England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Rolls Building, 7 Rolls Buildings London EC4A 1NL
		11 November 2013

Introduction

1. There is before the court an application brought under section 41A(10) of the Medical Act 1983 seeking the termination of an interim suspension order imposed upon the applicant, Dr. Bhatnagar, by the General Medical Council's Interim Orders Panel ("IOP") on 17 January 2013 by which Dr. Bhatnagar's registration as a medical practitioner was suspended for 12 months. Shortly after the hearing I notified the parties of my decision that the application should be dismissed. This judgment contains my reasons for that decision.
2. Dr. Bhatnagar is a Consultant Ophthalmologist and was self-employed prior to his suspension.
3. The issues raised by this application, as formulated by Mr. Simon Butler, who appeared for Dr. Bhatnagar, are whether or not:

i) It was unfair to impose an interim suspension order;

ii) It was disproportionate to impose an interim suspension order;

iii) It was wrong to impose an interim suspension order;

iv) The IOP failed to give reasons, alternatively adequate reasons, to explain its decision.

4. This is not an appeal by way of mere review. It is well established that the court is exercising an original jurisdiction and, whilst it will give careful consideration and appropriate weight to the decision of the IOP, it must ultimately make up its own mind and set the order aside if satisfied that it was wrong.
5. In the context of this application it is worth setting out the observations made by Nicol J, at paragraph 12 of his judgment in Sandler v The General Medical Council [2010] EWHC 1029 (Admin). That was also an application to terminate a suspension.

"Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr. Sandler's suspension (or to substitute a different period) is not dependent on showing some error of law on the part of the IOP. That is the point that I understand the Court of Appeal to have made in GMC v Hiew [2007] 1 WLR 2007 where at [27] Arden LJ said 'the powers conferred by s.41A(10) are also original powers and not merely powers of judicial review.' In that case, the Court was directly concerned with an application to extend a doctor's suspension. The maximum period for which an IOP can suspend a doctor is 18 months. Any longer extension can only be granted by the Court under s.41A(7). In such a situation, the only order or orders by the IOP will have expired (or be about to expire). If nothing further is done the suspension will come to an end. It is unsurprising in these circumstances that the Court of Appeal characterised the Court's jurisdiction as 'original'. The position with an application under s.41A(10) is different. The IOP has suspended Dr. Sandler. His application is for that suspension to be terminated. My consideration of the application must surely start from the position that the IOP has thought that interim suspension is the right course. I also note that s.41A(10) applies 'where an order has effect under any provision of this section'. One of the previous subsections is s.41A(7). Thus, it is open to a doctor whose order for suspension has been extended by the Court under that provision to apply for the suspension to be terminated under s.41A(10). There, too, the Court would surely have to start from the position that a suspension was currently in place before deciding whether that position ought to be altered. In R (Stephen James Walker) v GMC [2003] EWHC 2308 (Admin) Stanley Burnton J. (as he then was) was also considering an application to terminate a suspension under s.41A(10). He said at [3]:

'The terms of subsection 10 indicate that the appeal to the Court is a full appeal, that is to say, the Court does not interfere on a review ground but itself decides what order is appropriate.'

To describe the process as an 'appeal' may not do full justice to the power of the Court. It would seem to me that the Court does have power to consider subsequent developments and (where appropriate) fresh evidence. However, in my judgment the term does correctly acknowledge that in this context, unlike an application under s.41A(7), the Court is faced with an extant order of the IOP which it would only terminate if it thought that order was wrong."

