England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		19th April 2007

1. MR JUSTICE COLLINS: This is an adjourned application by the General Medical Council ("the GMC") to extend an interim order made by the Interim Orders Panel whereby the doctor, Dr Uruakpa, was subjected to conditions pending a hearing before the full panel to determine allegations that in certain respects he had shown that he lacked proper fitness to practise as a medical practitioner in the field in which he wished to practise. He is in fact a medical practitioner registered with the claimant, and his speciality is obstetrics and gynaecology.
2. The reference to the GMC was from the National Clinical Assessment Service in June 2005. It was then alleged that while working for the Gwent Healthcare NHS Trust in obstetrics and gynaecology, Dr Uruakpa's clinical performance had fallen below the proper standards in a number of respects. Further information came from Cheltenham General Hospital at which he was working as a locum during June 2005. A letter was received also from the Medical Director of the Gloucestershire Hospitals NHS Foundation Trust in which it was said that there had been an inability to meet with Dr Uruakpa to discuss the alleged shortcomings.
3. As a result of this, the matter was considered by the Interim Orders Panel ("the IOP") and on 28th July an order was made subjecting the doctor to conditions. Those conditions in their final form were as follows:

"1. Any work you undertake which requires registration with the GMC shall be confined to NHS SHO Training posts of not less than one month's duration (which may include locum posts), where a Consultant identified to the GMC, will supervise his work.

2. You shall arrange for any consultant responsible for supervising your clinical practice to provide a written report to the Panel, prior to any review of the order."

4. I think it is unnecessary to read in the other conditions. There are eight in all, which effectively provide for the need to provide information to the GMC, to notify all employers and prospective employers and to provide references and reports from the relevant persons and colleagues with whom Dr Uruakpa worked.
5. Those conditions were imposed initially for a period of 18 months. However, there is an obligation for a review to be carried out every six months. Those reviews were carried out and the extensions were granted, so that the full period of 18 months expired on 27th January 2007. An application before the expiry was made to this court for a further extension of 12 months, and it is that application with which I am now dealing.
6. The reason why the application was not dealt with finally before now was because it came before Mitting J on 24th January. At that time Dr Uruakpa was not represented, and he asked for an adjournment because he had not been provided with the necessary material to enable him to dispute the extension which was being sought. Indeed, the material that the GMC relied on had only been served on him, I think, a couple of days or so before the application came on for hearing. Mitting J understandably was minded to grant the adjournment. He said that the application seemed to him to be unanswerable. What Mitting J then went on to say was this:

"[Dr Uruakpa] has not had adequate time to deal with the detail of the General Medical Council's claim. I do not at this stage rule either on the length of any adjournment or upon the terms upon which it should be granted. I wish to have submissions made to me on whether or not I can impose by an order of this court, as a term of granting an adjournment, the conditions which the General Medical Council seek to have imposed upon Dr Uruakpa, albeit for a much shorter period than the 12 months that they seek, and to do so not by way of determining their claim by imposing conditions for the shorter period but simply by way of adjourning their claim for a 12 month extension."

7. Mitting J then went on to ask Dr Uruakpa how long he needed and he said two months. The judge said if he granted an adjournment he would have to have in mind the safety and interests of the general public, and so he was minded to impose conditions by way of an order of the court for the two months during which he adjourned the case. The conditions would be the same conditions as had been imposed by the IOP. He asked Dr Uruakpa whether he accepted that, and Dr Uruakpa said that he did. Mitting J then went on to ask counsel then appearing for the GMC, not Mr Colman, whether there was any reason in principle why he could not do that. The answer recorded in the transcript is:

"My Lord, no. I think, in fact, under Rule 3.13 you can make any order subject to any conditions, so you have express authority to do so."

8. The reference to Rule 3.13 must be to the Civil Procedure Rules, in fact CPR 3.1(3) which provides:

"When the court makes an order, it may -

(a) make it subject to conditions, including a condition to pay a sum of money into court; and

(b) specify the consequence of failure to comply with the order or a condition."

