England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		16th August 2012

His Honour Judge Stephen Davies:

1. This is an application brought by the claimant, the General Medical Council, against the defendant, Dr Lewis Ingram, for an order extending for a period of nine months an interim order made by the Interim Orders Panel of the General Medical Council, initially on 24 June 2009, most recently reviewed on 13 July 2012, and which would unless extended expire on 22 August 2012. Initially the order as made was one of imposition of conditions but more recently, on 13 July 2012, it was altered to an order of suspension to take into account further evidence as to the doctor's state of health.
2. The basis for the application is set out in the witness statement of Joanna Farrell made on 13 July 2012 in support of the application. In summary it is to enable a Fitness to Practise Panel of the General Medical Council to undertake the hearing of an allegation made against the doctor and, potentially, the hearing of a further allegation against him which has not as yet even been referred to the Fitness to Practise Panel.
3. The application is opposed by the doctor, for reasons which are set out in the witness statement of his solicitor, Victoria Lord, made on 9 August 2012, and which have been amplified orally in submissions from his counsel, Ms O'Rourke QC, who has represented him today in his absence due to his ill-health.
4. The allegation which is currently before the Fitness to Practise Panel is an allegation of deficient professional performance concerning the treatment by the doctor of a child, referred to as TW, who subsequently died. The essential allegation, which is supported by a report from an independent paediatric expert, is that the doctor prescribed the child with an opiate when that was plainly inappropriate, and which it is said may either have caused or materially contributed to the subsequent death of the child. The allegation was referred to the Fitness to Practise Panel on 28 September 2011 and a hearing was convened for 18 June 2012.
5. Prior to that hearing there were two relevant events. The first was that the GMC had applied to adjourn the hearing to enable an allegation relating to the care of another child by the doctor to be determined at the same time, but that application had been refused. The second was that the doctor had made an application for voluntary erasure from the Register. That was supported by a report from an independent psychiatrist, a Dr Reveley, who concluded in summary that the doctor's health was such that he was both unfit to practise medicine and unfit to participate effectively at the Fitness to Practise hearing. At the hearing Ms O'Rourke made the application for voluntary erasure on the doctor's behalf and, in the alternative and if unsuccessful, an application to stay the proceedings as an abuse of process, given the state of the doctor's health.
6. It is clear that the panel heard full argument on both those applications, and that it received written and oral evidence not only from Dr Reveley but also from a Dr Harris, a consultant psychiatrist, who was asked to provide an independent assessment of the doctor following a direction from the panel to that effect. They also considered the written evidence of a Dr Kumar, who is the doctor's treating psychiatrist. Dr Harris and Dr Kumar reached substantially the same opinions that that expressed by Dr Reveley. The panel also had the benefit of submissions from counsel for the GMC as well as Ms O'Rourke, and the benefit of legal advice from the legal assessor.
7. In a lengthy and detailed decision, promulgated on 27 June 2012, the panel rejected both applications. It is not necessary for to me refer in detail at this hearing to their reasons for doing so. It is clear that they considered the arguments for and against to be finely balanced, but in the end they came down against either allowing there to be a voluntary erasure or staying the proceedings.
8. The doctor is dissatisfied with those decisions and he seeks to challenge them, if necessary, in judicial review proceedings. He has advanced through his solicitors a letter of claim in accordance with the pre-action protocol for judicial review claims on 3 August 2012. That letter sought a response by 20 August 2012 but the doctor's legal representatives, acting reasonably, have acceded to a request by the General Medical Council for a short extension until 30 August 2012 for a substantive reply, requested in order to accommodate holiday commitments over the summer period.
9. As matters currently stand, the position is that GMC are, or at least should be, in the process of relisting the Fitness to Practise Panel hearing for a substantive hearing, although I have been told by Miss O'Rourke that at the present time no positive steps have been taken to instigate a relisting, and they are also of course considering the pre-action protocol letter. Mr Morgan, counsel for the GMC, told me that he has been instructed that no decision has yet been taken one way or another in relation to that pre-action protocol letter. It is therefore possible that on receipt of further advice and on further consideration the GMC may accede to the doctor's requests, which would effectively put an end to the Fitness to Practise Panel hearing process and would allow voluntary erasure to take place, or they may decline to do so, in which case judicial review proceedings may follow.
