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 WC2A 2LL
		6th June 2008

1. MR JUSTICE STADLEN: This is an application commenced with a Part 8 Form by Dr Ali against the General Medical Council. It is not entirely clear on the face of the claim form what date it was issued, but it is stamped 6th March 2008 and there was evidence before me in the form of a witness statement served on behalf of the defendant by its solicitor Claire Bartoli dated 7th April 2008, but there was some uncertainty or confusion on the GMC's part as to the precise timing of the issue of the application. Nothing turns on it. It is an application for invalidation of what is described as "a verdict of the IOP", which is short for "Interim Orders Panel of the General Medical Council", of 9th January 2008.
2. Prompted by the suggestion in the skeleton argument served on behalf of the GMC by Mr De Marco, I inquired of Dr Ali at the outset of this application whether he agreed that procedurally this was, and I should treat this as, an application made pursuant to Section 41A(10)(a) of the Medical Act 1983 to terminate the interim order of suspension which was ordered, on 9th January 2008, to be continued for the remainder of the 18-month period which had initially been imposed by a determination of the IOP on 9th April 2007, when it imposed various conditions on Dr Ali's registration as a consultant anaesthetist. Dr Ali confirmed that I was so to treat it and that is how I treat this application.
3. There is a considerable background. Even before the determination of 19th April 2007, dating back to at least June 2002, when conditions were imposed on Dr Ali's registration for a period of 18 months, going through to a decision on 16th July 2003 imposing limitations on Dr Ali's registration, effectively limiting him to working as a senior house officer under close supervision for periods of a minimum length.
4. On 22nd September 2003 he was no longer registered with the GMC, but he then obtained limited registration in February 2006 to take up a supernumerary anaesthetic SHO placement with the Basildon and Thurrock University Hospitals NHS Foundation Trust. That terminated after 100 days. In August 2006 he was no longer registered with the GMC.
5. On 16th February 2007 he applied for full registration. That application was referred to the assistant registrar at the GMC, who told Dr Ali that if he proceeded with his application, given concerns that had been raised, his file would be referred immediately to a Fitness to Practise Panel and potentially an IOP hearing.
6. On 19th April 2007 the Interim Orders Panel met to consider his case. Dr Ali was present but not represented. The Panel determined to impose conditions on Dr Ali's registration which confined him to working in SHO posts in anaesthesia for periods of not less than 3 months' duration under the supervision of a named consultant. He had also been invited to undergo a GMC performance assessment, to which he agreed. That assessment was held between 4th and 9th October 2007, but the report was not available for the review of the interim order which was held on 11th October 2007. As a result of that hearing, the IOP replaced the previous order attaching conditions with an order suspending his registration for the remainder of the 18-month period imposed as a result of the determination of 19th April 2007.
7. At the hearing on 11th October 2007 it appears, from the way in which the case was opened before the IOP on 9th January 2008 at the hearing whose decision is the subject of this application, that Dr Ali was present and unrepresented, and that on that occasion the Panel's attention was drawn to Dr Ali's concern that the assessments of his work at Basildon were by no means wholly critical, with many positive comments, and that one consultant, Dr Lowe, may have exerted undue influence on his peers in reaching the conclusion to terminate his employment. The Panel on that occasion heard from Dr Ali on oath and questioned him. Its decision was to replace the previous order for conditions with one suspending the registration.
8. On 17th December 2007 the GMC wrote to Dr Ali under Rule 7, enclosing details of the allegations against him in relation to fitness to practise. On 19th January 2008 the IOP met to review, as it was bound to do, the decision that had been made in October 2007, and to determine whether that suspension should be continued or not, and, if not, what other order or determination should be made.
9. The determination of the IOP on that occasion appears from the transcript of that hearing, which was before the court. The IOP, on 19th April 2007, had determined that it was necessary for the protection of members of the public, in the public interest and in Dr Ali's own interest for his registration to be subject to interim conditions for a period of 18 months. That order has subsequently been changed on 11th October 2007 and substituted with an order suspending the registration for the remainder of the duration of the order. The determination of the Panel on 9th January 2008 was that the order for suspension should be maintained. In doing so, it indicated that it determined that there was information before the IOP which suggested that Dr Ali's fitness to practise might be impaired.
10. The Panel concluded that the matters to which it had referred in the course of its determination were serious matters which suggested that Dr Ali's fitness to practise might be impaired. The Panel stated that it was satisfied that he might pose a real risk to patients and the public interest, and that his remaining in unrestricted practice would seriously undermine the trust that members of the public are entitled to place in the medical profession and in practitioners. The Panel stated that it had taken account of the issue of proportionality and balanced the need to protect members of the public, the public interest and Dr Ali's own interests against the consequences for him of the suspension of his registration. In light of the performance assessment report, the Panel stated that it had determined that there were no conditions that would adequately protect patients in the public interest and suspension was a proportionate response.
11. In deciding on the period of 18 months, the Panel said that it took into account the uncertainty of the time needed to resolve all the issues in the case. It said that the order would take effect that day and would be reviewed within 6 months or earlier. It follows that it will be reviewed within about a months' time from now.
12. In setting out some of the background, the Panel said this:

"The Panel noted that you were awarded full registration and inclusion on the specialist register from 29 March 2007. The letter from the GMC, dated 16 February 2007 advised you that if your application for full registration was granted your file would be immediately referred to the Fitness to Practise Directorate for review due to the following concerns:

• your lack of continuous employment and recent clinical experience;

• failure to complete the course of recommendations set out by the Registration Committee on 13 June 2002;

• Consultants' reports that raise doubts regarding your capability for practise at full registration level under Section 3 of the Act.

