England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		9 September 2004

1. MR JUSTICE COLLINS: This is an application by the General Medical Council pursuant to section 41A(6) and (7) of the Medical Act 1983 (as amended) to extend an order made by the Interim Orders Committee which imposed conditions upon Dr Mehrotra insofar as his practice as a radiologist was concerned. Essentially this stemmed from an incident which occurred in October 2002 when a particular patient, who had had a mammogram conducted by Dr Mehrotra, turned out to be suffering from a breast cancer which had not been identified. There were then investigations in relation to a considerable number of patients who had been dealt with by the doctor. In due course this led to a hearing before the Committee in March 2003. On that occasion the Interim Orders Committee imposed conditions for a period of 18 months, as they were entitled to do under section 41A(1), which provides:

"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 ...

(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 Committee think fit to impose (an 'order for interim conditional registration')."

2. Such an order can last for a maximum of 18 months, but by subsection (6) the Council is able to apply to the court for an interim order to be extended, and on such application, the court may by subsection (7) further extend such an order up to 12 months. The request in this case was to extend the order for a period of 12 months.
3. The conditions imposed by the Committee were in the following terms:

"1. You shall not undertake any reporting on mammograms.

2. You shall notify all employers, prospective employers and locum agencies whether for paid or voluntary employment, requiring registration with the GMC, at the time of application:

(a) of these conditions and

(b) of the matters under consideration by the GMC.

3. You shall notify in writing the IOC Secretariat for the GMC of any posts requiring registration with the GMC which you undertake."

