England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M33FX
		9 February 2012

THE DEPUTY JUDGE:

1. This is an application by way of a Part 8 claim under the provisions of the Medical Act 1983 by the claimant for an extension of an interim order of conditions and restrictions placed on the defendant's practice of medicine.
2. The relevant background is as follows. It is alleged, but I accept hotly contested by the defendant, that for a number of reasons the defendant may not be fit to practice medicine, and I emphasise the word "may" in the sense that no findings have ever been made against him by any relevant authority or panel. But it is right, as is set out in the detailed and fully particularised witness statement of Joanna Catherine Farrell, filed on behalf of the claimant and dated 13 January 2012, supported by a prodigious volume of documentation that extends to in excess of 1450 pages, that complaints have been made and either are under investigation or have been investigated about, among other things, misrepresentation of the defendant's training record, unacceptable or inappropriate manner displayed towards both colleagues and patients, working in medicine in breach of previously imposed restrictions, failure to maintain an up-to-date registered address, and failure to co-operate with ongoing investigations or to make himself available for interview under caution as regards certain matters. That is not intended to be a comprehensive and complete list of all of the matters of which complaint has been made, which are detailed in Ms Farrell's statement.
3. I accept that now is neither the time nor the place to adjudicate upon any of those matters. These matters need to be the subject of completed investigation, and then the relevant authorities that supervise the practice of medicine in this country will make decisions either in favour of or against the defendant. But that is a matter for them, and his remedies in the light of the decision that they make will be matters for them and him in the fullness of time. At this stage, however, he alleges that the allegations against him are fabricated and the way they are being investigated is, as he characterises them in submissions to me, malicious and abusive, and he submits that the investigations are being inappropriately conducted by the claimant and improperly conducted by them.
4. He prays in aid in support of that submission what he says were observations made by the interim orders panel, and in particular on 30 September 2011, but contrary to his submissions the furthest that those representations go is the rather neutral observation in the decision of the IOP that the panel is "concerned about the length of time that the GMC investigation is taking to conclude", and that is the furthest that the panel appear to have gone. I do not accept that the panel has in any way been critical of the GMC in the manner suggested by the defendant.
5. While investigations are ongoing, the claimant says they are entitled to have obtained interim orders from the Interim Orders Panel imposing conditions and restrictions on the defendant's ability to practice, and it is right that those conditions and restrictions have changed over time. The orders are dated 12 August 2010, 25 October 2010, 6 April 2011 and 30 September 2011, and this latter order expires on 11 February 2012. The last renewal stipulated in effect that any further extension should be sought at the High Court, hence these proceedings which are listed before me today.
6. The claimant's case essentially is this: its investigation is not yet complete and therefore its decision-making has not been undertaken, and a further 12 months is required. Judge Davies on 13 January 2012 permitted service by an alternative method and directed that the defendant serve an acknowledgment of service 14 days after service. By the acknowledgment of service dated 26 January 2012, the defendant complains that service is out of time and he disputes the underlying allegations and implicitly resists the claim for an extension. Indeed, he develops that in oral submissions before me today, complaining, as I have indicated, that the allegations and complaints made against him are fabricated, that the manner in which the investigation is being conducted is malicious and improper, and that he should not be subjected for any longer period to the conditions and restrictions that are currently in place. He has also filed a skeleton argument incorrectly dated 26 January 2012, which I believe to have been dated 6 February because of the references therein to events after the date purportedly given for the drafting of that skeleton argument, and he has also filed a witness statement dated 26 January 2012, the contents of which I note.
7. In the skeleton argument he makes a number of complaints which, for ease of reference, I simply identify as contained in paragraphs 7 to 20 of the skeleton argument, without reading them verbatim into the judgment that I am delivering.
8. Most of this, in my judgment, and indeed most of the oral submissions that Dr Madu makes, go to the merits of the allegations that have been made against him -- the merits of what may or may not come down to a fitness to practice hearing at some time in the future. In my judgment, all of that material is of limited relevance for the purposes of the decision that I must make today. I say "limited relevance" as opposed to "no relevance" because of the guidance that has been given in respect of my jurisdiction by the Court of Appeal in GMC v Hiew [2007] EWCA Civ 369 to which Mr Atherton, who appears on behalf of the claimant, helpfully draws my attention today, and the judgment of Arden LJ, with which Lawrence Collins LJ as he then was, and Tuckey LJ agreed. Arden LJ said this between paragraphs 28 and 29:

"28. Section 41A(7) does not set out the criteria for the exercise by the court of its power under that subsection in any given case. In my judgment, the criteria must be the same as for the original interim order under section 41A(1), namely the protection of the public, the public interest or the practitioner's own interests. This means, as Mr Englehart QC, for the GMC, submits, that the court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued."