That is of course the general power of the court to impose conditions upon any order that it sees fit to make.

9. So far as the more general powers of the court are concerned, they are contained in the Supreme Court Act 1981. The possible relevant provision is section 37, which gives the court power by order (whether interlocutory or final) to grant an injunction in all cases in which it appears to the court to be just and convenient to do so. Subsection (2) provides:

"Any such order may be made either unconditionally or on such terms and conditions as the court thinks just."

10. Miss Lambert has submitted that this is not, and certainly was not regarded by Mitting J, as an injunction or an order akin to an injunction, but he was simply purporting to exercise the court's powers as indicated by the rules. The only relevant rule is, as has been indicated CPR 3.1(3). But that is simply a general power to impose procedural conditions upon an order. Her submission is that these are not procedural but substantive, because they effectively deprive the doctor of the right to earn his living as a medical practitioner. Accordingly, they should be regarded not as matters of practice but as matters of substance. It was therefore not the appropriate route by which the court should have assumed the power to do as Mitting J did.
11. For my part, I do not think that it is necessary or helpful to consider the questions of procedure or substance in this connection. There can be no doubt that the court has a general power in dealing with any case that comes before it to make interlocutory orders to achieve justice in any individual circumstances. If it adjourns a case, it can impose such conditions as it regards as appropriate in order to protect the position in the meantime.
12. It seems to me that the order made by Mitting J is in fact much closer to and is analogous to an injunction (and of course an interim injunction as opposed to a final one) which in the context of this situation protects what might be regarded as the status quo and provides the necessary protection for the public, as against what is needed to enable the doctor to have a proper opportunity to deal with the matters that are alleged against him.
13. However, that does not give a full answer to the problem because that may depend upon the effect of the order in relation to the powers of the court under the Medical Act. We go then to section 41A of the Act, and that provides by subsection (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) ...

(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 ..."

14. Then subsection (2):

"Subject to subsection (9) below, where an Interim Orders Panel ... have made an order under subsection (1) above, an Interim Orders Panel ...

(a) shall review it within the period of six months beginning on the date on which the order was made ..."

15. Then we go down to subsection (6), which provides:

"(6) The General Council may apply to the relevant court [that is this court] for an order made by an Interim Orders Panel ... under subsection (1) or (3) above to be extended, and may apply again for further extensions.

(7) On such an application the relevant 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 registration, revoke or vary any condition imposed by the order; ..."

16. The submission made by Miss Lambert is that once Mitting J did not extend the interim order but imposed the court order, that interim order made to an end and accordingly there is now no power in the court to extend it. What Mitting J could and should have done was to extend the interim order for a short period, perhaps two months if that was the period he considered appropriate, with a view to the matter then being considered further at the expiry of that period of two months. That would have meant that the order remained in being, and thus there would have been power to extend it.
17. There is a theoretical problem with that procedure, namely that the power of this court to extend depends upon an application being made by the council and if the court has extended, albeit by a short period, it is that extended order in respect of which an application has to be made. There was in this case (the same would apply generally) no specific application made by the council. That seems to me to be a technical point. But it is easily dealt with because what the court should do, and can do, is to make what amounts to an interlocutory order, that is to say to extend for a part of the period requested, for whatever time the court considers appropriate, and then to consider whether there should be a further extension of the balance of the term applied for when it comes back for hearing.
18. So in this case the order should have been in the form that there should be an extension of the interim order for the time being, and in the meantime the application by the GMC stood adjourned. When the adjourned hearing took place, the court would then consider whether the extension should be continued to the full 12 months required, or for any shorter period or not at all. In that way, the interim order is kept in being and the court has all the necessary powers, not only to extend, but also to vary the conditions, if it considers that appropriate, under subsection (10) of section 41A, and the whole matter is left properly open.
19. It seems to me that that is indeed the appropriate way of dealing with this situation. It must after all have been obvious to Parliament, when they enacted these provisions, that the situation might well arise that an application was made by the GMC within the time that an order was running, but that the court, for good reason, might not be able to reach a final determination until after that time had expired. For example, as in this case, the doctor needed more time to prepare his defence or, for example, the doctor was ill at the material time and could not attend. One can think of other reasons why the matter could not be dealt with on that day. It would be in my view absurd that the court was unable in those circumstances to grant an adjournment and to remain seised of the application and to have power to extend if the need arose. It seems to me that the method I have suggested is a perfectly satisfactory and proper means of achieving that particular result. However, that was not done here.
20. The order made by Mitting J was somewhat unfortunately drafted. What it provided was as follows:

