COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (BEAN J)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE LAWRENCE COLLINS
| THE GENERAL MEDICAL COUNCIL
|- and -
|DR STEPHEN CHEE CHEUNG HIEW
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Mr Robert Englehart QC (instructed by The General Medical Council) for the Respondent
Hearing date : 5 February 2007
Crown Copyright ©
Lady Justice Arden :
"(1) Where an Interim Orders Panel or Fitness to Practise 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 eighteen 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 eighteen 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.").
(2) Subject to subsection (9) below, where an Interim Orders Panel or Fitness to Practise Panel have made an order under subsection (1) above, an Interim Orders Panel or Fitness to Practise Panel
(a) shall review it within the period of six months beginning on the date on which the order was made, and shall thereafter, for so long as the order continues in force, further review it -
(i) before the end of the period of six months beginning on the date of the decision of the immediately preceding review; or
(ii) if after the end of the period of three months beginning on the date of the decision of the immediately preceding review the person requests an earlier review, as soon as practicable after that request; and
(b) may review it where new evidence relevant to the order has become available after the making of the order.
(3) Where an interim suspension order or an order for interim conditional registration has been made in relation to any person under any provision of this section (including this subsection), an Interim Orders Panel or a Fitness to Practise Panel may, subject to subsection (4) below
(a) revoke the order or revoke any condition imposed by the order;
(b) vary any condition imposed by the order;
(c) if satisfied that to do so is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, replace an order for interim conditional registration with an interim suspension order having effect for the remainder of the term of the former; or
(d) if satisfied that to do so is necessary for the protection of members of the public, or is otherwise in the public interest, or is in the interests of the person concerned, replace an interim suspension order with an order for interim conditional registration having effect for the remainder of the term of the former.
(4) No order under subsection (1) or (3)(b) to (d) above shall be made by any Panel in respect of any person unless he has been offered an opportunity of appearing before the Panel and being heard on the question whether such an order should be made in his case; and for the purposes of this subsection a person may be represented before the Panel by counsel or a solicitor, or (if rules made under paragraph 1 of Schedule 4 to this Act so provide, and he so elects) by a person of such other description as may be specified in the rules.
(5) If an order is made under any provision of this section, the Registrar shall without delay serve a notification of the order on the person to whose registration it relates.
(6) The General Council may apply to the relevant court for an order made by an Interim Orders Panel or a Fitness to Practise Panel under subsection (1) or (3) above to be extended, and may apply again for further extensions.
(7) On such an application to the relevant court the court may extend (or further extend) for up to 12 months the period for which the order has effect.
(10) 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 suspension, 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 subsection shall be final."
The application to the judge
"32. The reason that an extension of 12 months has been requested is due to the length of time required to complete the claimant's fitness to practise procedures in light of the necessary delay in obtaining the CPS and police documents. This documentation will need to be received and considered prior to a Fitness to Practise Panel hearing being listed."
The judgment of the judge
"Any judge of this court naturally pays great respect to the view of the evidence taken by the [IOP]. I am not prepared to say on the submissions before me that there was no case justifying suspension or the renewal of the suspension."
"However I must say the way the application for a 12 month extension is put is inviting the court almost to act as a rubber stamp. It is plain from the structure of section 41A that the court is not bound to endorse a decision of the [IOP] that extensions should be granted, and particularly not where, as here, the allegations against the doctor were first made more than two years ago and the first appearance before the [IOP] was 18 months ago."
Discussion and Conclusions
(1) The function of the court on an application under section 41A(7)
(2) Considerations arising from the European Convention on Human Rights
(3) Application of the relevant principles to this case
Lord Justice Lawrence Collins:
Lord Justice Tuckey: