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
		15 October 2010

MR JUSTICE SILBER:

I. Introduction

1. Dr Hasmukhlal Himatlal Shah ("the claimant") is a General Practitioner, who practised as a sole practitioner in Southend-on-Sea in Essex until his suspension. On 29 March 2004, he entered into a General Medical Services Contract ("the Contract") with the South East Essex Primary Care Trust ("the PCT") which commenced on 1 April 2004.
2. On 10 July 2009, the Fitness to Practise Panel ("the Panel") of the General Medical Council ("GMC") decided that the claimant's fitness to practice was impaired by reason of his misconduct to which I will refer later in paragraph 8 below. The Panel suspended him from the medical register for a period of 12 months with effect from 10 August 2009. Thus the suspension expired on 9 August 2010.
3. By a letter dated 6 November 2009 and following a meeting on 24 September 2009, the PCT gave the claimant notice terminating his Contract on 5 December 2009. The claimant then initiated the NHS Dispute Resolution Procedure contained in Part 24 of the Contract. This dispute was referred to the NHS Litigation Authority ("NHSLA") and adjudicated upon by the Family Health Service Appeals Unit ("FHSAU"), which is an administrative unit within the NHSLA.
4. By a determination made in writing dated 8 July 2010, the FHSAU decided that the PCT was entitled to terminate the Contract with the claimant.
5. The claimant duly brought proceedings for judicial review against the NHSLA and the PCT seeking to quash first the decision of the PCT terminating the Contract and second the decision of the FHSAU that the PCT was entitled to terminate the Contract. The Secretary of State for Health was joined as an Interested Party.
6. The claimant has sought an interim injunction restraining the PCT from moving to terminate the claimant's Contract pending the resolution of these proceedings on the basis that if the PCT terminated the Contract, the claimant's surgery would be closed and his patient list would then be dispersed with the result that if this were to take place before the present proceedings have been determined, he would be unable to obtain any effective relief.
7. I have heard the application for interim relief together with the application for permission. It was common ground that if permission were to be refused on the application, the claimant would not then be entitled to interim relief. The NHSLA was not represented at the hearing but it served an Acknowledgement of Service disputing liability.

II. The Background

8. After a hearing of the Panel held between 6 and 10 July 2009 at which the claimant was represented by counsel, a number of allegations of misconduct were found and proved against the claimant, who had denied them. The allegations of misconduct, which were found and proved against the claimant, were that:-

(a) On 7 November 2001, he had carried out an internal examination of Patient A's vagina without the presence of a chaperone and without having offered Patient A the opportunity to have a chaperone present;

(b) Between approximately August 2001 and December 2005, he carried out further internal investigations of Patient A's vagina without the presence of a chaperone and without offering Patient A the opportunity of having a chaperone present. Further that he did not record adequately or at all the fact that such internal examinations had been conducted;

(c) On 2 December 2005 Patient A attended the surgery complaining of hip pain and the claimant touched her breasts under her clothing in a way which was sexually motivated and not clinically justified; and that

(d) Each of these actions was inappropriate and not in the best interests of the patient and each of them fell below the standard expected of a registered medical practitioner.

9. The Panel "is of the view that [the claimant's] integrity cannot be relied upon" and "is in no doubt that the [claimant's] fitness to practice is impaired due to [the claimant's] misconduct". It concluded that his misconduct was "serious" but it:-

"accepted that the touching of Patient A's breasts was limited to a fleeting touch and an isolated aberration in what appears to have been an otherwise unblemished career. In this context the Panel is satisfied that the [claimant's] behaviour is unlikely to be repeated. It concluded that given these factors and the strong testimonials submitted on the claimant's behalf suspension, on balance, is a proportionate response".

10. No appeal was made either against the findings of misconduct, of impairment of fitness to practice, or against the order for suspension.
11. On 24 September 2009, recommendations were made to the PCT by its Director of Commissioning and Contracting that the contractual relationship between the PCT and the claimant should be maintained. Nevertheless at a meeting on 24 September 2009, the PCT:-

"..agreed that the findings now proven against [the claimant] demonstrated that he was unsuitable to remain as a GMS contractor and that his contract should be terminated at the earliest possible opportunity."

