QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DR INDRAVADAN PATEL
|- and -
|GENERAL MEDICAL COUNCIL
Ivan Hare (instructed by GMC Legal) for the Defendant
Hearing date: 11 December 2012
Crown Copyright ©
Mr Justice Eady :
The nature of the application
"(1) A performer, who is included in a performers list of a Primary Care Trust, shall make a declaration to that Trust in writing within 7 days of its occurrence, if he –
(i) becomes the subject of any investigation into his professional conduct by the licensing, regulatory or other body;
(j) becomes subject to an investigation into his professional conduct in respect of any current or previous employment, or is informed of the outcome of such investigation, where it is adverse."
The legal framework
"(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) … "
"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 18 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 18 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')."
The conclusions of the Panel
"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."
(See also Gupta v GMC, cited above, at  per Lord Rodger and Raschid v GMC  1 WLR 1460, at , per Laws LJ.)
"The Panel is satisfied that there may be impairment of your fitness to practise which may adversely affect the public interest. In this case the public interest includes the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.
After balancing your interest with the public interest the Panel determined that an interim order is desirable in order to maintain public confidence in the profession.
The Panel then considered whether conditions would be sufficient to protect the public interest but determined that there are no conditions that would satisfactorily address the particular circumstances of this case and protect the interests of the public. The Panel therefore determined that the imposition of conditions would not be appropriate.
The Panel has taken account of the principle of proportionality and has balanced the need to protect the public interest against the consequences for you of the suspension of your registration. The Panel has deliberated the issue of necessity and the desirability of an interim order. Additionally, it has considered the harm to you and your patients if an order were made against the damage to the public interest, in all its meanings, if you were to remain in unrestricted practice at present. The Panel acknowledges that there is no direct link between the charges made against you and your medical practice, and that you have apparently made no financial gain from the alleged transactions. The Panel also acknowledges that the PCT has not received any complaints against you and that you have a long standing and wide ranging involvement in charitable activities.
However, the Panel notes that the charges concern the alleged misuse of significant sums of public money, over the period 2003 to 2009, in a school in which you were Chairman of the Board of Governors and Chairman of the Finance Committee.
Good Medical Practice (November 2006) states that 'Probity means being honest and trustworthy, and acting with integrity; this is at the heart of medical professionalism'.
In balancing the issues and acting proportionately, the Panel has decided that suspension is appropriate. Whilst it notes that suspension removes your ability to practise medicine, it considers that, in view of the fraud charges and serious probity concerns, there are no conditions which would adequately protect the public interest while these matters are resolved.
In deciding on the period of 18 months, the Panel has taken into account the uncertainty of the time needed to resolve all the issues in this case."
Submissions made on behalf of the Applicant
i) The court is not confined to exercising a reviewing jurisdiction: it is thus not necessary to demonstrate an error of law, irrationality or procedural unfairness: see GMC v Althaf  EWHC 330 (Admin), at ; Sandler, cited above, at ; GMC v Hiew  1 WLR 369 at  and ; and Perry v Nursing and Midwifery Council  EWHC 2275 (Admin) at .
ii) The court is required to exercise its own mind and determine what, if any, order is appropriate: see e.g. Shiekh v General Dental Council, cited above, at .
iii) While respect is often accorded to the decisions of a disciplinary tribunal, such as the Panel, it is necessary to pay proper regard to the content of its determination. Respect should not be accorded automatically; nor should undue weight be accorded to the Panel's exercise of discretion. As was observed in Hiew, cited above, at :" … It is for the court to decide what weight to give to that opinion. It is certainly not bound to follow that opinion. Nor should it defer to that opinion. All that is required is that the court should give that opinion such weight as in the circumstances of the case it thinks fit. Weighing up the opinion of a body that has special statutory responsibilities and relevant experience and expertise is again part of the ordinary task of judicial decision-making."
iv) A suspension order inevitably involves a serious interference with a doctor's rights. A compelling justification is therefore required by the relevant Panel and any such order will merit anxious scrutiny by the court – and specifically of the question whether or not public confidence is likely to be damaged seriously: see Shiekh, cited above, at  and Sosanya v GMC  EWHC 2814 (Admin) at -. Where suspension is based on a supposed risk, it is necessary to identify and evaluate that risk.
v) In this case, the decision to suspend amounted to an interference with the Applicant's right to respect for his private life, as recognised by Article 8 of the European Convention on Human Rights and Fundamental Freedoms, since in certain respects professional life can be engaged. Reliance was placed on Niemietz v Germany (1993) 16 EHRR 97, at -, and Althaf, cited above, at .
vi) The effects of suspension are severe, since it impacts upon the practitioner's right to make a living, the welfare of his/her patients and the individual's reputation (the protection of which has in recent years been embraced within the scope of Article 8: see e.g. Lindon v France (2008) 46 EHRR 35).