9. Pausing there for a moment, it is those observations in that sentence that mean the matters that I have referred to are not irrelevant and therefore I do take them into account.
10. Arden LJ continues:

"The onus of satisfying the court that the criteria are met falls on the GMC as the applicant for the extension under section 41A(7). Although Mr Engelman submitted that the standard of proof was the criminal standard, I prefer Mr Englehart's submission that the relevant standard is the civil standard, namely on a balance of probabilities. Proceedings for the extension of an interim suspension order are not criminal proceedings.

29. The judge must, however, reach his decision as to whether to grant an extension on the basis of the evidence on the application. He will need to examine that evidence with care. One of the difficulties in this case was that the witness statement in support of the application was relatively perfunctory with respect to the narrative of events and moreover set out the reasons for the application in summary form only..."

11. Well, those criticisms, in my judgment, cannot be made of the witness statement of Ms Farrell in these proceedings. Neither is the statement perfunctory, nor are the reasons for the application set out only in summary form, and the evidence that she has filed is supported by, as I have indicated, more than 1450 pages of documentation. In the light of that guidance, the issues for me to decide are, firstly, on the basis of what is alleged by the defendant, has the claim form been properly and effectively served? Secondly, should the 12-month extension sought in the claim form for the interim order be allowed or dismissed on the merits.
12. As regards the first question, the claim form was issued on 13 January 2012, and on the same date HHJ Davies, sitting as a judge of the High Court, granted an application for service by an alternative method. In fact, no time limit was fixed in that order for the service of the claim form, and therefore the general provisions of CPR part 7.5 apply and the claimant has four months within which to effect service. The order of Judge Davies permitted service by an alternative method, and indeed by more than one alternative method. I do not understand the defendant's protest in section 10 of the acknowledgment of service that service was out of time. The letters sent to the defendant, variously dated 13 January, 18 January and 19 January 2012, all appear on their face to comply with the direction that Judge Davies gave on 13 January, albeit that there is no witness statement with a signed statement of truth specifically so asserting in the documentation before me. Nonetheless, I am satisfied that these proceedings have been properly and effectively served.
13. The second question then is whether the extension of the imposition of conditions and restrictions should be granted, bearing in mind the guidance that has been given in this regard in the decision in Hiew. It is plainly in the public interest for the claimant to investigate such broad and wide-ranging allegations as have been made in this case and as are set out in Ms Farrell's statement thoroughly. They go to the defendant's fitness to practice, and it is in the public interest, in my judgment, and also for precisely the reasons that Dr Madu asserts in his submissions, in his own interests that these matters are thoroughly investigated, because if he is right and the allegations are fabricated or malicious, he will be cleared of any wrongdoing and any restriction or condition on his ability to practice will be removed. Therefore, in my judgment, it is plainly in the public interest for both the claimant and the defendant that these matters are thoroughly investigated.
14. The defendant complains in his skeleton argument that he has not had a job for over a year, although it is right to observe that Ms Farrell in her statement at paragraph 31 appears to identify employment that may not have terminated until about June2011, and resulted in a complaint to an Employment Tribunal that may have been heard in January 2012. I am not clear what the material is in that regard, but it is the case that the defendant is not prevented from working by the conditions and restrictions that have been imposed, and as he confirms to me in his oral submissions today, it clearly has not prevented him obtaining work because he tells me that effective from Monday this week, that is 6 February, he has indeed obtained a temporary post with, I think, the Hull Royal Infirmary, so that he is not prevented from working in these circumstances by the conditions and restrictions that have been imposed.
15. He complains, particularly in paragraph 9 of his skeleton argument, that the Interim Orders Panel ordered a further application for the extension to the court, and he asserts that this is because the background to this matter is that the allegations made against him are abusive and malicious and have been improperly investigated by the claimants. The decision on the part of the interim orders panel to require that any further application for extension be made to the court is, if anything, a condition therefore for the defendant's protection and not an oppression, as he submits it to be. I do not accept, therefore, that the GMC's application in these proceedings is itself either abusive or oppressive. It was required to take this step because of the concerns that the Interim Orders Panel had expressed, and that was therefore protective and not abusive of the defendant.
