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
		21st February 2007

1. MR JUSTICE BEAN: This is an application under section 41A(10) of the Medical Act 1983 for an order terminating an interim suspension imposed by the Interim Orders Panel of the General Medical Council on 17th January 2007. The Panel ordered that the claimant, Mr Van Vuuren's registration be suspended for a period of 18 months; though that is, of course, subject to review in six months.
2. Under section 41A(1) the Panel may suspend a doctor's registration or make it subject to conditions if they are satisfied that this is necessary for the protection of members of the public or otherwise in the public interest or is in the interests of the doctor.
3. As Lightman J said in R v GMC ex parte Toth [2000] 1 WLR 2209, the purpose of the legislative framework is to protect the public from the risk of practice by a practitioner who for any reason is incompetent or unfit to practise, and to maintain the reputation of, and public confidence in, the medical profession. It is common ground that it is not the function of the Interim Orders Panel to find allegations proved or not. They must consider whether there is a prima facie case but they come to no final conclusion.
4. Two important decisions cited to me emphasise the need for proportionality in the decision of what is now the Interim Orders Panel since, by definition, there is the possibility of doing injustice when a case is not yet finally determined. In Madan v GMC, a judgment delivered on 17th July 2001, Newman J said at paragraph 50 that the Panel must balance the need for public protection and the other purposes identified in the statute against the consequences for the doctor, and must satisfy themselves that the consequences for the doctor are not disproportionate to the risk from which the panel is seeking to protect the public. Similarly, at paragraph 80 Brooke LJ, after referring to the European Convention on Human Rights, Article 6, said:

"It goes without saying that it is incumbent under Strasbourg jurisprudence that a court or tribunal conducting a fair hearing must make no response affecting a doctor's right to practise her profession which is not proportionate in the context of the unproved complaints that have been made against her, especially if they are said to call for interim relief restricting or suspending the doctor's right to practise for up to 18 months until a full hearing can be convened."

5. Similarly, in the case of Dr Maya Chaudhury v GMC, in a judgment delivered on 15th July 2002 by the Judicial Committee of the Privy Council, Lord Hutton said that the Interim Orders Committee (as it was then called) in exercising its discretion under section 41A:

"must act in a way which is fair and reasonable, and this will require the weighing of the interests of the doctor against the need for public protection, and the common law has recognised that the court may intervene to set aside a penalty or a sanction imposed by a disciplinary committee or administrative authority which is too severe and out of proportion to the occasion."

Their Lordships went on to say that it made little or no difference whether one said that the Committee must act in a way which is fair and reasonable or whether one invokes the Convention right of proportionality.

6. I turn from the law to the facts. The Panel had before them a summary sheet, page 41 of my bundle, which, so far as material, read as follows:

"Nature of case: Misconduct. Dr Van Vuuren was arrested for assault occasioning actual bodily harm on 31st July 2006.

Reason for referral to IOP: Dr Van Vuuren was referred to the GMC by North Yorkshire Police following his arrest for assault occasioning actual bodily harm against his wife and two daughters. No formal complaints were made. It was noted that all parties involved had been in drink during the incident. Upon the GMC contacting Dr Van Vuuren's employers, it emerged that Dr Van Vuuren had asked to have a meeting with the South Tees NHS Trust following his receipt of a letter from the GMC. Dr Van Vuuren attended this meeting with his wife and also provided a letter from his daughter. He assured his employer that no violence had been involved. Further information received from North Yorkshire Police suggests that this was not the case."

The IOP had behind this document some 50 pages of material. At page 61 of the bundle is a police report by PC Lax which reads as follows:

"Mr Van Vuuren has been married for many years and lives at home with his wife Ingrid, daughter Anine, 24 years. The older daughter Marlize, 25 years, resides in Edinburgh.

On Sunday 30th July 2006 the family were having a barbecue at home when an argument started over a political issue. He wanted Marlize to read an article in the Times; she refused.

The youngest daughter Anine sensed an argument and went to her bedroom.

Mr Van Vuuren became aggressive with his daughter Marlize and she walked away. He grabbed her by the hair and put her to the floor where he kicked her three times in the ribs, lower back and buttock. She got to her feet and he grabbed her again by the hair and punched her twice in the face, he then threw her by the hair and she hit her head on the door frame. Ingrid his wife tried to intervene and she was pushed away falling onto the couch.