The Panel is aware that you have held the following periods of limited registration:

12 November 2001 to 18 November 2002; 26 August 2003 to 22 September 2003 and 7 February 2006 to 5 August 2006. During the first period of limited registration, you were subject to an Interim Orders Committee hearing on 13 June 2002, resulting in conditions being placed on your registration for 18 months. During the most recent period of limited registration from 7 February 2006 to 5 August 2006, your employment was terminated in early June 2006 by Basildon and Thurrock University Hospitals, Basildon.

In her reference dated 28 September 2003, Dr Anne Thornberry consultant anaesthetist, Gloucestershire Hospitals NHS Trust, stated that you demonstrated you were capable of performing appropriately and safely. She thought that it was imperative that, when taking up a new job, you had a suitable period of induction into the department, including familiarity with the equipment, protocol and guidelines and an understanding mentor.

You commenced a placement that had been organised by the London Deanery's International Medical Graduates' Office, at Basildon and Thurrock University Hospital on 20 February 2006 and a review meeting was held on 1 June 2006. Feedback was sought by the London Deanery from six consultants on your placement. The collective view was that you required close supervision at all times. There had been some improvement in your team working and communication skills, however, they were still not at a level appropriate for working in an NHS setting. It was stated that you had pockets of knowledge but also huge blanks that you seemed unwilling to listen to advice and be taught. Some consultants took the view that you exhibited poor practical skills, others that your skills were good or acceptable.

In a letter dated 9 November 2006, Dr M S May [a] Consultant in Anaesthesia and Pain Management at Basildon and Thurrock University Hospital NHS Trust stated that he felt you were not competent to work independently. He further stated that you were unsure of the dosage of drugs, that some suggested methods of anaesthetising patients were not within the accepted practice for the UK and that your ability to perform practical procedures left him unimpressed. Dr May further stated that you tended to panic in situations where changes occur, that your professional demeanour was one of overfamiliarity and that your response to criticism is poor.

The Panel notes that you undertook the tests of competence on 4 October 2007 and a peer review between 7 and 9 October 2007. In both the knowledge test and the OSCE stations your score fell significantly below the acceptable level of performance.

Your performance was found to be unacceptable in the following areas of the peer review

• Assessment of the patient's condition

• Providing or arranging investigations

• Providing or arranging treatment

• Working within limits of competence

• Record keeping

• Treatment in emergencies

• Audit

• Communication with patients

• Relationships with colleagues, GPs teamwork

The areas of cover and respect were considered to be acceptable whilst education gave the review team cause for concern. In its conclusion, the assessment team concluded that your performance had been deficient, it is not likely to be improved by remedial action, and recommended that you should cease practice.

The Panel has noted the Rule 7 letter sent by the GMC on 17 December 2007 offering you the opportunity to respond to the allegations made concerning your fitness to practise."

The Panel then concluded by saying this:

"The Panel has borne in mind that it is not its function to make findings of fact or decide on the veracity of the allegations. The Panel has, however, given such weight as it considered to be appropriate to the allegations and to your comments on them."

It is to those matters that the Panel was referring when it stated that it had concluded that these are serious matters which suggest that your fitness to practise may be impaired.

13. As appears from the transcript, before they retired to consider their determination the Panel was advised by the legal assessor in the following terms:

"This Panel must consider all the information before it, both that which was before previous Panels and the new information that is available before it today and also consider the submissions which have been made by Dr Ali.

You must then weigh that information and the submissions and decide whether in all the circumstances you are satisfied that there may be impairment of the doctor's fitness to practise and that that impairment, if you are satisfied it may be there, poses a real risk to members of the public or may adversely affect the public interest or the interests of the practitioner. If you are so satisfied you must then balance the interests of the doctor and the interests of the public and determine what is the appropriate interim order that is necessary to guard against such risk. You will consider whether conditions would be adequate and workable and if they would not or they would not be a proportionate response to the possible risks to members of the public, then you will consider continuing the order of suspension. That is my advice."