"(1) that the claimant's application for an extension of a conditional registration order in respect of the defendant pursuant to section 41A(6) of the Medical Act 1983 be adjourned.

(2) that the adjourned application be listed on the first open date in the new term, on condition that in the interim the conditions on which the defendant is permitted to practise by the order of the claimant's Interim Orders Panel dated 29th November 2006 remain in place as an order of the court.

(3) that the conditional registration order of the IOP dated 29th November 2006 be extended for the duration of the adjournment.

(4) costs to be reserved."

21. It is apparent I think that that order contains some mutually inconsistent provisions. The first is that the application is adjourned. The second makes clear that the adjournment (in fact the adjournment was until today, not for a period of only two months) was on condition that the conditions remained in place as an order of the court. Thus it was provided clearly by that that this was apparently not an extension of the interim order, but was a separate court order to preserve the position pending the hearing of the adjourned application. But paragraph (3) provided that the conditional registration should be extended for the duration of the adjournment, and thus as I say paragraphs (2) and (3) are inconsistent with each other.
22. Mr Colman submits that one has to look to see what the judge intended, and it is plain that what he intended from the passage I have already read out was that the court order should take over from the interim order and that effectively paragraph 2 of the order was the one which was applicable and not paragraph 3. As I understand it, Miss Lambert now takes the same view. Although it is fair to say that the matter came before the IOP on 16th March, when the GMC, having on advice taken the view that the existing interim order had lapsed as a result of the order of Mitting J, applied to the panel for a fresh order. That was met with submissions that the panel had no jurisdiction. Those submissions were accepted, and indeed the advice of the legal assessor was to the same effect. However it is to be noted that Miss Lambert then did note that the order appeared by paragraph 3 to extend the interim order and that that, if it had been done, would have been proper. But of course if that extension had existed, that would again mean that the panel had no power to make a fresh order. So Miss Lambert effectively had two strings to her bow, as it were, because she was properly submitting that since the order remained in being there was not only no purpose in, but also it would be wrong to make a fresh order because that would be contrary to Mitting J's order unless that order, if it was made, was for no longer a period than the adjournment which had been ordered by Mitting J. However, as it seems to me the reality is that that was not a necessary step for the GMC to have taken.
23. Mr Colman has submitted that on the assumption that Mitting J's order did have the effect as set out in paragraph 2 of that order, I would have power now, even though the order had expired, to make an order retrospectively extending it.
24. Mr Colman has referred me to two decisions, one of the Divisional Court and one of the Court of Appeal, Criminal Division, which were concerned with time limits in criminal cases. R v Sheerin (1977) 64 Cr App R 68 dealt with the discretion of a trial judge to extend time where a bill of indictment had not been preferred within 28 days of committal. The provision was that where a defendant had been committed for trial, the bill of indictment had to be preferred within 28 days of such committal or within such longer period as a judge of the Crown Court might allow. Rule 5 of the Indictment Procedure Rules, as there set out, clearly gave an unrestricted discretion to the trial judge to extend time. The argument in Sheerin was that there was no power to do that retrospectively. However the court would have none of that, and indicated that there was nothing in the language of the statutory provisions which prevented the court exercising the power, albeit that the time of 28 days had expired.
25. That approach was approved in Fehily and others v Governor of Wandsworth Prison [2003] 1 Cr App R 10, a decision of the Divisional Court consisting of Rose LJ and Gibbs J. That again was a case where there was an issue as to whether there was power to extend a 42-day time limit for service of relevant documents. Again the court decided that, although there was nothing said in the statutory provisions as to whether there was power to extend time albeit the time had expired, nonetheless as a general proposition that power must and did exist.
26. It is incidentally to be noted that the power to extend time under the CPR, which is contained in 3.1(2)(a), reads:

"(2) ... the court may –

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired); ..."

