England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2012

Mr Justice Eady :

The nature of the application

1. The Applicant is a 73 year old general practitioner who was referred to the General Medical Council ("GMC") by the Metropolitan Police on 7 April 2011. He had been arrested in connection with the discharge of his duties as a governor of a school and the authorisation of substantial payments to members of staff to which they were allegedly not entitled. Over a year later, on 7 June 2012, he was charged with conspiracy to defraud and with committing fraud by abuse of position. It is said that the unauthorised payments totalled approximately £1.8m and that the wrongdoing extended over the period 2003-2009.
2. On 4 July 2012, an Interim Orders Panel ("the Panel") made an order of suspension for a period of 18 months in accordance with s.41A of the Medical Act 1983. An application is now made to the court to exercise its power under s.41A(10) to terminate the interim order. Essentially the ground relied upon is that the Applicant is a person of exemplary and unblemished character and that the interim order was neither necessary nor proportionate. Specifically, it is said that the public interest did not require interim suspension given that the allegations did not have any bearing upon clinical matters.
3. The Applicant was a member of the Board of Governors at Copland School in Brent and Chairman of the Finance Committee. During the initial telephone call on 7 April 2011 DC Wilkinson of the Fraud Squad informed the GMC of the intention to arrest him for fraud and/or conspiracy to defraud. Further detail was provided in an email dated 15 April 2011. Ultimately, as I have noted, he was charged with two offences on 7 June 2012; namely, conspiracy to defraud and fraud by abuse of position. The GMC was informed of this in an email from DC Hill dated 12 June 2012. The Applicant was notified, accordingly, by letter dated 19 June 2012 that his case was to be referred to the Panel for a hearing on 3 July. (The current position is that he faces only one count of conspiracy. There are four co-defendants, alleged not only to have conspired with the Applicant but also to have gained personally. The trial is due to take place in September 2013.)
4. It appears, from a letter dated 24 September 2012 and copied to the GMC (albeit not received until 11 October), that the North West London Primary Care Trust had not been informed by the Applicant either of the Panel's decision to suspend him or of the earlier arrest and charge. It is said that this constitutes a breach of Regulation 9 of the NHS (Performers Lists) Regulations 2004, which is in the following terms:

"(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

5. The jurisdiction which the court is now asked to exercise is not by way of judicial review: it is an original jurisdiction arising from statute. Section 41A(10) provides as follows:

"(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) … "

6. It is well established that a court, in exercising such a jurisdiction in relation to a disciplinary tribunal, will pay due respect to its decisions because of its expertise and its familiarity with the requirements to uphold professional standards and public confidence in relation to the relevant profession: see e.g. Bolton v Law Society [1994] 1 WLR 512, 517-519; Gupta v GMC [2002] 1 WLR 1691; R (Shiekh) v General Dental Council [2007] EWHC 2972 (Admin); and Sandler v GMC [2010] EWHC 1029 (Admin) at [12]-[14].
7. It is necessary, before turning to the decision in this particular case, to consider a little further the role of the Panel itself, in the light of the 1983 Act. It is provided in s.41A(1) that:

"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

8. It seems from the Panel's determination in the present case that the suspension was imposed simply as being "otherwise in the public interest": it is not suggested that the suspension was necessary "for the protection of members of the public". There is no reason to suppose, even if the charges brought against the Applicant are ultimately made out, that such conduct would reflect on his clinical competence or in any way have endangered the health of patients. The Panel did not see fit to impose any conditions when it made its order because it was unable to think of any which would serve the purpose of protecting "the interests of the public" during the relevant period.
9. I must bear in mind the important passage in the judgment of Sir Thomas Bingham MR (as he then was) in Bolton v Law Society, cited above, where he pointed out that a professional body (such as the Panel) is not primarily concerned with matters of punishment and that considerations which would normally be taken into account in mitigation will have correspondingly less effect on the exercise of this kind of jurisdiction. It can never be an objection to an order for suspension, for example, that a practitioner may be unable to re-establish his practice once the period has passed. This would not make an order for suspension wrong if it would otherwise be right. He concluded with these well known words at p.519:

"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 [21] per Lord Rodger and Raschid v GMC [2007] 1 WLR 1460, at [17], per Laws LJ.)

10. Nevertheless, in this case, the Panel took into account a number of "mitigation" points, including a letter of 2 June 2012 addressed to the GMC from the Practitioner Performance Manager, at NHS North West London, which stated that the Primary Care Trust was not aware of any concerns about the Applicant's fitness to practise and that no concerns had been raised in the past. It was also noted by the Panel that it was not being alleged that the Applicant had derived any personal financial benefit from the alleged wrongdoing; that his role as a governor was a voluntary one which did not involve any remuneration or other financial benefits; and that his involvement in charitable work had extended over a long period. Six character references were also read.
11. The determination contained the following important conclusions:

"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

12. Against that background, Mr Trevor Burke QC made a number of submissions on the Applicant's behalf which can, I hope, be fairly summarised as follows:

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 [2012] EWHC 330 (Admin), at [7]; Sandler, cited above, at [12]; GMC v Hiew [2007] 1 WLR 369 at [24] and [27]; and Perry v Nursing and Midwifery Council [2012] EWHC 2275 (Admin) at [6].

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 [24].

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 [32]:

" … 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 [16] and Sosanya v GMC [2009] EWHC 2814 (Admin) at [29]-[30]. 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 [29]-[30], and Althaf, cited above, at [24].

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 [16], 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 [2001] 2 AC 532, at [26]-[27], 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 [2004] 2 AC 368 at [20].) 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 [2010] EWHC 1296 (Admin) at [25]. (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 [1982] QB 1053.

xv) Emphasis was again placed on the Applicant's "unimpeachable" character and long professional life.

13. My attention was drawn in this context to the very recent decision of King J in Houshian v GMC [2012] EWHC 3458 (QB), handed down on 6 December of this year. That provides an example where the court terminated a suspension, in a case of alleged dishonesty, on the basis that there was no need to protect members of the public and that it was unnecessary and disproportionate, in the circumstances, for that practitioner to be suspended on public interest grounds. I found the judgment illuminating, and both counsel made submissions about it, but it is always necessary to remember that a judge hearing a termination application must focus primarily upon the general principles and their application to the particular facts before him. Accordingly, I should be wary of being distracted by earlier judicial decisions if they turn upon significantly different facts.
14. Mr Burke developed another point in his oral submissions, to the effect that the Applicant's criminal trial is likely to be prejudiced if the jury are told, or find out, that he has been suspended by his own professional body. I was not very impressed by this argument since they would be clearly told to ignore it and/or that the view of the Panel has no bearing on the issues they will have to consider. If it is otherwise the case that the public interest requires suspension, I apprehend that this argument could hardly ever justify termination.