4. The Committee is obliged to review the imposition of such conditions from time to time, and the last substantial review (in the sense that it was the last one which Dr Mehrotra attended and made representations) took place on 16 March of this year -- about a year after the original conditions had been imposed. It was made clear on his behalf that he was challenging (and indeed he produced argument and material which on the face it of it gave considerable substance to the challenge) the existence of any failures by him of professional conduct in relation to the mammograms which formed the subject of the case before the IOC and then in due course before the Committee which would deal with the matter.
5. As is usual in cases such as this, the Assessment Referral Committee had also recommended, if that be the right word, that the matter be dealt with by an assessment panel in the sense that Dr Mehrotra's conduct and ability should be assessed, and that panel reported. The report was to a degree adverse and that was a matter which weighed inevitably and properly with the IOC when it came to consider whether the Interim Conditional Registration Order should be continued.
6. Mr Gaisford has pointed out that there is a substantial quarrel with the views expressed by the panel inasmuch as it is said, and indeed will be said before the relevant Committee in due course, that they were influenced to too great an extent by their views of the points made in relation to the original alleged failure to act in a wholly competent manner. I of course am not in a position to go into those matters or to reach any conclusions, nor indeed was the IOC because it would normally be inappropriate for the IOC when considering an interim order to go into any detail, effectively to fight the case in advance, and it is entitled, as I see it, indeed bound, to attach very great weight to the report of an assessment panel in any given case.
7. In any event, the order is due to expire on 19 September. There was a further review hearing in July but Dr Mehrotra did not attend that and it was decided that this application should indeed be made. Further, it was necessary in the view of the Committee that the conditions be continued. It had been hoped that the final decision would have been made by July because the hearing date for the matter to be dealt with was fixed for July. Unfortunately, that date had to be vacated and a new date has been fixed for the beginning of January of next year. Of course, when that decision is made, there will be no need for any sort of interim order.
8. In the meantime, Dr Mehrotra has desired that the stigma attached to an order be removed. He has offered an undertaking that he will comply with the conditions in the same terms as those imposed by the GMC. The submission is that the public will be protected by those undertakings and that there is therefore no need for the order to be continued.
9. Miss Gallafent submits that that course is undesirable and to an extent impracticable, and it cuts across what she submits is the clear intention of Parliament in section 41A of the 1983 Act. The effect of it will be to remove from the GMC any further direct control over the conduct of Dr Mehrotra, pending the hearing of his case before the Committee. She points out that Rule 33 of the Conduct Rules provides that a breach of conditions imposed by the IOC can of itself be dealt with before the Professional Conduct Committee without the need for the normal processes of going through all the preliminary actions that are necessary if an allegation of serious professional misconduct is made. Effectively, Rule 33 treats a breach of a condition as if it were itself serious professional misconduct. It does not say that in terms, but that is the effect, as I see it, of that provision.
10. She also submitted that it was not necessarily the case that a breach of an undertaking would itself amount to serious professional misconduct. It seems to me that it would be almost inevitable that a doctor who deliberately breached an undertaking given to the court, or indeed to the GMC, would be regarded as having committed serious professional misconduct, particularly if he knew that that condition had been imposed and the undertaking given in the interests of the protection of the public. It seems to me that it would be a wholly exceptional case where a breach of a condition such as this, or of an undertaking, did not amount to serious professional misconduct. Really the only advantage is the short circuiting of the rather more cumbersome procedure needed to deal with an allegation of serious professional misconduct.
11. Miss Gallafent also points out that, since the only power of the court is to extend a period of either imposition of conditions or a suspension made by the IOC, the acceptance of an undertaking will remove any power of the court, or indeed of the IOC, to review. The court of course has no power to review but a further application can be made to the court and the court has powers under the Act on application to deal with interim orders and to bring them to an end or to extend them. But that presupposes their continued existence. Accordingly, it is said that there is in this way an undermining of the approach that Parliament has considered to be appropriate, and that if the court considers that some conditions are appropriate, then it ought to continue them. It ought not to accept an undertaking which removes the subsequent powers to do anything about any breach or indeed about any review. That is no doubt correct. It would be only in the rarest of cases that it would be appropriate to consider an undertaking in lieu.
