Scholten, R (on the application of) v General Medical Council [2013] EWHC 173 (Admin)

Case No CO/11011/2012

[2013] EWHC 173 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Manchester Civil Justice Centre, Bridge Street, Manchester, M60 9DJ

Date 6 February 2013

Before

THE HON. MR JUSTICE SUPPERSTONE

Between

The Queen on the application ofClaimant

DR ERIK SCHOLTENClaimant

GENERAL MEDICAL COUNCILDefendant

Ms Clodagh Bradley (instructed by Messrs Clyde & Co) for Claimant

Ms Gemma White (instructed by GMC Legal) for Defendant

Hearing Hearing dates: 30 January & 4 February 2013

Judgment

Mr Justice Supperstone :

Introduction

[1]On 30 January and 4 February 2013 I heard Dr Scholten’s application brought under section 41A(10) of the Medical Act 1983 (“the Act”) to terminate the suspension order of 18 months imposed by the Interim Orders Panel of the General Medical Council (“the Panel”) on 10 April 2012. The order was reviewed by the Panel on 8 October 2012 and maintained. A further review is due to take place on 6 February 2013. In those circumstances at the end of the hearing I gave my decision immediately, which was to make no order on the application. I now give my reasons.

Background

[2]Dr Scholten is a consultant plastic and cosmetic surgeon. He practises in female genital plastic and cosmetic surgery and also performs a range of other plastic and cosmetic surgery, particularly to the breasts and abdomen. For the last eight years he has worked exclusively in the independent sector.

[3]On 27 February 2012 Dr Scholten was practising from Fitzwilliam Hospital in Peterborough. He was due to perform breast augmentation surgery, involving the removal of existing implants and replacement with alternative implants, on a patient who had been anaesthetised.

[4]As the patient was being prepared for surgery Dr Scholten noticed, through the patient’s net surgical underpants, that she had a very well developed clitoral hood. He commented on this anatomical feature to the staff present in theatre and stated that he intended to photograph it. He took a single photograph of the patient’s clitoral hood, with the surgical underpants pulled aside, and her legs in a natural position, together. He used the camera on his iPhone. He did not have the patient’s prior consent to take the photograph.

[5]The Matron, Caroline Yarnell-Smith, was informed by the Theatre Manager of the incident and she raised it with the patient and then with Dr Scholten. The Matron was present when Dr Scholten spoke to the patient and her husband. Dr Scholten offered his apologies for taking the photograph without her consent.

[6]On 29 February 2012 Dr Scholten wrote to the patient “…to once again apologise unreservedly for my actions on Monday 27 February 2012. It was inappropriate for me to have taken a photograph of you without your prior consent. I can assure that this was done with the best of intentions in regards to your care pathway. The reason I did so is two-fold, firstly to use the picture as an opening to talk to you about this area of your anatomy in a future consultation – as I am the leading specialist in the UK for female genital cosmetic and reconstructive surgery. … Secondly I am always adding to my portfolio of different female genitalia to show prospective patients and I was hoping, with your consent, to do so with yours. I would have discussed this with you and of course had you objected, I would have disposed of this imagery immediately. … I sincerely hope that the trust between us is not beyond repair…” I sincerely hope that the trust between us is not beyond repair…”

[7]On 2 March 2012 the Fitzwilliam Hospital suspended Dr Scholten’s practising privileges pending their investigation and reported the incident to the GMC. On 20 March 2012 the Fitzwilliam Hospital wrote to the GMC confirming that, following a meeting of their Professional Review Advisory Committee on 16 March 2012, they had withdrawn Dr Scholten’s practising privileges and a copy of their investigation report (“the report”) was enclosed.

[8]The report contained the following key findings:

“Mr Scholten accepts that on Monday 27 February 2012 he: (a) took a photograph of the patient’s external female genitalia (he specifically referred to the clitoral [hood]); (b) only took a single photograph; (c) did use his iPhone mobile phone to take the photograph; (d) did not have the patient’s written or verbal consent to do so. … Mr Scholten did confirm that he had other similar photographs on his iPhone of other patients which he explicitly confirmed he did have patient consent before taking those photographs. However, it remains a serious data protection concern that Mr Scholten is using an iPhone to hold these photographs.”