Submissions made on behalf of the GMC

15. Mr Hare, on behalf of the GMC, sought to address all these points in his carefully developed submissions. It is accepted that the Panel was required to act proportionately and to balance the public interest against that of the Applicant. Nevertheless, in the context of Article 8 jurisprudence, reference was made to R (Wright) v Secretary of State for Health [2009] 1 AC 739 at [33]-[36], per Baroness Hale. It is important, he submits, not to overstate the reach of Article 8 in the context of professional activity and membership of a profession. "There will be some people for whom the impact upon personal relationships is so great as to constitute an interference with the right to respect for private life and others for whom it may not": ibid at [36]. In my view, the need to protect the Applicant's rights under Article 8 does not loom large in the present case. This is so whether one is concerned with personal relationships or the protection of reputation. If it is genuinely the case that the public interest requires to be protected, or public confidence in the profession, then it seems likely that the individual's reputation will have to yield. In the words of Sir Thomas Bingham, "the reputation of the profession is more important".
16. Mr Hare points out that in Hiew, cited above, the extension of an 18 month suspension was affirmed in the context of allegations of conspiracy to defraud and false accounting.
17. It was submitted that the court should not be distracted from applying the words used by Parliament in the provisions of s.41A of the 1983 Act: see e.g. the observations of Nicol J in Sandler, cited above, at [14]. Mr Hare points to the wording of sub-section (1) and to the contrast, in particular, between "… satisfied that it is necessary for the protection of members of the public" and, on the other hand, " … are satisfied that it is … otherwise in the public interest, or is in the interests of a fully registered person … ". In other words, Mr Hare suggests that the word "necessary" was expressly confined by the legislature to suspension for the protection of members of the public. He does not, however, seek to persuade me that Davis J was wrong to conclude in Sheikh, quoted above, that " … necessity is an appropriate yardstick". Indeed, that was a passage with which King J expressed his agreement in Houshian, at [12].
18. In the context of the GMC Guidance, and the offences listed in Annex A, he points out that it is expressly provided that police investigations into "other matters" may also suggest that referral to a panel is appropriate. Thus the list of particular offences in Annex A should not be regarded as exclusive. That is clearly right, as serious charges of dishonesty have undoubtedly been held to justify suspension on some occasions.
19. Reference was made also to Judge Kaye's reasoning in Bradshaw. As I noted above, the misconduct alleged involved the alteration of documents and ultimately the misleading of CAA investigators. Dr Bradshaw had been employed for just over a year as a medical officer by the CAA when he was suspended while an investigation took place into allegations of misconduct against him. The facts were somewhat unusual. Indeed, the Panel in question had concluded that "this is a case which involves allegations that you made false allegations against a colleague, lied to an investigation and fabricated evidence. [It] is one of the relatively rare cases in which an order of interim suspension is necessary". In the end, I could derive little assistance from that case, since the facts were so very different from those now under consideration.
20. As I have already acknowledged, the court should always be ready to accord weight to the judgment of the Panel in such circumstances. This was the approach adopted by both Nicol J in Sandler, at [12]-[13], and by Davis J in Sheikh at [10], and Mr Hare has properly reminded me of it. Obviously, this cannot be a determinative factor – otherwise no suspension would ever be terminated. The court must come to its own conclusion, of course, but the approach of the Panel should always be carefully considered in view of its expertise and familiarity with the requirements of the medical profession.
21. In coming to my own independent conclusion, Mr Hare submits that I should be ready to take into account fresh evidence which has emerged since the Panel hearing, such as the failure to report its outcome to the Primary Care Trust in possible breach of Regulation 9, to which I have already referred. I accept that a court exercising the s.41A(10) jurisdiction does have the power to consider such developments, occurring after the relevant Panel decision: see e.g. Sandler at [12], per Nicol J.
22. It is not, however, appropriate to come to a final conclusion, on whether there was a breach or not, given the limited information at present available. I was shown a letter of explanation from the Applicant's solicitors, placing considerable reliance upon health problems from which he has been suffering. These involved treatment in hospital and presented something of a distraction at the material time. In any event, he has had a meeting with the Trust at which his position was fully explained. According to him, through Mr Burke, the Trust then expressed its satisfaction. Whatever may be the final outcome of this point, I am satisfied that it would not be of sufficient significance, in itself, to justify my refusing to terminate the suspension if it would otherwise be right to do so.
23. Mr Hare made the more general point that in recent years, since the jurisdiction was transferred (on 1 April 2003) from the Privy Council to the Administrative Court, a corpus of first instance case law has gradually developed which appears to pay insufficient regard to earlier principles established by higher courts in cases such as Gupta and Raschid, both cited above. There was thus a risk that the hearing might have become diverted into a close investigation of these High Court decisions turning largely on their own facts. We looked briefly at some of them, quite properly, but this was a corpus that was in the end disposed of with all the efficiency one would expect from Messrs Burke and Hare.
24. Specifically, Mr Hare referred to the observations of Laws LJ in Raschid, at [20]-[21], to the effect that the role of the High Court on a s.40 appeal was to correct errors of fact and law and to " … exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case" (Mr Hare's emphasis). It is important, nonetheless, always to have in mind that s.40A(10) bestows an original jurisdiction.
25. It is true that in Raschid, at [26], Laws LJ referred to the need "to give special place to the judgment of the specialist tribunal", but this was in the different context of appeals in respect of sanctions set by the Fitness to Practise Panel. On such an application as this, the court is required to give the Panel's decision "such weight as in the circumstances of the case it thinks fit" – no more and no less: see the decision of the Court of Appeal in Hiew, cited above, at [32].
26. I cannot accept that in taking this approach Administrative Court judges have been ignoring appellate authority or, in any sense, going off on a frolic of their own. It is entirely appropriate, where a Panel has decided to suspend a doctor from practising for up to 18 months, to examine the reasons with some rigour.

Discussion and conclusions

27. I have in mind, of course, that the total sum said to be involved in the conspiracy charge is very large and that the alleged wrongdoing went on for some six years. But it seems to me that what is critical is the nature of the wrongdoing: it would not be right to suspend purely because of the sum involved if otherwise, in principle, it would not be appropriate.
28. I thought it right to apply the test indicated in paragraph 33 of the Guidance. I have to ask what a reasonable onlooker would think, in the event of this Applicant ultimately being convicted of the conspiracy charge, about his being allowed to go on practising in the meantime. Would confidence in the profession be undermined? I would add that such a reasonable onlooker needs to have attributed to him knowledge of the relevant facts. Otherwise, the danger is of proceeding on a superficial analysis or even mere prejudice.
29. Here, the relevant knowledge would embrace the following facts:

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.

30. In all the circumstances, it is my judgment that no reasonable and properly informed member of the public, in Brent or elsewhere, would be offended or surprised to learn, even following a hypothetical conviction at some point next year, that the Applicant has been permitted to go on serving his patients in the interim. There is no evidence of any threat at all to their welfare. I do not believe that such a decision would undermine confidence in the medical profession. I consider that most citizens well understand the notion that a person is to be treated as innocent until proved guilty – and its practical implications. Nor can it be said, for any other reason, that the public interest requires his registration to be suspended. In my opinion, the balancing exercise comes down clearly against that. That is why I informed the parties at the conclusion of their submissions that I would terminate the suspension. My reasons are now contained in this judgment.