England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court Centre The Courthouse, 1, Oxford Row Leeds LS1 3BG
		04 June 2010

HH Judge Roger Kaye QC:

1. This is an application by the claimant, Dr Steven Bradshaw, under s 41A (10) of the Medical Act 1983 ("the Act") to ask the court to terminate an order of the Interim Orders Panel ("IOP") of the General Medical Council ("GMC") made on 1 February 2010 to suspend Dr Bradshaw's registration for 18 months.
2. Dr Bradshaw was employed as a medical officer by the Civil Aviation Authority ("CAA") between 1 March 2007 and 31 October 2008. He is now Registrar in Ophthalmology at the North Staffordshire Hospital where he is also undergoing specialist training in surgical ophthalmology.
3. On 13 June 2008 the CAA suspended Dr Bradshaw on full pay pending an investigation into a number of allegations of misconduct made against him.
4. Whilst that investigation was ongoing Dr Bradshaw resigned with effect from 31 October 2008. The CAA nevertheless took the view that the matters alleged were serious enough for the investigation to continue. The investigation was carried out by a Dr Raymond Johnston. His careful and closely reasoned 38 page report was eventually produced and led to disciplinary charges against Dr Bradshaw. On 30 July 2009 he was invited to attend the Disciplinary Hearing scheduled for 8 September 2009 but declined, apparently on legal advice, despite being warned by letter dated 28 August that the CAA would still proceed in his absence (and despite his having left the CAA's employ). He still declined. The hearing went ahead. On 11 November 2009 the Disciplinary Hearings Manager, Mr Padhraic Kelleher, sent Dr Bradshaw a letter with his conclusions which extended to 14 pages. The bottom line, so to speak, was that had Dr Bradshaw still been employed by the CAA he would have been dismissed without notice. He was offered an appeal but declined.
5. On 17 December 2009 the CAA notified the Fitness to Practise Directorate of the GMC of the conclusions of the Disciplinary Hearings Manager. They specified the following as matters of particular concern warranting notification to the GMC:

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.

6. The matter was referred to the IOP. The IOP had before it the letters of 11 November and 17 December 2009, Dr Johnston's report and the conclusions of Mr Kelleher.
7. There is little doubt but that the initial investigation was very thorough. Dr Johnston's Report records that 14 witnesses were interviewed (including an interview of Dr Bradshaw on two occasions), expert reports were commissioned (on computers and handwriting) and some 11 lever arch files of evidence and material produced.
8. The proximate cause of the investigation appears to have arisen out of an alleged affair between Dr Bradshaw and Dr J. Dr Bradshaw was married. Dr J, according to Dr Johnston's report, had initially not known but discovered the truth and eventually, after further revelations, ended the relationship seemingly in recrimination and counter-recrimination. I say "alleged" because it is important to emphasise that Dr Bradshaw denied the relationship and has at all stages denied, and continues to deny, the allegations of misconduct against him.
9. Allegations of harassment of Dr and Mrs Bradshaw were made against Dr J by Dr Bradshaw. In June 2008 he indicated to the CAA's Chief Medical Officer he did not wish to pursue the allegations on grounds that the behaviour had stopped. The CAA took the view that the allegations were so serious that they could not be left un-investigated. The investigation quickly led to accusations against Dr Bradshaw, his suspension, the investigation and report of Dr Johnston and the Disciplinary Hearing.
10. The main conclusions reached by Mr Kelleher against Dr Bradshaw may be summarised as follows:

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.