The facts

6. Dr. Bhatnagar qualified as a doctor in 1968. For the past 15 years or more he has been the proprietor of private hospitals. From April 1999 to October 2009 he was a director of Parkfield Hospital Ltd (previously known as Birkdale Clinic (Rotherham) Ltd). That hospital ran into serious financial difficulties and went into administration in October 2009. Dr. Bhatnagar was also a director of Rotherham Private Hospital Ltd.
7. Between July 2008 and October 2009 a Fitness to Practise Panel ("FTP Panel") considered allegations against Dr. Bhatnagar arising out of the management of the Birkdale Clinic at Daventry during 2005 and 2006 to the effect that Dr. Bhatnagar's management of the clinic was deficient. Dr. Bhatnagar admitted one of the complaints and many others were found proved. Dr. Bhatnagar's defence was that he was not responsible for the day to day management of the clinic, which he left to others. The FTP Panel found also that Dr. Bhatnagar's conduct in allowing endoscopy services to be provided when he knew that he had not received written confirmation that such services could be provided, was dishonest and showed a cavalier disregard for proper processes. The FTP Panel found that Dr. Bhatnagar's fitness to practice was impaired by misconduct. However, it noted that there was no evidence of any actual harm to a patient. In October 2009 the FTP imposed a period of suspension of six months, but the registration was not suspended forthwith.
8. In June and October 2009 the Care Quality Commission inspected the clinic in Rotherham, which was under the control of Dr. Bhatnagar, and identified a number of areas of concern. This came to the attention of the GMC in 2011 and resulted in a Rule 7 letter to Dr. Bhatnagar dated 11 August 2011 setting out the allegations that had been made against him. Dr. Bhatnagar's defence was again that he did not have the day to day management of the clinic and so was not responsible for what had happened. A hearing to investigate these complaints was subsequently fixed for 15 October 2012.
9. By an e-mail dated 16 September 2011 Mr. Niraj Manglam, a former employee at one of Dr. Bhatnagar's clinics, made a number of allegations against a Dr. M, whom he alleged to be Dr. Bhatnagar's mistress, and various allegations against Dr. Bhatnagar himself. The allegations, in brief, were as follows:

i) There was a high level of forging and fabrication of documents taking place at the clinic under the direct instruction of Dr. Bhatnagar.

ii) Dr. Bhatnagar and Dr. M fabricated a letter purporting to appoint Dr. M as the manager of the clinic in order to mislead the FTP Panel that considered the allegations against Dr. Bhatnagar in 2008/09.

iii) Dr. M also helped Dr. Bhatnagar to forward a letter to the Clydesdale Bank fraudulently purporting to make a genuine offer to buy the buildings occupied by the clinic.

iv) That on various occasions Dr. M and Dr. Bhatnagar had stayed together in the RMO's room at the clinic.

v) Dr. M ill-treated a patient in December 2010, but when the matter was reported to Dr. Bhatnagar he chose to ignore it.

10. On 24 October 2011 the GMC wrote to Dr. Bhatnagar enclosing a copy of the e-mail from Mr. Manglam and inviting his response within four weeks. On 16 November 2011 Dr. Bhatnagar sent his initial response to these allegations to the GMC. In this document he blamed Mr. Manglam for a number of shortcomings at the clinic, since, he said, Mr. Manglam was the registered manager. He denied all allegations of fabrication of documents and accused Mr. Manglam of corrupting or altering data held on the clinic's computer system.
11. On 22 November 2011 the GMC notified Dr. Bhatnagar that the allegations in relation to the management of Parkfield Hospital in 2009, namely that his governance and management of the clinic was deficient, were to be referred to the FTP Panel. The letter did not refer to the allegations made by Mr. Manglam in the e-mail of 16 September 2011.
12. On 3 August 2012 the GMC wrote to Dr. Bhatnagar to say that it had now reviewed the case with counsel, who had advised that the new allegations made by Mr. Manglam were inextricably linked with the existing allegations and that there was an overwhelming public interest in having all matters heard together. Accordingly, the GMC gave notice that it intended to vacate the hearing that had been fixed for October 2012
13. On 12 December 2012 the GMC wrote to Dr. Bhatnagar enclosing the witness statements of Mr. Manglam and a solicitor, Sian Morris. The letter also referred to voice recordings obtained by Mr. Manglam, the transcripts of some of which were attached to Mr. Manglam's witness statement.
14. On 4 January 2013 the GMC wrote to Dr. Bhatnagar notifying him that it had been decided to refer his case to an IOP to consider whether or not it was in the public interest that an order should be made suspending Dr. Bhatnagar's registration, or imposing conditions on his registration. The letter invited Dr. Bhatnagar to appear before the IOP on 10 January 2013. That hearing was postponed for a week to 17 January 2013 at Dr. Bhatnagar's request.