12. By a letter dated 6 November 2009, the PCT wrote to the claimant giving notice of termination of the Contract explaining that:-

"..2.6 GMS contractors are required provide [sic] primary medical services in a professional manner to often vulnerable people, in their best interests and from a position of trust. It is essential that patients have confidence in the services provided under the NHS. Your actions are incompatible with that role".

13. The claimant duly appealed to the FHSAU and the appeal was heard on 25 June 2010 at a hearing at which the applicant was represented by his solicitor. The FHSAU concluded that:-

"14(2). Looking at the evidence afresh, for the avoidance of doubt including letters of support from patients, testimonials from professional colleagues and evidence from [the claimant] and his Doctor son we conclude the conduct of the [claimant] particularised by the GMC amounts to a finding he is unsuitable to be a person with whom [the PCT] should be in contract".

14. The FHSAU concluded after it had considered evidence that the PCT was entitled to terminate the contract. The claimant seeks to quash that decision.

III. The Grounds of Challenge: Are the decisions under challenge subject to judicial review?

15. It is submitted by Miss Jenni Richards, counsel for the PCT that the determinations of the FHSAU and of the PCT are not subject to judicial review because they relate to contractual matters and that they lack the essential public law element, which is a pre-requisite for a judicial review claim. The thrust of her argument is that the claimant chose to go down this contractual route and so his remedy is in a common law action.
16. In response, Mr Robert Duddridge counsel for the claimant contends that the decisions under challenge had a sufficient public element, flavour or character to bring the decisions within the purview of public law as was explained by Dyson LJ in R (Beer) v Hampshire Farmers Markets Limited [2004] 1WLR 233.
17. He proceeds to submit that although the claimant and PCT were in a contractual relationship, it also had characteristics that made it quite unlike a normal private law contract for the provision of services. He puts forward a number of reasons in support of that submission such as that the PCT had to exercise its discretion not to act in its own interests as would normally apply to a private law matter but to act in a manner consistent with public law principles. In my view, it is unnecessary to decide this point because it is at least arguable that the decisions under challenge are subject to public law scrutiny. This is after all not the final hearing but an interim hearing in which the claimant only needs to show an arguable case on this point which he has done.
18. I must explain that my role on this application is limited and secondly that this is not an appeal on a question of fact. Indeed as was pointed out by Richards J (as he then was) in Bradley v The Jockey Club [2004] EWHC 2164 in passages which were expressly approved on appeal in that case by Lord Phillips MR in [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal that:-

(a) "37... The function of the court is not to take the primary decision but to ensure the primary decision-maker has operated within lawful limits... the essential concern should be with the lawfulness of the decision taken, whether the procedure was fair, whether there was an error of law, whether any exercise of judgment or discretion fell within the limits open to the decision-maker, and so forth.."; and

(b) "43. Of course the issue in the present case is not one of procedural fairness but concerns the proportionality of the penalty imposed. To my mind, however, that underlines the importance of recognising that the court's role is supervisory rather than that of a primary decision-maker. The test of proportionality requires the striking of a balance between competing considerations. The application of test in the context of penalty will not necessarily prove one right answer: there is no single correct decision. Different decision-makers may come up with different answers all of which reached in an entirely proper application of the test. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests."

