England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		14th June 2012

HIS HONOUR JUDGE PELLING QC:

1. This is an application under section 41A subparagraphs (6) and (7) of the Medical Act, for yet a further extension of an interim order of suspension originally imposed on 19th March 2010. If the application succeeds it will mean that the total period of interim suspension in this case will exceed 3 years.
2. This case was last before the court on 13th September 2011 when the General Medical Council appeared before me, with no appearance or representation on behalf of the defendant, seeking a 12 month extension. My judgment, delivered at the end of that application, to be found at [2011] EWHC 2645 (Admin), was critical of the way in which the General Medical Council had conducted its investigation in relation to the doctor and in particular was critical of the leisurely approach that had been adopted at various stages, which in the aggregate had resulted in a very extensive period of interim suspension when, on the face of it, the case could have been placed before a Fitness to Practise Panel much more quickly. At paragraph 15 of the judgment I gave on the last occasion, I warned of the dangers that can arise such a leisurely approach to interim suspension and to the investigations which need to be undertaken before a case is brought to a Fitness to Practise Panel. I observed that if I had granted the extension sought by the General Medical Council, the total period of interim suspension would have exceeded two-and-a-half years. I then added:

"The allegations which are of principal concern and which give rise to the need for a fitness to practice investigation, or at least the first of them, was drawn to the attention of the GMC as long ago as November 2009. Both the matters that I have referred to have led to the interim orders panel making the order that it did in March 2010. It is the leisurely progress that has been made since then which is a source of concern. It is a source of concern because first it deprives the doctor of an opportunity of answering the allegations that are made before a tribunal; secondly, it deprives the doctor of earning a living over the period of the suspension; thirdly, it will result in a doctor who is found fit to practice ultimately, nonetheless being significantly substantially deskilled by reason of suspension for month after month."

To which I would now add, in the circumstances of this case, year after year.

3. I made it clear on the last occasion that I was not prepared to extend the suspension for a full period of 12 months because I was satisfied on the information then available that although continuation of suspension was in principle justified, applying the principles identified by Court of Appeal in Huew [2007] EWCA Civ 369, nonetheless a significantly lesser period of suspension was justified, given the steps which needed to be taken.
4. This application is made by a claim form issued on the 18th May 2012. It is supported by a witness statement from Miss Joanna Katherine Farrell, who is the head of investigations at the General Medical Council. Having set out effectively in substantially the same terms as previously had been done the events down to the hearing before me in September 2011, she then observes at paragraph 36 of her witness statement:

"An extension of nine months was granted by the High Court on 14 September 2011."

It is surprising that there was no reference to the judgment that was delivered on that occasion. It is particularly so since a transcript was available with a neutral citation reference attached to it. Given that these applications are, if heard at all, almost invariably heard without attendances from the doctor concerned, it seems to me that the principles which apply to the hearing of without notice applications apply in substantially the same way to applications of this sort; that is to say, there is a duty of frankness that applies to the General Medical Council when applying for extensions to ensure that all relevant information is available to the court irrespective of whether it supports the General Medical Council's case or not. It is surprising therefore that in paragraph 36 of the witness statement there is no reference to my earlier judgment or to my criticisms of the progress that had been made to that date, or any reference to the reasons why I was prepared to extend the period of interim suspension on that occasion for only for a period of 9 months and, more pertinently, given the circumstances, no attempt to explain why it was that the steps which were anticipated as being capable of being taken over the 9-month period of extension granted by me had not in fact been taken.

5. The evidence in support of the application before me to day continues at paragraph 37 with a reference to a review by the IOP on 21st November when the interim order for suspension was maintained. The evidence does not disclose the degree to which, if at all, the Interim Orders Panel considered, and if so to what extent, the steps anticipated in my earlier judgment had been taken down to that date.
6. The evidence goes on to record that the claimant received a further report from Mr Simmons, the consultant retained by the General Medical Council to advise them in relation to this case on 29th December 2011. The evidence does not disclose when Mr Simmons was first contacted to provide this additional input. Paragraph 38 suggests that what was then concerning the investigation branch at the General Medical Council was referral letters, or the contents of referral letters, or the responses to referral letters by this doctor which had been considered in a report of 10th August 2011. No explanation is offered as to why it was that a period between 10th August and 29th December 2011 was allowed to elapse before a response was received or chased for. In the event the evidence says that Mr Simmons confirmed that the additional information supplied did not significantly alter his opinion, something which ought to have been apparent prior to Mr Simmons writing that letter. The result however was that a period of 3 months was allowed to pass between the date when I granted the last extension and the date when the letter was received from Mr Simmons, in which apparently nothing of any significance occurred at all.
7. Paragraph 39 of the witness statement is then to this effect:

"On 12 March 2012 the Claimant wrote to the defendant in accordance with Rule 7 ... allowing the Defendant 28 days to provide a response to the allegation. The Defendant has not provided a response to this letter."

