MANCHESTER CIVIL JUSTICE CENTRE
1 Bridge Street West
B e f o r e :
| General Medical Council
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Mr Hare appeared on behalf of the Defendant.
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Mr Justice Supperstone:
"1(1A) The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.
41A(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. (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. (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').
(10) Where an order has effect under any provision of this section, the relevant court may -
a. (a) in the case of an interim suspension order, terminate the suspension
b. (b) in the case of an order for interim conditional registration, revoke or vary any condition imposed by the order;
c. (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),"
"12. Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr Sandler's suspension (or to substitute a different period) is not dependent on showing some error of law on the part of the IOP. [ ] My consideration of the application must surely start from the position that the IOP has thought that interim suspension is the right course.
13. both parties acknowledged that the opinion of the Panel was entitled to respect. As Davis J said in the Shiekh case [R (Shiek) v General Dental Council  EWHC 2972 (Admin) at ]: 'in the ordinary way the court will show respect for the decision of a Panel in this context, given that the Panel is an expert body which is well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and public confidence'."
The court does not have original jurisdiction; it is not an appeal before this court; but the role of the court is not confined to exercising a judicial review type jurisdiction.
"The conclusion of the investigation was that it was clear that those patients should not have been discharged home at the time they were. They should have been admitted to the ward for further observation or further treatment. It was also identified that Dr Althaf did not follow the pathways for those patients who presented complaining of abdominal pain, or croup, or on those patients who are insulin-dependent diabetics. In addition documentation and communication were poor. The investigation process also identified inconsistencies in the way patients were managed."
"The Panel is concerned that in light of your poor record keeping, poor communication and clinical management, that the index cases are potentially all serious cases which highlights the need for an interim order. The Panel has also noted that the Trust investigation also concluded that your actions strayed from its protocol. The Panel is further concerned that you have not received any formal appraisal and that there is no evidence of your continued professional development.
The Panel is satisfied that there may be an impairment of your fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest and your own interest and, after balancing your interests and the interests of the public, an interim order is necessary to guard against such a risk.
The Panel has taken account of the principle of proportionality and has balanced the need to protect members of the public, the public interest and your own interests against the consequences for you of the imposition of conditions on your registration. Whilst it notes that the above conditions restrict your ability to practise medicine, the Panel considers that the conditions are necessary to protect members of the public and the public interest whilst these matters are resolved. It is therefore satisfied that the imposition of the above conditions on your registration is a proportionate response to the risks posed by your remaining in unrestricted practice."
"Patient WR, a 95-year-old lady, with an existing chest injury, who complained of chest tenderness and a swollen knee following a second fall yet was discharged at 01.17hrs. Patient AR, an insulin-dependent diabetic who self-referred to Accident & Emergency because of diarrhoea and vomiting was discharged at 22.26 with advice to take fluids and omit insulin with no reference to potential ketoacidosis. Patient PR, with abdominal pain and vomiting, was given morphine which alleviated his symptoms. He was discharged despite a persistent tachycardia without a diagnosis. Patient KF was correctly treated with dexamethasone for croup but then discharged, his parents having been given unlabelled medication with no instructions."
Dr Althaf has made clear that there are matters in relation to each case that he would wish to challenge at a Fitness to Practise hearing when the merits of the allegations are fully considered, if there is indeed a Fitness to Practise hearing. However, I can discern no material error of fact made by the Panel in relation to these cases.
"There is no authority for the proposition that the Panel or a body performing similar functions has to draw to the parties' attention the fact that it is minded to impose any particular form of sanction."
MR HARE: My Lord, I am obliged. There are just two matters arising from the judgment, if I may?
MR JUSTICE SUPPERSTONE: Yes of course.
MR HARE: the first is
MR JUSTICE SUPPERSTONE: Do take a seat Dr Althaf, I will hear from you in a moment.
MR HARE: The first is just a slip of the tongue, but your Lordship referred in his description of the hearing to the hearing on 12 October 2001, I thought it was 2011.
MR JUSTICE SUPPERSTONE: Thank you very much, please correct that.
MR HARE: Yes. I also wondered if in the very final line "appeal dismissed" that it would be more appropriate to say the "application is dismissed".
MR JUSTICE SUPPERSTONE: I think that is absolutely right because I am treating it as an application.