14. It was not altogether easy from the handwritten claim form to evince what was the legal or factual basis for the challenge made by Dr Ali against the decision of 9th January 2008, and in particular supporting his application that the suspension order should be terminated. That is no criticism of Dr Ali -- he is a doctor not a lawyer -- and he appeared before this court, as had he done in front of the IOPs, in person and unrepresented. However, in the course of oral argument and submission before the court, and in answer to questions from the court, a number of strands emerged as being the matters upon which Dr Ali relied. Dr Ali, as was apparent both from the content and the manner in which he presented his submissions to the court, is a man who has a long-running grievance and feels that he has been the victim of a miscarriage of justice.
15. He feels that this is the result of a campaign on the part of the GMC against him, which goes back for several years. When asked by the court what was the reason or motivation for that vendetta or campaign on the part of the GMC against him, he said that he did not know but was convinced that there was such a campaign, and had been for several years, and that that is evidenced by the various hearings to which I have referred. To begin with, Dr Ali relied on complaints and criticisms of some of the earlier episodes in the history which I have set out. For example, he described the decision of the committee on 16th July 2003 to impose conditions upon his registration as a miscarriage of justice and relied on a letter of 6th October 2004 from the Royal College of Anaesthetists, which stated that the practice restrictions that had been imposed on 16th July 2003 made it impossible to identify any appointment that would be compatible with those restrictions in the United Kingdom.
16. He complained that an incident going back as far as December 2001 in Scarborough, which had formed the basis of complaint against him on earlier occasions, was based on lies from two nurses. He complained about the fact that at the 16th July 2003 hearing what he described as a "Crown witness", which I took to mean a witness supporting allegations against him, or being the author or indirect origin of allegations against him, had not been present. That, he said, was why he did not trust the GMC. Those are matters plainly outside the ambit of matters that arise on this application, save and unless and to the extent that it could be shown that they are evidence in some way of bias on the part of the IOP at the hearing of 9th January 2008 of such character as would both entitle and justify this court in terminating its determination.
17. At one point Dr Ali suggested that the IOP itself, as constituted on 9th January 2008, were just following orders on the part of the GMC. Indeed, he suggested that the four members of the assessment team that had been appointed to carry out the performance assessment in October 2007 had been instructed, and I quote him, "Ali must go", but when I asked him who had given those instructions, he said, "I do not know who." The thrust of Dr Ali's submissions was that the GMC has been out to get him and that there is a vendetta against him on the part of the GMC.
18. So far as that allegation is concerned, if I can call it a general allegation, it is not one that is supported by any evidence that is before this court, nor was it supported by any evidence put before the IOP, let alone in a form which would have enabled either the Panel or anybody else to adduce evidence in rebuttal for consideration, nor was there any application that the IOP should in any way recuse itself or be replaced by some other kind of differently-constituted panel.
19. The remainder of Dr Ali's complaints fall, broadly-speaking, into two categories. One category is that he complained about the evidence that was put to the performance assessment team, and in particular he said, and spoke very vehemently and not without eloquence, suggesting that there had been an orchestrated attempt to get rid of him on the part of Dr Lowe, who he described variously as "the strong man" and similar epithets, in Basildon, of whom other colleagues were in fear. And he prayed in aid the existence of a number of assessments of him by other doctors in Basildon which were positive. Indeed, there is some reference to such positive references in the transcript of the hearing to which I have referred.
20. A second category of complaint by Dr Ali was that the way in which the performance and assessment panel team carried out its task was unfair and/or biased against him. He said, for example, that they only interviewed doctors in Basildon who were effectively either Dr Lowe, or in the Dr Lowe camp, rather than any doctors who would have been favourable to him and who had given favourable assessments to him before then. In relation to that, it is pertinent to point out that on questioning from me as to whether he had nominated other doctors at Basildon who would be, as he thought, more favourable to him to be interviewed by the team, Dr Ali said he had not suggested any other doctors in Basildon to be interviewed because they were all afraid of Dr Lowe, and he did not ask the team to interview doctors who had given good reports because he did not know how they would report to the team because, he said, the anaesthetists were afraid of Dr Lowe.
21. He positively drew my attention to the fact that a Dr Youkhana, who he described as a friend, who had previously been well disposed to him, had written to the GMC to say that he had a concern about Dr Ali (this was before the assessment team), and that he had done so because, to use his graphic words, "If it is a choice between my bread and your bread, I will choose mine." He said that is why he understood that he wrote setting out his concerns to the GMC. As it seems to me, leaving aside questions of jurisdiction and legal approach, to which I shall come, that goes some considerable way to undermine the sting of Dr Ali's criticism of the failure on the part of the team to interview other doctors whom he said might be more favourable to him.
22. Also in this category of Dr Ali's criticism of the way in which the performance team carried out its task was a more fundamental attack on the very legality of the constitution of that team. The team consisted of four members: Dr Linter, the medical assessor, a consultant anaesthetist and senior clinical lecturer in cardiac anaesthesia; Dr Kapoor, another medical assessor with 12-years' experience in anaesthesia in India and Britain, and a specialist registrar in anaesthesia in intensive care; the team leader, a GP with anaesthetic experience, who had led approximately 40 assessments; and a lay assessor, a Mr Morley, a retired senior police officer, who sits on mental health review tribunals. This was his fourth assessment.
23. Dr Ali's complaint in relation to the constitution of the Panel was that it was wrongly constituted. He said it should not have included a policeman. He said it should not have included a GP; he was not fit to examine a consultant. He said it should not have included Dr Kapoor, who was too junior to assess a consultant. His criticism against Dr Linter did not seem to go to his ineligibility from the point of view of the constitution but rather it was an attack that he was hypocritical, in that he appeared openly to be favouring or favourably disposed to Dr Ali, but then was hypocritical in writing badly about him in the report.
24. It does not seem to me that there is any arguable illegality in the constitution of the assessment team. The rules pursuant to which the team was constituted are set out in Rule 2 of Schedule 1 to the General Medical Council Fitness to Practise Rules 2004, which provide that an assessment should be carried out by an assessment team:

"(2) The Registrar shall select from the panel of performance assessors appointed under rule 3, an Assessment Team comprising-

(a) a team leader, who shall be a medical performance assessor;

(b) one or more other medical performance assessors; and

(c) one or more lay performance assessors.

