England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/10/2010

Mrs Justice Nicola Davies :

1. This is an application by Dr Petrus Jooste pursuant to s.41A (10) of the Medical Act 1983 ("The 1983 Act") and CPR Part 8 for an order terminating the interim suspension order made by the Interim Orders Panel ("IOP") of the General Medical Council ("GMC") on 9 October 2009. The application was originally brought as an appeal pursuant to s.40 of the 1983 Act. Dr Jooste now accepts that s.41A (10) is the appropriate provision and that the application is to be treated as a Part 8 claim pursuant to s.41A (10). The GMC, having proposed the procedural amendment, was entitled to an extension of time to file and serve its Acknowledgment of Service and supporting evidence under CPR rr 8.3 (1) and 8.5 (3).
2. Dr Jooste, in his original application, also sought the sum of £1 million per annum in damages from the GMC. The claim for loss of income was withdrawn but a schedule of costs and compensation includes claims for defamation, discrimination, victimization, harassment and injury.
3. Dr Jooste who appears in person but with the assistance of a McKenzie friend, produced a number of written submissions. In oral submissions, the essence of his application was three-fold:

i) The IOP hearing on 9 October 2009 proceeded in his absence. The hearing should have been adjourned to permit his attendance;

ii) The evidence at the hearing disclosed no "case to answer"; no interim order should have been imposed;

iii) The orders of suspension made at subsequent IOP hearings in January and June 2010 were invalid because the original suspension was wrong.

4. In 2009 Dr Jooste was practising as an "aesthetic physician" in London. By an email dated 17 June 2009, the Care Quality Commission ("CQC") referred Dr Jooste to the Fitness to Practise Directorate of the GMC. The substantive content of the email is as follows:

"CQC conducted an inspection of 30 DOVER STREET, MAYFAIR, LONDON. These premises are leased by PANTHERDAY LTD. PANTHERDAY LTD does not employ a pharmacist or doctor and neither work in subleased areas of the premises. During the inspection documentation relating to Dr. Petrus JOOSTE (GMC 6037042) was found, namely;

Three prescriptions

Contract confirming authority to take possession of schedule 2 and 3 medications

Concerns relating to the prescriptions are;

They contain no patient date of births or addresses

The details on the top of the prescriptions relate to a correspondence address not place of issue

DR. JOOSTE does not conduct any NHS work only private doctors services and is not registered with the Care Quality Commission.

Why are his prescriptions in the possession of PANTHERDAY who do not employ a pharmacist or doctor?

Concerns relating to authority

PANTHERDAY state DR. JOOSTE is not employed by them and Dr. JOOSTE confirmed this, why is his name on the authorised practitioners signatures?

Who is taking possession of the schedule drugs? And in what capacity?

If he is working for the clinic he may be doing so contrary to section 11 of the Care Standards Act 2000

CQC called JOOSTE who confirmed he does not work for PANTHERDAY or from 30 DOVER STREET. When asked for an explanation as to why his prescriptions were at the premises he declined to answer. JOOSTE stated he is self-employed only practicing private medicine (not NHS) from the following premises;

9 ARGYLE STREET

42 HARLEY STREET

49 HARLEY STREET

If JOOSTE is practicing at these premises he is not registered with CQC to do so and may be committing an offence under section 11 of the Care Standards Act 2000. He is currently being investigated by CQC in relation to these offences."