27. That was relied on before the Court of Appeal in Sheerin as suggesting an indication that if Parliament wanted to provide for the power to extend time after time had expired, then it would and could do so expressly. That no doubt is true, and for the avoidance of doubt that can be done. But that does not mean that it cannot be done even if the power is not expressly given.
28. It is plain in the circumstances of this case that Mitting J intended that the conditions should continue in being until proper consideration could be given to the application when Dr Uruakpa had had the material served upon him, and so was able to make a proper defence to the claim being made by the GMC. It seems to me that it would be little short of absurd if, unless provisions clearly pointed in that direction, in those circumstances this court found itself unable to make the necessary extension if it believed it was right to do so, simply because the judge had chosen what might be regarded as the wrong route to what he wanted to achieve. That it was, in my judgment, the less desirable route I have no doubt, because I have already indicated what in my view is the correct route. Nonetheless, I have no doubt that the power to extend does continue to exist, notwithstanding that the interim order has by now expired.
29. I must make it clear that I am concerned here with the situation where the application for an extension has been made before the expiry of the original order. It is difficult to imagine circumstances in which the GMC would think it right to let an order expire and then at some later stage make an application for an extension. Whether or not the court would accept such an application is a matter which would have to be decided if that situation arose. But nothing that I have said today is intended to indicate that there is a licence to the GMC to allow orders to expire and at some later stage to make an application to this court.
30. Mr Colman submits that if there is a situation whereby the GMC considers it desirable that notwithstanding that an order has expired there should be a fresh order made, then that application should be made to the IOP. It would undoubtedly be wrong for the IOP to entertain such an application unless there were good reason to do so, and such good reason might arise because of the production of fresh material which had not been and had not been able to be considered before and which might justify the imposition of a fresh order. But it is obvious that the IOP would have to tread very carefully, because otherwise it would no doubt be suggested that it was trying to get round the time limit of 18 months imposed by Parliament in entertaining a fresh application once that 18 months had expired. But that there is power in appropriate circumstances for a fresh order to be made I have no doubt. I suspect that those circumstances would be somewhat rare. As I say, I am not deciding, nor am I in the least encouraging applications to be made beyond the time that the original order has expired. In fairness, in my experience I am not aware that the GMC has ever sought to extend an interim order that has expired.
31. Accordingly, I have no doubt that I have jurisdiction to make the necessary order or to make such order as I consider appropriate in this respect.
32. I have already indicated the nature of the matters in outline. It is not either necessary or desirable for me to go into any detail in considering the matter. But it is now important to have regard to the delay that has occurred, it now being some 21 months since the original order was made. The application is for a further 12 months from the end of January, which would mean (if granted) that an interim order was made which extended over a period of two and a half years.
33. There is no question but that Parliament has recognised that such extensions can properly be made. Nonetheless, it is important to bear in mind that these are interim orders and that they are made on the basis of material which has not been able to be refuted by the doctor in question. Thus he is made the subject of conditions (or it may be even suspended, because the IOP has power to suspend) without his defence being able to be heard. It may be in certain cases, and indeed it is the case as I know in certain cases, that there is a consent and an acceptance by doctors that it is appropriate for an order to run for a relatively lengthy period. This is not such a case and never has been. Dr Uruakpa has never accepted the validity of the allegations that have been made against him.
34. Dr Uruakpa was asked and indeed he was advised that he should agree to an assessment. That is a means whereby the GMC is assisted in deciding whether allegations of lack of relevant expertise and fitness to practise can be determined. Unfortunately, in this case Dr Uruakpa, having originally agreed to undertake the assessment, changed his mind. Whether or not he had good reason to adopt that attitude is not for me at this stage to decide.
35. The result of that was between February and September 2006 it may be that it was not unreasonable for the GMC to put on hold the obtaining of the necessary material to support the allegations which it had made. However, there was a hearing in November. Shortly before that hearing the GMC produced a document which set out the allegations that were being made against the doctor. They were in very general terms, and effectively did no more than report the allegations that had been made to them by the various people who had made the references. They contained no details other than simple allegations, such as that Dr Uruakpa did not conduct a ward round on a particular day and advise outpatients on a particular day and so on. They do not give a very satisfactory account of what is being relied on. Indeed, it is to be noted that when the matter came before the Committee the legal assessor said this about these allegations:

"Since this letter [the allegations were annexed to a letter] has occupied so much of the recent time of the Panel, may I just make this observation about it. It is slapdash in its preparation, it is late in its delivery and it is lamentable in its particularisation. If this was a criminal indictment the first application that would be made to the judge is for further and better particulars, and I would suggest the Panel should pay no attention to it whatever, except for the fact of course that as Miss Lambert said, if the conditions are lifted Dr Uruakpa will be obliged to notify any future employer of the fact that he will at sometime time in the future face a Fitness to Practise Panel. That I hope deals sufficiently with the letter."

36. The legal assessor in question was in fact a retired circuit judge. Those were robust observations. One would have thought that as result of that the GMC would have made every possible effort to obtain the necessary detail in order to serve it.
37. What in fact has happened is that the hearing was originally fixed for 7th May 2007. I say "originally" because it was fixed I think following the hearing before Mitting J. Those representing Dr Uruakpa pressed the GMC to provide all the necessary documentation, and they were told in February that the GMC were reviewing the position by the end of February and would come back. Following a chasing letter on 1st March they were told that the GMC would be unable to disclose the information before the end of March, but would not vacate the date of 7th May. I am told now by Mr Colman, we being in the latter part of April, that his best information is that some of the relevant material should be available within two weeks. That is material from Gwent.
38. What the GMC is after are the relevant notes to support the allegations that are made, as well as notes that disclose relevant information about the doctor's competence and performance. These are matters which one would have thought the GMC would have been seeking to obtain at a much earlier stage. I am prepared to accept that there may be, but I put it no higher, some excuse for not being particularly active during the period when they thought that a performance assessment was going to be undertaken. But in any event one would have thought that the request would have been made, so that the material could if necessary be obtained at relatively short notice. Mr Colman is unable to assure me that proper steps have been taken to seek that information actively since last September, when the GMC was aware that Dr Uruakpa was not minded to accept the performance assessment route. He very fairly does not seek to submit, because he cannot, that there is any excuse in the nature of real difficulties, despite every possible effort, in obtaining the necessary information.
39. On behalf of Dr Uruakpa the point is made that he is effectively unable to work, because he has tried but the conditions are such that make it exceedingly difficult to obtain any form of employment. I do not doubt that such conditions do not necessarily preclude absolutely the obtaining of employment, but it is obvious that they will make it exceedingly difficult. The result is that he has been unable to obtain employment. More importantly too, as a result of the long delay, he has become (to use the dreadful word) deskilled. Accordingly, he will need time to hone his skills before he can expect any employer to employ him in the field in which he wishes to work. Accordingly, inevitably, whether or not this order is extended, he will not be able to return to practise immediately. That is in itself a degree of protection for the public.
40. I am entirely satisfied, having regard to the delays, that it would be inappropriate for an extension to be granted as requested by the GMC. However, it seems to me that in the light of the information that I have that it would be wrong to refuse any extension.
41. What I therefore propose to do is to grant an extension which will run for three months from now. Effectively having regard to the relevant times, what I propose to do is to grant an extension of six months, which will of course be backdated to 27th January and the expiry of the original 18-month order. I make it clear that while of course the GMC cannot be prevented from making a further application if the hearing has not come on by the end of that 6-month period, which effectively is the end of July 2007, it will require the most exceptional circumstances to justify any further extension. The GMC has had quite long enough to produce the necessary material and to get this case heard. While of course the protection of the public is vitally important, equally one has to balance against that the needs of the doctor and the recognition that the doctor's livelihood is at stake here, and that it is in general necessary for these matters to be dealt with as speedily as is reasonably possible. Interim orders mean what they say, that they are interim and must be approached on that basis.