(3) A person shall not be selected as a member of an Assessment Team in any case where he has been selected to act as a specialist adviser at a previous hearing of the case.

(4) In selecting a medical performance assessor as a member of an Assessment Team, the Registrar shall have regard to the speciality to which the allegation relates."

It seems to me that there is no arguable illegality in relation to the constitution of the team.

25. During the course of the hearing Dr Ali drew to the court's attention, and relied upon, some documents. They included a number of performance assessments from other doctors in Basildon prior to the October 2007 assessment which appear to give him a good chit. He relies on the inconsistency between those assessments and the views reached by the assessment team, which were part of the material before, contributed to the decision of, and were relied on by the IOP on 9th January 2008.
26. He also showed me an extract from a transcript of an interview with a doctor who had been interviewed by the assessment team, which contained a remark which Dr Ali said indicated a fairly overtly racist approach caricaturing Dr Ali as having a comical demeanour "to be expected of people from that part of the world". I do not have the document in front of me but I summarise because it was not in the bundle and it was shown to me and then returned to Dr Ali. One can understand why these matters have caused Dr Ali to have a sense of grievance. I express absolutely no view about those matters, nor do I express any view about how they fit into the overall structure of the underlying merits of the allegations that are laid against Dr Ali because it is neither legitimate nor necessary for this court to undertake an inquiry into the truth or falsity of the allegations against Dr Ali.
27. It is necessary here to draw attention to the structure of the regime for interim hearings and fitness to practise hearings. They will be familiar to those who deal with this area of the law, and they have been drawn to Dr Ali's attention. The powers of the General Medical Council in a case such as this derive from the Medical Act 1983. Section 35C of that Act applies where an allegation is made to the General Medical Council against a fully registered person, or a person who is provisionally registered, that his fitness to practise is impaired. Under Section 35C(2):

"(2) A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of—

(a) misconduct;

(b) deficient professional performance..."

I need not bother with (c) or (d) and then:

"(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."

Under Section 35C(4):

"(4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel."

Under Section 35C(8):

"(8) If the Investigation Committee are of the opinion that an Interim Orders Panel or a Fitness to Practise Panel should consider making an order for interim suspension or interim conditional registration under section 41A below in relation to the person who is the subject of the allegation——

(a) they shall give a direction to that effect to the Registrar;

(b) the Registrar shall refer the matter to an Interim Orders Panel or a Fitness to Practise Panel for the Panel to decide whether to make such an order..."

The power of the Fitness to Practise Panel is different and more draconian than the power of the Interim Orders Panel. Under Section 35D:

"(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit—

(a) except in a health case, direct that the person's name shall be erased from the register..."

They can also direct that his registration should be suspended for a period not exceeding 12 months, or that it should be conditional upon his compliance for up to 3 years with specified requirements for the protection of members of the public or in his interests.

28. By contrast, under Section 41A:

"(1) Where an Interim Orders Panel or a Fitness to Practise 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 the 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) that his registration in the register shall be suspended... during such period not exceeding eighteen months as may be specified... or

(b)... shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified... with such requirements... as the Panel think fit to impose..."

29. Under Section 41A(3)(c) either the Interim Orders Panel or the Fitness to Practise Panel may:

"(c) if satisfied that to do so is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, replace an order for interim conditional registration with an interim suspension order having effect for the remainder of the term of the former..."

30. Two things are apparent from the comparison of those provisions. First that the power to erase a person's name from the register permanently is more draconian than the power to suspend it or impose conditions upon it. The second is that the conditions precedent for the making of a direction are significantly different in either case. Under Section 35D no direction can be made unless the Fitness to Practise Panel makes a finding that the person's fitness to practise is impaired. Plainly that is a finding of fact and requires the Panel to reach a finding of fact based on evidence. As one would expect, there are rules which govern the procedure to be followed, with a view to the ascertaining of whether such facts can or cannot be found.
31. By contrast, in the case of Section 41A, the making of a suspension or conditional direction, the test is that the Interim Orders Panel or the Fitness to Practise Panel must be satisfied that it is necessary to make such a direction "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". It is not there specified as a condition precedent that the Panel, before making such a direction, must make a finding of fact that his fitness to practise is impaired. That is not surprising, because the permanent erasure of a name is a more draconian consequence, and one which can only be brought about as a result of a full factual investigation. The same is not the position in the case of an interim suspension or imposition of conditions because it is in the nature of things that there may be circumstances where, before it is possible fully to examine the facts with all the procedures and safety net provided by the Rules, it may be that allegations are made against a person that are of such seriousness as to require a temporary suspension for the safety of the public.
32. This is reflected in the rules that apply respectively to these two different procedures. Rule 17 of the rules to which I have referred governs the procedure before a Fitness to Practise Panel. A panel is required to dispose of the case in accordance with Sections 35D, 38 and 41A of the Act. In Rule 17(1) it is provided that a "Panel shall consider any allegations referred to it in accordance with these Rules". The Rules then provide under 17(2):

"The order of proceedings...