5. On 22 June 2009, the CQC invited Dr Jooste to attend an interview. By a letter dated 11 August 2009, Dr Jooste responded stating that he would only be able to attend the interview if the CQC were able to reimburse him for the loss of income of that day, the amount claimed being £6,000. The CQC refused and the interview did not take place.
6. On 30 June 2009, an investigation officer of the Fitness to Practise Directorate sought disclosure of relevant documents from the CQC and enquired as to the timescale of their investigation. The CQC forwarded the documentation and informed the GMC that the investigation should take three months.
7. By a letter dated 16 July 2009, the GMC wrote to the Dr Jooste informing him of the information received from the CQC and inviting any comments from him. By a further letter dated 26 August 2009, the GMC wrote to Dr Jooste informing him that the Case Examiner appointed by the Registrar had considered the information received by the GMC from the CQC and considered that he should be invited to appear before the IOP. The letter stated that the IOP would consider whether it was necessary for the protection of members of the public or otherwise in the public interest or in the claimant's own interest that an interim order should be made suspending Dr Jooste's registration or imposing conditions upon his registration for a period not exceeding 18 months. The letter stated that the Case Examiner had reached this decision after considering that there were serious concerns that Dr Jooste was practising without appropriate CQC registration. Dr Jooste was invited to appear before the IOP at 12 o'clock on 17 September 2009.
8. On 17 September 2009, Dr Jooste, accompanied by a colleague as a McKenzie friend, attended the GMC. By 3.30pm in the afternoon his case had not been heard. By reason of existing commitments Dr Jooste needed to leave. With the agreement of the GMC representative, Dr Jooste made an application to adjourn the case, that application was granted.
9. On 18 September 2009 by a letter sent by registered post, the GMC gave Dr Jooste notice of the adjourned hearing date, 9.30am on 9 October 2009. The letter was delivered to the doctor's registered address, his home address, and receipt was signed for by his son at 9.00am on 19 September 2009. Dr Jooste was unaware of the existence of the letter, its service and receipt by his son at his home. In a letter/email dated 7 September 2009 sent by Dr Jooste to Mark Elliot of the Fitness to Practise Directorate, Dr Jooste had asked that all correspondence be by email because of his difficulties, professional and personal, in accessing or receiving post at the registered address.
10. Service of notice of the IOP hearing is governed by Schedule 4, paragraph 8 of the 1983 Act. Section 2 provides:

(2) Any such notice may be so served…..

(c) By sending it by a registered postal service; or

(d) By sending it by a postal service which provides for the delivery of the notice by post to be recorded.

11. No provision is made in paragraph 8 for service of notice by electronic mail. Rule 40 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 ("2004 Rules") provides for service of notice and documents by electronic mail but rule 40(1) states:

"Any notice of hearing required to be served upon the practitioner under these Rules shall be served in accordance with paragraph 8 of Schedule 4 to the Act."

Accordingly, service had to be made in accordance with paragraph 8, Schedule 4 of the 1983 Act, notwithstanding Dr Jooste's request. Service had to take place:

"in such time before the hearing as is reasonable in the circumstances of the case" Rule 26 "2004 Rules".

12. The hearing scheduled for 9 October 2009 took place. Dr Jooste, unaware of the GMC's letter, did not appear. Proceedings were delayed until 11.50am to permit enquiries to be made on behalf of the GMC as to the whereabouts of Dr Jooste. Phone calls were made to his mobile phone. The phone was engaged, no response was obtained. The hearing commenced. Counsel for the GMC sought to prove service of the notice of hearing, relying upon the provisions of Schedule 4 paragraph 8(2) (c) and (d) of the 1983 Act. The letter dated 18 September together with postal service documents and the receipt signed by the claimant's son on 19 September 2009 were before the Panel. Rule 31 of the 2004 Rules provides:

"Where the practitioner is neither present nor represented at a hearing, the Committee or Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules."

The Panel determined that the hearing could continue in the doctor's absence.

13. In the bundle before the Panel was the original email from the CQC, further correspondence between the CQC and Dr Jooste, the letter dated 7 September 2009 from Dr Jooste to the Fitness to Practise Directorate which set out in some detail the position of the doctor and copies of the three prescriptions and the authorisation document referred to in the original CQC email. Two of the prescriptions were dated 10/06/09, one was dated 11/06/09. All three were on a form which contained the name of Dr Petrus Jooste, the name, "Well Clinics Pharmaceuticals", the address of 29 Harley Street, London. Each prescription was signed by Dr Jooste. There is no dispute that Dr Jooste was responsible for the writing of the prescriptions.
14. The "authorisation document" is a two page document which appears to have been sent by UniChem. It is addressed to Pantherday at the Berkley Clinic, 30 Dover Street, the date on the first page is 14 November 2008. On the second page, under the heading "Authorised Practitioner's Signatures", the name of the company is given as Pantherday Ltd., trading as Berkley Clinic. It records that:

"The following Practitioners are authorised to order controlled drugs under Schedules 2 and 3 of the Misuse of Drugs Act."