Anine heard the disruption and came back downstairs where she saw her father hitting her sister so she picked up a small coffee table and struck her father across the back and on the elbow.

He turned his attention to her and grabbed her by the hair and pushed her against the front door. She covered her face and crouched down to protect herself and he punched her a number of times. He then returned to the TV room to continue the attack on Marlize. Anine called for the police at this stage and on arrival PC Kessell was met at the roadside by Anine who took her into the living room which was in a state of disarray. Both Ingrid and Marlize were in an upset state and the officer noted that Marlize had a bruised and bloodshot left eye. Ingrid had marks on her arms. It was established that all parties had been drinking and that Mr Van Vuuren had assaulted his wife and both daughters. None of them were prepared to make a statement nor make any complaint.

Mr Van Vuuren was arrested and it was noted that he had a cut on his right elbow. At the point of his arrest Ingrid and Marlize pleaded with the officers not to take him away.

The females have now made statements. However they do not wish to make any complaint against Mr Van Vuuren. They have refused to attend court and refused to have photographs taken of injuries.

As a result of this incident Marlize has the following injuries: bruised right forehead, a swollen and black left eye, bruising to right ribs lower back and buttock.

Anine has bruised right ear and a bruised right hand arm and shoulder. Ingrid has no injuries.

Mr Van Vuuren has been interviewed and made no comment to all questions.

The defendant had no previous convictions and there were no previous reported incidents of domestic violence in this family."

7. The only other document from the police to which it is necessary to refer is page 51 which is a transcript of a telephone call apparently made by Anine from outside the house:

"Reports that her mum and sister are in the property and are being attacked by her dad.

RP [that is Anine] is outside in the street. He has been drinking. He is holding her sister and mum in the TV room. He has done this before a long time ago. RP has been hit all over, mainly in the face. Does not know if her mum and sister need ambulance. RP is remaining on the phone until officers arrive. RP does not want to go to any neighbours' houses. Dad is named Lucas. RP is very distressed."

8. The reference in the GMC's cover sheet to an assurance by Dr Van Vuuren's employer that "no violence had been involved" refers to a finding by Professor Bramble, the Medical Director at South Tees Hospital NHS Trust at the James Cook University Hospital, part of the South Tees NHS Trust. Professor Bramble's file note on the incident of 30th July 2006 records a meeting with Mr and Mrs Van Vuuren:

"LVV asked to see me following receipt of a letter from the GMC.

This was triggered by a 999 call to the police as a consequence of a domestic argument. The phone call was made by one of Mr Van Vuuren's daughters and subsequently the police attended but took matters no further.

I am assured no violence was involved and a letter from Mr Van Vuuren's eldest daughter was presented to me by Mrs Van Vuuren.

I have not yet heard from the GMC.

I have not been notified by the police.

Following reassurances from Mr Van Vuuren and his wife I informed them that this meeting would be documented by a file note and that when the GMC contact me I will need to pass on any further information.

At present I have no concerns about Mr Van Vuuren's personal conduct. This appears to be an over reaction from one of his daughters who simply wanted to stop an argument and felt the only way she could do this was call the police."

This file note was sent to the GMC by Professor Bramble under cover of a letter of 6th November 2006 which, among other things says this:

" . . . essentially, Mr Van Vuuren has poor control of his temper and this has landed him in hot water on numerous occasions, although not recently. The GMC enquiry concerned an accusation of racism and prior to this he was suspended for bullying an orthopaedic trainee. Apparently, he had a 'violent and aggressive' behaviour at directorate meetings and the relationship with colleagues was only resolved when two retired and Mr Van Vuuren returned to work with a much reduced clinical commitment, including no on call and no forefoot surgery work. There have been a few complaints from patients but not many.

I cannot comment on the Northallerton Health Services Trust management of Mr Van Vuuren, but he has clearly had major emotional and physical illness. At one time he was referred to a consultant psychiatrist in Harrogate, but this was also at the height of the interpersonal problems in the department.

From my perspective, we have managed to work with Mr Van Vuuren to reduce his clinical workload and relieve him of the stresses that seemed to underpin his poor behaviour. The situation at home may not be so good, although I do have a letter from his daughter (enclosed) which seems to play down the incident. Mrs Van Vuuren also plays down the incident. I have not seen a police report.

In summary, there are issues from this past which suggest the domestic incident was not entirely unexpected. The GMC already have on file details of previous misdemeanours which I do not need to go into. However, if you do require further clarification please contact me."