IV. Ground 1 Challenge: Article 1 of the First Protocol and Article 6 of the ECHR

19. The claimant's case was that the decisions under challenge infringed the claimant's rights under each of these provisions. Mr Duddridge, however, accepted correctly in my view that if there had been no interference with the claimant's rights under Article 6, he would be unable to obtain any assistance from Article 1 of the First Protocol because it is not a free-standing ground of challenge.
20. In respect of the Article 6 claim, it is said that the claimant should have had an opportunity to participate in a fair hearing before the decision was made to terminate the Contract. In my view, this claim is flawed because Article 6 guarantees rights of access to the courts and a minimum standard of fairness in court proceedings. Indeed, as Mr Duddridge accepted, his Article 6 claim is based on the common law principle of fairness. There are at least three reasons why this claim fails.
21. First, there has been no interference with that right of fairness bearing in mind that it is settled law that the availability of judicial review makes up any technical shortfall in the fairness of the earlier proceedings. I respectfully agree with the similar reasoning of McCombe J in R (Primary Health Investment) v Secretary of State [2009] PTS 1563 at 1595[99]. It has not been suggested or shown that the present judicial review hearing does not satisfy the requirement of fairness.
22. A second reason why the claimant cannot succeed is the "dispute resolution process" under the Contract which led to the FHSAU determination was a voluntary one, which the claimant himself had elected to invoke. It is noteworthy that there is no provision in the contract requiring the claimant to invoke the dispute resolution process in lieu of his contractual rights. He had chosen it and he thereby significantly obtained the benefits first of suspending the effect of the PCT's notice of termination and second of bringing the matter before an experienced and expert Tribunal in the form of the members of the FHSAU.
23. Third, if which is not the case, I had been in any doubt about the validity of this complaint, I would have dismissed this complaint because there had been an oral hearing of the dispute in front of the FHSAU with both parties legally represented and with witnesses called and questioned. This was an effective hearing and if the claimant could not effectively challenge the decision made after that hearing, then the decision to terminate the Contract would stand irrespective of the fate of the earlier PCT Decision.
24. It is appropriate also to reject at this stage a further criticism of the claimant which was that the FHSAU applied the wrong test because it ascertained whether a reasonable PCT could have taken the decision under challenge. That is not what has happened in this case because the FHSAU considered both that test and the alternative one of asking whether it agreed itself with the decision made as was explained in paragraph 14 of its Decision.
25. I should add the claimant has not shown that a civil court hearing a contractual claim would have taken a different approach to the question of whether the PCT was entitled to exercise a discretionary power of termination. The reason why this is a significant factor is that clause 559 of the Contract states that:-

"The PCT may serve notice in writing on the Contractor terminating the notice forthwith, or from such date as may be specified in the notice if -

559.1 in the case of a contract with a medical practitioner, that medical practitioner… falls within clause 560 during the existence of the Contract".

26. Clause 560 of the Contract states that:-

"A person falls within this clause if - …

560.3 subject to clause 561 he.. is disqualified or suspended (other than by an interim suspension order or direction pending an investigation or suspension on the grounds of ill-health) from practicing by any licensing body anywhere in the world".

(I should add that clause 561 is not relevant to the present circumstances and therefore the PCT had a power which it would have been able to exercise to terminate the Contract.)

27. For the purpose of completeness I should consider the contention made in the claimant's skeleton that FHSAU was not independent of the PCT as both entities came under the remit of the Secretary of State with the consequence that a hearing by the FHSAU did not constitute a fair hearing by an independent body and so it did not comply with article 6. This point was not pursued at the oral hearing quite correctly in my opinion because, as I explained in paragraph 21 above, McCombe J showed that this form of submission was misconceived. Indeed there are no reasonable grounds to suppose that a decision-maker appointed by central government would favour a local PCT especially in the light of the stature of the members of the Panel, so the claim of apparent or real bias fails.

V. Ground 2: Failure to Consult with the Local Medical Committee ("LMC")

28. The basis of this complaint is that the FHSAU erred in finding that the PCT carried out a consultation with the LMC, which complied with the requirements of clause 592 of the Contract which provided that:-

"Whenever the PCT is considering terminating the contract.., it shall, whenever it is reasonably practicable to do so, consult the Local Medical Committee (if any) for its area before it terminates the contract or imposes a contract sanction".