The hearing before the IOP on 17 January 2013

15. Having noted that Dr. Bhatnagar had appeared before a FTP Panel in 2008/09 which concluded that his fitness to practice was impaired and imposed a suspension of six months, the IOP summarised the present allegations in the following terms:

"4. Following inspections in June and October 2009 by the Care Quality Commission (CQC) of a clinic in Rotherham, multiple areas of concern had been identified. It is alleged by the GMC that due to your position in that clinic you were responsible for its failings. The Panel has noted that you reject the allegations against you, and contend that the CQC reports cannot be relied upon, and exaggerate the nature of the failings. Secondly, you contend that although you owned the company, you had delegated responsibility for the day-to-day running of the clinic to other individuals and you had ensured, as far as you were able, that robust systems were in place to ensure that the clinic was operating to the requisite standard. These matters were due to be heard before a Fitness to Practise Panel in October 2012.

5. The Panel has noted that in September 2011 the GMC received a number of further allegations against you, from Mr. Niraj Manglam, former registered manager of the Birkdale Clinic in Liverpool. The Panel has noted that these allegations involved claims that:

There had been a conspiracy to mislead the FTP in 2009 by forging documents (indicating clinical governance was in place on a particular date)

That patient records had been dishonestly amended when civil litigation was threatened

that there was a fraud perpetrated with another doctor against the Clydesdale bank

that you had dishonestly obtained insurance cover for your business premises.

6. [Counsel for the GMC] referred the Panel to Mr. Manglam's formal statement to the GMC, aged 16 November 2011, noting that aside from claims of dishonesty, there was also a claim by Mr. Manglam and that you had attempted to intimidate him since he made a complaint to the GMC. Mr. Manglam also alleged that you had falsified minutes of a clinical governance meeting on 28 October 2010 which did not take place.

7. [Counsel for the GMC] drew the Panel's attention to the witness statement in which it was said that you misled/obstructed a solicitor Ms. Sian Morris of Linder Myers Solicitors, who was contemplating litigation on behalf of a client. It is alleged that you were obstructive, and evasive and unprofessional."

16. If paragraph 5 of the above extract is to be read as saying that all the allegations set out were made by Mr. Manglam in his e-mail of 16 September 2011, that is not correct: as I mention below, two of them were made later.
17. The GMC had submitted to the IOP that in the light of the very serious concerns before the panel, particularly in relation to Dr. Bhatnagar's probity, it was necessary and proportionate that an interim order of suspension be imposed on his registration. Counsel submitted that whilst the IOP was not required to make any findings of fact, appropriate weight should be given to the substance of the matters put forward, and that the GMC would be investigating the matters fully.
18. Mr. Butler, who, as now, appeared for Dr. Bhatnagar, submitted that there was a lack of corroborative material contained in the bundle before the IOP in relation to the allegations of fraud. He drew the IOP's attention to two independent statements commenting on the allegations of fraud, supporting the position that Dr. Bhatnagar had not acted dishonestly and commenting on Mr. Manglam's actions, raising an issue in relation to his health. Mr. Butler submitted to the IOP that the evidence of Mr. Manglam was not credible, and he drew the IOP's attention to an admission made by Mr. Manglam suggesting that he had committed perjury before the FTP Panel. Mr. Butler told the IOP that the complaints against the other doctor, Dr. M, were investigated locally and had been concluded without any action being taken.
19. Mr. Butler invited the IOP to view Mr. Manglam's claims in the context of the history of the relationship between them. He submitted that Mr. Manglam lacked credibility. He submitted that there was no evidence to support claims that Dr. Bhatnagar had amended patient records or in support of the alleged fraud on the bank. He submitted also that there was "no evidence at all" that Dr. Bhatnagar had obstructed a solicitor. Mr. Butler emphasised that Dr. Bhatnagar had what he described as "an unblemished clinical record".
20. The IOP stated that it bore in mind that it was not its function to make findings of fact or to decide on the veracity of the allegations. It said that the IOP had given such weight to the allegations as it considered appropriate and to the comments on them made on Dr. Bhatnagar's behalf.
21. The IOP said that, in the light of the advice given by its Legal Assessor, it must ask itself what a reasonable onlooker would think, in the event of Dr. Bhatnagar ultimately being convicted of formal allegations arising from the concerns that had been outlined, about his being allowed to go on practising in the meantime. It derived this test from the decision of Eady J in Patel v GMC [2012] EWHC 3688 (Admin).
22. The IOP noted that its Legal Assessor had advised it to bear in mind the principle of proportionality, in relation not only to the need for an order but also for the period of any such order. In addition, it said that it had been advised that when carrying out the balancing exercise called for when considering the question of proportionality, it was necessary for the IOP to consider the degree of risk and, in this context, the likelihood of serious damage to public confidence in the medical profession, and hence to the reputation of the profession, if Dr. Bhatnagar were allowed to continue to work with patients.