16. The defendant then at paragraph 10 asks: why impose conditions or restrictions for a further 18 months? But I note and observe that in fact the claim is only for conditions and restrictions to continue for a further period of 12 months. The issue really is whether the defendant himself bears any blame for the need for a further 12 months for the purpose of completing the investigation.
17. In my judgment, he does bear some blame because, for whatever reason, he has not attended or in fact made himself available for interview under caution, as has been requested of him. In those circumstances, the claimants have been unable to complete their investigations and conclude their investigations and arrive at a decision either to proceed with fitness to practice proceedings or indeed, in the alternative, if the defendant is right, to dismiss all complaints of allegations against him. Unless or until he does make himself available, and does actually attend for interview under caution, that process is frustrated and he has contributed to frustration by not in fact having attended for interview under caution at any stage in the lengthy and protracted investigation of this matter.
18. As I have already indicated, he is not prohibited from practicing in the interim or from working, and therefore, in my judgment, balancing his desire and entitlement to finality, with the public interest of completing investigations of such wide-ranging and varied complaints as have been made in this case, it is not unreasonable for the investigation to continue and to be pursued to completion.
19. I do take into account that the Interim Orders Panel on the last occasion in neutral terms did express concern about the length of time that this is taking, and I repeat the expression of their concern. But nonetheless, both the public and practitioners are entitled to expect these matters to be investigated and to be concluded properly, and therefore, although it is a lengthy process, the balance of public interest, in my judgment, lies in favour of investigation being completed.
20. Moreover, in my judgment, the period of 12 months, for the reasons set out in Ms Farrell's statement, does not appear to me to be an unreasonable period for extension, and therefore I do grant the order asked. I note and observe in doing so that the order that I now make will be reviewed by the Interim Orders Panel periodically as is required under the framework under which they operate, and in particular, as I understand the evidence before me, will be reviewed for the first time in as soon as three months' time. That too weighs in the scale in balancing whether it is appropriate to grant an extension for a period of 12 months, because 12 months does not necessarily mean 12 months; it may mean less than that; it may mean significantly less than that if the defendant now conducts himself in such a manner as to co-operate with the investigations so as to enable those investigations to be completed promptly. If he does so, there is prospect that 12 months will not be required, but that the period of conditions and restrictions will culminate in a decision one way or the other in a period considerably shorter than that.
21. That being the case, I am satisfied, applying the balance and tests required of me by the Court of Appeal in Hiew, that it is proper to grant the claimant the relief sought and I make the order as prayed.
22. MR ATHERTON: My Lord, thank you. A draft order, I believe, is before you.
23. THE DEPUTY JUDGE: It is.
24. MR ATHERTON: And I think the only change that needs to be made goes to the representation of counsel for the GMC. I think it was anticipated that Mr Hugh Davies would be appearing.
25. THE DEPUTY JUDGE: I tried to find the draft order in this mountain of documents, and at the moment, I am -- yes, I have got it. It is divider 8 in volume 1. No.
26. MR ATHERTON: I have it behind divider 13, my Lord.
27. THE DEPUTY JUDGE: I do not have a divider 13.
28. MR ATHERTON: I wonder if it might be at the very end of all the documentation, my Lord.
29. THE DEPUTY JUDGE: No.
30. MR ATHERTON: May I hand to your Lordship my copy?
31. THE DEPUTY JUDGE: All I have got is the consent order that the defendant's consent was invited for.
32. Now, the only other issue that may potentially be contentious is the costs.
33. MR ATHERTON: Indeed. My Lord, Dr Madu has been invited on numerous occasions in correspondence to consent.
34. THE DEPUTY JUDGE: And he has not.
35. MR ATHERTON: He has not, and there is a schedule of costs which totals £2,930. I ask for costs to be assessed in that sum. Can I hand forward a copy?
36. THE DEPUTY JUDGE: I think I have seen that. Yes, I have it. 15 hours of work. That is quite a lot.
37. DEFENDANT: Excuse me, my Lord.
38. THE DEPUTY JUDGE: I will hear from you in a moment, Dr Madu.
39. MR ATHERTON: Your Lordship has observed the volume of documentation in the case, which has been, as we have also seen, ongoing, certainly since the last review hearing before the Interim Orders Panel. All of that material has to be considered, and of course the preparation for the application was included within the work done on the documents, which has been --
40. THE DEPUTY JUDGE: That is only half of the figure. 6 hours at least is for attendance on opponents or others. What attendance? I mean, according to the witness evidence, in effect there has not been any meaningful dialogue with the defendant, hence the application for service by an alternative method.