The sole practitioner identified is Dr Jooste and a signature, which is accepted

to be his, is present on the document. On the same page is the following

statement:

"I acknowledge receipt of this letter and understand the legal requirements concerning supply of drugs controlled under Schedule 2 and 3 of the Misuse of Drugs Act

I will undertake to notify you of any changes to this authorised list."

This statement is followed by a signature and dated 10/06/09. The CQC inspection took place on 11/06/09.

15. In his correspondence Dr Jooste denied having worked at the Berkley Clinic, he described the prescriptions as "unfinished, unprocessed and not issued." As to the authorisation document, Dr Jooste stated that it was for a planned wholesale dealer's licence which was to be transferred to 30 Dover Street. The project was abandoned and he had never ordered any medicine from UniChem. Dr Jooste said he was currently self-employed carrying out liposuction. He had previously worked through Well Clinics Ltd. but no longer did so as the company had been liquidated. Dr Jooste made clear that the work he carried out as a sub-contractor of his services to private clinics, did not require registration with the CQC. Dr Jooste informed the GMC that he had been to the police both in Exeter and in London inviting them to investigate the allegations but the police declined his invitation.
16. In essence, Dr Jooste's contention in correspondence was that the complaint of the CQC was an effort on their part to involve him and bolster their case against another person who was working at the Berkley Street Clinic and who was successfully prosecuted. The GMC's case was that Dr Jooste was providing private doctor services at unregistered premises.
17. In its Determination, the Panel stated:

"The Panel noted that the CQC conducted an inspection of 30 Dover Street, Mayfair, London, on 11 June 2009. These premises are leased by Pantherday Ltd, although the organisation does not employ a pharmacist or doctor, and neither work in the subleased areas of the premises.

During the inspection, three prescriptions and a contract confirming authority to take possession of Schedule 2 and 3 medication were found, all of which related to Dr Jooste. The CQC have the following concerns relating to Dr Jooste and the prescriptions:

They contained no patient dates of birth or addresses;

The details at the top of the prescriptions related to a correspondence address rather than to a place of issue;

Dr Jooste only practices private medicine, does not work with the NHS and is not registered with the CQC;

Why were the prescriptions in the possession of Pantherday Ltd which does not employ a pharmacist or doctor?

Why was Dr Jooste's signature on the prescriptions if he is not employed by Pantherday Ltd?

Who was taking possession of the schedule drugs, and in what capacity?

If Dr Jooste is working for the clinic, he may be doing so contrary to section 11 of the Care Standards Act 2000.

When questioned by the CQC Dr Jooste confirmed that he does not work for Pantherday Ltd and that he is self-employed working solely in private practice, from 3 addresses: 9 Argyle Street, 42 Harley Street and 49 Harley Street. He also stated that, although he had brought supplements from 30 Dover Street, he had never seen any private patients there.

The Panel noted the letter dated 22 June 2009 from the CQC inviting Dr Jooste to attend an interview, in accordance with the Police and Criminal Evidence Act 1984, in connection with carrying on or managing an establishment under section 11(1) of the Care Standards Act 2000. Dr Jooste did not attend the interview.

The Panel further noted the letter from the CQC dated 19 August 2009, in which it was stated that the investigation into Dr Jooste in respect of 30 Dover Street had been concluded. However, the CQC would be pursuing Dr Jooste in accordance with its unregistered services policy with regards to his practice in Argyle Street and Harley Street.

The Panel noted Dr Jooste's letter dated 31 August 2009 in which he denied ever working at 49 Harley Street and stated that he is contracted to perform procedures for a registered clinic at 9 Argyle Street. The Panel further noted Dr Jooste's statement that he does not need to register with the CQC to undertake the above work.

It is not the Panel's purpose to resolve any conflict of evidence or disputes of fact, nor is it its purpose to test the veracity of any information put before it. It has reminded itself of the test it must apply and of its nature, function and powers, as well as its duty to consider each case on its individual merits.