29. The case for the claimant is that there is no evidence that the PCT carried out such a consultation with the appropriate LMC. This however is not borne out by the reasoning and approach of the FHSAU especially as the obligation to consult was first subject to a qualification of only arising "whenever it is reasonably practicable to do so" and second the obligation did not require the PCT to be influenced by any consultation which might have taken place.
30. In paragraph 6 of its determination, the FHSAU pointed out that an email from the PCT of 9 October 2009 to the local secretary indicated there had been a previous conversation between the PCT with the LMC Secretary in connection with the termination of the Contract. Further, there is a letter to the claimant from the PCT dated 28 July 2009, a copy of which was sent to the LMC, dealing with the consequences of the GMC's finding but it did not state that the PCT was considering terminating the Contract. In addition Mr Stidston of the PCT recalled a conversation some time prior to 24 September 2009 with the LMC and there was some e-mail contact. Having heard the evidence, the FHSAU concluded that "it is clear that LMC was informed of the GMC findings and told of the PCT's intended course in September". There is no basis for contending that the FHSAU did not have evidence to support it and indeed the notes of evidence before the FHSAU are not before me. That conclusion, which was reached after considering the evidence, means that this complaint must fail because, as I have explained, in paragraph 18 above, this application is not an appeal but a claim for judicial review.
31. For the purpose of completeness, I must add that the claim fails for other reasons as it is necessary to bear in mind that clause 592 does not stipulate the nature or purpose of the consultation but merely the need to draw matters to their attention explaining the intended course. Further, the claimant did not invite engagement by the LMC which had been given an opportunity to make any comments which it wished. It is difficult to know what the purpose of the notification to them was other than to give them the opportunity to make representations. It is noteworthy that the LMC has not supported the claimant.
32. In any event, I agree with Miss Richards that there is no evidence that the LMC would have or has ever wished to state anything to the PCT to assist the claimant then or now not-withstanding that there has been adequate opportunity for the LMC to state what it would have said but no such evidence has been forthcoming. This is another cogent reason for rejecting this claim.
33. In my view there is no merit in this claim.

VI. Ground 3: Single handed practice.

34. The FHSAU referred to the PCT's policy with a regard to single-handed practices but found that there was "no evidence it is a policy which influenced the present Contract termination either directly or indirectly". The complaint of the claimant is that there was evidence of comments allegedly made by Mr Stidston at the Patients Participation Group on 14 January 2010 in which Mr Stidston said that the PCT "has to face many older, single-handed GPs – how can we make them work together?". The implication of that remark according to the claimant is that the Contract was terminated because he practised by himself rather than in a multi-partner practice.
35. In my view, there is no merit in this complaint because first the comments of Mr Stidston were made nearly four months after the preliminary decision of 24 September 2009 to terminate the Contract and also some two months after the service of the termination notice of 6 November 2009. Second, having heard the evidence adduced before it, the FHSAU said in relation to the single-handed policy, as I have explained in paragraph 34 above, that there was no evidence that this policy influenced the present Contract termination either directly or indirectly and that was a conclusion open to it. Third, there is no evidence that the PCT relied on any approach to single-handed practices to terminate the Contract. Fourth, at the FHSAU meeting Mr Stidston was questioned about the minutes and he pointed out the minutes were not his and that they had not been sent to him for his approval but more importantly he did not accept they were his words. Fifth and very significantly the comment that the PCT "has to face many older, single-handed GP's – how can we make them work together?" is not rationally indicative of an illegitimate purpose on the part of the PCT in deciding to terminate the Contract.
36. As I have explained in paragraphs 11 to 13 above it is clear that the only reasons for the termination of the Contract by the PCT and by the FHSAU were the finding of the GMC and the significance attached to it by those specialist bodies.

VII. Ground 4: References to Previous Unproven Allegations

37. In paragraph 10(1) of its findings, the FHSAU reached a decision which the claimant contends is perverse and irrational as it concluded that it was:-

"..clear from the language used at the meeting [of the PCT on 24 September 2009], the respondent's decision [to terminate the Contract] was made only on the basis of the GMC findings it did not take into consideration other earlier matters referred to by officers".

38. The earlier matters are a series of accusations that had been made against the claimant in the past of various forms of sexual misconduct but none of them had been proved. Indeed, on one occasion he had been acquitted in the Crown Court of a sexual offence.
39. There is a briefing note dated 5 October 2009 concerning sexual misconduct which followed the 24 September meeting of the PCT but before the decision was made to terminate the Contract relating to the claimant in which it is said that:-

"The PCT is conscious that there is a history of incidents that, although unproven, suggest a similar pattern of behaviour, and proof of his guilt in this instance creates doubt as to the validity of his denial in the past".