(a) The FTP Panel shall hear and consider any preliminary legal arguments..."

I do not read out the whole of Rule 2 but only the relevant provisions:

"(c) the person acting as secretary to the FTP Panel shall read out the allegation, and the alleged facts upon which it is based;

(d) the Chairman of the FTP Panel shall inquire whether the practitioner wishes to make any admissions;

(e) where facts have been admitted, the Chairman of the FTP Panel shall announce that such facts have been found proved;

(f) where facts remain in dispute, the Presenting Officer shall open the case for the General Council and may adduce evidence and call witnesses in support of it;

(g) the practitioner may make submissions regarding whether sufficient evidence has been adduced to find the facts proved or to support a finding of impairment, and the FTP Panel shall consider and announce its decision as to whether any such submissions should be upheld;

(h) the practitioner may open his case and may adduce evidence and call witnesses in support of it;

(i) the FTP Panel shall consider and announce its findings of fact;

(j) the FTP Panel shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner's fitness to practise is impaired;

(k) the FTP Panel shall consider and announce its finding on the question of whether the fitness to practise of the practitioner is impaired, and shall give its reasons for that decision."

33. That is to be contrasted with the rules governing procedure at an Interim Orders Hearing, which is Rule 27, which provides:

"(1) At the hearing, the Interim Orders Panel may, subject to paragraphs (2) and (3), receive any evidence which appears to it to be fair and relevant to its consideration under section 41A(1), (2) or (3) of the Act.

(2) No person shall give oral evidence at the hearing unless the Interim Orders Panel consider such evidence is desirable to enable it to discharge its functions.

(3) The Interim Orders Panel may, at any stage in the proceedings—

(a) with the consent of the practitioner; or

(b) where, after consultation with the Legal Assessor, it is satisfied that to do so would be desirable to enable it to discharge its functions,

Allow a party to produce at the hearing any written evidence, notwithstanding that a copy has not been provided to the other party before the hearing or that its author is not being called as a witness."

34. In Rule 27(4)(d) it is provided that at an Interim Orders Hearing "the practitioner may present his case and... may adduce evidence in support of it", but that is explicitly said to be subject to paragraphs (1)-(3), including in particular paragraph (2), which I have just read, which provides:

"(2) No person shall give oral evidence at the hearing unless the Interim Orders Panel consider such evidence is desirable to enable it to discharge its functions."

The effect of that is that there is not an unrestricted right on the part of a practitioner at an Interim Orders Hearing to adduce such evidence as he wishes; it is subject to the right of the Panel to withhold permission for the adducing of such evidence if it does not consider it desirable to enable it to discharge its functions.

35. It seems to me that it is necessarily implicit in that that it cannot be contemplated that at an Interim Orders Hearing the Panel either can or should seek to make a determination as to whether the allegations that are before it, and which in due course may form the subject of a Fitness to Practise Hearing, are true and have been proved on the balance of probabilities such as to lead to a finding that the practitioner's fitness to practise is impaired. This seems to me to be fundamental to the application that is before the court. What it does is to underline that the hearing in front of the Interim Orders Panel on 9th January 2008 was not a hearing in which the Panel was required to investigate and make findings of fact as to whether they accepted, on the balance of probabilities, the truth of the allegations that were made against Dr Ali, and in particular whether the facts that were set out in the report of the performance assessment were true, and whether the recommendation to which that gave rise was one that should properly be implemented, having regard to the findings of fact upon which it was based.
36. The complaints that Dr Ali makes about the fact that the assessment team did not take proper account of the fact that he had got positive assessments from other doctors in Basildon is a matter which Dr Ali will have every opportunity of going into at the Fitness to Practise Hearing, which I am told is listed for 5 days on 1st September 2008. It will be a function of the Fitness to Practise Panel at that hearing to determine whether the factual allegations against Dr Ali have been proved and, if so, whether they are satisfied that his fitness to practise is impaired.
37. The same applies to Dr Ali's complaints and concerns about Dr Lowe and his allegations that Dr Lowe has been conducting a campaign to get rid of him, that he had bullied him whilst he was there, and that he has intimidated other colleagues and doctors and medical staff at the Basildon Hospital into saying things about Dr Ali which they do not genuinely believe. Those are all matters of fact, and they are all matters which Dr Ali will be at liberty to explore by all the evidential tools available to him under the procedures which I have read out under Rule 17 at that hearing.
38. The question for this court is a much more limited question. It is not, in my judgment, the function of this court, in determining an application under Section 41A(10)(a) to terminate the suspension order, to reach findings of fact as to whether the allegations that were before the Interim Orders Panel are true. It was not, in my judgment, as a matter of law, the function of the Interim Orders Panel itself on 9th January 2008 to make findings as to whether, on the balance of probabilities, the allegations against Dr Ali, which will be determined by the Fitness to Practise Panel, are true.
39. What that Panel was concerned with was whether it was satisfied that it was necessary for the protection of members of the public that Dr Ali's suspension should continue. In reaching that decision, it was bound to take account, and it plainly did take account, of the nature of the allegations that had been made against him. I would add that, as appears from the transcript of the hearing, the Panel had very much in mind the contents of the report of the assessment team. Indeed, the Panel said that it had comprehensively reviewed the order, the information before it previously, the transcripts of the previous hearings, the further information received today, including submissions on both sides, and in particular the contents of the assessment. They are set out, or a summary is.
40. The full report was referred to on internal page 3 of the transcript of that hearing. It runs from page 304 to page 765. The Panel set out what it described as the particular areas of concern identified at assessment at page 307 in these terms: Communication, knowledge, clinical judgment, record keeping, working with colleagues. At page 361 is the doctor's score in the knowledge test, which was 35 per cent as against a minimum standard of 52.77 per cent for his peer group. The team record, over the page, demonstrates a serious deficiency in Dr Ali's knowledge base, which was unacceptable.
41. Ms Cundy said:

"On page 363 the Panel will note the doctor's overall score of 53.74% in the ten OSCE stations. The lowest 25% of comparable scores appear to fall between approximately 66 and 73% with a median figure of just below 80, so the Panel can see that the doctor's score of 53.74 is considerably below the lowest comparable group there."

I am reading here from the opening of Ms Cundy on behalf of the General Medical Council to the counsel. It is plain from that that these matters were well within the knowledge the Panel, and I infer that they took them into account in reaching their determination. I continue:

"... the Panel will note that the doctor's performance was found to be acceptable in the areas of respect and cover but he gave cause for concern in the area of education and that his performance was found to be unacceptable in the areas of assessment; treatment; investigations; communication; relationships; records; emergencies; limits and audit."

Reference was made in the determination itself to views expressed from doctors at Basildon, including the collective view that Dr Ali required close supervision at all times and that, although there had been improvement in his team working and communication skills, they were still not at a level appropriate for working in an NHS setting. It was stated that, although he had pockets of knowledge, he also had huge blanks, that he seemed unwilling to listen to advice and be taught.

42. There was reference in the determination to the letter of Dr May of 9th November 2006, the consultant in anaesthesia at the hospital: that Dr Ali was unsure of the dosage of drugs, that some suggested methods of anaesthetising patients were not within the accepted practice in the UK, that his ability to perform practical procedures left him unimpressed and that he tended to panic in situations where changes occur. These matters, it seems to me, are matters which, if true, are obviously very serious. It was not the function of the Interim Orders Panel to decide whether they were true, but it seems to me that they were entitled within their powers, having regard to all the material that was before them, including the matters to which I have drawn attention, to reach the conclusion that they were satisfied that continuation of the suspension was necessary for the protection of members of the public.
43. My attention was drawn, in relation to the appropriate test to be applied in an application to terminate a suspension under Section 41A(10), to the judgment of Pill LJ in the Court of Appeal in the case of R(Dr "X") v The General Medical Council CO/1643/2001 neutral citation [2001] EWHC (Admin) 447. At paragraph 9 he quoted Richards J in the case of Maden v General Medical Council (unreported) 26th April 2001, who:

"... considered that the approach in a situation such as the present:

'...is not materially different from the approach of the court on an application for judicial review.'"

Pill LJ continued:

"With respect that may be, but I prefer to apply the guidelines expressed in the authorities to which I have referred. Mr Shaw, for the respondent, has described the appropriate approach as a 'more hands off' form of judicial review. I agree that the particular knowledge and expertise of the professional body, with its duty to protect the public and concern for professional standards, must be respected."

44. The authorities to which he was referring included the case of Vale v General Dental Council (unreported) 14th October 1988, where Watkins LJ said:

"It is vital to acknowledge in matters of this kind that a committee such as that under review here reaches its decision in circumstances such as concern us as a matter of discretion. Therefore it must be recognised that unless it can be demonstrated that in exercising that discretion the committee has not taken account of something it should have done, or has taken account of something it ought not to have done, it is unlikely that this Court would be in a position to say that the order of the committee appealed against was wrong unless it concluded that otherwise the decision was manifestly wrong."

45. My attention was also drawn to the case of General Medical Council v Hiew [2007] EWCA (Civ) 369 also reported [2007] 1 WLR 2007. That arose in a different context. It was a case in which the Interim Orders Panel had made an interim suspension order under Section 41A(1), and the General Medical Council applied to the court under Section 41A(6) for an order that the suspension order be extended for a further 12 months, that being necessary under the regime. The headnote records:

"Held, dismissing the appeal, that the criteria for the exercise by the court of its power to extend an interim suspension order under section 41A(7) of the 1983 Act were the same as for the making of the original interim order under section 41A(1), namely the protection of the public, the public interest or the practitioner's own interests; that the court could take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case had not been concluded and the prejudice to the practitioner if an interim order were continued; that the onus of satisfying the court that the criteria were met fell on the General Medical Council as the applicant for the extension and the standard of proof was on a balance of probabilities; that it was the function of the court not to make findings of primary fact about the events which had led to the suspension or to consider the merits of the case for suspension, but to ascertain whether the allegations made against the practitioner, rather than their truth or falsity, justified the extension of the suspension; that if the practitioner contended that the allegations were unfounded, he should challenge by judicial review the original order for suspension or the Interim Order Panel's failure to review it under Section 41A(2); that the court had to reach its decision on the basis of the evidence on the application, which would include evidence as to the opinion of the General Medical Council and the Interim Orders Panel as to the need for an interim order..."

