QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DR PLAVELIL ABRAHAM GEORGE||(CLAIMANT)|
|THE GENERAL MEDICAL COUNCIL||(1st DEFENDANT)|
|SOUTH STAFFORDSHIRE HEALTHCARE NHS TRUST||(2nd DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR T DE LA MARE appeared on behalf of FIRST DEFENDANT
MR R JAY QC appeared on behalf of SECOND DEFENDANT
Crown Copyright ©
Thursday, 1st May 2003
"If in any case it appears to the medical screener, the case co-ordinator, the Assessment Referral Committee or the Committee on Professional Performance that the circumstances are such that the Interim Orders Committee may wish to make an interim suspension order or an order for interim conditional registration under section 41A(1) of the Act, the person or Committee considering the case shall refer the case to the Interim Orders Committee."
"The medical screener shall take no action under rule 6... unless the complaint or information received by the Council -
(b) was received by the Council less than five years from the date of the events giving rise to it, save that where a complaint or information was received more than five years after the events giving rise to it, the medical screener may nevertheless take action under rule 6 if, in his opinion, the public interest requires this in the exceptional circumstances of the case."
"... unable to take any action under rule 5(1),] in connection with a complaint or information [that is described as the earlier case] the earlier case may nonetheless be taken into account by the medical screener in connection with the consideration of a subsequent complaint or information with a view to determining whether together they indicate a pattern of professional performance which is seriously deficient."
"An earlier case may only be taken into account in accordance with paragraph (1) if, when the practitioner is notified that no further action is to be taken in connection with that earlier case, the notification contains a statement that the case may be taken into account in the consideration of any subsequent complaint or information."
"No person shall give oral evidence at the hearing unless the Committee consider such evidence is necessary to enable them to discharge their functions under [sub] paragraph (9)."
"If the Committee are satisfied that it is necessary for the protection of members of the public or otherwise in the public interest or in the interests of the practitioner that an order be made under section 41A(1) of the Act, they shall decide whether to make an order -
(a) that the registration of the practitioner be subject to such conditions as are specified in the order; or
(b) suspending the registration of the practitioner,
And in either case specify the period, not exceeding eighteen months, during which the order is to be in force."
"(c) as soon as practicable after the hearing, send a copy of the decision and the brief reasons for the decision to -
(i) the practitioner, and ...
(d) notify the practitioner of his right to apply to the court under section 41A(10) of the Act."
"Where the Interim Orders Committee 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 Committee 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 Committee think fit to impose (an "order for interim conditional registration")."
"May review it where new evidence relevant to the order has become available after the making of the order."
"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) deals with interim conditional registration orders]
(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."
"Secondly, only the original interim suspension order can be challenged under section 41A(10), and the Court has no power to make any formal orders in respect of any review by the Interim Orders Committee of the original interim suspension order... Accordingly, for my part I would dismiss Dr Donnelly's appeals against the directions given on each of the reviews because the Court has no power to consider them. Thirdly, section 41A(10) contains no time limit for applying for the original interim suspension order to be set aside. But if a doctor delays making such an application to the court, the original interim suspension order may have been overtaken by a decision on a review of the original order, such a decision being one which the doctor will not be able to challenge."
"The committee has before it cogent and credible prima facie evidence that patient care has been compromised in various ways. Basic lack of clinical knowledge is a recurring theme in all the Trust referrals that have come back from the Royal College, a disruption to medical colleagues, in particular the case from Guernsey demonstrates that there has been a compromise of clinical service owing to the doctor's actions. Disruption to wider clinical teams and complaints from ancillary clinical services and social workers leading to the disruption of the care of individual patients and the population as a whole. Failure to cooperate with the child protection procedures, failure to cooperate with a proper investigation of clinical complaints under the NHS procedures, and clearly there is some evidence of doubt over veracity of information that has been provided in relation to absence from work, failure to fulfil employment commitments once the job has been offered, and validity of elements of his CV."
"... there is cogent and credible prima facie evidence over a substantial period of time of sub-standard professional practice..."
"These allegations, if proven, demonstrate that you may pose a serious risk to patients if you were to continue in practice, and would also undermine the trust the public places in the profession. The committee has taken account of the issue 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 knows that its order has removed your ability to practice medicine, it considers that the allegations against you are so serious and wide-ranging that 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.
"In deciding on the period of 18 months, the committee has taken into account the uncertainty of the time needed to resolve all the issues in the case. The order will be reviewed at a further meeting of the committee to be held within six months."
"'My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge; it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision.'
In the same case Lord Templeman, with whose speech all the other Law Lords agreed, said ( 2 All ER 327 at 337,  AC 835 at 862): "Judicial review should not be granted where an alternative remedy is available."
"These are very strong dicta, both in this court and in the House of Lords as cited, emphasising that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure it is only exceptionally that judicial review should be granted. It is therefore necessary, where the exception is invoked, to look carefully at the suitability of the statutory appeal in the context of the particular case."
"Mr Sales argued that permission to claim judicial review of a decision of a County Court should not be granted where the possibility of an appeal to a higher court pursuant to provisions of statute remains open. He so submitted both as a general proposition and in reliance upon the 1999 Act, and the legislative policy behind it. He submitted that there is an abundance of authority for the proposition that permission to claim judicial review should not be granted when a suitable alternative remedy is available."
"There is indeed an abundance of authority, which supports Mr Sales' submission. This can be demonstrated by reference to that which he cited to us."
"What these authorities show is that judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused."
"Suspension of the registration of a fully registered person... by an interim order under section 41A above shall not terminate any appointment such as is mentioned in subsection (1) above, but the person suspended shall not perform the duties of such an appointment during the suspension."
"Subject to subsection (2) below, no person who is not fully registered shall hold any appointment as physician, surgeon or other medical officer."
"In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -
(a) the reason... for the dismissal..."
"A reason falls within this sub-section if it -
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do... [Or]
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment."
"Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."