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 Greater Manchester England M60 9DJ
		11th September 2013

HIS HONOUR JUDGE PELLING QC:

1. This is an application made pursuant to sections 41A(6) and (7) of the Medical Act 1983 (as amended), for an order extending by a further 2 months, from 20th September 2013 until 19th November 2013, an interim order for conditions, originally imposed by the claimant's Interim Orders Panel on 21st March 2012.
2. The circumstances which lead to this application are unusual, in the sense that the Fitness to Practise Panel hearing against this defendant has commenced and is continuing as we speak. It is expected to finish on 20th September 2009.
3. The defendant does not appear and is not represented before me. I am told that he does not appear and is not represented before the Fitness to Practise Panel.
4. The defendant is of Pakistani ethnicity and, so far as is known to the claimant, is currently practising medicine in Pakistan. The emails that I have been shown establish that he is aware of the application that is being heard today by me. At one stage he indicated he was prepared to consent to an extension of the interim order of conditions for a further 2 months but then appears to have backtracked in later e-mails.
5. I remind myself, at the outset, that the test that has to be applied by the court when considering an application of this sort is the test which is applied by the Interim Orders Panel when making the original order, and I remind myself of the principles that were outlined by the Court of Appeal in the seminal case of GMC v Hiew, from which emerges, amongst other things, the critical point that the court is concerned to assess whether or not a suspension or the imposition of conditions is necessary and proportionate in the interests of patients, the doctor, or the general public interest, by reference to the allegations which are made against the doctor. It is no part of the function of this court to seek to resolve issues concerning the allegations that are made which is a matter in the first instance for a Fitness to Practise Panel.
6. The allegations which are made against this doctor are those which are before the Fitness to Practise Panel. They are summarised in paragraph 34 of the witness statement in support of the application. They break down into, broadly speaking, employment and instructional issues, on the one hand, and more general, impropriety allegations on the other.
7. So far as the employment and instructions side of the case is concerned, the focus of attention is on allegations that the defendant arrived late, left early and spent an inappropriate amount of time while at the relevant employing hospital doing things unconnected with his duties, as well as on alleged failures to comply with instructions given by consultant colleagues on at least four occasions and a failure to provide the support of other colleagues in the course of his duties.
8. The other side of the allegations faced by this doctor concern allegedly inappropriate contact by the doctor with patients. It should be understood that the speciality of this particular defendant at the time relevant to the allegations that are made was that of gynaecology and obstetrics. Those then are the allegations.
9. The response of the Interim Orders Panel was to impose conditions which were most recently confirmed in the form set out in the transcript of the most recent IOP hearing, which is at page 744 - 745 of the bundle. They included conditions that the defendant must inform the General Medical Council if he applied for medical employment outside the UK, that he was not to make contact with patients outside of a hospital setting unless authorised to do so by a supervising consultant and that he was to confine his NHS practice to work which would be supervised by a named consultant.
10. There is some suggestion, as I have said, that the defendant has removed himself to Pakistan, is currently employed practising medicine in Pakistan and thus that he is in breach of paragraph 4 of the conditions imposed upon him because he has failed to inform the General Medical Council of the hospital at which he was employed.
11. The first question I have to ask myself is whether it is appropriate in the circumstances to extend the interim order of conditions imposed on the defendant. I am entirely satisfied that it is appropriate to extend the interim order. The conditions are plainly proportionate and reasonable, having regard to the allegations that are made. In those circumstances, in my judgment, they were appropriate conditions to impose in the first instance and they are appropriate conditions to maintain until after the Fitness to Practise Panel has resolved the issues before it.
12. The next issue I have to consider is whether or not I should extend the interim order for the period sought by the General Medical Council. As I have said, I am satisfied, applying the relevant principles that in principle the imposition of interim conditions was appropriate. So far as the 2-month period is concerned, this hearing is taking place on 11th September 2013, and the hearing before the Fitness to Practise Panel is expected to finish on 20th September 2013. It follows that the interim extension period sought is for a period that is longer than the period which is expected to be needed to complete the Fitness to Practise Panel hearings.
13. There is a fine balance to be struck here, but I am satisfied that in the particular circumstances of this case it is appropriate to grant the extension sought because:

(a) the interim orders imposes conditions rather than a period of suspension;

(b) the interim conditions are of limited effect in practice on the activities of this defendant;

(c) although the Fitness to Practise Panel hearing appears to have been proceeding for a significant amount of time I am told by the General Medical Council that there is a possibility that even the generous time that has been allowed for the completion of the Fitness to Practise Panel hearings may not be sufficient and if that is so there will have to be an adjournment Part Heard. This is surprising given that the Defendant does not appear and is not represented before the FTPP. However, these Panels are not easily brought together again and therefore if there has to be an adjournment there is likely to be a delay before a Panel could meet to complete the process.

14. In those circumstances, it is appropriate to continue the extension for the limited period sought by the General Medical Council because in the event that the Fitness to Practise Panel hearing has to be adjourned Part Heard the General Medical Council would have to incur the expense of applying for a further extension, which in the circumstances of this case would not be justified, and secondly, there would be practical difficulties involved in making such an application on short notice, given that the defendant is, as I have said, living and working in Pakistan.
15. The other factor which I bear in mind in making this order is that in the event, that the Fitness to Practise Panel concludes on or before 20th September, with an either making no order or an order for conditions or some sanction falling short of conditions, then the interim order will fall away at that point to be replaced by the order of Fitness to Practise Panel.
16. In those circumstances, in my judgment, it is proportionate and reasonable to extend the interim order of conditions in the terms sought by the General Medical Council.
17. Yes?
18. MR ATHERTON: My Lord, there is a statement of costs and a schedule which were a total of £1,880.40. I invite your Lord please to assess costs and there is also a draft order for your Lordship's completion.
19. HIS HONOUR JUDGE PELLING: So far as the assessment of costs are concerned, I assess the costs of the General Medical Council in the sum claimed. I do so because the sums which are claimed are moderate in the aggregate and plainly proportionate and reasonable in respect of the work done and the individual items identified. The rates that have been adopted for the solicitors and solicitors' staff concerned are those which are recommended for the solicitors practising in the city of Manchester. Counsel's fee is the standard fee payable by the General Medical Council in respect of applications of this sort. As I have said, the sum claimed in the aggregate is both proportionate and reasonable. In those circumstances I assess the costs claimed in the sum of £1880.40.