41. MR ATHERTON: Your Lordship has not been burdened with the considerable correspondence with Dr Madu over recent months. If your Lordship wished to descend into detail, then I would be happy to submit all of that documentation, but the GMC is always conservative in the way it presents applications of this type.
42. THE DEPUTY JUDGE: I hear what you say, Mr Atherton, but as I say, my judicial eyebrow is raised. Dr Madu, you are entitled to say something about the question of costs.
43. MR ATHERTON: Thank you, my Lord. For information, my Lord, I have not been in any employment from 6 December 2010. I have been on job seeker allowance of about £60 a week until this temporary five-week appointment in Hull, and for information, in fact I have submitted evidence from trusts -- I especially worked for General Hospital, (inaudible) saying they could not employ me because of the inconsistent information GMC was providing them, and I have to report the matter to GMC Ethics Committee and they removed the GMC staff looking after my case, kind of, so I know you have made your ruling. I am not sure I am staying here to argue about your ruling, but I have a lot of evidence, material evidence, my Lord, about the way the GMC has handled by staff and prevented me from getting a job. For your information, my Lord, the witness statement by GMC was unbalanced and not accurate, and they wanted me to sign the witness statement as correct. So I said, hang on, I have seen this witness statement giving this kind of information that actually is not accurate information. I felt that I am not going to sign it and I have never regretted it until today, because if I had signed that, it means that what the GMC was alleging was, you know, correct, which I know was wrong and incorrect information. Thank you.
44. THE DEPUTY JUDGE: No, Dr Madu, I do not accept your submissions in that regard. Most of that goes to the question of the merits. That is not relevant, in my judgment, to the question of costs. The question of costs should reflect the fact that you were given ample opportunity to consent to an extension, which you have refused to consent to, and in the circumstances that I have found, the need for the extension was at least in part caused by your own conduct. In my judgment, costs should follow the event. The event is that you have failed to resist the claimant's application, and therefore there should be a costs order against you. Nonetheless, I am not satisfied that the figure for costs as set out in the claimant's statement of costs is entirely or fully reasonable, and I summarily assess the costs that the claimant is entitled to recover from you in the sum of £2,000. I have initialled that order as amended and completed, but we will need to retain that for the court file. Thank you, gentlemen.
45. MR ATHERTON: I wonder whether your Lordship would provide a date by which the costs would be paid? I ask for a date 21 days from today.
46. THE DEPUTY JUDGE: Yes.
47. MR ATHERTON: Thank you very much.
48. DEFENDANT: My Lord, do I not have any say in this matter about this costs that has been imposed on me and the time wanted to pay, because I cannot afford these costs. I cannot afford it.
49. THE DEPUTY JUDGE: What are your earnings going to be?
50. DEFENDANT: I don't know yet; it is only a five-week temporary posting.
51. THE DEPUTY JUDGE: Yes, but presumably the level of remuneration has been revealed to you.
52. DEFENDANT: My Lord, I have been on £60 a week since December 2010.
53. THE DEPUTY JUDGE: You are not on that as from Monday.
54. DEFENDANT: I am not -- I cannot afford to pay that money.
55. THE DEPUTY JUDGE: What is your wage going to be in your current employment that has already started?
56. DEFENDANT: I don't know. I don't have any information.
57. THE DEPUTY JUDGE: You have not been told what you are going to earn?
58. DEFENDANT: Yes, I have not been told, my Lord, because of the nature of the employment.
59. THE DEPUTY JUDGE: So you say you have agreed to take up an employment at a level of remuneration that is unknown to you? I find that extraordinary.
60. DEFENDANT: You have this position, you see --
61. THE DEPUTY JUDGE: Presumably they are scale pay appointments in the NHS.
62. DEFENDANT: I am being honest with you; it depends on the nature of the job.
63. THE DEPUTY JUDGE: How long do you say you need to pay?
64. DEFENDANT: I cannot afford to pay the money that you are making the order.
65. THE DEPUTY JUDGE: How long do you need to pay? That was the question I asked.
66. DEFENDANT: Thank you, my Lord. I don't know because I don't know my earning capacity at Royal Infirmary at the moment, my Lord.
67. THE DEPUTY JUDGE: That is unsatisfactory. If you cannot give me a timescale, I cannot give you any latitude. If you need further time to pay, once you are aware of the level of your remuneration, you will have to have a discussion with the GMC, who may or may not afford you any latitude. But I cannot help you if you cannot give me information.
68. DEFENDANT: I don't have any information, my Lord. The only thing I have at the moment is a one-page appointment letter at the moment. There is some discussion going on at the moment. The information is not available to me, my Lord.
69. THE DEPUTY JUDGE: If you need further time to pay, you always have the opportunity to apply. Indeed, Mr Atherton, just because I have directed that the sum be payable within 21 days, which is really only relevant to the question of interest, it remains a question for your clients as to what steps, if any given his impecuniously -- if and to the extent that he is able actually to demonstrate that -- that you exercise forbearance in your enforcement rights.
70. MR ATHERTON: Indeed.
71. THE DEPUTY JUDGE: Thank you.