No explanation is offered as to why it was that a period of some 3 months was allowed to elapse between the receipt of the letter from Mr Simmons and the date when the rule 7 letter was sent. In the aggregate, a period of 6 months had elapsed between the date of the last extension, granted by me on 14th September and the sending of the Rule 7 letter.

8. The evidence then refers to the fact that the case is currently still being considered by the case examiners, that there was an interim review by the IOP on 1st May, although I note again that there is no evidence as to the extent to which, if at all, the IOP considered either the terms of my judgment on the last occasion or the degree to which, if at all, the General Medical Council had sought to satisfy the timetable identified in that judgment or whether there were explanations as to why it was that that timetable had not been complied with.
9. Under the heading "Conclusion" at paragraph 45, Miss Farrell says this:

"This application to extend the order imposed by the IOP on 19 March 2010 is not one the Claimant undertakes lightly."

A statement in precisely the same terms, save that there was a different date inserted appeared in the evidence in support of the last extension application that I granted and appears, in my experience, in every single witness statement that is filed in support of applications of this sort. At paragraph 47 Miss Farrell says:

"The 12 month extension will allow the Claimant to decide what, if any, action should be taken."

In the result, if this application succeeds over 3 years will have elapsed in which the claimant could have but has failed to take a decision as to what action should be taken and such time will have elapsed notwithstanding the comments I made in my last judgment.

10. I do not wish to be over critical of the General Medical Council, who no doubt have serious funding difficulties, as many public and quasi public bodies do at the moment. I am sure that the General Medical Council is hard pressed, with many complaints that have to be investigated and with a need to investigate in each of them thoroughly in interests of both patient and doctor. Notwithstanding that however, the time which has been allowed to elapse in the circumstances of this case and particularly where there was one allegation of malpractice which, if correct, and on the face it, fell significantly and seriously below the standards to be expected of a competent practitioner in the relevant area of expertise and which of itself ought to have justified a Reference to a Fitness to Practise Panel, is a source of serious concern. This concern is exacerbated by the absence of explanation as to why large periods of time have been allowed to elapse without any attempt apparently being made to advance this case. I infer that that is because attention has not been given, as it should have been, to the timeous processing of this claim.
11. Against that background I have now to decide how best to proceed with this application. On the last occasion when this case was before me I drew attention to the relevant principles that governed applications of this sort, being those set out by the Court of Appeal in Huew and summarised at paragraph 9 of my earlier judgment. Against that background I concluded, at paragraph 14 of my judgment, that applying those principles, it was perfectly clear that the Interim Order Panel were not merely entitled to but were right to suspend the doctor from practice pending a Fitness to Practise Panel hearing. I observed that it was equally plain that the suspension needed to be continued until the case could be brought before a Fitness to Practise Panel and thus in principle I was satisfied that the General Medical Council's application before me must succeed. I continue to hold that view for the reasons identified in my earlier judgment and on the basis of the evidence that has been filed.
12. What troubles me however is the leisurely approach that has been adopted to the conduct of this case and, in those circumstances, it seems to me that some encouragement now needs to be given to the General Medical Council to manage with this case actively. What I propose to do is to extend the period of this suspension but to do so for a period of 6 months. I am going to direct that any further applications for extensions of time that are made to the court are to be made to me and therefore all applications for extensions of time in relation to Dr Gill are reserved to me. On any subsequent application for an extension of time, I will expect there to be a full explanation from the General Medical Council as to why it is that this case has not been brought before a Fitness to Practise Panel, within the time contemplated my judgment given on 13th September 2011 and why the case has yet to be brought before a Fitness to Practise Panel.
13. In this way I hope to maintain a degree of active management of the case to a conclusion, balancing as I must do the interests of both patients and the public in ensuring that a doctor, against whom serious allegations of misconduct have been made, is not permitted to endanger the public, whilst at the same time recognising that there is a plain public law requirement for cases of this sort to be dealt with expeditiously in the interests of the doctor and, again, of the public. Therefore, as I say, an order will be made in the restricted terms that I have indicated.

HIS HONOUR JUDGE PELLING QC: You are after your costs?

MR ATHERTON: Your Lordship I believe has a schedule?

HIS HONOUR JUDGE PELLING QC: Yes.

MR ATHERTON: Of course costs were incurred essentially in the absence of any engagement by the doctor.

HIS HONOUR JUDGE PELLING QC: Yes. So I suppose the question is: why does it take five-and-a-half hours to prepare the evidence in support of this case, particularly having regard to the fact that this is an application which has been made previously and much of the material which is attached to it must have been generated and prepared for exhibiting on a previous occasion? Five hours is close to a working day.

MR ATHERTON: Three-quarters of a working day. Your Lordship I hope will recognise that that is not an unduly long time for the preparation of witness statements and bundles and bringing the matter up-to-date.

HIS HONOUR JUDGE PELLING QC: I will assess your costs as asked but allow work on documents at 3 hours.

Can you draw up an order and let me have it through the usual channels please?

So costs allowed as asked, otherwise by that adjustment. Thank you very much.