42. I have no power to make any directions and I entirely recognise that. However, in the light of the history of this matter and the concerns that inevitably result from the failures hitherto to obtain the necessary information, it seems to me that the GMC ought to be in a position to serve all that is needed and upon which they wish to rely in order to present their case, even if that does not include every allegation that originally was made, within a period of four weeks. I say that because I am told, and I entirely accept, that until the necessary information is provided in the form of notes and so on, it will not be possible for those advising Dr Uruakpa to know what expert evidence they may require. It takes time for that exercise to be undertaken. Of course, it will be in their interests to take as short a time as they reasonably can because in the meantime Dr Uruakpa remains suspended, and in any event he will be keen to know his fate. Equally, if the material that is produced shows that there are concerns that ought to be faced by Dr Uruakpa, then those can be brought home to him and he will realise what he has to do in order to achieve what he wants, namely reinstatement and the ability to practise medicine as he believes he ought to do.
43. Accordingly, as I say, I would be surprised if any court were to grant an extension to the GMC of any interim order if it had not produced within the four-week period the necessary information or shown a cast-iron excuse for not having done so. It would follow too that any hearing should take place by the end of the summer at the very latest.
44. I emphasise those are not and cannot be regarded as directions, but they are I hope an indication to the GMC as to what they will face if they fail to comply. Of course, they must recognise, as I have no doubt they do, that if there is a real concern here that the public are at risk, then they have themselves to blame if that risk exists from their failure to carry out their obligations within a reasonable timescale, and so that should be itself an incentive to them to carry out their functions in a proper and expeditious fashion.
45. As it is, this application is allowed to the extent that I have indicated, namely that there is a 6-month extension from 28th January to expire on 27th July.
46. MR COLMAN: Thank you, my Lord.
47. MR JUSTICE COLLINS: No other order you want from me?
48. MR COLMAN: My Lord, in the circumstances, no.
49. MISS LAMBERT: My Lord, there is the issue of costs.
50. MR JUSTICE COLLINS: Yes. What is the position about costs?
51. MISS LAMBERT: My Lord, I ask for my costs. The reason I do is not just because of the terms of my Lord's judgment, but because on 21st January Miss Ball, who represented Dr Uruakpa on a limited basis in relation to the FTPP matters, wrote to the General Medical Council offering and agreeing to a period of extension for six months, and that is a period which would have expired at the end of June. The reason why that period of extension was offered was because, as my Lord will be aware from paragraph 58 of Mr Rowley's statement, which was exhibited to the application.
52. MR JUSTICE COLLINS: Paragraph 58?
53. MISS LAMBERT: Paragraph 58, my Lord. The pagination has gone off a bit.
54. MR JUSTICE COLLINS: Do not worry. I can find it. Yes.
55. MISS LAMBERT: The claimant --
56. MR JUSTICE COLLINS: To be heard by 28th June.
57. MISS LAMBERT: Therefore it was in the light of that statement by Mr Rowley that Dr Uruakpa agreed to an extension to cover that period. That is why we are here, because that was rejected. So I would like my costs please.
58. MR JUSTICE COLLINS: That is a fairly powerful argument, is it not, Mr Colman.
59. MR COLMAN: My Lord, I can see it has some force. That may have been the position at that time, but events have moved on since then which has necessitated the making of the application for 12 months. Although it has not succeeded in full it has succeeded in part. The extent to which it has succeeded happens to coincide with what was earlier offered, but that offer was not in place prior to today's hearing and I would suggest that the proper order in all the circumstances is to make no order as to costs.
60. MR JUSTICE COLLINS: No, Mr Colman, I am afraid that this is one of those unusual cases where I think it is appropriate, notwithstanding you have succeeded, at least in part, that you should pay the other side's costs, to be in the form of an order for detailed assessment if not agreed.
61. Thank you both for your assistance.
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