46. There the Court of Appeal was saying that the criteria that the court applies when considering whether to extend an interim order are the same as those to be applied by the IOP when it makes the original interim order, but it also said that it is not the function of the court on such an application to consider what it described as "the merits of the case for suspension", but rather to ascertain whether the allegations made against the practitioner, rather than their truth or falsity, justified the extension of the suspension. It would appear, given that the function of the original IOP is to decide whether to make a suspension order, that in one sense the original panel has to consider the merits of the case for suspension, but it is to be inferred that when the Court of Appeal said that it was not the function of the court in considering whether to extend such an interim order to consider the merits of the case for suspension, what was being referred to was not the merits in the sense of whether the test is satisfied that it is necessary for the protection of members of the public, but rather the merits of the underlying factual allegations which are before the Interim Orders Panel on the application for suspension. It is difficult to read it any other way.
47. The reference to the proposition that if the practitioner contended that the allegations were unfounded he should challenge by judicial review the original order for suspension, or the failure to review it, might suggest that on such an application a different approach would be expected than the approach set out by the Court of Appeal as being appropriate for the panel making the original determination as to whether to suspend, and the court in determining whether to extend under the Act. Whether there is such a difference or not, it was urged upon me by Mr De Marco for the GMC that I need not make any finding on it in this case because nothing turns on any gap between a straightforward application of the principles for judicial review and the approach suggested by Pill LJ in the decision of R(Dr "X") v The General Medical Council. I agree with Mr De Marco; it is not necessary for me to make any such finding, and I do not do so. It seems to me plain that whichever approach one adopts, whether it is an ordinary judicial review approach, or one that is not materially different from an application for judicial review, and is a "more hands-off" form of judicial review, does not affect the outcome of this application.
48. What the court is concerned with on this application is to consider whether the legality of the decision or the approach of the IOP is such as can be impugned. Nothing that I have heard or read on this application satisfies me that the approach or the conclusion of the Interim Orders Panel was unlawful. I should add that one of the matters Dr Ali relied on as part of his attack on the assessment team was that the policeman, in his conduct of the inquiry, adopted what he described as "severe interrogation" of him. Indeed, there is reference in the transcript before the Panel hearing that Dr Ali had made a similar allegation to them. It appears at internal page 11 of the transcript:

"It was a team with a policeman who did make severe interrogation with me and he did make racist remarks, ya, a policeman examining a consultant of anaesthetics. We are not in the Republic of Stalin, are we? A policeman to assess a consultant anaesthetist. There was a GP and they did not know anything about anesthesiology. He was always interrogating me severely. He showed me notes, yes, I could not believe."

