QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
1, Oxford Row
Leeds LS1 3BG
B e f o r e :
(sitting as a Judge of the High Court)
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HH Judge Roger Kaye QC:
- On more than one occasion Dr Bradshaw had fabricated or altered original documentary evidence and submitted it to the CAA's investigation;
- On more than one occasion Dr Bradshaw had lied to the CAA's investigation;
- Dr Bradshaw had made false accusations with the intent of persuading the CAA to reach the wrong conclusion that it was another CAA employee (a Dr J) who was guilty of misconduct;
- On one occasion Dr Bradshaw had dishonestly stated that a fellow medical practitioner colleague had reported to him that she had had an affair with a patient.
- That Dr Bradshaw had made allegations of misconduct against Dr J knowing them to be false and in doing so lied to the CAA;
- That Dr Bradshaw had lied to Dr Johnston 'on numerous occasions and in numerous respects' with the intention of perverting the course of the investigation;
- That Dr Bradshaw had fabricated and altered original documents in order to discredit Dr J and another so as to undermine their testimony against him;
- That Dr Bradshaw had abused CAA's sickness absence procedures by claiming he was sick when he was in fact fit for work;
- That he had breached CAA's code of conduct by offering or promising to take steps to procure CAA's endorsement for glasses in return for a substantial share in the venture.
'(1) Where an Interim Orders Panel ….are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the panel may make an order – (a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding 18 months as may be specified in the order ('an interim suspension order'); or (b) that his registration shall be conditional on his compliance, during such period not exceeding 18 months as may be specified in the order, with such requirements so specified as the panel thinks fit to impose (an 'order for interim conditional registration').'
'Where an order has effect under any provision of this section, the relevant court may (a) in the case of an interim suspension order, terminate the suspension; (b) in the case of an order for interim conditional suspension, revoke or vary any condition imposed by the order; (c) in either case, substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it), and the decision of the relevant court under any application under this subsection shall be final.'
'Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr Sandler's suspension (or to substitute a different period) is not dependent on showing some error of law on the part of the IOP. That is the point that I understand the Court of Appeal to have made in GMC v Hiew  1 WLR 2007 where at  Arden LJ said 'the powers conferred by s.41A(10) are also original powers and not merely powers of judicial review.' In that case, the Court was directly concerned with an application to extend a doctor's suspension. The maximum period for which an IOP can suspend a doctor is 18 months. Any longer extension can only be granted by the Court under s.41A(7). In such a situation, the only order or orders by the IOP will have expired (or be about to expire). If nothing further is done the suspension will come to an end. It is unsurprising in these circumstances that the Court of Appeal characterised the Court's jurisdiction as 'original'. The position with an application under s.41A(10) is different. The IOP has suspended Dr Sandler. His application is for that suspension to be terminated. My consideration of the application must surely start from the position that the IOP has thought that interim suspension is the right course. I also note that s.41A(10) applies 'where an order has effect under any provision of this section'. One of the previous subsections is s.41A(7). Thus, it is open to a doctor whose order for suspension has been extended by the Court under that provision to apply for the suspension to be terminated under s.41A(10). There, too, the Court would surely have to start from the position that a suspension was currently in place before deciding whether that position ought to be altered. In R (Stephen James Walker) v GMC  EWHC 2308 (Admin) Stanley Burnton J. (as he then was) was also considering an application to terminate a suspension under s.41A(10). He said at  'The terms of subsection 10 indicate that the appeal to the Court is a full appeal, that is to say, the Court does not interfere on a review ground but itself decides what order is appropriate.' To describe the process as an 'appeal' may not do full justice to the power of the Court. It would seem to me that the Court does have power to consider subsequent developments and (where appropriate) fresh evidence. However, in my judgment the term does correctly acknowledge that in this context, unlike an application under s.41A(7), the Court is faced with an extant order of the IOP which it would only terminate if it thought that order was wrong.'
'There was some debate at the hearing as to whether the IOP could only suspend Dr Sandler on public interest grounds if this was 'necessary'. In my judgment, the Legal Adviser was plainly right to observe that, while the statute allows suspension on public protection grounds only if this is necessary, there is no such qualification to the public interest limb. In Sheikh [sic] at  Davis J. thought that nonetheless 'if the public interest is to be invoked in this context under the statute, then that to my mind, does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability.' He added at  'At all events, in the context of imposing an interim suspension order, on this particular basis, it does seem to me, adopting the words of Mr Winter [counsel for the Claimant], that the bar is set high; and I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality.' I certainly agree that a doctor could not be the subject of interim suspension unless this was at least desirable in the public interest. I also agree that the Panel must consider very carefully the proportionality of their measure (weighing the significance of any harm to the public interest in not suspending the doctor against the damage to him by preventing him from practising), but I do, with respect, think that the Court must be cautious about superimposing additional tests over and above those which Parliament has set.'
'It is a very serious thing indeed for a dentist or a doctor to be suspended. It is serious in many cases just because of the impact on that person's right to earn a living. It is serious in all cases because of the detriment to him in reputational terms. Accordingly, it is, in my view, likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest.'
'It is for the court to decide what weight to give to that opinion, It is certainly not bound to follow that opinion. All that is required is that the Court should give that opinion such weight as in the circumstances of the case it thinks fit. Weighing up the opinion of a body that has special statutory responsibilities and relevant experience and expertise is again part of the ordinary task of judicial decision-making.'
'I would prefer to say that the approach of the court to the opinion of the IOP is not a question of giving respect but of attaching appropriate weight to the evidence in the ordinary way. In contrast to the giving of respect, there can be no automaticity about the attaching of weight to evidence. Weight does not attach to evidence by virtue only of his experience or status. The giving of weight to opinion evidence entails a holistic evaluation of the persuasiveness of the evidence on the relevant issue, having regard to the relevant circumstances including its content as well as the viewpoint of the author of the opinion.'