40. In support of the claimant's case it, is also pointed out that the minutes of the PCT's meeting of 24 September 2009 are a brief summary and it is impossible to conclude that the earlier unproven complaints were not taken into account.
41. Mr Duddridge's case is that the previous unproven allegations against the claimant are irrelevant and that they should not even have been referred to. Thus he says first that these allegations were put before the PCT and it was expressly asked to consider them and second that the absence of an opportunity for the claimant to comment was a serious irregularity. Thus it is said that the FHSAU should have found on the basis alone that the PCT was not entitled to terminate the Contract.
42. These contentions fail to appreciate a number of crucial factors which place the contents of the document dated 5 October 2009 in a different perspective. First it was produced after the decision of the PCT had been taken and significantly the FHSAU found that "10(2)…we are now satisfied the document was an internal briefing note for officers and (from its date) was not submitted to the Board in connection with its decision on 24^th September 2009". Second, it is striking that the Minutes of the PCT not only do not refer to the unproven allegation but they specifically state (with my emphasis added) that "the findings now proven against [the claimant] demonstrated he was unsuitable to remain as a GMS contractor" and that the Contract should be terminated at the earliest opportunity. This shows that the decision to terminate the Contract was based on proven misconduct in the decision of the Panel.
43. A third reason why this challenge to the PCT decision on this ground is flawed is that FHSAU heard evidence from Mr Stidston for the PCT and it then concluded that "10(1) It is clear from the language used at the [PCT] meeting, the [PCT's] decision was made only on the basis the GMC findings. It did not take into account other earlier measures referred to by officers".
44. To my mind these factors show quite clearly that no weight was given to the unproven allegations. Further, even if this is wrong and the PCT decision was flawed, there is a further insuperable obstacle before the claimant could succeed and that is that it is clear that the FHSAU did not attach any weight whatsoever to the unproven allegations.
45. It is clear for the reasons which I have set out above, that the Contract was held to have been rightfully terminated by the FHSAU because the fitness to practice of the claimant had been held to have been impaired in the decision of the GMC and that was by reason of his misconduct of sexualised nature. This means that (even if the decision of the PCT was flawed), the claimant cannot quash the decision of the FHSAU to terminate the Contract. So I must also reject this complaint.

VIII Ground 5: Irrelevant consideration in paragraph 11

46. In paragraph 11 of the Determination, the FHSAU record that it had regard to the fact that "the suspension by the GMC would make it unlawful for the PCT to enter into a contract with the [claimant] today. There is no discretion. The Regulations impose an absolute prohibition".
47. Mr Duddridge says that this shows that the FHSAU first took into account this matter but that this was an irrelevant consideration because neither the regulations nor the GMS contract require the mandatory termination of the contract where the practitioner has been suspended during the course of the agreement. In other words, he said that there were entirely different regimes dealing with position of a suspended doctor depending on whether the doctor had entered into a contract with a PCT prior to or after suspension as it was only where the doctor was suspended prior to suspension that he could not enter into a contract with a PCT.
48. I cannot accept the contention that the fact that a doctor is suspended cannot be a relevant or even a decisive factor in deciding whether an existing contract of a GP with a PCT should be terminated. First, the fact that a doctor is suspended must nevertheless be a relevant factor in deciding if a contract with a PCT should be terminated because it affects his ability to perform his duties under the contract. Second, where as in this case, a doctor is suspended for misconduct the fact that his misconduct is so serious that it merits suspension must be relevant in determining the doctor's ability and his propensity to perform his obligations to his patients.
49. A third reason why I reject the claimant's complaint is that it was not the reasoning of the FHSAU that because the PCT could not enter into a contract with the suspended GP, this meant that for that reason alone the Contract of the claimant had to be terminated. As I have already explained, the FHSAU reached the decision that PCT was entitled to terminate the contract because of the findings of the GMC in relation to the claimant which was that his "fitness to practice was impaired by reasons of misconduct of a sexualised nature". Fourth, there is no evidence that the PCT decided to terminate the claimant's contract solely because it could not have entered into a contract with him when he was suspended.
50. Finally, I should add that Miss Richards reminds me that Laws LJ in R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55 stated that: "35.. where a statute [, or here a contract] conferring discretionary powers provides no lexicon of the matters to be treated as relevant by the decision maker then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review". That is relevant in the present case. For those reasons I unhesitatingly reject this complaint.

