England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		11th September 2012

JUDGE GILBART QC :

1. In this matter the Claimant General Medical Council ("GMC") makes an application under section 41A(6) and (7) of the Medical Act 1983. The Defendant is currently suspended under an interim suspension order from practice pursuant to section 41A of the Act, having been first suspended on 10^th June 2010, after he had been made the subject of conditions on 27^th Jully 2009, renewed on 5^th January 2010. His suspension expires on 17^th September 2012. This application seeks an extension for a further 6 months until 16^th March 2013.
2. The matter was listed before me yesterday at 10.30. The GMC deposited a bundle exceeding 2000 pages and a skeleton argument, which reached my room at 8.45 am. I am informed by Mr Pitter that it arrived at the court during the morning of Friday 7^th September 2012. The Court deprecates a party, and especially a statutory one, filing evidence and submissions so late, and especially so when they were so voluminous.
3. I adjourned the matter until today to allow me to read the relevant documents. I heard argument this morning and reserved judgement until the afternoon. I have had great assistance from both counsel on identifying the relevant matters.
4. This is the fourth occasion upon which this court has been asked to extend the interim suspension. It first came before the court on 21^st January 2011, when it was extended for 12 months by consent. On 19^th January 2012, an application was heard for its extension for a further 12 months . HH Judge Pelling QC refused to extend it for 12 months, but did so for 5 months (GMC v Srinivas [2012] EWHC 670 (Admin)) . I note with surprise that the GMC did not set out in its application what happened on that occasion, of which more below. On 13^th June 2012, the Court heard the GMC's application of 16^th May 2012 to extend it by a further 12 months. An order was made by consent, extending it for 3 months.
5. This matter comes about as a result of what was a criminal investigation and trial. I gratefully adopt Judge Pelling QC's account of the case up to the point of the conclusion of the retrial of the criminal allegations made against the Defendant

2. "The history of this case in summary is as follows. In March 2009 at a time when the defendant to these proceedings was working as a locum general practitioner at a practice, the senior partner of which was a Dr Amery, a complaint was made to the GMC by Dr Amery in the form of a letter to which was annexed short statements from a number of other doctors employed, or under training at, that surgery. The complaints related to three intimate examinations of three separate patients in circumstances where, in relation to two of them, no reference to the examination undertaken appeared in the notes of the patient concerned. In relation to one of those for which no notes existed the circumstances suggested that such an examination was uncalled for by the symptoms complained of by the patient.

3. The result of this was that the Oxfordshire NHS Trust then suspended the defendant from its medical performers' list and he has remained suspended accordingly since April 2009, albeit receiving at least a proportion estimated at 60 per cent of the earnings that he would otherwise have derived from practising as a medical practitioner.

4. The police became involved and the GMC were informed in June 2009 that the defendant had been arrested. The police informed the GMC in July 2009 that their investigation had expanded so as to include 12 other patients apart from the three that had been the subject of the original notification to the GMC. The allegations made were broadly similar, and concerned allegedly unwarranted intimate examinations.

5. The matter came before the Interim Orders Panel of the GMC for the first time on 27 July 2009. On that occasion the Panel determined that it was appropriate and necessary to impose an interim order of conditions for a period of 18 months. Although submissions have been made to the effect that the allegations that were being considered on that occasion were at any rate primarily those made by Dr Amery at the outset of the matter, having read the totality of the decision of the Interim Orders Panel on that occasion, I am satisfied that the Panel had in mind that an allegation of allegedly unwarranted intimate examination was being made in relation to 12 other patients, albeit of necessity given the information available, the details in relation to those 12 patients could not be taken into account in the same detailed way that was the position in relation to the original three patients in respect of which Dr Amery had made his report.

6. The matter was updated, albeit on a sporadic basis, down to 5 January 2010 when the IOP further reviewed the position and maintained the interim order of conditions. Again the 12 allegations then being investigated by the police in addition to the three mentioned by Dr Amery were referred to and in my judgment must plainly have been taken into account. Indeed, it would have been inappropriate in my judgment for the IOP not to take into account the existence of the allegations, albeit that the weight that could be given to them in the circumstances was limited given the paucity of information that was available.