49. It was pointed out by Mr De Marco on behalf of the GMC that this was not an allegation that was in any way particularised by Dr Ali, it was not a matter of which prior notice had been given, and it is not a matter in which any evidence in rebuttal was before the Panel. There is not, before this court, sufficient evidence to justify the kind of intervention, which it is possible to contemplate in an extreme case, a court might feel it appropriate to make where there are allegations of bias or intimidation. I would certainly not go so far as to suggest, and indeed counsel for the GMC did not invite me to go so far as to suggest, that there could not be a case in which either the conduct of the assessment or the conduct of the Panel hearing itself was shown on the evidence to be so flawed by reason of matters of bias or falsification of evidence as to render the proceedings unlawful.
50. One of the matters that Dr Ali referred to at one point in his submissions, quite late towards the end, was a suggestion that the assessment team had, to use his word, "manipulated" evidence given to it, in the sense that when one when compared things said to them with the report team's description of that evidence in their report, there were discrepancies. This is not a matter that appears to have been raised, as far as one can see from the transcript, in front of the Interim Orders Panel, and there certainly was not before this court sufficient evidence to justify a finding that there was dishonest manipulation or forgery of documents by the assessment teams such as to vitiate its report and any reliance on it by the IOP.
51. It appears to me from what I have heard that there is no evidence that would justify this court in concluding that the manner in which the Interim Orders Panel conducted the hearing was unlawful, that its conclusion was not open to it, that it was fundamentally flawed or one which no reasonable tribunal could have come to, that they took into account matters that they should not have taken into account or ignored matters that they should have taken into account such as would justify a finding that the decision was unlawful. In all those circumstances, I reject this application.
52. MR DE MARCO: My Lord, I am grateful. The GMC makes an application for its costs of this application. We have a schedule which has been shared with Dr Ali. (Handed). My Lord, the GMC clearly has been successful in defending this application and, indeed, with respect, the decision your Lordship has just given is fundamentally that this application ought not to have been brought at this stage in any event, to this court, because it was an application that is really outside the jurisdiction of this court. Dr Ali has a Fitness to Practise Panel where he can ventilate these issues. If this was a normal judicial review, we say it would have been unlikely to have got past the permission stage. So we are here and have had to defend what has been a day's application. The costs in the context of that, we say, are reasonable, and the GMC ought to be awarded its costs of this application.
53. MR JUSTICE STADLEN: What would you say would be the position if Dr Ali were to succeed at the Fitness to Practise Panel?
54. MR DE MARCO: The position would be the same, because if Dr Ali had succeeded or did succeed at a Fitness to Practise Panel --
55. MR JUSTICE STADLEN: If he does succeed?
56. MR DE MARCO: If he does succeed, it would be the same, because your ruling, your Lordship, is not part of a decision about the merits of Dr Ali's case, fundamentally; it is that this court cannot entertain an attack on a decision which was not itself a decision on the merits of his case. Dr Ali would have brought this in any event.
57. MR JUSTICE STADLEN: Dr Ali, what do you say?
58. THE CLAIMANT: What do I say? I want -- I'd like to be honest. It is unjustful because the IOPs consider only one side. One person was the name of Dr Lowe who disliked me and who mistreated me, who bullied me. Where I not defended myself, yeah, he did force his opinion. Yeah, he just saw my practise for only one hour --
59. MR JUSTICE STADLEN: No, Dr Ali, I am just asking if you have any submissions you want to make on why you should not pay the costs of the GMC of this hearing.
60. THE CLAIMANT: How much is the costs?
61. MR JUSTICE STADLEN: Have you not seen the schedule?
62. THE CLAIMANT: No, no, all my files is --
63. MR DE MARCO: My Lord, he has.
64. THE CLAIMANT: Tell me, how much are they?
65. MR DE MARCO: I will give him another copy of the schedule. (Handed).
66. MR JUSTICE STADLEN: Have you seen this schedule?
67. THE CLAIMANT: Yes, I will give it to the benefits service, yeah. They will pay you. I don't have? Where from? I was -- have been prevented from practising and I'm fighting out then. Wherefore shall I pay? Wherefore shall I pay? How shall I pay? I think I would like to continue, yeah, because you --
68. MR JUSTICE STADLEN: I am only asking you about the costs, nothing else.
69. THE CLAIMANT: I don't have. May I say something?
70. MR JUSTICE STADLEN: About costs, yes.
71. THE CLAIMANT: I don't have money because I am living from benefits. Where from shall I have the costs?
72. MR DE MARCO: My Lord, I do not understand that that is a factor that this court takes into account. It may be a factor that is taken into account at another stage if enforcement proceedings are brought.
73. THE CLAIMANT: As they know very well, they prevented me from practising and I don't have the money. Where from shall I bring the money?
74. MR JUSTICE STADLEN: Are you asking for a summary assessment?
75. MR DE MARCO: Yes, my Lord.
76. MR JUSTICE STADLEN: Is this a realistic application in terms of enforcement?
77. MR DE MARCO: My Lord, I do not have any instructions on that, only that the GMC has incurred these costs, they are unnecessary and we say it is right that the court should make that order.
78. MR JUSTICE STADLEN: What do you say about the late service of the acknowledgment of service?
79. MR DE MARCO: Well, any costs arising from that, in other words the application and the witness statement of Ms Bartoli, are not included in this costs schedule. That is the first point to make. So we are not trying to claim the costs of that. Secondly, there is no real prejudice to Dr Ali as a result of that. So we say it is not strictly relevant to this costs schedule. I would say also, in terms of assessment, my Lord, one has seen the amount of paperwork here and a few authorities, the days in court. So we say it is a reasonable sum for this type of application.
80. MR JUSTICE STADLEN: I will make an order for costs in the amount of £5,000.
81. MR DE MARCO: I am grateful, my Lord.
82. THE CLAIMANT: May I understand also what is the matter? Are you (inaudible) or examining me or not, my Lord, please?
83. MR JUSTICE STADLEN: What is that?
84. THE CLAIMANT: I do not-- what you have said?
85. MR JUSTICE STADLEN: I have made an order that you should pay £5,000 costs towards the cost of the General Medical Council of defending this matter.
86. THE CLAIMANT: Yeah, I don't have. Wherefore shall I --
87. MR JUSTICE STADLEN: That is not a matter for the court.
88. THE CLAIMANT: It is here 3,000. Why is this now suddenly 5,000?
89. MR JUSTICE STADLEN: Sorry?
90. THE CLAIMANT: Why it is suddenly 5,000? It was here 3,000. Why it is suddenly 5,000?
91. MR JUSTICE STADLEN: If you look at the second page, what is asked for is £5,811. I have ordered £5,000.
92. THE CLAIMANT: You made it £5,000?
93. MR JUSTICE STADLEN: Yes.
94. THE CLAIMANT: Okay. I don't know. I don't know what to do. But it was the untotal justice, yeah? You did threw the lamb to the wolf, my Lord. It is a total unjustice and bullier and hater of the human beings.