10. It is also clear that, if judicial review proceedings do follow, then the degree of expedition to which those proceedings will be subject will depend on a number of factors, including court availability and the view of the respective parties and the court in relation to expedition either of the permission process or, possibly, a rolled-up hearing. Of course, if the judicial review process is successful from the doctor's point of view, the end result will be that the Fitness to Practise Panel hearing will not recommence, whereas of course if it is unsuccessful the Fitness to Practise Panel hearing will, subject to any further applications, resume and be concluded. As I have already said, the GMC's application was for an extension of nine months to allow that process to be concluded.
11. I should say in parenthesis that although, as I have indicated, the GMC's position in its evidence is that this will also allow the allegations relating to the second child to be brought on at the same time, that is something which Mr Morgan, in my judgment entirely realistically, did not pursue at the forefront of his case, not least on the basis that as I have said, the Fitness to Practise Panel specifically refused to adjourn the earlier hearing to accommodate that request.
12. Both parties accept that it is not for me to anticipate the decision of the Administrative Court if judicial review proceedings are necessary and the case goes to a full hearing. Miss O'Rourke does, however, submit that the doctor has a strong claim, pointing to the matters which she put before the Fitness to Practise Panel as well as the stance adopted by counsel for the GMC at that hearing and the advice rendered by the legal assessor.
13. Her argument is as follows. Firstly, she says that, because the merits of her case are so strong, the proper course is simply to dismiss this application and not to extend the interim order with a view, in effect, to forcing the GMC to get to grips with this case and allow the request for voluntary erasure. In the alternative she says that, if the court is not prepared to do that, it should extend only for a period of one month to enable the pre-action protocol process to be completed and so that, if the GMC agrees, that is an end of the matter, but if it does not there would have to be a further application to extend at that point. Her fallback position is for an extension of no more than three months, which would in effect allow the judicial review process if necessary to be concluded, but no more than that.
14. Mr Morgan accepted that the court in reaching its decision would have regard to the chain of events in this case and also accepted that the court might consider that nine months might be rather longer than was strictly appropriate in these circumstances, but nonetheless submitted that what this court should not do is in effect accede to Miss O'Rourke's submission to refuse an extension or allow only a very limited extension, in effect to force the GMC's hand. He also submitted that what this court should be doing is focusing on the requirements of section 41A of the Medical Act 1983 pursuant to which this application is made, and on the factors which are relevant to the court's determination, in particular those factors which were identified in the judgment of Arden LJ in the case of GMC v Hiew [2007] EWCA Civ 369, which are of course well-known and well-established.
15. In that regard it is right to say that Miss O'Rourke accepted, again in my judgment realistically and properly, that this is not a case where the doctor is seeking to suggest that there should be no extension either because the GMC has been guilty of serious delay in pursuing these proceedings or that there is no substance behind the allegation which he faces. As I have already indicated she accepts, as she must, that indeed the medical evidence which he has produced indicates that his health is such that he is currently impaired from practising medicine in any event.
16. Both parties are obviously right to say that it is not for me to anticipate whatever decision the Administrative Court may make if the dispute proceeds to judicial review. I have read with some care the decision of the Fitness to Practise Panel refusing the applications for voluntary erasure and a stay, and it would be quite wrong for me, in my judgment, to express any opinion one way or the other in relation to the correctness of those decisions. That, as I say, must be the subject of further challenge if the GMC decide not to accede to the pre-action protocol request.
17. It seems to me therefore that I should proceed on the basis that the statutory requirements are made out for a further interim order of suspension, subject only to considerations of proportionality in terms of the requisite period that order should continue, having regard to the developments in this case. I take the view that at the very least there should be a sufficient period of time to enable judicial review proceedings to be brought and, hopefully, concluded with expedition; I express the provisional view that this is a case where a rolled-up hearing would appear to be appropriate. It seems to me that an appropriate period of time, assuming that these proceedings are brought in this court and a rolled-up hearing is ordered, would be four months from 22 August 2012, when this order would otherwise expire. That would, in my judgment, hold the balance fairly between the interests of the public and the interests of the doctor. Furthermore, as was indicated during argument, if the GMC in the meantime accedes to the doctor's request for erasure, then suspension would fall away anyway as and when voluntary erasure occurs, so there is no prejudice to the doctor in making a four month order in that case.
18. In all the circumstances I accede to the application and extend the period by four months, which will expire therefore on 22 December 2012.