9. By the time of the GMC hearing, the Panel had available to them a report of Mrs Marion Anderson, Consultant Clinical Psychologist. (The report was later: see below). She makes certain findings about Mr Van Vuuren's state, but it is not necessary to read out, particularly at a public hearing, the entire eight and a half pages of her report. I do, however, think that the account given to her by Mr and Mrs Van Vuuren of the critical incident should be quoted. Paragraph 7.1:

"Mr and Mrs Van Vuuren both gave me as detailed an account as possible, as far as either of them could remember, of the Sunday night episode in question. Their whole family had been drinking and Mr Van Vuuren and his eldest daughter had a row over politics which became physical when he tried to force his daughter to read an article. I understand that the younger daughter, who had in fact taken herself off to bed, came down then, found her father and sister fighting and tried to separate them. In fact, apparently she became the most physical of the three as she attacked her father with a coffee table and was apparently the only one of the three to actually draw blood.

It was she who decided to phone the police to get advice on how to manage her father but I understand because she did not know the number for lesser emergencies she dialled 999 and triggered all the subsequent events.

The police asked her to wait outside which she did, and I understand that the dispute between father and daughter had been more or less settled by the time the police actually arrived and put Mr Van Vuuren away. Mrs Van Vuuren was adamant that apart from her husband trying to push her away to keep her out of the altercation she was in no way threatened or complaining. All the family had been drinking and were quite drunk. There was no-one outside the family who was in any way threatened until the police were called."

10. To get one subsidiary point out of the way, complaint is made that on behalf of the GMC it was suggested to the Panel that Mr Van Vuuren had been guilty of dishonesty in the way he described the incident when he and his wife went to see Professor Bramble; in particular, by Professor Bramble being "assured no violence was involved". It is right to say, and Mr Sutton submits for the claimant, that it is not clear from that file note whether the assurance was given by Mr Van Vuuren or by Mrs Van Vuuren in his presence. It might turn out, on further investigation, that Mrs Van Vuuren was only saying that she had not been the subject of violence. But at this stage it does seem to me that there was a prima facie case that Mr Van Vuuren, either through his own words or through acquiescing with what his wife said in his presence, was seeking to assure Professor Bramble that there had been no violence. Yet, according to the police report at page 61 of the bundle, there had been very considerable violence.
11. The use of the word "dishonesty" in the presentation of the case to the GMC may have come as a shock to the system of Dr Van Vuuren when he heard it. But it does not seem to me that it was a surprise in the sense that it was an allegation not made on the summary sheet. The two sentences: "He assured his employer that no violence had been involved. Further information received from North Yorkshire Police suggests that this was not the case", coupled with not only the police report and the transcript of the 999 call but also the signed statement of the two daughters, must have put Dr Van Vuuren on notice that part of the case was that the assurance to the employer was inaccurate, to put it at its mildest.
12. Moreover, even if the way that the account of the incident was given to Professor Bramble is not thought to amount to a prima facie case of dishonesty, the other way of looking at it, as Mr Hare has submitted, is that the minimising of the incident demonstrates a worrying lack of insight. At any rate, for present purposes it is a view which the Interim Orders Panel were entitled to take. I would add that I also accept Mr Hare's submission that paragraph 7.1 of the report of Mrs Anderson -- namely the account to her of the incident which I have already cited in this judgment -- shows the same minimising of the account, and again was something they were entitled to take into account as demonstrating lack of insight.
13. The Panel's determination recited the outline of the allegation by the North Yorkshire Police. It "noted" the GMC's allegation of dishonesty in the assurance given to Professor Bramble that no violence was involved. It noted a letter from Woodlands Hospital of October 2006 that they had no concerns about Dr Van Vuuren's practice. It referred to a previous finding against him by a Professional Conduct Committee of the GMC in June 2003 concerning unprofessional, offensive, inappropriate and intimidating behaviour. It is right to say, in the light of being shown the finding of the PCC, that nothing in that previous finding appears to have been a criminal offence or to have involved violence. On the other hand, unlike the incident giving rise to the present hearing, it involved problems at work.
14. To continue with the determination, the Panel referred to reports on Dr Van Vuuren of 2004 and a report from a Dr Taylor of 15th January 2007, stating that he had suffered from Attention Deficit Disorder and a depressive illness. It referred to complimentary testimonials from colleagues. I have been shown these and I too note that there are a number of colleagues with very positive things to say about Dr Van Vuuren. The determination concluded as follows:

"It [that is the Panel] has concluded that these are serious matters, which suggest that your fitness to practise may be impaired. The Panel is satisfied that, if proved, these matters would demonstrate that you may pose a real risk to patients and the public interest and that your remaining in unrestricted practice would seriously undermine the trust that members of the public are entitled to place in the medical profession and its practitioners.