The Panel first gave consideration as to whether an interim order was required. It is satisfied that there may be impairment of Dr Jooste's fitness to practise which poses a real risk to members of the public or might adversely affect the public interest or Dr Jooste's own interests and, after balancing his interests and the interest of the public, an interim order is necessary to guard against the risk.

The Panel then considered if an order imposing conditions on Dr Jooste's registration would be appropriate. The Panel considered that, in all the circumstances, there were no conditions which would be appropriate in this case as Dr Jooste allegedly works in private practice without regulation and from unregistered premises. This could constitute a serious criminal offence under section 11 of the Care Standards Act 2000. The Panel therefore considered that, having regard to protection of members of the public, the public interest and Dr Jooste's own interests, an interim order of suspension should be imposed.

The Panel has taken account of proportionality in that it must act in a way which is fair and reasonable. Whilst it notes that its order removes Dr Jooste's ability to practise medicine, the Panel has determined that, in light of the serious nature of the allegations against him, suspending his registration is a necessary and proportionate response.

In deciding on a period of 18 months the Panel determined that such an order is necessary owing to the time it may take to investigate and resolve all the issues relating to Dr Jooste's fitness to practise."

18. By a letter dated 12 October 2009 and sent by special delivery, the notice of the Determination of the IOP was sent to Dr Jooste at his registered address.
19. The GMC is required to review orders made by the IOP at six monthly intervals. At the request of Dr Jooste, his hearing took place on 8 January 2010. A differently constituted panel heard the case, Dr Jooste appeared in person, was able to adduce evidence and address the Panel. By that date, a further prescription was before the Panel which related to the prescribing of a drug, which it was alleged, was outwith the practice of Dr Jooste, a claim denied by the doctor. The Panel considered the evidence, heard submissions and continued the period of suspension. A further hearing took place on 18 June 2010 before a differently constituted panel. By this time, further allegations were before the Panel which related to work which was said to have been performed by Dr Jooste during the period of his suspension. Dr Jooste was present, was able to adduce evidence and address the Panel. The Panel determined to continue the suspension.
20. The application before this court relates solely to the IOP hearing on 9 October 2009. It is the GMC's case that this application is now academic as it has been superseded by the subsequent IOP hearings which looked at the matter afresh and made their own determinations. This point is not accepted by Dr Jooste who maintains that the original order was wrong, this invalidates continuation of the same. I turn to the submissions made by Dr Jooste.

The hearing on 9 October 2009 should not have proceeded in the absence of Dr Jooste

Before the court, Dr Jooste identified three matters:

21. At the original hearing in September 2009 he had been informed by a representative of the GMC that the adjourned hearing would not take place for a month. As a result of that information, that was the expectation of Dr Jooste.

The information given to Dr Jooste in September 2009 was no doubt well intentioned. It could be no more than an indication of a likely time when the adjourned hearing would take place and had to be superseded by the notice identifying a specific date. Of itself it does not provide a sound basis upon which to find that proceeding in the absence of Dr Jooste was unfair.

22. In his letter dated 7 September 2009 to the GMC, Dr Jooste specifically asked that all communications be sent to him by email as he had difficulties receiving post.
23. The 1983 Act, Schedule 4 paragraph 8 makes clear that service of the relevant notice can be by one of four methods, none of which is electronic. Rule 40 of the 2004 Rules which permits service by electronic means is subject to paragraph 8. The GMC acted in accordance with the relevant statutory provisions in effecting service by registered post. Dr Jooste's request for electronic communication could not override the statutory requirements of service. The Panel, on proof of receipt of the letter of 18 September 2009, were entitled to conclude that there had been service of the notice of hearing. It is regrettable that Dr Jooste did not become aware of the existence of the letter in his own home but that is not an omission for which the GMC can be held responsible. Service on 19 September 2009 gave the doctor reasonable notice of a hearing on 9 October 2009.
24. Dr Jooste told the court that he would have checked his mobile telephone on 9 October 2009. There were no missed calls or messages from the GMC. On this day Dr Jooste was working some ten minutes from the GMC's premises, had he been requested to do so, he would have attended the hearing. He was at all times not only willing but eager to attend in order to rebut the allegations made against him.
25. The transcript of the hearing records counsel for the GMC informing the Panel that during the course of the morning of 9 October, the mobile telephone number which the GMC had for Dr Jooste, had been rung "dozens of times" but was permanently engaged and contact could not be made.
26. The Panel properly investigated whether or not there had been service of the requisite notice upon the doctor. It concluded on the evidence that there had been such service, a view with which I concur. The Panel delayed the start of the hearing for over two hours in an effort to contact Dr Jooste, for whatever reason, contact was not made. In my judgment, pursuant to rule 31 of the 2004 Rules, the Panel was entitled to proceed in the absence of the doctor.