[9]The report identified several respects in which it was considered that Mr Scholten was potentially in breach of professional guidance, including the following:

“The duties of a doctor registered with the General Medical Council Patients must be able to trust doctors with their lives and health. To justify that trust you must show respect for human life and you must: • Treat patients as individuals and respect their dignity • Treat patients politely and considerately • Respect patient’s right to confidentiality • Be honest and open and act with integrity • Never abuse your patient’s trust in you or the public’s trust in the profession Good Medical Practice: Being honest and trustworthy 1. 56. Probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism. 2. 57. You must make sure that your conduct at all times justifies your patient’s trust in you and the public’s trust in the profession. The investigation has identified that Mr Scholten is in breach of Ramsay Policy and HCSA regulations in the following areas: • CN009 Consent and GMC guidance (2002) Making and Using Visual and Audio Recordings of Patients. • Photographic and video recordings which are made for treating or assessing a patient must not be used for any purpose other than the patient’s care or the audit of that care, without the express consent of the patient or a person with parental responsibility for the patient. • If you wish to use such a recording for education, publication or research purposes, you must seek consent in writing, ensuring that the person giving consent is fully aware of the possible uses of the material. In particular, the person must be made aware that you may not be able to control future use of the material once it has been placed in the public domain. Privacy and Dignity LS001: Every patient has the right to receive high quality care that is safe, effective and respects their privacy and dignity. It is essential that every patient is treated with courtesy and respect in whatever setting their care is delivered.”

Good Medical Practice: Being honest and trustworthy

Privacy and Dignity LS001:

[10]The findings of the Hospital Professional Review and Advisory Committee are set out in section 7 of the report. They are that Dr Scholten:

“a. Acted inappropriately with respect to his behaviour and conduct in relation to this incident; b. Did not have the patient’s consent to take a photograph of her external female genitalia and consequently did not treat the patient as an individual and respect her dignity; c. Was in breach of good medical practice in ensuring that his conduct at all times justifies his patient’s trust in the profession; d. Acted in such an inappropriate manner as to potentially bring the reputation of Fitzwilliam Hospital into disrepute.”

[11]By a letter dated 2 April 2012 the GMC wrote to Dr Scholten inviting him to appear before the Panel.

The legislative framework

[12]By section 41A(1) of the Act:

“(1) Where an Interim Orders Panel… are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Panel may make an order— (a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding 18 months as may be specified in the order (an ‘interim suspension order’); or (b) that his registration shall be conditional on his compliance, during such period not exceeding 18 months as may be specified in the order, with such requirements so specified as the Panel think fit to impose (an ‘order for interim conditional registration’).”

[13]The GMC Guidance (“the Guidance”), the aim of which is to promote consistency and transparency in decision making relating to interim orders, states as follows: “18. The [Interim Orders Panel] must consider, in accordance with section 41A, whether to impose an interim order. If the IOP is satisfied that:a. in all the circumstances there may be impairment of the doctor’s fitness to practise which poses a real risk to members of the public, or may adversely affect the public interest or the interests of the practitioner; and

b. 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 shall be made. 19. In reaching a decision whether to impose an interim order an IOP should consider the following issues: a. the seriousness of risk to members of the public if the doctor continues to hold unrestricted registration. In assessing this risk the IOP 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. b. 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.

c. whether it is in the doctor’s interests to hold unrestricted registration. For example, the doctor may clearly lack insight and need to be protected from him or herself. 20. In weighing up these factors, the IOP must carefully consider the proportionality of their response in dealing with the risk to the public interest (including patient safety and public confidence) and the adverse consequences of any action on the doctor’s own interests.”

and

[14]Section 41A(10) of the Act provides:

“Where an order has effect under any provision of this section, the relevant court may— (a) in the case of an interim suspension order, terminate the suspension; (b) in the case of an order for interim conditional registration, revoke or vary any condition imposed by the order; (c) in either case, substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it), and the decision of the relevant court under any application under this sub-section shall be final.”

[15]The court does not have jurisdiction under section 41A(10) to substitute an order for interim conditional registration for an interim suspension order (Madan v General Medical Council

[2001] EWHC Admin 577

[16]The General Medical Council (Fitness to Practise) Rules Order of Council 2004, by paragraph 27(4)(g) require the IOP the announce its decision and give its reasons for that decision.

The decision of the Panel of 8 October 2012

[17]The Panel stated itself (24D-E) to be “satisfied that it is necessary for the protection of members of the public and in the public interest for [Dr Scholten’s] registration to remain suspended.” Further the decision recorded (29B-C):

“The Panel is satisfied that there may be impairment of your fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest, and, after balancing your interests and the interests of the public, an interim order is necessary to guard against such risk.”

