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
		26th July 2007

1. MR JUSTICE BEATSON: This is an application by the General Medical Council made under section 41A(6) and (7) of the Medical Act 1983. The GMC seeks an order extending for six months from 28th July this year to 27th January 2008 the interim order of conditions upon Dr Uruakpa's registration imposed by the claimant's Interim Orders Panel on 28th July 2005, varied on 21st January 2006, and maintained on 7th July 2006 and 29th November 2006. The order was extended by this court on 19th April 2007 (see [2007] EWHC 1454 (Admin)). At that time Collins J expressed concern over the progress of the case by the claimant. He granted an extension for three months. However, because of the way matters had proceeded at a previous hearing before Mitting J, he granted an extension of six months backdated to 22nd January 2007, the expiry of the original 18-month order.
2. Collins J stated, in paragraph 41 of his judgment, 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."

3. In paragraph 44 of his judgment his Lordship stated, after giving an indication as to how matters might proceed, since he did not have the power to make directions:

"... 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 ..."

4. The reason for the need for a speedy process is that a doctor who is subject to interim conditions, such as those in this case which require him to work under supervision, is unlikely to be able to obtain a job. The effect of such conditions on a person who makes his living as a locum doctor is quite different to their effect on a person who is employed by a health service trust or some other employer.
5. In the present case the concerns came to light when the National Clinical Assessment Service referred the claimant to the GMC on 24th June 2005. The background is set out in the judgment of Collins J and I therefore do not need to do so again. It suffices to say that concerns were expressed by doctors from the Gloucestershire NHS Trust in respect of a short period of work at the Cheltenham General Hospital, of which the GMC were informed in July 2005, and about his employment by the Gwent National Health Service Trust between March 2004 and March 2005. Following these, the decision to impose the interim conditions pursuant to section 41A(6) and (7) was made on 28th July 2005.
6. In February 2006 the GMC invited Dr Uruakpa to undergo an assessment of his professional performance. At one stage in July 2006 the doctor accepted this suggestion and said he would do an assessment. Ultimately, however, in a letter dated 28th September 2006 from those representing him, he declined to do so. The GMC formally referred the matter to a fitness to practise panel on 17th November 2006. At the time the matter was before Collins J there appears to have been some confusion about the time estimate for the hearing before the fitness to practise panel.
7. Miss Lambert, on behalf of Dr Uruakpa, states that at that stage the doctor had never agreed to a time estimate of five days. It appears from the judgment that no issue was raised with his Lordship as to whether an extension of three months from the date of the hearing would suffice. There was, however, a teleconference on 29th April, when the GMC was informed that from the doctor's point of view the time estimate was ten days. At that stage it became clear to the GMC that the first date for which a ten-day hearing could be fixed was 5th November 2007.
8. Miss Bex very fairly states that, in view of what Miss Lambert put before me, five days was not the frame in which they were working at the date of the hearing. What she did submit was that counsel then appearing on behalf of the GMC was not able to say to the court that an extension of three months was not sufficient. She submits that the doubling of the time estimate to ten days meant that it was not sufficient. She submits that change was an exceptional circumstance within the language used by Collins J. Those responsible for the handling of this case thereupon brought the matter to the next meeting of the Interim Orders Panel, seeking permission to apply for a 6-month extension. The doctor was informed of this in a letter dated 1st June 2007. The panel met on 27th June 2007 and this application was made in the light of it.
9. Miss Lambert submits that the court should not grant an extension of the conditions. She refers to the fact that the doctor has now been unable to work for two years. She relies on what she submits are defects in the presentation of the case against him. She submits that there has been no further particularisation of the case than that contained in the documents before the panel when it made its decision to impose the conditions.
10. There are witness statements from Dr Sundar, dated 12th June 2007; Mr Hayman, a gynaecological consultant at Cheltenham General Hospital, dated 21st May 2007; and Mrs Pillai, an obstetrics and gynaecology consultant at the Cheltenham General Hospital. Her statement is dated 22nd May. Miss Lambert submits that there is no material in these statements that is not in the earlier statements. There is no indication in the documents put before the defendant that was not there before, and the charges put before him are very unparticularised. She gave one example based on paragraph 11 of Mrs Pillai's statement which refers to a lady in room 8, who Miss Lambert submits has not been identified in a way that would enable the defendant to answer the charges.
11. It is clear from these submissions, what is said in Miss Lambert's skeleton submissions and the observations made by the panel's legal adviser in November 2006, that the preparation of this case was slapdash, late in delivery and lamentable in particularisation. Collins J commented that there may be submissions based on abuse and the hearing in November may not therefore be effective.
12. In balancing the two interests referred to by Collins J in paragraph 41 of his judgment, Miss Lambert submits that the way this case has been prepared and the delays are such that, notwithstanding the court's need to take account of the protection of the public, the claimant's application for an extension of the interim order should be refused.
