In this case, the High Court considered the extent to which an Interim Orders Committee ("IOC") can consider whether allegations are credible. The IOC was able to impose conditions based on evidence it knew was incomplete when the allegations based on that evidence could not be "explained away."
After a falling out, the Claimant's colleague (who was also the subject of a complaint to the GDC) made several complaints about the Claimant to the GDC. An expert report obtained by the GDC found that the "snapshot" of records provided by the complainant suggested problems with patient care, record keeping and confidentiality. As a result eight charges were drafted against the Claimant and he was referred to the Interim Orders Committee ("IOC"), although the GDC had not yet seen the full patient records. The Claimant was placed under an interim conditions of practice order. While the IOC recognised that it had not seen the complete records and could not make findings of fact, it considered that the concerns were serious enough to require conditions. The Claimant appealed the conditions, arguing that the IOC had not given adequate reasons for its decision to impose conditions, and that the documents relied on were not a representative sample of the records.
When considering the role of the IOC, Warby J found that its role was "one of risk assessment", but that neither it, nor the court, could ignore the quality of the evidence provided, and whether it was sufficient to justify the position that there was a risk to the public. The Dentists Act 1984 did not set a threshold for the strength of the evidence needed, and there was "no threshold specified in the legislation other than the need to protect the public, the public interest and, where applicable, the interests of the registrant." Warby J went on to find that, because the records were incomplete, the IOC could not properly come to finding as to risk on the allegations of inadequate record keeping. However, the available records and the IOC's reasons were sufficient to demonstrate that the allegations, such as not making further appointments or referrals in response to indications of oral cancer, could not be "explained away" and that there was a risk which needed to be guarded against.
Warby J went on to note that, while the IOC had found that allegations about data protection and patient confidentiality raised concerns about risk, the IOC had not explained its reasons for this finding or its concerns. However, having reviewed the allegations and available evidence, including that MNM had downloaded practice records to separate devices after a warning not to do so, and had used facial photographs without consent, his Lordship considered that the conditions were justified until a full hearing could make its own findings of fact.
This case highlights that, even when the relevant rules do not set an evidential threshold for interim orders, the IOC (and the High Court on appeal) must still consider the quality of the evidence used; while it cannot make findings of fact, it must still assess the risks involved. It is particularly interesting that, even though Warby J was critical of the IOC's reasons, he went on to uphold the same conditions.