MR HARE: Yes.
MR JUSTICE SUPPERSTONE: Thank you very much, so the application is
MR HARE: There are the only two points on that.
MR JUSTICE SUPPERSTONE: dismissed.
MR HARE: Yes. My Lord, I do make application on behalf of the General Medical Council for its costs.
MR JUSTICE SUPPERSTONE: Yes.
MR HARE: of defending the application. Copies of our statements of costs were sent to the doctor and the court but may not be before your Lordship. I have spare copies
MR JUSTICE SUPPERSTONE: I have seen it I appreciate your making this application on instructions and in the financial circumstances of Dr Althaf we have heard about; he has been out of work for some time and we have heard about his personal circumstances, but this is an application that you are instructed to make.
MR HARE: It is, and we would say that matters to do with his means are questions of enforcement rather than the principle of whether or not the General Medical Council is entitled to its costs.
MR JUSTICE SUPPERSTONE: Yes.
MR HARE: The hearing stated today that presumption is, of course, we have succeeded on all the points therefore costs ordinarily would follow, and we would say because it has only taken a day they ought to be summarily assessed. My Lord, I won't take long on it, but I regret to say there are actually two statements of costs because there is a supplementary statement
MR JUSTICE SUPPERSTONE: Ah I don't yes, I have seen one headed "supplementary", I am not sure I have seen the original one.
MR HARE: the first one I can hand to your Lord.
MR JUSTICE SUPPERSTONE: Do you have these documents, Dr Althaf?
DR ALTHAF: I have them.
MR JUSTICE SUPPERSTONE: Thank you very much.
MR HARE: Could I take the first one, not the supplementary one first?
MR JUSTICE SUPPERSTONE: Yes.
MR HARE: I of course you will hear from Dr Althaf if you are minded to award anything at all. I just wanted to make a couple of points about the sums involved. The first is, in relation to work on documents, the GMC, although the respondent to the application, has produced most of the documents as your Lordship has seen in the authorities bundle and the bundle that was below and in relation to attendance at the hearing, it was a paralegal who attended me today and the claim has only been put in there for one hour of attendance. I don't know of any extra claim, I am just saying that if anything this is under
MR JUSTICE SUPPERSTONE: Yes
MR HARE: The supplementary statement of costs is
MR JUSTICE SUPPERSTONE: So that is in the sum of £588 752.
MR HARE: Yes that is correct, my Lord, with VAT only on my fees. There is then a supplementary statement which your Lordship indicated he had seen; that was caused by the arrival two days ago of the 108 page skeleton and several hundred pages of further documents. However, I make no further comment on that, but I just wanted to offer that explanation. I have totted up the relevant figures, if your Lordship is interested.
MR JUSTICE SUPPERSTONE: Yes, you have probably got there quicker than me
MR HARE: I did it yesterday otherwise it would have taken a lot longer but the grand
MR JUSTICE SUPPERSTONE: Yes, thank you very much. Dr Althaf, as you appreciate, the application for costs has been made on the basis that the GMC have won, you have lost on every single point; this hearing has taken a day. Can I take this in stages for you? First of all I would normally ask the question whether in principle you agree that the GMC are entitled to their costs. In principle they are, but I will hear from you on that. Let me just put you the two points. The next stage, if that is right in principle, is the amount of their costs. Now I don't know whether you have had an opportunity to go through this, I don't know whether it is meaningful to you, whether you understand how the figures have been calculated, albeit they are set out in the standard form, whether you have anything to say about the amount of costs. I well appreciate what you wish to say and that is why I put to Mr Hare the point about your financial circumstances and personal circumstances, but what Mr Hare says, rightly, is well that is a matter for enforcement as to whether the costs order if I make it is enforced against you. It doesn't go to the question of whether a costs order should be made in the first place. However you like to deal with it, you say what you would like to say.
DR ALTHAF: I would appreciate your patience for one minute. I have a question. I accept that the judgment has been made, I am not seeking to overturn. I am seeking
MR JUSTICE SUPPERSTONE: Well you are perfectly (inaudible) perfectly entitled, Dr Althaf,H when you get a copy of it because it should be transcribed, however you may have made some notes, to take legal advice on it, and if you are told that I have got it wrong then you will be advised as to what to do.