7. On 2 June 2010 the defendant was charged with seven counts of misconduct contrary to section three of the Sexual Offences Act 2003 and eleven counts of misconduct contrary to section two of the Sexual Offences Act 2003 and the defendant was bailed. It was only in the light of this that on 10 June 2010 the matter was referred to an Interim Orders Panel who decided on this occasion to convert the interim order from one of conditions to one of suspension. This doctor has been suspended accordingly since 10 June 2010.

8. I can take the remaining matters somewhat more quickly. In March 2011 a further three counts were apparently added to the counts that the defendant faced before the Crown Court and on 11 May 2011 what turned out to be the first of two Crown Court trials took place. On that occasion the defendant was acquitted of seven of the counts that he faced, with a retrial being directed in relation to the remainder. The retrial took place prior to 25 October 2011, for it was on that date that the police informed the GMC that the defendant had been found not guilty on all the remaining counts.

6. Since then, matters have proceeded as follows

i) On 1^st December 2011, GMC received the prosecution and police files. Shortly thereafter, the Police were asked to contact relevant witnesses;

ii) The extension was obtained on 16^th January 2012. At that time, the GMC was asking for a 12 month extension. Judge Pelling QC's reasons for doing so appear below;

iii) By 16^th February 2012 the GMC had received transcripts of evidence, and indications from some (7) but not all (12) complainants that they would cooperate;

iv) On 4^th April 2012 the Interim Orders Panel decided that the suspension should continue, and decided to apply to this court for an extension;

v) On 24^th April 2012 the GMC instructed an expert witness (a GP) to advise on the way in which 15 examinations of patients were conducted. He had not been one of the experts who gave evidence at the trial;

vi) On 16^th May 2012 the GMC came into information that there had been alterations to patients' records by the Defendant. Further information was provided by the Police on 22^nd May 2012. Meanwhile an application had been made (on 16^th May 2012) for an extension for 12 months. It is silent about the new information on patients' records;

vii) On 13^th June 2012 the Court granted a 3 month extension by consent. I have had no satisfactory explanation from GMC as to why it agreed to that order;

viii) The expert's report was received on 7^th July 2012.

7. The GMC contends that it needs to obtain further expert and witness evidence, which it says should be obtained by the end of October 2012. It then says that it must serve a Rule 7 notice (under Rule 7 of the Fitness to Practise Rules) giving the Defendant 28 days to respond, and then requires further time to refer to the case to the Fitness to Practise panel and case manage it.
8. Mr Goldring argues for the Defendant that the GMC has had long enough already to deal with this case. He points out that Dr Srinivas was at first made the subject of restrictive conditions, and that he has already had to wait 3 years for the case to be investigated and it still awaits further processes.
9. I turn now to the legislative context provided by section 41A of the 1983 Act. It provides as follows, insofar as relevant to this application:

41A Interim Orders

(1)Where an Interim Orders Panel or a Fitness to Practise 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 eighteen 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 eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose (an "order for interim conditional registration").

(2)Subject to subsection (9) below, where an Interim Orders Panel or a Fitness to Practise Panel have made an order under subsection (1) above, an Interim Orders Panel or a Fitness to Practise Panel—

(a)shall review it within the period of six months beginning on the date on which the order was made, and shall thereafter, for so long as the order continues in force, further review it—

(i)before the end of the period of six months beginning on the date of the decision of the immediately preceding review; or

(ii)if after the end of the period of three months beginning on the date of the decision of the immediately preceding review the person concerned requests an earlier review, as soon as practicable after that request; and

(b)may review it where new evidence relevant to the order has become available after the making of the order.