13. There are indeed concerns about the way this case has been handled. It does not appear that Collins J's judgment and the comments he made about the way the case had proceeded were brought to the attention of the panel by those representing the GMC when it considered this matter on 27th June. The judgment was put before the panel by Ms Nicola Davies QC, who represented Dr Uruakpa on that occasion. The judgment and the previous proceedings are not referred to in the statement of Juliet Oliver dated 16th July 2007, on behalf of the GMC in support of this application.
14. It is incumbent on those who seek extensions of time for orders which have such an effect on individuals to make full disclosure of the circumstances and background of the case to the court. I also observe that the letter dated 1st June to Dr Uruakpa, informing him of the hearing that was to take place where an application for an extension would be considered, makes no reference to the change in the time estimate for the case or the previous proceedings. It is quite a long letter, extending to three pages. Much of it, no doubt for good reasons, is in standard form.
15. These matters are of concern to the court. So too is the need to protect the public. Miss Lambert has offered on behalf of her lay client an undertaking that he would not, if the conditions are not extended, seek to practise in an unsupervised way unless he had written confirmation from a suitably qualified and senior practitioner that he was safe to do so. The difficulty with such an undertaking is that if the conditions are not extended, there would be no indication on his registration. So he would be in breach of his undertaking if he put himself forward for a job, but those who might consider him for a job would not know of these proceedings unless he disclosed them. If he disclosed the undertaking, then he is in no better a position than he is under the conditions which require him to work under supervision.
16. Having had Collins J's decision drawn to its attention, the panel, on 27th June, stated that it took account of the submissions made about the delays and it was concerned by the delays which had occurred in progressing Dr Uruakpa's case. It stated, correctly, that it was not its purpose to resolve any conflict of information or to determine the truth, or test the veracity of information put before it. Its duty and the test it had to apply was to consider the protection of members of the public, the public interest and the doctor's own interests. Within the public interest it included both the need to uphold standards and to ensure that public confidence in the medical profession and its practitioners is maintained. The panel accordingly considered whether an interim order remained necessary, taking account of the delays and the length of time. It concluded that it was satisfied in the light of the seriousness of the concerns about Dr Uruakpa's skills and abilities, which related to questions of supervision and induction and insight, that an interim order remained necessary.
17. The panel took account of the submission that the long period during which the doctor had not been able to work meant that he had become deskilled. It, however, observed that it was open to him to attend courses and/or clinical attachments, as well as continuing with postgraduate medical education. Miss Lambert has informed me that he has maintained his continuing professional development courses, but has not been able to secure clinical attachments.
18. The main reason for which the 18-month period indicated in the statute has not been sufficient has to do with the period of six months between 20th February and 28th September 2006, when the GMC invited the doctor to undergo an assessment of professional performance and the time before he told them that he declined to do so. During that period consideration of whether to refer him to a fitness to practise panel were suspended. It is accepted on behalf of the defendant that that part of the delay in this case resulted from that time. It was also said in Miss Oliver's statement that there were delays due to disagreements between the claimant and defendant in relation to the process of disclosure. On analysis it appears, in the light of what Miss Bex submitted, that such delays as occurred due to disclosure related to the period in which it was proposed that the doctor undergo an assessment of his professional performance, although Miss Bex also suggested that there have been issues since then.
19. I have, as I have expressed, concerns about the way in which this case has been handled by the GMC. I have, however, also to have regard to the nature of the complaints made and, like the panel on 27th June, in the light of those complaints, it is clear that there may be, if those complaints are substantiated, a real question of risk to members of the public.
20. How then to balance the two? It is right to discount the period when consideration was given to an assessment of professional performance. This matter is not referred to in Collins J's judgment, so far as I can see, his judgment having been handed to me at the commencement of this hearing. In view of that and the difficulty in fixing a ten-day hearing before November, I consider that on balance it is proper for this court to make an extension to the order.
21. The extension sought, however, is for a period of six months. The hearing is due to start on 5th November. It is estimated to last ten days. There would appear to be no reason for extending these conditions beyond 15th November 2007. Accordingly, I grant an extension from 28th July to 15th November. I reiterate that in the exercise of my power I relied on the lapse of time between 20th February and 28th September, I relied on the nature of the complaints and the matters put before the panel on 27th June.
22. For those reasons, I grant the order to that extent. I will hear any submissions that the parties wish to make.
23. MISS LAMBERT: My Lord, can I deal with two matters. First of all, the court made reference to the judgment of Collins J and any reference within that judgment to the delay during the course of the performance assessment. It was at paragraph 38 and he said this, which I think is reflected in terms in my skeleton:

"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."

24. MR JUSTICE BEATSON: Yes.
25. MISS LAMBERT: My Lord, I simply draw that to the court's attention.
26. MR JUSTICE BEATSON: No, you are very right to do so. The way that I then put it is that the matter does not seem to -- he obviously did not give it the importance that I have given it.
27. MISS LAMBERT: My Lord, the second point is the issue of costs, even though on the face of it I have lost.
28. MR JUSTICE BEATSON: I do not think I need to hear much from you about this. You may want to respond to what Miss Bex has to say.
29. MISS BEX: I have no application in terms of my costs.
30. MR JUSTICE BEATSON: But the question is whether you should bear their costs.
31. MISS BEX: In respect of -- well, I think it is important to bear in mind that the stance that I have taken is that, although successful in large part, I am not applying for costs on behalf of the GMC. Bearing that in mind, I would hope to persuade your Lordship that it is inappropriate for us to also bear the costs of Dr Uruakpa, bearing in mind that we have in large part been successful -- bearing in mind we have in large part been successful, I accept with some difficulty, but we have and there was no prospect of reaching agreement for a shorter period of time in this case. It is not one where the doctor has ever said, "Well we would accept until 15th November."
32. MR JUSTICE BEATSON: Right, okay.
33. Miss Lambert.
34. MISS LAMBERT: I come to court with the words of Collins J in mind, that there would have to be an exceptional reason for this extension to be granted and there would have to be a cast-iron excuse as to why those matters which were intended to be attended to by his directions were not. I saw in Miss Oliver's statement simply not even a genuflection to those observations that were made by Collins J, a perfunctory statement commenting on the delay due to performance assessment and some, what really is nonsense, about disagreements as to disclosure of documentation. In the circumstances, although you have been persuaded today that it is appropriate to grant a much more limited period of interim registration, it is my submission that it was right that the matter be brought before the court, effectively for an objective view to be taken and some case management.
35. MR JUSTICE BEATSON: Yes.
36. MISS LAMBERT: Those are my comments.
37. MR JUSTICE BEATSON: And so you do apply for your costs.
38. MISS LAMBERT: I do.
39. MR JUSTICE BEATSON: Miss Bex you are right, you have got some of what you wanted. People very often get their costs when they have got what they wanted, albeit with difficulty, as you put it. But in this case the fact that the application was made without any reference to Collins J's order, the statement is quite general as to what happened, and the background to this case means that I am not going to make an order that you bear all the defendant's costs. You should however bear 50% of them.
40. MISS BEX: Thank you.
41. MR JUSTICE BEATSON: I am grateful to both of you for your help. I say, with a big smile on my face, it would have been really nice to have had the skeleton arguments earlier.