousness of the allegations, the weight of the information including information about the likelihood of a further incident or incidents occurring during the relevant period;
- Whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period;
- Whether it is in the doctor’s interest to hold unrestricted registration for example, the doctor may clearly like insight and need to be protected from themselves.
In considering these factors, the IOT must consider the proportionality of their response in dealing with the risk to the public interest and the adverse consequences of action upon a doctors own interest. The IOT should consider the seriousness of any police charges and the acceptability of their decision on interim action if the doctor is later convicted or acquitted of such allegations.
Allegations of poor performance/substandard clinical care
In relation to such allegations, the test may be met where there is information that the doctor’s clinical skills and/or professional knowledge and competence are (or likely to be) such that they pose a real risk to members of the public if they are to continue without registration. These cases may include either a series of failures to provide a proper standard of care or one particularly serious failure.
Allegations of sexual misconduct
Where allegations involve sexually inappropriate behaviour towards patients or the doctor is under police investigation for a sexual criminal allegation, particular consideration should be given to the impact on public confidence if the doctor were to continue working unrestricted.
The following factors are likely to indicate that a case is likely to raise significant public confidence issues if no interim action is taken;
- Information that a doctor is under investigation in connection to serious offences including rape, attempted rape, sexual assault, attempted sexual assault or sexual abuse to children;
- Allegations that a doctor has exhibited ‘predatory behaviour’ in seeking /establishing an inappropriate sexual/emotional relationship with a vulnerable patient;
- Serious concerns about a doctors sexualised behaviour towards a patient in a single episode;
- Allegations of a pattern of sexually motivated behaviour towards patients.
Where a doctor is under investigation for any other serious criminal allegation particular consideration should be given to the impact on public confidence if the doctor were to continue working unrestricted.
Interim conditions or interim suspension?
The IOT must initially consider whether it is necessary to impose an interim order to protect the public and are desirable to maintain public and uphold proper standards of behaviour. If it decides that such an order is appropriate it must then go on to consider whether to impose interim conditions on the doctor’s registration. If it considers that an interim order for conditions are inappropriate it then must consider whether to suspend the doctor’s registration.
The Tribunal must very carefully consider the issue of proportionality in weighing the significance of any risk to patient/public safety/public confidence against the damage to the doctor by preventing them from practicing.
The suspension of a doctor on ‘public protection’ grounds can only be done if it is necessary but there is no such qualification on suspension where it is desirable ‘in the public interest’ to maintain public confidence.
In considering the imposition of conditions the IOT must ensure that any conditions are workable, enforceable, and will protect the public, the wider public interest or the doctor’s own interests. Conditions should normally follow the format of conditions as set out in the Interim Conditions Bank.
The IOT should also consider whether the practitioner has complied with any undertaking given to the GMC/conditions previously imposed under the GMC fitness to practice procedures and the practice history with the GMC.
Sexual misconduct
Where allegations involve sexual misconduct, there may be a significant risk to public safety and public confidence in the profession if decisions at the interim stage are perceived to not reflect the seriousness of the allegation itself.
Effectiveness of conditions
In cases involving allegations of sexual misconduct the following factors may indicate that a chaperone may not be workable or effective:
- Any serious concerns that a doctor has not complied with existing chaperoning arrangements;
- Allegations that a doctor asks the chaperone to leave the room during an intimate examination;
- Allegations that a doctor exhibited sexually indicated behaviour towards patients in the presence of a chaperone.
Public Confidence
The public has a right to know about a particular doctor’s fitness to practice history in order they can make an informed choice about where to seek treatment. In order to properly balance this with fairness to the doctor allegations leading to the imposition of interim conditions are not published.
It is therefore the responsibility of the IOT to consider whether, if allegations are later proved, it would damage public confidence to lean the doctor continued to work with patients while the investigation continued.
Therefore, the presence of one or more of the following factors are a strong indicator that conditions may be inadequate to maintain public confidence;
- Information that a doctor has been charged by police in connection to serious offences including rape, attempted rape, sexual assault, attempted sexual assault, sexual abuse to children
- Allegations of a pattern of sexual inappropriate conduct towards patients
The IOT should consider any immediate risk to patient safety. However, there are circumstances in which it is necessary to take action to protect public confidence even if there is no immediate risk to patients apparent.
Criminal Charges
Where the allegations involve serious criminal charges the Tribunal should consider recent case law in relation to the proportionality of their response.
The Tribunal should consider the individual features of each case and the particular facts of the criminal charges. The IOT should have in mind the possibility of both the practitioner being acquitted and also the possibility of the doctor being convicted of the particular charges.
Breach of conditions
Where the IOT has credible information placed before it relating to a breach of interim conditions previously imposed by an IOT, it must determine whether it is satisfied, on the balance of probabilities, that breach has occurred.
If so that information should be taken into account in the assessment of the overall risk posed by that doctor. The IOT must bear in mind the risk posed to the public interest of a doctor practising in breach of conditions put in place to protect the public and/or uphold confidence in the profession.
The IOT should consider whether;
- The breach is a one off or a repeated occurrence
- Patient safety has been compromised
- There appears to be a wilful disregard of conditions imposed by a tribunal
Period of Order
Where it imposes an interim order, an IOT must specify the length of the order. The maximum period the OIT may impose an initial order is 18 months. If the IOT wishes to extend an order beyond the period initially set, the GMC will need to apply to the relevant court to do so.
In considering the period for which an order should be imposed, an IOT should bear in mind time that is likely to be required before the matter is resolved, for example, the time needed to complete an investigation into the doctor’s fitness to practice including obtaining assessments of the doctors health/performance and for the matter to be listed for hearing by the MPTS.
Review of Interim Orders
The IOT must review an interim order within six months of the order being imposed, and thereafter, at intervals of no more than six months during the lifetime of the order.
A review of an order may also be held at any time when new evidence relevant to the order becomes available. Following a first or subsequent review, the doctor may also request an earlier review which shall be heard as soon as practicable after three months from the date of the immediately preceding order.
When reviewing interim orders, the IOT must fully consider all the circumstances relating to the case including any new information. It must decide whether to maintain, vary, replace or revoke the original order. The IOT shall apply the same test and take account of the same factors when making decisions in relation to the original order.
Reasons for decisions
When announcing its decision, the IOT ‘shall give its reason for that decision’. An IOT must ensure that reasons are given for any decisions taken, including decisions not to impose an order.
IOT decisions should be relatively concise but must include the following information with specific reference to the individual features and particular facts of any individual case.
- The risk to patients should be clearly identified to support the proportionality of any action it was necessary to take
- The risk to public confidence and the profession if the doctor continued working without restriction on their registration and the allegations are later proved, to support the proportionality of any interim action
- Where an order is made primarily because it is desirable in the public interest to uphold public confidence and where there are no concerns about clinical practice specific reasons should be given why this is appropriate
- Reasons for the initial period of time for which an interim order is imposed
- Where no order is imposed clear reasons must be given
How Olliers can help?
Olliers Solicitors provide professional assistance to those facing GMC proceedings.
Our GMC defence lawyers can help relieve the stress and advise you through this process. Olliers work with the country’s leading barristers to ensure you receive the very best in terms of representation and advocacy throughout your case and at any hearing before the MPTS.
We understand the importance of the allocation of specialist barristers at the earliest opportunity, ensuring that your case is properly considered and dealt with throughout by an expert with specific experience of your particular difficulty.
Should you require assistance with any matter before the GMC, contact our specialist professional disciplinary team for an initial confidential discussion as to how Olliers can assist by telephone on 0161 834 1515, by email to info@ollierssolicitors.com or complete the form below.