vii) When determining whether or not to impose a suspension, including solely on the "public interest" ground, the court should apply the test of necessity as being the "appropriate yardstick". In Shiekh, cited above, at , Davis J (as he then was) made the following pertinent comments on the court's approach:"At all events, in the context of imposing an interim suspension order, on this particular basis, it does seem to me, adopting the words of Mr Winter, that the bar is set high; and I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality. It is a very serious thing indeed for a dentist or a doctor to be suspended. It is serious in many cases just because of the impact on that person's right to earn a living. It is serious in all cases because of the detriment to him in reputational terms. Accordingly, it is, in my view, likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest. I do not use the words 'an exceptional case' because such language is easily capable of being twisted and exploited in subsequent cases; but I do think, as I say, it is likely to be a relatively rare case. Ultimately, of course, all these things have to be decided on the facts of each particular case."
viii) In the context of proportionality, I was also referred to R (Daly) v Secretary of State for the Home Department  2 AC 532, at -, per Lord Steyn.
ix) The court must always strike a fair balance between the rights of the individual and the interests of the community: the severity and consequences of any interference will call for careful assessment. (See R (Razgar) v Secretary of State for the Home Department  2 AC 368 at .) It cannot be said that it was necessary or proportionate to suspend this Applicant, having regard to his age and exemplary character and to the fact that he is entitled to be presumed innocent until found guilty.
x) On any reasonable view, public confidence would not be damaged if it were subsequently learned by a member of the public that the Applicant had remained in practice, and treating patients, while the matter was being investigated, even if he were ultimately to be convicted. It is necessary to have in mind paragraph 33 of the clear and helpful Guidance for Interim Orders Panels, dated 14 February 2012:"The public has a right to know about a doctor's fitness to practise history to enable them to make an informed choice about where to seek treatment. To balance this with fairness to the doctor, allegations leading to the imposition of interim conditions are not published or disclosed to general enquirers. It is therefore the responsibility of the IOP to consider whether, if allegations are later proved, it will damage public confidence to learn the doctor continued working with patients while the matter was investigated."The Guidance does not have statutory force, but it is founded upon years of experience and also common sense. This test is especially helpful in the present case.
xi) It is important to focus on the nature of the charges faced by the Applicant in applying the tests of necessity and proportionality. In order to justify suspension in the "public interest", when there are no clinical concerns directly engaged by the alleged wrongdoing, "one would ordinarily expect something that might well impinge more directly on members of the public such as murder, rape or abuse of children": Bradshaw v GMC  EWHC 1296 (Admin) at . (This quotation comes from the argument advanced on behalf of the practitioner, rather than from the decision itself. In that case, His Honour Judge Kaye QC actually upheld a suspension concerned with allegations that documents had been altered and Civil Aviation Authority ("CAA") investigators misled.) Other cases relied upon by Mr Burke in this context were Sosanya, cited above, where it was thought that an allegation of money laundering was not sufficient to justify suspension, and Shiekh, cited above, where the conclusion was reached that an allegation of conspiracy to defraud, even resulting in a conviction and suspended sentence of imprisonment, had not been sufficient to justify suspension.
xii) Close attention should be paid to Annex A to the Guidance for IOPs and the detailed list of criminal offences. They include:" … murder, attempted murder, human trafficking, blackmail, manslaughter, rape, attempted rape, sexual assault and sexual abuse of children … abuse of children through grooming, prostitution or pornography and any offence by an adult relating to a child under 13 or person with a mental disorder impeding choice under the Sexual Offences Act 2003."It is to be noted that each of those offences "impinges" directly or indirectly upon the person (rather than being property offences or other forms of dishonesty).
xiii) It was stressed that the offences alleged here would not relate in any way to the Applicant's professional or clinical activities and the Panel did not express any concerns about patient safety.
xiv) The court should address the likelihood, or otherwise, of the conduct which forms the subject-matter of the criminal proceedings having been dishonest, in the sense not only that reasonable and honest people would regard it as dishonest but also that the Applicant must himself have realised that what he was doing was dishonest. Reference was made to the test in Ghosh  QB 1053.
xv) Emphasis was again placed on the Applicant's "unimpeachable" character and long professional life.
Submissions made on behalf of the GMC
Discussion and conclusions
i) In 40 years of general practice no complaint had hitherto been made of the Applicant's clinical competence or of his honesty.
ii) In relation to the conspiracy charge, since he denies it, he will remain innocent until proved guilty.
iii) It is no part of the prosecution case that he made any personal gain at all.
iv) The charges arose in administering a scheme, begun in 1995, whereby teachers were eligible in certain circumstances for incentive payments or bonuses.
v) Whenever it was decided to make such a payment or payments, they would need to be authorised by the Applicant in his capacity as Chairman of the Finance Committee. They would then be communicated to the London Borough of Brent quite openly.
vi) It seems that the authorised scheme for incentive payments will have to be examined, and its legal framework properly analysed, as part of the inquiry as to whether the Applicant's authorisation of any of those payments was indeed to be characterised as dishonest.