There was "no case" for Dr Jooste to "answer" at the IOP hearing

27. It is the contention of Dr Jooste that by the time of the IOP hearing, the CQC had informed the GMC that it had concluded its investigation of Dr Jooste's role at 30 Dover Street and was taking the matter no further. In the circumstances there was no case upon which the GMC could proceed. By a letter dated 19 August 2009 from the CQC to the GMC it was stated:

"The Care Quality Committee has concluded it investigation into Dr Jooste in respect of 30 Dover Street, Mayfair, London. However the Commission will be pursuing Dr Jooste in accordance with the Commission unregistered services policy with regards to his practice at Argyle Street and Harley Street, London."

The letter is clear, the CQC was continuing to investigate the doctor. The concluding of the investigation at 30 Dover Street did not represent the closure of its investigation into the activities of Dr Jooste. In any event, the GMC, being properly seized of the complaint, was entitled to investigate. The jurisdiction of the GMC is wholly separate from that of the CQC. It is not bound by a decision of the CQC to proceed no further.

28. It is clear from the determination of the Panel and reflected in the case law, R (on the application of Adil Ali) v General Medical Council [2008] EWHC 1630 (Admin), Sandler v General Medical Council [2010] EWHC 1029 (Admin) that the function of the IOP is not to make findings of fact as to whether allegations before it are true. The task of the Panel is to determine whether it is necessary for the protection of members of the public, in the public interest or the doctor's interest, that an interim order should be made.
29. Before the Panel was undisputed evidence that prescriptions written by Dr Jooste were found in unregistered premises where it was said no doctor or pharmacist was employed. In the course of these proceedings, Dr Jooste informed the court that he had used the facilities at 30 Dover Street in order to print out the prescriptions as he was unable to do so at his place of work. The document sent by UniChem identified Dr Jooste as being a person authorised to order and receive controlled drugs by Pantherday trading as the Berkley Clinic at 30 Dover Street.
30. In my judgment there was evidence before the Panel which raised concerns as to where Dr Jooste was working, what he was doing, and whether such premises were registered with the CQC. Such concerns were relevant to the issue of Dr Jooste's fitness to practise and any risk which he might pose to members of the public. On the documentary evidence before it, it was open to the Panel to determine that an interim order of suspension was necessary. The order was an appropriate sanction to reflect such concerns.
31. It is said by Dr Jooste that the length of the suspension, a period of 18 months, was disproportionate. The period of suspension had to be for such a time as would permit an investigation of the case. Any order of suspension has to be reviewed after six months, this was done in January and June of 2010. The subsequent Panels had the power to revoke or vary the original order. Dr Jooste had the opportunity to put before the Panels evidence to support his case. The Panels, exercising their own judgment, continued the suspension. Their orders are not the subject of the application before this court.

The orders of suspension made at subsequent IOP hearings in January and June 2010 were invalid because the original suspension was wrong

32. By reason of my finding as to the original order of suspension, this point cannot succeed. Of note is the fact that the subsequent hearings were by new Panels before whom the doctor appeared.

Conclusion

33. On the evidence before the IOP on 9 October 2009, it was entitled to conclude that there may be impairment of Dr Jooste's fitness to practise which poses a real risk to members of the public. It correctly identified the balance between the interests of the doctor and those of the public and concluded that an interim order was necessary to guard against the risk. There are no grounds for terminating the suspension imposed. This application is refused.