[18]The core reasoning of the Panel for its decision is contained in the following passages (29D-30G): “The Panel has considered whether an interim order of conditions would be sufficient in this instance. It is mindful that any conditions must be workable and enforceable and should protect the public and the wider public interest. The Panel is of the view that there are no workable or practicable conditions that can be formulated in your case, given the very serious nature of the allegation, which occurred in an operating theatre, with an anaesthetised patient who did not consent to have photographs taken of her genitalia on your own mobile phone. The Panel considers that the allegation is very serious and the current order of suspension is necessary to protect patients and to maintain the trust that members of the public are entitled to place in the medical profession and its practitioners. The Panel is of the opinion that its primary duty is to protect members of the public and the wider public interest. In making its decision the Panel has noted paragraph 2 of Maintaining Boundaries which states: ‘Trust is a critical component in the doctor-patient partnership: patients must be able to trust doctors with their lives and health. In most successful doctor-patient relationships a professional boundary exists between doctor and patient. If this boundary is breached, this can undermine the patient’s trust in their doctor, as well as the public’s trust in the medical profession’, and paragraph 1 which says: ‘You must treat patients with dignity’. The Panel has taken account of the principle of proportionality and has balanced the need to protect members of the public and the public interest against the consequences for you of the suspension of your registration. Whilst it notes that the order has removed your ability to practise medicine it considers that, given the nature and the seriousness of the allegation, there are no conditions which would adequately protect members of the public or the public interest. It is, therefore, satisfied that the order of suspension is a proportionate response.” ‘Trust is a critical component in the doctor-patient partnership: patients must be able to trust doctors with their lives and health. In most successful doctor-patient relationships a professional boundary exists between doctor and patient. If this boundary is breached, this can undermine the patient’s trust in their doctor, as well as the public’s trust in the medical profession’, ‘You must treat patients with dignity’.

[19]Ms Clodagh Bradley, on behalf of Dr Scholten, challenges the decision of the Panel on five grounds: i) The Panel failed to deal with the submission made that the allegation, which relates to an isolated incident, may not be sufficient for the statutory test to be met that there may be impairment of the doctor’s fitness to practise (Ground 1). ii) There is no evidence of risk to patients or risk to public confidence which could have justified an order of suspension (Ground 2). iii) It was unnecessary and disproportionate to suspend Dr Scholten for the protection of members of the public or on public interest grounds (Ground 3). iv) The Panel gave the appearance of having pre-judged the matter before hearing submissions on behalf of Dr Scholten (Ground 4). v) The period of 18 months’ suspension was disproportionate (Ground 5).

[20]Further, in relation to each of these grounds, the reasons given by the Panel are inadequate.

[21]In the recent decision of Harry v General Medical Council

[2012] EWHC 2762 (QB)

Burnett J summarised (at para 2) the approach to be adopted by this court when considering an application for termination:

“The jurisdiction is an original one, rather than one of review. The court will only terminate an order of suspension if it is satisfied that the order was wrong. However, the court will always be mindful that it is being asked to overturn a decision of a specialist disciplinary panel and thus accord considerable respect to a reasoned decision of the Panel. Inadequacy of reasoning does not in itself provide a ground for terminating an order of suspension. But if the reasoning is inadequate or opaque the weight to be attached to the professional opinion of the Panel will be diminished: R (Walker) v GMC [2003] EWHC 2308 (Admin); Sheikh v General Dental Council [2007] EWHC 2972 (Admin); GMC v Sandler [2010] EWHC 1029 (Admin); Madan v GMC [2001] EWHC 577 (Admin).”

[22]The Guidance at paragraph 41 states that the court did not expect an IOP to give long detailed reasons, but that the reasons given must be clear and explain how the decision was reached, including identifying the interest(s) for which the order is considered necessary.

Ground 1: the Panel’s finding that fitness to practise may be impaired

[23]Ms Bradley accepts that Dr Scholten made a serious error of judgment. However she submits it was an isolated incident, in respect of which he has accepted responsibility and offered his sincerest apologies to the patient both verbally and in writing. It is not suggested that there was a sexual motive for his actions. His misjudgement is remediable. He has stated that he will change his practices and in future all patients will have to give written consent before any photographs are taken on a digital camera which he will use for the sole purpose of recording patients.