12. In my view, this is such a case and for this reason. Dr Mehrotra is a practitioner against whom before these events there was no conceivable complaint. He is adamant, and there is on the face of it some substance to his claim, that what is alleged against him does not show in any way that he was less than competent. He has been advised that the stage has been reached when the further steps that the assessment panel has regarded as desirable should not be undertaken by him and that the matter should be brought as soon as possible to a hearing before the Committee. He has accepted, and indeed he indicated as much to the Committee back in March, that he would not, until the matter was finally sorted out, undertake any mammograms. That, as Miss Gallafent pointed out, is only the first element of the three conditions that were imposed. He has now extended it to include the other two. There is a hearing fixed. I have no doubt at all, because there is not any suggestion and never has been that he has breached the conditions that were imposed, that there is no danger whatever that Dr Mehrotra will break the undertaking that he is prepared to give to this court and indeed to the GMC.
13. In those circumstances, I am entirely satisfied that the public will remain protected. I have to consider also the interests of Dr Mehrotra. He is anxious that what he regards as the stigma attached to the order against him should not continue to exist, and that at least until the final hearing he should not have to say there is an order, merely that he has agreed that he will do as the conditions require him to do.
14. I fully recognise that, as Miss Gallafent submits, this is a course of action which should not lightly be accepted. It is important in most cases that the sanction remain, that the court's control and the GMC's control should continue to exist as section 41A anticipates, and that if it is appropriate that conditions should remain, they should normally remain as an order. But there will be individual cases where that is not necessary. In my judgment, this is such a case.
15. I make it clear that this cannot and should not be used as a general precedent, but there can be no doubt that, in an individual case, it is possible for the court to take the view that to make an order whereby the IOC's order is extended is not necessary. This is, in my judgment, such a case. The court has a discretion. It is not bound to extend the order and, in my judgment, on its own facts this case enables me to accept the undertakings that are indeed offered. Accordingly, the application by the GMC will be dismissed on those terms.
16. MR GAISFORD: I do have an application in those circumstances for costs.
17. MR JUSTICE COLLINS: Yes.
18. MISS GALLAFENT: My Lord, just before going to the question of costs, can I just make one point about your Lordship's judgment as a matter of fact.
19. MR JUSTICE COLLINS: Did I say something wrong? That is quite possible.
20. MISS GALLAFENT: My Lord, you indicated that the Interim Orders Committee recommended that the matter be dealt with by the assessment panel. That is not the role of the Interim Orders Committee. The recommendations are dealt with by the Assessment Panel (inaudible) by the Assessment Referral Committee.
21. MR JUSTICE COLLINS: I am sorry, yes. There are so many panels in the GMC nowadays that one loses touch.
22. MISS GALLAFENT: Exactly. It is one of the rare things that they do not do. But that was a recommendation. At any stage the Interim Orders Committee noted the progress that was being made pursuant to the assessment.
23. MR JUSTICE COLLINS: I am grateful for that. I will incorporate that into the judgment when I correct it.
24. MISS GALLAFENT: I am very grateful. My Lord, so far as costs are concerned, your Lordship has noted that it was not until today that it was clarified that --
25. MR JUSTICE COLLINS: It was in his skeleton, was it not?
26. MISS GALLAFENT: My Lord, the way it was put in his skeleton --
27. MR JUSTICE COLLINS: That is academic because you would not have accepted it anyway, as you have made clear.
28. MISS GALLAFENT: My Lord, so far as the skeleton is concerned, the defendant has at all times been willing to give undertakings to the same effect (inaudible). That is not right in relation only to the undertaking not to report on the mammograms. We do say that the appropriate order is not that the GMC should pay the defendant's costs in this case, but that there should be no order as to costs. We say that this -- and I will come onto my application for permission to appeal -- but we say this is a surprising result. Both parties would in any event have had to come to court, whether that be done by way of a consent order --
29. MR JUSTICE COLLINS: I am always capable of surprising you, am I not?
30. MISS GALLAFENT: But, my Lord, I do say that it would not be appropriate in these circumstances for the GMC to pay the defendant's costs simply because the defendant has offered before your Lordship today to comply with the conditions by way of voluntary undertakings. I say, given the important point of principle, which your Lordship has identified concerning how this court should approach the offer of undertakings, if indeed it should approach the offer of undertakings in relation to an application under section 41A, I do say that it is more appropriate that costs should lie where they fall.
31. MR JUSTICE COLLINS: You would have asked for costs if you had won, would you not?
32. MISS GALLAFENT: My Lord, the position of the GMC is if it succeeds on applications of this nature --
33. MR JUSTICE COLLINS: If they are contested. Obviously if they are not contested, you have to come anyway, you do not ask for costs.
