England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		8th August 2013

His Honour Judge Raynor:

1. I have come to the conclusion in this case that I am not persuaded that the conditions that are set out in section 41A(1) of the Medical Act 1983 are met, and on the evidence that is before me I consider it wrong now to continue the suspension of the doctor ordered by the Interim Orders Panel of the Medical Practitioners Tribunal Service on the 14 March 2013.
2. A great deal of legal authority has been cited before me, although I consider that the basic principles of the jurisprudence are well established. Under section 41A, where an Interim Orders Panel are satisfied that it is necessary for protection of members of the public or is otherwise in the public interest for the registration of that person to be suspended, the Panel may order, among other things, that the registration shall be suspended during such period not exceeding 18 months as may be specified in the order. It will be noted that the statute uses the word "necessary" for the protection of members of the public. Necessity is the test under that limb. Necessity is not the test qualifying the other limb, otherwise in the public interest, as will be seen. In order to justify the suspension it must be at least highly desirable – and indeed other authorities suggest necessity also to qualify the public interest test.
3. Under section 41A(10) of the Act, where an order is in effect under any provision of the section, this court may terminate the suspension; and the leading authority on the effect of these provisions is the Court of Appeal decision in the case of Hiew [2007] EWCA Civ 369, where it clear that the jurisdiction of the court under section 41A(10) is, in the words of Arden LJ, "an original power, not merely a power of judicial review". That decision was examined by Nicol J in the case of Sandler v GMC [2010] EWHC 1029 (Admin), and he noted that where the application is made under section 41A(10) it is made on the basis that there is an extant order of suspension. The court therefore would start from the proposition that the suspension is currently in place before deciding whether the position ought to be altered; and, as has been said in various cases, the court should only interfere if satisfied that the decision to continue the suspension is wrong. But I exercise an original power, and I must consider the position on the evidence before me, and that is not evidence limited to that which was before the Interim Orders Panel; it is in fact all the evidence.
4. The facts of this case, so far as material, can be stated as follows. The claimant, Dr Malik, qualified as a doctor in Pakistan in 2003. From December 2004 he worked in the UK, first as a junior doctor, then undergoing surgical training, and from August 2010 he was a trainee on the GP Vocational Training Scheme, which, as I understand it, goes through three stages. In the last annual review of competence progression, which is dated 31 January 2013, there is conveniently listed the posts that he has held as the trainee on that vocational scheme, commencing on 4 August 2010 and culminating now with the suspension on 14 March 2013.
5. He was based first of all in Warwick hospital in the Trauma and Orthopedic Surgery Department from 4 August 2010 to 30 November 2010, where the consultant was Mr Shepherd, and then he was in the same hospital's Obstetrics and Gynaecology Department from 1 December 2010 to 5 April 2011, and it is vital for the understanding of this judgment if I stress now that the matters which have given rise to the proceedings before the Interim Orders Panel concern exclusively events that occurred during that period from 4 August 2010 to 5 April 2011, although those events do impact upon considerations of the probity and reliability of Dr Malik thereafter.
6. On 28 June 2012 an assessment was carried out which concluded that he had made unsatisfactory progress; additional training time was required. There was a similarly unsatisfactory outcome on 11 October 2012. He was then granted an extension in the Allesley Village Surgery General Practice from 26 September to 19 February 2013. The final outcome assessment was on 21 October 2012 when the outcome was that he was achieving progress and competencies at the expected rate, and that was referred to in the review of 31 January 2013. That was a review that was informed by the concerns as to probity with which the Panel was concerned and was preceded by a clinical supervisor's report on 17 January 2013, which, so far as clinical expectations were concerned, concluded – with one exception when he was borderline – that he met expectations; and indeed there was another occasion where he did better than expectations. It had been recorded that there were no complaints from patients, and that was signed by the clinical supervisor, Dr Kathleen Wheatley.
7. The background, however, and the reason for the IOP involvement, was that it emerged that in support of his e-Portfolio, between the period I have mentioned of 4 August 2010 and 5 April 2011, Dr Malik had submitted assessments, principally directly observed procedural skills workplace assessments ("DOPS"), which were purportedly completed in a small number of instances by Mr Shepherd, the orthopaedic surgeon, but in 29 instances by Dr Nippani, the orthopaedics and gynaecological consultant, where the evidence of Mr Shepherd is that those were falsified assessments not completed by him; and, in the case of Dr Nippani, 28 assessments were not completed by her, and there are witness statements before me, where, in the case of Mr Shepherd, he states quite categorically that the assessments, including other assessments in relation to the e-Portfolio, were not completed by him, and Dr Nippani again categorically says that 28 assessments were not by her. She does, however, say that she regarded Dr Malik as a good doctor.
8. Dr Malik has asserted that he acted honestly, although his explanations as to how he contends that he acted honestly have differed. When interviewed by Dr Deighan, the Head of School at the West Midlands Postgraduate School of General Practice, what he stated was that he had sat with the consultants to enter assessments into his e-Portfolio, and he had helped them make multiple entries not based upon direct observation but past episodes of clinical activity. That explanation would not appear to be true. When interviewed by Dr Parry, who at the relevant time was training programme director for GP training in Coventry and Warwickshire, on 6 September 2012, he stated that it was usual practice to fill in his own assessments and he believed that the consultants would send an email later to confirm the data was correct. He accepted that at least some assessments done in the name of Dr Nippani were done without her consent.
9. The review of the GMC, as expressed in the letter which led to the proceedings before the IOP, was that:

"At this stage it is definitively unclear as to whether Dr Malik has knowingly and dishonestly made entries on his training record, given that he has changed his story and also suggested that the approach of completing self-entries is common practice. This is unlikely to be true and does not remove the allegations from Dr Malik."

10. The case examiner concluded that there was a serious probity issue which raised patient safety concerns and clear concerns relating to public trust in the profession. It is right to say, as Mr Phillips QC for the GMC has said, that when he was interviewed by Dr Parry, Dr Parry took a very adverse view to him based upon what she regarded as his lack of any awareness or insight that what he had done was wrong, as expressed in her email to Dr Deighan on 21 February 2013 (page 120 of the bundle), where she stated that a huge amount of her concern was what she regarded as "absolute lack of regret or insight into ethical considerations. He could not see that signing off the DOPS as someone else was wrong even when we debated the potential sequelae of such actions". That is her view. If the investigating arm of the Tribunal Service of the GMC decides to take this matter further and there are charges laid, then the Fitness to Practice Panel will hear no doubt from Dr Parry and no doubt also from Dr Malik and others, and will form a considered view based on seeing and hearing him and on all the evidence, in particular of his probity, not just, or even principally, at the time of these events, but now and going forward.
11. The IOP, apart from the clinical supervisor's report and the annual review of competence progression that found, as I say, that he was fit to go forward to the final stage of the vocational training programme, also had a report from Professor Hughes, who had initiated the whole proceedings, that was dated 11 February 2013. That report (page 91) stated that she had discussed the matter (she being the West Midlands Regional Postgraduate Dean) and stated that, as far as she was aware, there had been no patient complaints, no clinical concerns, no concerns about poor clinical practice, and she further states that she contacted Dr Malik's educational supervisor to update her on this matter, who confirmed that the details above were correct.
12. The matter went before the Panel, and I must give such weight and respect as I think appropriate to the opinion of the Panel, and again, in the words of Arden LJ:

"It is for the court to decide what weight to give to the opinion. It is 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 in the case it thinks fit, bearing in mind that this is an original power that I exercise."

13. When the case was opened before the Panel it was said in terms by counsel for the GMC in answer to a specific query by the medical member of the Panel, namely:

"I want to be clear that we are dealing with misconduct here and not clinical competence. Am I correct in that?"

He answered:

"Yes sir. The probity issue might affect the perception of the doctor's clinical competence."

14. The matter however became more complicated because the chairman of the Panel, Sir James Perowne, had this interchange with Ms Hawthorn, the solicitor for the claimant:

He said:

"DOPS means Directly Observed Procedural Skills but they do not have to be directly observed."

"And yet quite clearly the doctors were not directly observed by the people who signed them; or some of these of these were not directly observed by the person who signed them off."

He asked:

"How can I have confidence, if he is my doctor, that any of these were correctly done if they were not signed off by someone who directly observed them?"

Her answer:

"I am afraid I cannot assist you on that, sir. I do not think I can say that you can have confidence and that is why we are sitting here today."

15. That was her response to a question that was asked without any prior warning, and was clearly not a considered response. Mr Andrew Hockton, counsel for Dr Malik, says that, in fact, had there been reflection it would have been an incorrect response because the evidence was, firstly, that there were no clinical concerns – that was how the case was put – though there might be perception issues; secondly, there was the assessment of 31 January 2013 annual review of competence progression; there was the clinical supervisor's report, and there was the reported view of Professor Hughes, whose view on 11 February 2013 was not just her view but a view based on inquiry.
16. Mr Phillips submits that there is no error of law, that the suspension was the right course, given following correct legal advice, that the suspension was currently in place, and I should terminate it only if satisfied it was wrong. The conclusion of the Panel, as expressed in its determination, having been expressly referred to the documents favourable to the claimant that I have mentioned, was that:

"19. In the light of the concerns about your conduct, health and probity the Panel is satisfied that there may be impairment of your fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest. The public interest includes the protection of patients, the maintenance of public confidence in the profession and the upholding proper standards of conduct and behaviour. After balancing your interests with the public interest, the Panel determined that an interim order is necessary to guard against such a risk.

20. In reaching the decision the Panel has noted your admission to the allegations that you had erroneously entered into the records which indicated successful completion of directly observed procedural skills workplace assessments. It considered that this raises concerns about your probity, behaviour and ethical insight. The Panel considered that these may also lead to questions about your competence and pose a real risk to health and safety.

21. The Panel has borne in mind [the principles of] Good Medical Practice, which states that 'probity means being honest and trustworthy and acting with integrity: this is at the heart of medical profession'. It is satisfied that patient safety concerns and that the public confidence in the profession would be undermined by your remaining in unrestricted practice.

[…]

23. 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 suspension of registration."

17. Proportionality was considered by the Panel. Suspension in advance of the decision to charge before the Fitness to Practice Panel and the conclusion of proceedings is a particularly draconian step; and in the case of this doctor, as the Panel itself recognized, would result, as it has done, in the removal of his ability to practice medicine. They knew he had a family, and I know he now has a child, and as a result of the suspension he lost his training position. So, the suspension was of the gravest concern to him.
18. Mr Phillips submits that I should uphold the finding that suspension is necessary for the protection of the public, because the foundations of the qualification are undermined, since the qualifications that were confirmed during the period I have mentioned were not observed the way they should have been, and one therefore could not be satisfied that those foundations were in place.
19. I am wholly unsatisfied on the evidence before me that there is any real risk as a result of lack of clinical competence to the patients of Dr Malik. That is not just my view; that is in fact the view of those who have had direct responsibility for his supervision and training. It is how the case was presented before the Interim Orders Panel, and the view that it was not a case of clinical competence was no doubt one that was taken after consideration and was a considered view.
20. True it is that foundation skills in the fields of Orthopaedics and Gynaecology and Obstetrics were not confirmed at that stage, but there has been adequate assessment thereafter of clinical ability, and those responsible have not had any reservations at all about whether Dr Malik should go forward, as indeed he did.
21. The suspension, I am satisfied, cannot be justified as being necessary for the protection of members of the public. The question then is whether it can be justified and ought to be upheld as being otherwise in the public interest.
22. I have been referred to various authorities, including two decisions of Davis J, as he then was, in the cases of Sheikh v GDC [2007] EWHC 2972 (Admin) and Sosanya v GMC [2009] EWHC 2814 (Admin). In the case of Sheikh v General Dental Counsel Davis J said that:

"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…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."

And in paragraph 23 he talks about public perception and public confidence.

23. What Mr Phillips here says is that public confidence, including confidence in the doctor by his colleagues, demands the suspension; and in particular, given the lack of insight reported by Dr Parry, how can the court be satisfied – and certainly the IOP was not satisfied – that this behaviour would not be repeated? The answer to that, for present purposes, it seems to me, as to whether an interim order of suspension ought to be continued, is that there is no evidence of any lack of probity or misconduct after the period with which I am concerned, and it is not right, it seems to me, to proceed upon the basis – there being no allegation of any dishonest conduct after the last of the created documents other than the different explanations – that during the period of the investigation there is likely to be serious risk of any repetition of dishonest conduct. In any event, as submitted by Mr Hockton, the risk ought to be a risk of serious damage to the public interest; I do not consider there is any risk of serious damage here, and I agree with Mr Hockton that this is not such a case where the public, if the charges are ultimately proven, will say that it was wrong to allow this doctor to continue as a trainee GP under supervision.
24. For all those reasons I have concluded – exercising my discretion on the evidence – that it wrong to continue the suspension on the particular facts of this case.

MR PHILLIPS QC: Does your Lordship therefore make an order terminating the suspension?

JUDGE: I do.

MR HOCKTON: My Lord, the other matter is costs of the schedule. Has your Lordship got the schedule?

JUDGE: I have the defendant's schedule but not yours.

MR HOCKTON: I apologise.

JUDGE: So paragraph 1 of my order will be the suspension is terminated. You cannot resist an order for costs can you, Mr Phillips?

MR PHILLIPS QC: My Lord, I have two brief observations to make, if I may. I can't resist it in principle.

JUDGE: That's what I meant.

MR PHILLIPS QC: Before I deal with that, just one very brief matter. During the course of your Lordship's judgment reference is made to 31^st October 2013 – I think it was a time when your Lordship was intending to refer to 31^st January 2013, and indeed your Lordship did go on to refer to the latter date, if that can be corrected.

JUDGE: Thank you.

MR PHILLIPS QC: In terms of my learned friend's schedule of costs, your Lordship will have noted that the substantial amount of the work that has been listed was done by a grade A lawyer in the circumstances…

JUDGE: A grade A lawyer whose charging rate is significantly less than the grade B lawyer. The charging rate of Ms Watson is £192 per hour; the charging rate of Mr Rawsthorne is £145 per hour.

MR PHILLIPS QC: I have made the point and I am not going not take it any further. The other point that I was going to briefly make is that a component part – I cannot say it's at the core of your Lordship's ruling – is that the concession that was made before the Interim Orders Panel could not have confidence in this doctor, was not withdrawn at the time of my learned friend's skeleton argument. And upon receipt of our skeleton argument it wasn't withdrawn in the supplementary skeleton argument; it was only withdrawn today. And whilst your Lordship has graciously said that it was construed as perhaps an unguarded remark or one that was not carefully considered, my learned fried has had ample opportunity to consider that element, which was clearly at the forefront of the Interim Orders Panel's decision, and your Lordship will have seen the terms of my skeleton argument, the reliance that I placed on that concession and have done up until the present day, when we have heard that that concession is withdrawn. And that is a factor, in our respectful submission, that your Lordship may wish to factor into account when determining the extent to which these costs are refundable.

JUDGE: How do you suggest that I do that?

MR PHILLIPS QC: Apportionment is a fine art and not a science, and respectfully in the circumstances I would…

JUDGE: Leave it to me.

MR HOCKTON: My Lord, it is difficult to see how the issue identified by my learned friend is in any way adding to the costs of this case.

JUDGE: Unless it is somehow suggested that if it had been withdrawn the GMC would have caved in.

MR HOCKTON: Yes, and there is no suggestion of that; it has always been the GMC's position that both limbs were engaged.

JUDGE: I am going to allow, doing the best I can, in terms of a summary assessment on a standard basis, I allow £8,750.

MR HOCKTON: Is that plus VAT?

JUDGE: No. That is intended to be inclusive of VAT. Do you want me to specify – because you are £9,583. Does anybody else want anything today? Right, could I thank both of you for the very high quality of the skeletons. I come relatively new – it is four years now – to the Administrative Court. The thing that really is a bugbear is the over-citation of authority, and it in all these cases – I am not talking about medical cases, all of them. But there it is.