[24]The Panel did not, she submits, explain why in these circumstances Dr Scholten’s fitness to practise may be impaired. Further the Panel failed to have regard to the death of Dr Scholten’s father three weeks before the incident which Ms Bradley had brought to the attention of the Panel. This was an aberrant incident which, as the testimonials written on Dr Scholten’s behalf suggest, was very much out of character.

[25]Ms Gemma White, on behalf of the GMC, draws attention to the differing explanations given by Dr Scholten for taking the photograph. However she submits that even if Dr Scholten’s explanation of the reasons for his conduct is accepted his actions amount to gross invasion of the privacy of the patient in a vulnerable position and a serious breach of the trust which is fundamental to the doctor-patient relationship. She accepts that Dr Scholten has apologised for what happened, but she suggests that the focus of the apology on taking a photograph without consent indicates that Dr Scholten has not appreciated the significance of what he has done.

[26]I accept Ms White’s submission that the Panel in its Determination (at 30E-F) were concerned with both “the nature and the seriousness of the allegation”. Dr Scholten’s conduct did amount to a serious breach of the trust which is fundamental to the doctor-patient relationship. Having regard to the various explanations given by Dr Scholten for his conduct (see para 29 below), I do not consider the Panel’s conclusion that Dr Scholten’s fitness to practise may be impaired to be wrong. Risk to members of the public (protection of patients) and public interest in suspension (Ground 2); proportionality and relevant considerations (Ground 3); and length of order (Ground 5)

[27]I shall consider these three grounds of challenge to the suspension order together. They all relate to the issue as to whether the order of suspension is a proportionate response.

[28]Ms Bradley submits there was no evidence of risk to patients or risk to public confidence which could have justified an order of suspension, nor is there any explanation of any such risk in the decision. Further, it was unnecessary and disproportionate to suspend for the protection of members of the public or on public interest grounds. Finally, she contends that having regard to the serious damage which the suspension was causing to Dr Scholten’s ability to earn a living, his family life, his health and his reputation and the fact that an interim suspension deprives the individual practitioner of the ability to show that in the period prior to the final hearing he has conducted himself well and competently and so enhanced his prospects in front of the Fitness to Practise Panel (see Shiekh v General Dental Council at para 17), to maintain the maximum period of suspension of 18 months was unfair and disproportionate, particularly in the context of a surgeon, for whom maintenance of surgical skills is crucial.

[29]Ms White submits there was ample evidence before the Panel to support its judgment that there was a risk to patients and risk to public confidence. At best the explanations provided by Dr Scholten for his conduct, she submits, demonstrated that he has wholly failed to grasp the gravity of the situation. Dr Scholten’s initial explanation was that he took the photograph to provide a comparison with a previous operation in the event that that patient complained. Later he contended that he took the photograph to provide an opening to discuss with the patient, in a week’s time, whether he could “help her”, and because he wanted to add it to his collection of photographs of female genitalia to show other patients (see para 6 above). At the conclusion of the investigation meeting he said that he “had a very good intention, I acted in the patient’s best interests” (bundle, page 135). Ms White suggests that at worst, those explanations are highly improbable and there was some other motive for Dr Scholten’s conduct (although she does not suggest that the motive was sexual).

[30]Further, Ms White submits that the Panel took account of the evidence before it and the oral submissions made on Dr Scholten’s behalf. In particular she refers to the following passages of the Determination (27H-28E):

“The Panel considered the new information before it today including the investigation file provided by the Fitzwilliam Hospital dated 18 April 2012, which contains witness statements, meeting notes and various correspondence. The Panel noted the information provided today including the many positive professional and patient testimonials, the letter from your accountants outlining your financial position and your most recent appraisal. … Ms Bradley invited the Panel to revoke the current order of suspension or impose workable conditions that would allow you to work. She added that your suspension resulted in a complete cessation of your income and the consequences have been devastating.”

[31]Ms White submits that it was not only the seriousness of the allegation but the nature of it which was key to the Panel’s determination. The conduct took place in the very clinical context in which Dr Scholten contends he should be permitted to continue to practise. Furthermore, the allegation calls into question Dr Scholten’s integrity and his understanding of the fundamental principles of the medical profession. Conditions on his working such as those suggested on his behalf do not, she submits, adequately protect the public against the risk posed by him.

[32]Ms Bradley submits the evidence demonstrates that Dr Scholten does appreciate the gravity of what he did. He referred expressly to the issue of trust in his letter to the patient apologizing for what he had done (see para 6 above). Clearly, she submits, he understands that taking a photograph without a patient’s consent undermines the relationship of trust between doctor and patient.