11. Dr Bradshaw was represented at the IOP hearing by Mr George Hugh-Jones (now Mr Hugh-Jones QC) who appeared before me.
12. The key conclusions of the IOP were set out in a letter of 2 February 2010 that 'it is necessary for the protection of members of the public, in the public interest and your own interests' to suspend Dr Bradshaw. The Panel was satisfied that 'there may be impairment of your fitness to practise which poses a real risk to members of the public or which may adversely affect the public interest'. The Panel particularly noted that the allegation against him related to his 'honesty and probity'. They also noted two extra matters: first, that in a curriculum vitae submitted to the panel he stated he had commenced work with the CAA in January 2007 whereas he had not in fact started until March 2007 and second, that he had stated that his current Postgraduate Dean was aware of the allegations of misconduct against him 'although there is no information from the Deanery which supported this'. The Panel considered the issue of proportionality and balanced the interests of the doctor and the risk to the public but concluded that 'this is a case, which involves allegations that you made false allegations against a colleague, lied to an investigation and fabricated evidence, is one of the relatively rare cases in which an order of interim suspension is necessary'.
13. A transcript of the IOP hearing makes the same points. This also makes clear that the Panel took on board Mr Hugh-Jones's representations about the absence of any adverse comment on his clinical competency and performance, about the positive testimonials presented on his behalf and the financial hardship an order of suspension would cause.
14. Mr Hugh-Jones, before me repeated and relied on these last mentioned points. He also pointed out that Dr Bradshaw's current training would also be put in jeopardy such that he might never be able to resume it. He submitted that the IOP were wrong to rely on the mistake in the CV (it was a typing error) and the lack of support from the Postgraduate Dean (he produced evidence to support his submission she did know all about it) since these were not matters formally alleged against him of which he had notice and only arose during the course of the IOP hearing.
15. Mr Hugh-Jones, whilst recognising the allegations were indeed serious, placed particular emphasis on the fact that the charges all related, he submitted, to, and stemmed from, the alleged personal intimate relationship between him and Dr J. He emphasised that Dr Bradshaw strenuously and emphatically denied the charges and would be contesting the GMC hearing when it took place vigorously. He would deny the relationship (Dr Bradshaw had categorised Dr J as a 'misguided fantasist'), took issue as to whether proper and full disclosure had taken place and noted that credibility would be an important likely issue. None of the allegations related to or concerned his clinical performance which both his CV and testimonials demonstrated as unblemished. There was thus no evidence of risk to patients. The interim suspension was accordingly disproportionate and wrong, and ought to be terminated.
16. Ms Gemma White, on behalf of the GMC, supports the decision of the IOP. She submits that the allegations are very serious involving as they do allegations that Dr Bradshaw made false accusations against a colleague, lied to an investigation and fabricated evidence. The allegations call into question qualities at the heart of the doctor/patient relationship even though she accepts there is no criticism of Dr Bradshaw's clinical performance: they call into question his probity, his duty to co-operate with investigations (set out in the GMC Good Medical Practice Guidelines), his requirement to establish and maintain good relationships with colleagues, his obligation and duty to be honest and trustworthy and act with integrity. A doctor who is not open and honest with colleagues or with investigators may well, she submitted, pose a risk to patient safety. She submits accordingly that the IOP were entitled to reach the decision they did and their assessment of the risk and consequent decision to suspend Dr Bradshaw should be afforded appropriate weight.
17. The powers of the IOP are provided for by s 41A of the Act the relevant parts of which are:

'(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').'

18. The application in this case is made under s 41A(10) of the Act which confers on this court jurisdiction in the following terms:

'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.'

19. In this case Mr Hugh-Jones seeks termination, he does not, for example, seek a lesser period of suspension.
20. There have been a number of cases on the exercise of this jurisdiction which have been most helpfully drawn to my attention by both sides: GMC v Sheill [2006] EWHC 3025 (Admin) Crane J; GMC v Hiew [2007] EWCA Civ 369; Shiekh v GDC [2007] GDC EWHC 2972 (Admin), Davis J; R (On the Application of Sosanya) v GMC [2009] EWHC 2814 (Admin) Davis J. The latest relevant authority is a decision of Nicol J in Sandler v GMC [2010] EWHC 1029 (Admin) where he said this about the jurisdiction under s 41A(10) at paragraph 12:

'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 [2007] 1 WLR 2007 where at [27] 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 [2003] 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 [3] '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.'

21. There was some debate before me (as there had been in Sandler) about the relevant yardstick to apply in the case of suspension on public interest grounds. It was at least common ground that suspension to protect members of the public could only be done if it was "necessary" (see s 41A(1) above), but was it also required to be necessary if suspension was also on public interest grounds as here? Here again I found the judgment of Nicol J in Sandler illuminating and helpful. At paragraph 14 he said this:

'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 [15] 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 [16] '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.'