(3)Where an interim suspension order or an order for interim conditional registration has been made in relation to any person under any provision of this section (including this subsection), an Interim Orders Panel or a Fitness to Practise Panel may, subject to subsection (4) below—

(a)revoke the order or revoke any condition imposed by the order;

(b)vary any condition imposed by the order;

(c)if satisfied that to do so is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, replace an order for interim conditional registration with an interim suspension order having effect for the remainder of the term of the former; or

(d)if satisfied that to do so is necessary for the protection of members of the public, or is otherwise in the public interest, or is in the interests of the person concerned, replace an interim suspension order with an order for interim conditional registration having effect for the remainder of the term of the former.

(4)No order under subsection (1) or (3)(b) to (d) above shall be made by any Panel in respect of any person unless he has been afforded an opportunity of appearing before the Panel and being heard on the question of whether such an order should be made in his case; and for the purposes of this subsection a person may be represented before the Panel by counsel or a solicitor, or (if rules made under paragraph 1 of Schedule 4 to this Act so provide and he so elects) by a person of such other description as may be specified in the rules.

(5)If an order is made under any provision of this section, the Registrar shall without delay serve a notification of the order on the person to whose registration it relates.

(6)The General Council may apply to the relevant court for an order made by an Interim Orders Panel or a Fitness to Practise Panel under subsection (1) or (3) above to be extended, and may apply again for further extensions.

(7)On such an application the relevant court may extend (or further extend) for up to 12 months the period for which the order has effect.

(8)Any reference in this section to an interim suspension order, or to an order for interim conditional registration, includes a reference to such an order as so extended.

(9)For the purposes of subsection (2) above the first review after the relevant court's extension of an order made by an Interim Orders Panel or a Fitness to Practise Panel or after a replacement order made by an Interim Orders Panel or a Fitness to Practise Panel under subsection (3)(c) or (d) above shall take place—

(a)if the order (or the order which has been replaced) had not been reviewed at all under subsection (2), within the period of six months beginning on the date on which the relevant court ordered the extension or on which a replacement order under subsection (3)(c) or (d) was made; and

(b)if it had been reviewed under the provision, within the period of three months beginning on that date.

(10)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 registration, 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.

(11)Except as provided in subsection (12) below, while a person's registration in the register is suspended by virtue of an interim suspension order under this section he shall be treated as not being registered in the register notwithstanding that his name still appears in the register.

(12)Notwithstanding subsection (11) above, sections 35C to 35E above shall continue to apply to a person whose registration in the register is suspended.

(13)………………….

(14)………………….

10. In considering this application I have had regard to the guidance given by the Court of Appeal in GMC v Hiew [2007] EWCA Civ 369 per Arden LJ at paragraphs 26 to 33. The following principles emerge:

(a) While the court is the primary decision maker (see paragraph 26) its role is not to determine whether the allegations which await a hearing are true or justified (see paragraphs 31 and 33), although the court is entitled to consider whether they could have any merit (see paragraph 31);

(b) The court may grant the extension sought or some lesser extension or refuse to grant it or to terminate the current suspension. It has no power to impose conditions instead (see paragraph 27) and see also section 41A(7) and (10) of the Medical Act;

(c) The court must consider the gravity of the allegations, the nature of the evidence, the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to Dr Srinivas if an interim order is continued;

(d) The court must examine the evidence with care (that is paragraph 29); and

(e) The court must have regard to the opinion of the GMC Interim Orders Panel, but it is not bound by it and the court can give it the weight the court thinks fit (see paragraph 32).

11. I must start by dealing with what I regard to be an irrelevant argument. Mr Pitter suggested that when the question of " necessity" is considered, the Court cannot have regard to the fact that, were an extension refused, the Interim Orders panel could, were it minded to do so, make an order imposing conditions on the Defendant's registration. I reject that approach. It is impossible for the court, when considering if the extension of the suspension is necessary or proportionate, to overlook the potential for the imposition of conditions. As Mr Goldring argued, should the court refuse to grant the extension, that amounts to a change in circumstances which would permit the Panel to revisit the question of conditions.
12. I prefer, as required by the Court of Appeal, to consider the gravity of the allegations, the nature of the evidence, the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to Dr Srinivas if an interim order is continued.
13. The allegations are very serious, and if proved, would show serious professional misconduct on the part of Dr Srinivas which has put the public at risk, and has also involved the improper alteration of medical records. The allegations are supported by evidence from the relevant patients, from the medical records and from expert evidence. If proved, both or either shows conduct which poses a real risk to patients, and which also shows conduct which could properly lead to the conclusion that Dr Srinivas should be prevented from practising (whether it does is for the GMC to determine). A period of only 10 months has elapsed since the GMC first received the evidence and files from the Police.
14. Judge Pelling QC was concerned that the GMC should get on with its investigation. He said this:

16. "………………It is a startling fact which is immediately apparent from the chronology set out above that prior to the defendant being charged with the criminal offences that I have referred to, the judgment of the Interim Orders Panel was that the imposition of conditions was an appropriate way to proceed pending a resolution of the question of whether or not to refer the defendant to a Fitness to Practise Panel. Even allowing for the fact that there is likely to be more information available to the GMC and any IOP now than there was then, it is realistic to think that an IOP before whom the Defendant may in future appear may conclude that the re-imposition of conditions rather than the continuation of suspension is an appropriate and proportionate response.

17. In those circumstances it seems to me that the appropriate way forward would be to grant an extension of five months. The five month period will enable the investigation to be completed and an IOP hearing convened within the three month period identified in paragraph 44 of the witness statement in support and with sufficient time left in order to enable an application to be made to the court for a further extension to the suspension in the event that such an application is necessary.

18. I have considered whether a shorter period would have been appropriate but have concluded that it would not, given that, for example, it will be necessary, if a further extension has to be sought, for the claim and evidence in support to be drafted and served and a hearing dated obtained. Of course, if the Interim Orders Panel comes to the view that conditions should be substituted for a further period of suspension, then the sooner that that can be dealt with by an IOP the better and I would certainly hope and expect that the GMC would bring the case before an IOP within the three month period which is referred to in paragraph 44. Although it would be no doubt helpful to an IOP to see what, if any, response the doctor has to the Rule 4 disclosures, there is no obligation on the doctor to respond and it seems to me that if the doctor had wanted the Panel to wait until such a response was received then that could have been indicated in the course of submissions.

19. In my judgment this doctor is entitled to have the question whether or not conditions should be substituted for suspension reviewed at the first available opportunity, albeit in circumstances where the GMC have had the opportunity to review the material that has become available in the aftermath of the failed prosecutions. For those reasons I will grant an extension of five months."

15. That was written before the information became available about the alleged alteration of records. Given their significance, I consider that they have to be investigated. However like Judge Pelling QC I consider that the GMC must continue to act with expedition in a case which affects Dr Srinivas' ability to practice as a doctor. The fact that it is now over 3 years since this matter came to light, and over 2 years since his suspension, adds weight to that point. So does the fact that he was acquitted of all criminal charges, albeit that that cannot prove his innocence.
16. I have then considered whether it would have been sufficient to rely on the imposition of conditions. The Panel considered that there are no conditions which would adequately protect members of the public or the public interest, and that suspension was a proportionate response. I accord that view great weight. I also agree with it, because this case involves allegations of misconduct relating both to the inappropriate intimate examinations of female patients, but of falsification of records as well. I reject the case for the Defendant that the fact that his trial resulted in acquittals means that he no longer has to answer allegations relating to sexual misconduct. Whether he does so depends on the view formed by the GMC investigators and prosecutors of the evidence now available to them.
17. But all that having been said, I am not minded to grant the extension of the length sought by the GMC. The length of time that has elapsed since the original suspension (now over 2 years), and the fact of the acquittals, requires an approach which makes expedition essential. It is still not known whether the allegations will be pursued to a final hearing, or what view will be taken by the prosecuting arm of GMC in the light of the new evidence. I am therefore going to extend the suspension for a period of 4 months until 11^th January 2013. If the GMC then wishes to extend it, it must produce evidence to the court showing that it has acted with expedition between now and then.