[33]As for the length of the order, Ms White submits that in view of the nature of the misconduct alleged and the need to protect the public and maintain confidence in the medical profession the Panel was right to make an order for the maximum 18 months. The Panel conducting the review in October 2012 did not have the power to impose a shorter period of suspension.

[34]In my judgment the reasons given by the Panel for its decision that the suspension order should be maintained are inadequate. Further, and critically, there was no sufficient balancing of the risk to members of the public (protection of patients) and the public interest, and the impact of a suspension order upon Dr Scholten.

[35]The Panel stated itself to be satisfied that the order of suspension is a proportionate response (30F-G). However it does not identify the risk posed by Dr Scholten remaining in practise pending the resolution of the allegations against him or more importantly the degree of that risk (see Houshian v General Medical Council

[2012] EWHC 3458 (QB)

at para 34).

[36]Further the Panel expressed the view “that there are no workable or practicable conditions that can be formulated in [Dr Scholten’s] case” (29E-F) which would adequately protect members of the public or the public interest (30F-G). However the Panel does not explain its reasons for rejecting the submission made by Ms Bradley, based on the evidence, that there were workable and practicable conditions that can be formulated.

[37]Ms Bradley referred the Panel to the letter from Mr Leaker, the medical director of Queen Anne Street Medical Centre. He has known Dr Scholten for some time, and states that he will be “able to monitor and supervise Mr Scholten should he be allowed to practise at QASMC”. Mr Leaker explains that they have a medical advisory committee which has an independent chairman which performs a regulatory role within the hospital (12B-E).

[38]Ms Bradley submitted to the Panel that there is no additional risk that cannot be met through carefully-drafted conditions. She informed the Panel that Dr Scholten would be willing to accede to any proportionate workable conditions that the Panel might be minded to impose. Ms Bradley said: “Examples of those can obviously include the standard ones, plus any chaperoning conditions. He complies with those in any event. He is more than happy to have a written requirement for written consent prior to any photographs being taken, and to ensure that he takes all photographs on a dedicated camera rather than on an iPhone as occurred in this incident, and more than happy to keep a log of all patient consents that have been obtained. Those are the sort of strategies that … would be more than adequate to meet any risk that is perceived as a result of this aberrant and isolated incident.” (17A-D).

[39]Ms White suggests that chaperoning is no answer when the conduct about which complaint is made was taken in the presence of other persons. However that response, in my view, fails to take into account that this was a “one off” incident. The Fitzwilliam Hospital arranged for an audit to be carried out of Dr Scholten’s patient notes and records. The audit found that all patient records were complete and appropriate and all necessary consents were recorded and signed by the patient. There were no complaints or clinical incidents arising from those procedures (13A-B).

[40]Mr White, a consultant anaesthetist, who has worked with Dr Scholten for seven years at the Fitzwilliam Hospital and other hospitals, wrote:

“During the time that I have known him I have never [had] any concerns about Dr Scholten’s professionalism, competency and ethics”

. Mr Flynn, the Medical Advisory Committee Chairman at the Saxon Clinic for the past two years, said that “there have been no incidents of impropriety or concerns with regard to [Dr Scholten’s] social interactions”. Mr Richards, a consultant plastic surgeon, who has worked with Dr Scholten for over eight years, predominantly at the Saxon Clinic, said that he “had no indication of anything untoward in his professional behaviour”. Other testimonials were submitted to the Panel on Dr Scholten’s behalf (Bundle, pp174-182). Whilst the Panel note there were “many positive professional and patient testimonials” (28B-C), it does not state whether it had regard to these testimonials when considering whether maintenance of the suspension order was necessary.

[41]The transcript of the hearing before the Panel records Ms Bradley’s submissions as to the consequences of the suspension as follows: “… they have been nothing short of devastating for Dr Scholten. Short of losing his liberty, he has lost absolutely everything. He has had an overnight cessation of all his income. He has lost his home. He had to sell his home. He has lost his ability to co-parent his children, so he has lost his family contact time that he previously enjoyed, 50% of the time with his former wife. He had the children one week and his former wife had the children the other week. They would alternate and share the parenting equally. His son has had to be taken out of private school and moved to a state school. His daughter’s schooling was also in jeopardy, but she has been permitted to make use of the school’s hardship funds. His mental health suffered, although, happily, has improved in the lead up to this hearing, because it has given him hope for the future. He has lost his long-term relationship of two years. His plastic surgery business had to stop trading overnight. He is on the verge of bankruptcy. He has had his career, that he has held so centrally in his life, stopped in its tracks overnight. As far as his housing situation is concerned… he was forced to sell his home, which was close to his children’s schools, where they had their own rooms and their friends locally, and now he lives in shared accommodation that he shares with friends. He shares a kitchen and has a joint food kitty. He has to queue for the shower. Quite an undignified state of affairs for a 52-year-old consultant who had reached the position that he had through hard work and excellent skills.” (10B-E).