Mr Morgan: My Lord, I am grateful. May I address you on the question of costs?

Judge Davies: Yes.

Mr Morgan: My Lord, I seek the costs of the application, and in doing so I base my application on two limbs. The first is that it was and could only ever have been the case that, whatever the claimant seeks by way of the duration of an order, it is not determinative of either the justification of bringing the application or for that matter a measure of success or otherwise when one comes to the outcome. The duration of the order is and remains a matter for the discretion of the court and, entirely appropriately, my Lord has continued the order in the terms which you have already set out. The second aspect is perhaps more unusual. It stems from this that the platform for the making of an order has in large part been conceded in the material deployed on behalf of the doctor and made before the court. This was not one of those circumstances where the justification for an order was realistically in dispute, or for that matter a case in which the statutory points of reference which might have otherwise justified the making of an order were said to not apply to this case. What my learned friend is perfectly entitled to do is to seek to persuade this court to utilise this hearing as a platform for focusing the mind of the decision makers within the General Medical Council relative to the decisions that were being made in response to the applications made by the doctor. That was a choice the doctor was entitled to make in consultation with his legal team, and he has made that choice. But the GMC has succeeded in this application. Whether or not the doctor succeeds in his judicial review proceedings, should there be any, is a matter that will be addressed in due course. In those circumstances, whilst one always says tentatively the costs should follow the event in the CPR regime, I do ask you to exercise your discretion on the question of costs, and perhaps I can invite you to make a determination on the matter in principle first, and then deal with the question of quantum.

Judge Davies: Yes, Miss O'Rourke?

Miss O'Rourke: My Lord, my primary submission is that there should be no order for costs. The GMC was going to have to make an application to the court in any event, bearing in mind the legislation. One might say, well they only had to do so because the hearing did not conclude in June and that was not their fault because Dr Ingram was unwell. The reason they were going to have to make an application is because there was delay along the way, and hence we are at this situation where we are three years after the first interim order. So therefore, when they were going to have to, in any event, make an application to come before the court to fill in the forms and to send the relevant material, it would seem wrong that they should recover the costs from the defendant. They wrote to us inviting us to consent, your Lordship will see that in their bundle was a consent order, and they indicated that if we had consented there would not be any costs sought, and indeed the draft consent order says no order as to costs. We did not consent, but we say we would have been wrong to consent in any event because they were seeking nine months, and it was appropriate to say they should have a lesser period. We say it was appropriate to come along in any event to lay matters before your Lordship, because nothing was put in Miss Farrell's affidavit about indications of judicial review or material of that sort, although I accept that her letter seems to have been sent at a time when they had not yet received the pre-action protocol letter, but they received immediate indications after the hearing that that would be our intention. So my Lord, my primary application is no order as to costs. My second would be that you award them part of the costs only, because they were going to have to prepare the documentation in any event. They had already prepared Joanna Farrell's affidavit and witness statement and draft order, and various other matters, at the time at which they said to us, "If you say yes, then there will not be any order for costs". So my Lord, my submission would be that what they should receive is probably only counsel's brief fee because that is probably all that has come on top, because all the other work done by those involved has already been done at a prior stage, attendance and some others et cetera. So I think there is actually, if I note it correctly, an attendance at hearing for a solicitor for one hour, and otherwise it is counsel's brief fee, but I say it should be no more than that.

