England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		15 December 2008

Monday 15 December 2008

MR JUSTICE BEATSON:

1. This an application filed on 19 November 2008 by the General Medical Council seeking an extension of the interim order granted under section 41A of the Medical Act 1983 on 18 June 2007. The order was one of conditional registration of the defendant, Dr Desmond Hugh Fleming, for eighteen months.
2. The background to the order was that a report in 2005 by the National Clinical Assessment Services found that the defendant's practice needed development in a number of areas. These included clinical skills, communication, prescribing, record-keeping, referral and time management .
3. Following this, on 23 April 2007 the East Lancashire NHS Primary Care Trust notified the claimant that the defendant was experiencing difficulty in completing the recommendations of the National Clinical Assessment Services and that the PCT had suspended him from its Performers List on 18 April 2007. There were issues raised by the partners in his general practice about patient safety and it was said that he had arguably breached the terms or his contingent removal from the list.
4. By the hearing on 18 June the defendant had indicated that he would agree to a GMC performance assessment of his clinical practice. His counsel at the hearing of the Interim Orders Panel on 18 June indicated that he would co-operate in such an assessment.
5. Since then the defendant has not responded to repeated requests to agree to the performance assessment. The interim order was reviewed and maintained on 6 December 2007 and again on 22 May 2008. By then the PCT had lifted his suspension and imposed a further contingent removal.
6. By 16 October 2008 the Interim Orders Panel had been informed that the PCT was seeking to remove the defendant from their Performers List for breach of the new contingent removal conditions. The defendant had also been referred to the GMC's Assistant Registrar for non-compliance with the performance assessment process. At that stage the Interim Orders Panel determined that it was necessary to replace the interim order of conditional registration with an interim order of suspension. That order was made on 16 October 2008.
7. It is clear that the defendant is not responding to the invitations of his regulator, the GMC, or of the PCT. There is an indication from the PCT that he intends to retire. He has changed his address but has not notified this in writing, as is formally required. The GMC is considering whether to invoke the procedure for administrative removal from the register under section 30(5) of the Medical Act 1983. To that end the claimant's Assistant Registrar wrote to the defendant on 4 November 2008 to enquire whether his registered address is still effective. The defendant has not replied.
8. Under the procedure in section 30(5) if no reply is forthcoming within six months from the date of the letter, his registration is liable to be erased. This application is made to extend the interim order of suspension for twelve months in order to protect the interests of the public for as long as the proceedings against the defendant continue. It is made under section 41A(6) of the 1983 Act.
9. I have considered the papers put before me by the claimant, the correspondence since the interim order was first made, and the grounds on which that order was made at a hearing at which the defendant was represented. I am satisfied that the statutory requirements are met. Accordingly, I extend the interim order of suspension for twelve months from 18 December 2008.
10. Mr Colman also applies on behalf of the claimant for the costs of this application. He submits that while not all the £2,376 included in the statement of costs which he handed to me today would have been incurred had the claimant consented to the order, some of them would. He accepts that the defendant has not been served with this statement but nevertheless asks me to make a summary assessment.
11. In the circumstances I agree to make a summary assessment. Mr Colman was not able to tell me what costs would have been incurred had the claimant engaged, other than the court fee. In those circumstances, the court fee not being listed as an expense, it is difficult to see what order I can make. In principle I am willing to make an order and I will hear Mr Colman briefly as to what in these circumstances the GMC considers it is entitled to. It seems that there is no court fee here.

MR COLMAN: My Lord, I think it has not been included and quite properly so. It frequently is. It amounts to some £400 for lodging the application, but it seems on this occasion that those instructing me have omitted it.

MR JUSTICE BEATSON: They have omitted it presumably because they would have had to even if he had fully engaged.

MR COLMAN: Yes.

MR JUSTICE BEATSON: I am giving you a chance to say which part of this you think would have been incurred if he had played ball.

MR COLMAN: My Lord, the supporting witness statement would have to have been drafted in any event and that is included in the section "work done on documents".

MR JUSTICE BEATSON: Yes. I am grateful for that. In the light of what Mr Colman says, I will summarily assess the costs to which the claimant is entitled in the sum of £500.

MR COLMAN: Thank you, my Lord. Would your Lordship's associate be assisted by a draft order?

MR JUSTICE BEATSON: Yes.