[42]In its Determination the Panel noted Ms Bradley’s submission that Dr Scholten’s “suspension resulted in a complete cessation of [his] income and the consequences have been devastating” (28D-E). However the Panel does not indicate what, if any, consideration it gave to the consequences of the suspension for Dr Scholten and the many matters referred to by Ms Bradley in her submissions (see para 41 above) when concluding that the order of suspension is a proportionate response.

[43]Further, there is no reference in the Panel’s decision to the length of the suspension order in the context of considering whether maintaining the order is a proportionate response. In Harry v General Medical Council at para 18 Burnett J said, in response to an indication from counsel that if an interim suspension order is made it is likely to be for 18 months:

“It should not be overlooked that Parliament has provided that 18 months is the maximum period of suspension that the Panel can impose. There will be many cases in which suspension is proportionate for a short period but not for as long as 18 months, given the very serious consequences it has upon the doctor concerned. 18 months should not become a default position.”

Ms White makes the point that the Panel conducting the review in October 2012 did not have the power to impose a shorter period of suspension than that imposed by the IOP in April 2012. That is correct. Nevertheless the length of the suspension order that has been imposed is, in my view, a factor to be taken into account when considering whether the order of suspension is a proportionate response.

[44]In Madan at para 68 Newman J observed:

“This case demonstrates the length of the delay which can take place and how the period of suspension from practice can be very long. The suspension is capable of giving rise to serious and grave consequences for the future professional career of a doctor, as well as creating immediate consequences of hardship.”

The facts of the present case are relatively straight-forward. It concerns a single incident in respect of which Dr Scholten has admitted the conduct which is the subject matter of the investigation by the GMC. He has been suspended for nine months and the Rule 7 stage in the GMC’s procedures has not yet been reached. Ms Bradley does not expect any hearing to take place before a FTP Panel before Autumn 2013. Ms White does not suggest that it will be before the summer of 2013. As Burnett J noted in Harry v GMC at para 18, “the pressure on the Fitness to Practise Panel of the GMC is well known”.

[45]For the reasons I have given, in my view, the Panel conducted no sufficient balancing of the risk to members of the public (protection of patients) and public interest, and the impact of a suspension order upon Dr Scholten. If I had jurisdiction to do so, having regard to all the circumstances of the present case, I may well have substituted a conditional registration order for the suspension order (see Madan, para 69).

Alleged appearance of pre-judgment (Ground 4)

[46]Ms Bradley submits that the Panel gave the appearance of having pre-judged the matter before hearing her submissions on behalf of Dr Scholten. The Chair expressly invited her to be “brief in [her] submissions” shortly after they commenced, and also invited her to be “very brief” in dealing with the case law. Further the Chair interrupted her submissions without justification stating that the Panel had had the bundle for “some time” and that they were therefore familiar with it, when the Defence bundle had in fact only been provided to the GMC on the afternoon of Friday 5 October 2012, and the Panel had only been provided with a copy of the two Addenda to the IOP bundle on the morning of the hearing. Accordingly, Ms Bradley submitted it was doubtful whether the Panel had any real opportunity to read the 70 page Defence bundle with the care that was required. That being so it was particularly inappropriate of the Chair to insist upon brevity of submissions. Finally, Ms Bradley submitted that when she was trying to make submissions as to why any conditions which the Panel may impose should not be confined to a particular clinic, she had repeatedly to request that the Panel listen to her submissions, given the frequency of interjections from the Chair.

[47]Ms White submits that the passages from the transcript upon which Ms Bradley relies, when read in context, provide no basis for the contention that the Panel appeared to have pre-judged the issues before them.

[48]Having regard to the transcript of the hearing before the Panel as a whole, I reject this ground of challenge.

Conclusion

[49]For the reasons I have given I make no order on this application.