34. MISS GALLAFENT: Exactly. The usual course is that the General Medical Council will ask for consent on the basis that each party bears its own costs up to that point. Where matters are contested and the General Medical Council concedes in an order, the position is that it would ask for its costs, but invariably would not obtain all of its costs to recognise the fact that they would have come in any event.
35. MR JUSTICE COLLINS: I understand that.
36. MISS GALLAFENT: But your Lordship is quite right, I would have asked for my costs had I succeeded in this application. I do say, in the particular circumstances in which my application has been dismissed, it is not appropriate that the converse applies.
37. MR JUSTICE COLLINS: I understand. Mr Gaisford, I think in principle you are entitled to your costs of today, but I think I shall limit it to the costs of today.
38. MR GAISFORD: Can I just point out in response, the undertakings have in fact been offered from an early stage in these proceedings.
39. MR JUSTICE COLLINS: I understand that, but this is a slightly curious jurisdiction in as much as there has to be in many circumstances in an application to the court -- I think that, doing the best I can, I shall not give you all your costs, but I shall give you the costs of attending today -- that is you and your solicitor's attendance today.
40. MISS GALLAFENT: My Lord, is there intended to be a summary assessment of today's costs.
41. MR JUSTICE COLLINS: I have not seen any figures.
42. MR GAISFORD: My Lord, we did serve a schedule.
43. MR JUSTICE COLLINS: I know but I do not think it deals with the limitation, does it? Mr Gaisford's solicitors and the GMC's solicitors are pretty regular opponents and I would have thought that the sensible thing is to expect there to be some agreement and I think I shall simply say: if not agreed, subject to detailed assessment.
44. MR GAISFORD: My Lord, yes. Thank you.
45. MISS GALLAFENT: My Lord, it would have been much easier if there were a schedule --
46. MR JUSTICE COLLINS: I think one was served but I am not sure if I have had the opportunity of taking it on board.
47. MISS GALLAFENT: I am not going to bounce your Lordship into summarily assessing the costs but it simply seems a shame --
48. MR JUSTICE COLLINS: You have not see it?
49. MISS GALLAFENT: My Lord, no.
50. MR JUSTICE COLLINS: I have a copy. It really is I suspect a question of knocking out some of the preliminary work. Attendance at hearing is put at a total of £2,600 or thereabouts, if I correctly follow this schedule.
51. MISS GALLAFENT: My Lord, does your Lordship have two pages or one page?
52. MR JUSTICE COLLINS: I have one which totals £4,170.
53. MISS GALLAFENT: I have one that totals £4,840.
54. MR JUSTICE COLLINS: I think the answer is your solicitors and Mr Gaisford's are so used to battling with each other that I would have thought that they would know what is reasonable and know equally that there is no point in going to detailed assessment unless you have to because that increases costs.
55. MISS GALLAFENT: Accordingly, my Lord, all there remains is my much anticipated application for permission to appeal. I firstly say that your Lordship has identified points of principle in relation to the court's approach under section 41A. This is a relatively new jurisdiction to this court. It has not had that many cases.
56. MR JUSTICE COLLINS: The problem is unless you can get to the Court of Appeal next week, the time will have expired.
57. MISS GALLAFENT: My Lord, I say that this case raises issues that go beyond simply the facts of this case. I appreciate your Lordship has taken pains to emphasise the unusual nature of this particular case and that it should not be seen as a precedent, but my position is that, firstly as a matter fact, there is nothing unusual about it.
58. MR JUSTICE COLLINS: I follow that is what you say.
59. MISS GALLAFENT: And I say that your Lordship was wrong, with respect, to find so.
60. MR JUSTICE COLLINS: You do not need to be "with respect". You can tell me I am wrong. I am quite used to being told I am wrong. I sometimes am.
61. MISS GALLAFENT: I consider it would be appropriate for the Court of Appeal to consider -- this would be the first application to go to the Court of Appeal -- to consider the approach adopted by your Lordship.
62. MR JUSTICE COLLINS: It is a bit academic in the context of this case, I think. Unless you can get to the Court of Appeal next week it will all become academic, will it not?
63. MISS GALLAFENT: My Lord, it would be unfortunate if your Lordship's judgment were to become set in stone simply because of the timing of these proceedings.
64. MR JUSTICE COLLINS: There is nothing to stop you submitting later that it is wrong.
65. MISS GALLAFENT: No, my Lord, but in my submission it would be appropriate for me to submit now that it is wrong. It is for me to submit that before the Court of Appeal irrespective of whether or not I can race there in the next week or not, and I accept that it would be highly unlikely that I would be able to do so.
66. MR JUSTICE COLLINS: You might be able to.
67. MISS GALLAFENT: But I do say that your Lordship should not refuse me permission on that basis.
68. MR JUSTICE COLLINS: What do you say?
69. MR GAISFORD: Our position is that this is a wholly unusual case and it is restricted to its own facts.
70. MR JUSTICE COLLINS: That is my view. I am sorry, I do not think this is the disaster that the GMC seems to think it is. I made it clear. I appreciate that you say it is not exceptional, but I do not agree. I think that there are, as I thought I made clear, special circumstances here which enable this to be done. It is not to be regarded as a precedent. So if you want to go further you will have to persuade the Court of Appeal.