22. I respectfully agree with this analysis.
23. I take into account all that Mr Hugh-Jones has said on behalf of Dr Bradshaw. I particularly note that the allegations against him do not involve a criticism of his clinical competence. I note his impressive academic record and positive testimonials. I note and appreciate the likely consequences of the order on him: the financial and career potential consequences, the fact that the GMC hearing might not take place for some time and his denial of the charges and his abstaining from attending the CAA Disciplinary Hearing on legal advice.
24. Ordinarily I might agree with Mr Hugh-Jones that where allegations arise out of an alleged personal intimate relationship without more and absent any suggestion or criticism of clinical performance or abuse of patient care then interim suspension on those grounds alone might well be viewed as disproportionate. These are matters much more likely to impinge on the personal as opposed to the public sphere. Moreover it must be remembered that in this case the Fitness to Practise Panel has not yet adjudicated on the allegations against Dr Bradshaw. There is, therefore, no question of the suspension being used in this case for example to set an example, or to deter or encourage others.
25. By the same token there is considerable force in Mr Hugh-Jones's analysis of the previous decisions of this court to the effect that to make an interim order for suspension on public interest grounds in cases of non-clinical allegations one would ordinarily expect something that might well impinge more directly on members of the public such as murder, rape or abuse of children. In Sosanya Davis J held a charge of money-laundering was not sufficient to justify suspension, but he also noted no risk to members of the public had been identified from Dr Sosanya continuing in practice. In Shiekh participating in a conspiracy to make false travel claims was held by the same judge also insufficient. In the latter case Davis J had remarked (at paragraph 16):

'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.'

26. The same judge also recognised that the particular Panel in that case had been "simply parroting the formula", a criticism adopted (with some force again) by Mr Hugh-Jones in this case. I agree too with Mr Hugh-Jones that the IOP ought not to have relied on the two extra matters, the mistake in the CV and the apparent absence of documentary support for the contention (unfounded as it appears) that his Dean had not been informed of the allegations of misconduct.
27. Despite these forceful criticisms made by Mr Hugh-Jones it is also to be noted in this case that the CAA initial and Disciplinary Hearing investigations were or appeared from the material before me (and also before the IOP) to be very careful and thorough. Dr Bradshaw had himself been interviewed. He was invited to attend the Disciplinary Hearing; he declined albeit on legal advice. The allegations went much further than accusation and counter-accusation against and by the persons involved in the intimate relationship. They included the very serious allegations of false accusations, fabricating and altering original documents, lying to the investigator. Ms White identified the risk that these factors do strike at the core duties and responsibilities of a doctor of honesty and integrity. Although these allegations involved a colleague (which was serious enough) and did not involve a patient, a right thinking member of the public might well ask himself (or herself) "What if a complaint by a patient were made"? Would the doctor seek to cover that up or lie or make false accusations to defend himself? These factors, submitted Ms White, are likely to undermine public confidence in the honesty and integrity of the doctor and are much closer to the doctor/patient relationship than, say, money-laundering or false travel claims (even though these too might be said to smack of lack of probity).
28. Leaving aside the two extra matters, therefore, the remaining matters by themselves are indeed serious with serious implications as to Dr Bradshaw's probity and integrity. In Hiew Arden LJ said this at paragraph 32 about the court's attitude to the opinion of the IOP:

'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.'

29. At paragraph 42 Arden LJ added:

'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.'

30. As Davis J remarked succinctly in Sosanya at paragraph 30 'deference must not be subordinated into obsequiousness'. I have given the matter much anxious scrutiny and consideration not least because of the impact on Dr Bradshaw of the suspension and the potential loss of his training status.
31. I have come to the conclusion Ms White's submissions ultimately have persuaded me. It seems to me that the IOP, leaving aside, as I say, the two extra matters and whilst recognising the force of Mr Hugh-Jones's points about their decision, nevertheless considered and balanced the key factors. They were aware of the harm to Dr Bradshaw from suspension; they were aware of the issue of proportionality as well as the risk to the public and to the reputation of the profession from allowing him to continue. They were well aware of the fact that the allegations against him did not involve his clinical competence. Indeed they identified the real gravamen of the case that takes this case out of what might otherwise be regarded as a local domestic dispute not likely to involve members of the public as involving 'allegations that you made false allegations against a colleague, lied to an investigation and fabricated evidence, is one of the relatively rare cases in which an order of interim suspension is necessary'.
32. I also am well aware of the risk of Dr Bradshaw losing his training and the impact that might have on his career. I am aware that he has denied the allegations against him and that he did not attend the Disciplinary Hearing on legal advice. But I equally cannot overlook the care, cogency, thoroughness of and careful reasoning in the report made by Dr Johnston after a lengthy investigation and the conclusions of the CAA Disciplinary Hearing. At least one internal enquiry into Dr Bradshaw's conduct has concluded the allegations against him are well-founded. I recognise Mr Hugh-Jones's point that it by no means follows that the GMC will reach the same conclusion at the substantive hearing.
33. Taking all the above matters into account and giving appropriate weight to the opinion and expertise of the IOP but exercising my own judgment, I am driven to the conclusion that the IOP's decision was right and I should not order termination of the suspension and accordingly I dismiss the application.