Judge Davies: Thank you.

Mr Morgan: My Lord, I understand why my learned friend makes the submissions that she does. However, during the course of the substantive hearing she conceded there had been no material delay on the part of the GMC on the prosecution of the substantive issues. There is, I concede, some merit in the fact that it does not lie within the gift of either party to secure the extension. However, there is a different element of inputting costs in terms of a consent order and a Part 8 claim which is then going to be defended and documents drafted, and so on. There is a slight artificiality in seeking to say, "Well actually, if we had consented earlier, the need for the hearing would have been spared and that is all". There are other matters, for instance the filing of the witness statement. If the matter had been going by consent, the Part 8 claim could have been filed and a consent order lodged signed by both parties with perhaps a shorter statement or in fact no statement at all, given that the matter could have gone by consent. But I leave it entirely in the court's discretion as to how to engage with the issue of principle.

His Honour Judge Davies: Thank you. So far as the costs of this case are concerned, the claimant invites me to make an order that the defendant should pay the costs of the case in any event. The defendant's position is that there should be no order as to costs because this was an application which the claimant always had to make, in circumstances where the case overall has been the subject of significant delays, and that it was reasonable for the defendant not to consent to the application, not least because what was being sought was an extension of nine months whereas in fact, as I have ruled, an extension of only four months is appropriate, and that it was also appropriate for the defendant's counsel to come along to court to deal with the question of the judicial review issue and to make submissions on that. The fallback position of the defendant is that, even if I do not accede to the primary submission, I should limit costs effectively to the costs of the hearing itself. It seems to me that the starting point is that of course the claimant would have had to incur some costs anyway, particularly in a case where there had already been two, I think, previous orders extending time from the court and the delay was of some significance albeit, as Mr Morgan says, not necessarily the fault of the claimant. Therefore it does not seem to me to be right that the claimant should have all of its costs. But equally, it seems to me that the defendant, acting reasonably, ought to have appreciated that it was sensible to agree some extension albeit that the precise duration would have been the subject perhaps of discussion and, if necessary, representation, and that the way in which the case has been defended is one on which the court has found against the defendant ultimately, and it seems to me therefore that the right order is that the defendant should pay the claimant's costs of and associated with the hearing today in any event. The costs are limited to those costs.

Mr Morgan: My Lord, might I hand up the schedule of costs in that case. A copy has been served upon my learned friend, but if I --

Judge Davies: Is that the one which is a total of £1,727.40?

Mr Morgan: It is, my Lord.

Miss O'Rourke: Yes. My Lord, in those circumstances I would say what is appropriate is the brief fee for counsel and I will not embarrass him by reading it out in court. Your Lordship can see it on the final page, and then attendance at the hearing for, I think it must be Miss Dance and that is on the second page.

Mr Morgan: Yes.

Judge Davies: Yes, I will make an order then that the costs be summarily assessed in the sum of £918 together with VAT thereon, I think.

Mr Morgan: Yes. My Lord, I have a minute of order here, which follows the draft order which I have annotated in my own illegible hand. Might I hand that up, and see if it finds favour with the court?

Judge Davies: Do you want to show it to Miss O'Rourke first?

Miss O'Rourke: I have seen the draft order. That looks fine to me.

Judge Davies: Thank you very much.

Mr Morgan: My Lord, I can confirm that I will file a fair copy of that electronically this afternoon.

Judge Davies: Thank you very much. I think that concludes everything, does it not?

Mr Morgan: Yes, my Lord.

Judge Davies: Thank you both very much for your concise and focussed submissions.