DR ALTHAF: The two questions I was going to ask were about the case that was quoted, Nicol, sorry yes Nicol where (inaudible) determined the
MR JUSTICE SUPPERSTONE: Nicol J.
DR ALTHAF: Mr Justice Nicol.
MR JUSTICE SUPPERSTONE: Case
DR ALTHAF: Case of Sandler. And the ruling on that I
MR JUSTICE SUPPERSTONE: This
DR ALTHAF: I won't go into it, your Honour.
MR JUSTICE SUPPERSTONE: No, this is not an occasion to even enter into debate on that.
DR ALTHAF: I don't intend to
MR JUSTICE SUPPERSTONE: I have made my ruling, that is my decision, I only want to hear from you on costs.
DR ALTHAF: I don't intend to. All I was going to say was that it was in my authorities and I am unsure that I got it wrong. I thought it meant other than it appears it does, and I thought I had other authorities to support my point of view.
MR JUSTICE SUPPERSTONE: Yes.
DR ALTHAF: The second is again the case of Russell that was just mentioned, and I had in my authorities highlighted that the next paragraph of the ruling quoted points out that the reasons were given, the judgment concerned the fact that the Panel did not need to advise on a specific sanction but it did invite submissions for mitigation before sanction, it did not reject that option altogether. It is in the next paragraph and I had submitted it in my authorities. I am obviously
MR JUSTICE SUPPERSTONE: Dr Althaf, this is an opportunity for you to say something about costs. Let me try and help you. Have you looked through the statements of costs, have you taken advice as to whether they look reasonable? Do you want to reserve your position?
DR ALTHAF: I cannot take advice your Honour, because obviously my financial circumstances are what they are. This was the option that was open to me for review or challenge or appeal against this determination and I appreciate that as a non-specialist I have not been able to challenge the medical aspect of it and I have obviously lost. In terms of costs I cannot make any comment beyond what I have which is that I am unable to work at this time, I do not know when I will be able to work because while the judgment suggests that the review Panel is the right place for this, it does not... what I have been given to understand elsewhere doesn't appear to support that, and I am given a date potentially of 24 March. I have not had communication of that date or indeed any notice of this further and Until I can start working again I pay people who have already lent me monies to live on. Considering that I am not in receipt of any state aid I can only submit that it is unfeasible amount of what should have been a statutory right to at least appeal or challenge a determination which to me was not well founded.
MR JUSTICE SUPPERSTONE: Yes, thank you very much. In my judgment the GMC is entitled to its costs. I have looked at the statements of costs to see whether any items appear to be unreasonable, appreciating that Dr Althaf is a litigant in person. It does not appear to me that they are unreasonable and in those circumstances I award the GMC their costs in the total sum of £7,361.92. Dr Althaf, the question of enforcement will be another matter. Can I just thank you, Dr Althaf, for putting forward your submissions very clearly, and Mr Hare for your assistance, and I do recommend Dr Althaf that if you could take some legal assistance and seek some legal assistance before you proceed further I really think that would be a benefit to you because I appreciate your financial circumstances and the position that you are in, but when you receive the transcript of this judgment, as I say, you must decide what to do, but you would be better seeking legal assistance and some legal help.
DR ALTHAF: Your Honour, a very brief question, if I may
MR JUSTICE SUPPERSTONE: Yes.
DR ALTHAF: Do I seek permission to appeal or is that something that can be considered. The main reason I seek permission is because the case that was made against me was primarily medical, was primary clinical. I have attempted to highlight the material errors that to me are material errors of fact made by the Panel. Obviously that is not something that has been found, but I I would... I am unclear as to how I can challenge any other material errors of fact and I would seek permission for advice as to .
MR JUSTICE SUPPERSTONE: Yes. Well Dr Althaf, I think it may assist you procedurally if I deal with your application now and I reject the application in my judgment. No grounds for appeal have been put forward that are arguable or raise any prospect of success and having made that decision you then have a period of time in which to consider whether to appeal my decision, including my refusal of permission to the Court of Appeal. So that concludes the matter before me, so if you wish to take this matter further you need to put in an application to the Court of Appeal.
DR ALTHAF: Thank you, your Honour.