The Panel has borne in mind the advice of the Legal Assessor, and that it is not its function to make findings of fact nor decide on the veracity of the allegations. It has, however, given such weight as it considers to be appropriate to the allegations and to the comments on these made on your behalf. The Panel has concerns regarding the potential for this to undermine the public trust and the example this may set to junior colleagues. It therefore considers that an interim order should be made.

The Panel considers the imposition of interim conditions. Because of your apparent lack of insight and the apparent persistent pattern of conduct, and the potential for a repetition of these behaviours, it has determined that in all the circumstances there are no conditions which would be adequate, workable or appropriate.

The Panel has taken account of the issue of proportionality and has balanced the need to protect members of the public, the public interest and your own interests against the consequences for you of the suspension of your registration. Whilst it notes that its order has removed your ability to practise medicine it considers that there are no conditions which would adequately protect members of the public, the public interest or your own interests. It is satisfied that the order of suspension is a proportionate response.

In deciding on the period of 18 months, the Panel has taken into account the uncertainty of the time needed to resolve all the issues in this case.

The order will take effect today and will be reviewed within six months."

15. Unlike the determination of the Committee which was criticised by Stanley Burnton J in R (on the application of Steven James Walker) v GMC [2003] EWHC 2308 Admin, this determination was by no means entirely formulaic. The Panel expressed concern regarding the potential for the incident the subject of the allegations by the police "to undermine the public trust and the example this may set to junior colleagues". They also referred to "your apparent lack of insight and the apparent consistent pattern of conduct, and the potential for a repetition of these behaviours".
16. I have to say that I can find nothing disproportionate or erroneous in their conclusion. The incident as recorded in the police report was a significant incident with -- if all that is set out in the police report is true -- assault occasioning actual bodily harm against two daughters of the claimant. There was a history, albeit a not very recent one, of allegations as regards the 2003 appearance before the PCC, findings of behaviour by the claimant which could properly be described by the Panel as demonstrating a consistent pattern of conduct when taken with the new allegations. There was ample material, as I have already indicated, for suggesting that if the allegations in the police report were true, or anywhere near true, the claimant's subsequent explanations to Professor Bramble and Mrs Anderson alike demonstrated a worrying lack of insight. In those circumstances, it seems to me that the Panel reached a conclusion which was well open to them on the evidence before them and I decline to make any order under section 41A(10).
17. I would only add in conclusion that the Panel said that in deciding the period of 18 months for the suspension of registration, which is the maximum permitted by the statute, they had taken into account both the uncertainty of the time needed to resolve all the issues in this case. It does not seem to me that there can be very much about the incident of last July which remains to be resolved, but I accept from Mr Hare that there are medical issues which need to be resolved. The Panel only had before them medical evidence from Dr Van Vuuren's side and not from the GMC's side. By letter of 28th December last, Dr Van Vuuren offered to submit to examination by two medical examiners on behalf of the GMC. That examination has apparently not yet been arranged. It should, in my judgment, take place without further delay so that when the matter comes before the Panel on review in July, the Panel will, I hope, have all the material before it in order for it to be able to reach a proper decision as to what should happen next in the case rather than the matter being put off and delayed again. I am very conscious, as other judges in other cases have been, of the serious effect on a doctor of protracted proceedings, whether before the Interim Orders Panel or the Fitness to Practise Panel itself, and the way in which this can lead to a doctor becoming deskilled simply by the passage of time.
18. For the reasons I have given, I dismiss the present application.
19. MR HARE: My Lord, can I raise a couple of very short matters that I picked up in the course of you giving your judgment. The first relates to a reference to the Committee when you started to refer to it. It should be the Panel.
20. MR JUSTICE BEAN: In some of the cited cases it was the Committee. But I will seek to correct the transcript if I have referred to the present Panel as the Committee.