IX. Ground 6: Error of Law and or Irrationality of Paragraph 14(1) of the FHSAU's decision.

51. The claimant complains that the FHSAU did not consider matters properly as it stated in paragraph 14 (1) of its decision, that it was only carrying out a review on grounds of rationality when it said of the decision of the PCT that:-

"well within the options open to a careful and prudent PCT and that the decision itself was rational, reasonable and proportionate".

52. This submission fails to take note of the fact that the FHSAU also considered the matters on a factual basis afresh as it explained in paragraph 13 of its decision. The remainder of the claimant's criticisms under this head repeat other points made elsewhere and they must be rejected.

X. Ground VII: Error of Law or Irrationality in Clause 14(2) of the FHSAU's Decision

53. This paragraph contains the decision of FHSAU on the basis that it considered the matter de novo and the claimant complains about the statement that:-

" ..we conclude the conduct of the [claimant] as particularised by the GMC amounts to a finding that he is unsuitable to be a person with whom the [PCT] should be in contract. Indeed, and despite the officer's advice to the board, we find it hard to imagine the circumstances in which it would be appropriate for a suspended GP whose fitness to practice was impaired by reason of misconduct of a sexualised nature to remain in contract as the provider of medical services".

54. It is said that this finding was wrong because the GMC had not found that the applicant was unsuitable to be in a contract with the respondent because it was only concerned with his fitness to practice rather than his suitability to be a contracting party. Furthermore it is said that the GMC's sanction of suspension rather than erasure ensured that the claimant might be able to return to medical practice when his suspension was concluded. It was also said that the incident was an isolated one and that it was unlikely to be repeated as well as the fact that this incident occurred as long back as 2005.
55. This is in fact an irrationality challenge. The FHSAU, especially as it was an expert body, was quite entitled (if not obliged) to come to its own decision on the seriousness and significance to the ability of the claimant to perform his obligations under the Contract in the light of the complaints found proved by the GMC. As I have explained, in paragraph 14(2) of its decision, the FHSAU took into account not merely the conduct of the applicant particularised by the GMC but also matters "including letters of support from patients, testimonials from professional colleagues and evidence from the [claimant] and his Doctor son". This was precisely what the FHSAU was supposed to do and I therefore reject this submission.

XI. Other Matters Relied on by the Claimant

56. Mr Duddridge on a number of occasions referred to the fact that the matters complained of took place between 2001 and 2005 but no further complaints had been made subsequently. It was therefore suggested that this might in itself or coupled with other factors constitute a ground for quashing the decisions of the PCT and the FHSAU. Another criticism made by the claimant is that the recommendation to the PCT was to maintain its contractual relationship with the claimant and this shows that the decisions to terminate the Contracts were flawed.
57. These submissions fail to appreciate the nature of a judicial review application. It is necessary for me to repeat as I explained in paragraph 18 above that my role on this application is limited as my task on a judicial review application is not to take the primary decision but to ensure that the decisions under challenge fell within the proper limits.
58. I am quite satisfied that the decisions of both the PCT and the FHSAU satisfied those requirements. Indeed in my view it is possible that another entity might have considered that the Contract between the claimant and the PCT should not have been terminated but that does not preclude me from concluding as I do that both the PCT and the FHSAU reached decisions which were open to them on the facts and which were not the result of any form of procedural unfairness.
59. I am bound to say the more that I have considered this case, the more convinced I have become that the case for the claimant is doomed to failure and I unhesitatingly reject the submissions made on behalf of the claimant. It might be some consolation to him that every point that could have been argued on his behalf has been argued clearly and ably by his counsel. It therefore follows that the applications for interim relief and for permission are refused. For the avoidance of doubt, there is no prohibition on quoting this judgment, notwithstanding that it partially deals with an application for permission.