21. MR HARE: I am obliged. The final matter was -- and my understanding is subject to what my learned friend said -- that the report from Mrs Anderson was not actually before the Panel when it met. It was produced slightly before then but was not before the Panel.
22. MR SUTTON: My Lord, that is absolutely right. Your Lordship observed that it is one of the matters that fortified the Panel's conclusion that there was a lack of insight. In fact, the Anderson report was only produced after the Panel's hearing.
23. MR JUSTICE BEAN: I see.
24. MR SUTTON: Mr Lawson's witness statement indicates the circumstances in which it was commissioned and only available, unfortunately --
25. MR JUSTICE BEAN: I am sorry, you are quite right. It was the report of Dr Taylor and not of Mrs Anderson that was available to the panel in January.
26. MR HARE: As I understood it, the manner in which it was put in your judgment was that the evidence from that supported the Panel's conclusion that there may be a lack of insight. In any event, there was the file note of Professor Bramble on which the Panel based its decision. It makes no difference to the conclusion the Panel reached.
27. MR JUSTICE BEAN: Mr Sutton, would you like to say anything?
28. MR SUTTON: My Lord, obviously it is an important point. It is a determinative point. The judgment made reference to Mrs Anderson's receipt of information from the claimant and his wife. Your Lordship considered that that affected the issue of insight. I defer to your Lordship, if your Lordship has a particular view on whether that was a material part of the evidence.
29. MR JUSTICE BEAN: Well, I am afraid I do not think it is, Mr Sutton, because the report to Dr Bramble in the triangular interview or meeting of 30th July focussed on and demonstrated lack of insight. The Panel made a finding that there was apparent lack of insight. It is quite right to say -- and I acknowledge my error in this respect -- that they did not have the corroborative evidence of paragraph 7.1 of the report of Mrs Anderson; but Mr Hare in his submissions was seeking to persuade me, and I agree, that it is corroborative evidence of a lack of insight even though it was not available to the Panel as corroborative evidence. You did not in fact submit that the finding of apparent lack of insight was not one which was open to the Panel. I think your submissions were rather that in the great scheme of things it was not sufficient to justify suspension of registration rather than the imposition of conditions.
30. MR SUTTON: My Lord, obviously I do not want to repeat my submissions, but I think in relation to the issue of insight my contention was that there was ample evidence to reassure the Panel that the claimant had demonstrated insight. I agree that weight was attached by my learned friend to Professor Bramble's file note as indication to the contrary.
31. MR JUSTICE BEAN: Thank you very much.
32. MR HARE: My Lord, in the light of that, the GMC apply for their costs of today. I do not know if my learned friend takes a point on this. A statement of costs was not actually served. I handed it to him outside court this morning.
33. MR SUTTON: I take no point on that. Neither do I on the detail of the schedule.
34. MR HARE: Can I just hand that up, my Lord. (Handed).
35. MR JUSTICE BEAN: The GMC solicitors and Radcliffes on behalf of doctors are particularly familiar with this territory. If you have nothing to say on quantum I will simply assess costs in the sum in the schedule.
36. MR SUTTON: I am grateful, my Lord.
37. MR JUSTICE BEAN: It does not seem to me to be out of line.
38. MR HARE: I am obliged, my Lord.
39. MR SUTTON: My Lord, may I raise one final matter. That is to apply for permission to appeal. My Lord, the reason I make that application is because it is apparent in the course of today's hearing that there is a diversion in the judicial guidance on the way in which the IOP should explain its conclusions in relation to the decision whether or not to make a suspension or conditional order. We contend for that reason that it is desirable, as a matter of public interest, for there to be some authoritative clarification of the guidance. We also think in the circumstance that there is a significant interest from the claimant's own point of view in being allowed to further ventilate his complaint that the order of the IOP was one that seriously impacts upon his own professional rights under Article 6. We would, for that reason, invite your Lordship to say that this matter ought to go before the Court of Appeal.
40. MR JUSTICE BEAN: Thank you, Mr Sutton. I am not prepared to grant leave to appeal. Although there is some difference of emphasis in the authorities, taking the law as laid down in Madan, which was the most favourable to the doctor on the test to be applied and the balancing exercise, it does not assist him. As to adequacy of reasons, again even taking the law at its most favourable to the doctor, it seems to me that the Panel in this case gave adequate reasons to enable Dr Van Vuuren to understand why they considered that there had to be a suspension of registration rather than conditions imposed. It is of course open to him to make an application to the Court of Appeal for permission to appeal.
41. Thank you both for your assistance.