The conclusions of the IOP

23. These were expressed in the following terms:

"29. The Panel has noted that the concerns raised about your probity encompass similar allegations of repeated dishonesty and are received from a number of separate sources. These concerns include similar issues to those for which you appeared before a previous FTP Panel and as a result of which, you were suspended.

30. Having considered the significant weight of information available today and the nature and seriousness of the allegations, and noting that matters remain under investigation, the Panel considers there are no conditions that would adequately provide sufficient safeguards for the public interest. The Panel has borne in mind that the public interest is not just about the protection of the public but also about the maintenance of public confidence in the profession, and a declaring and upholding proper standards of conduct and behaviour.

31. The Panel considered carefully the advice of the Legal Assessor and accepts the principle of somebody being innocent until proven guilty. However, it has to consider how the public would view this Panel taking no interim action on your registration given the widespread concerns about your probity and your previous GMC disciplinary history relating to similar matters.

32. In all the circumstances the Panel considers that public confidence in the profession would be seriously damaged if you were to be allowed to have unrestricted registration whilst the allegations are resolved. It considers that the suspension of your registration is a proportionate response.

33. 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. Whilst it notes that its order has removed your ability to practice medicine it considers that, in the light of all the circumstances, there are no conditions which would adequately protect the public interest.

34. In deciding on the period of twelve months, the Panel has taken into account the uncertainty of the time needed to resolve all the issues in this case. The Panel has taken into account the further enquiries which [counsel] indicated that the GMC will be pursuing."

24. It is clear from paragraphs 33 and 34 of the IOP's reasons that the uncertainty surrounding the time that the GMC would require to complete its investigation was a factor that influenced the sanction that it imposed. However, I doubt whether the IOP had in mind as a serious possibility the likelihood that the GMC would not be able to bring the case to a hearing within about 12 months.

The law

25. Section 41A(1) of the Act provides:

"(1) Where an Interim Orders 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')."

26. Mr. Butler referred me to a number of helpful extracts from the authorities, which I set out below. In Houshian v General Medical Council [2012] EWHC 3458 (QB), King J helpfully summarised the relevant parts of the guidance for determining interim orders. The relevant parts of the guidance which he quotes are the same as the corresponding paragraphs of the guidance currently in force. He said, at paragraphs 14-16 and 20-21:

"[14] The guidance issued by the GMC on the imposition of interim orders which was before the present panel contains the following guidance material to the issues raised in the present application. In considering this guidance I am mindful that the Guidance is not a statutory provision and has always to be seen in the light of the statutory provision in s 41A itself and cannot be used to give this provision an interpretation that it cannot otherwise bear. This said, I do consider the Guidance contains the framework of a sensible approach to be adopted when consideration is being given to the making of an interim order under s 41A.

[15] Paragraph 18 of the Guidance deals with the test to be applied under s 41A. It suggests a two stage test with which I would agree, namely that the IOP has first to be both satisfied that 'in all the circumstances there may be impairment of the doctor's fitness to practise which poses a real risk to members of the public, or may adversely affect the public interest or the interests of the practitioner' and secondly that 'after balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk'.

[16] Paragraph 19 suggests that the relevant issue in the context of the public interest ground is for the Panel to consider 'b whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period'. I stress the expression 'seriously' damaged with which I would agree, and the expression 'relevant period' which is of course the period between now and the resolution of the allegations faced by the practitioner.

…

The Assessment Of Damage To Public Confidence

[20] Paragraph 33 contains further guidance as to the assessment in this context of damage to public confidence. Having recorded that out of fairness to the doctor, allegations leading to the imposition of interim conditions are not published or disclosed to general enquiries, it suggests the following approach be adopted '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'.

[21] This seems to be an entirely sensible approach to the question of whether an interim order is desirable in the public interest in the context of the allegations faced by the Applicant in relation to his forging of documents and the use of them for the purposes of the Employment Tribunal proceedings."

27. In Sheikh v General Dental Council [2007] EWHC 2972, Davis J said, at paragraph 16:

"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."

(Mr. Butler's emphasis)

28. In Houshian, King J stated, at paragraph 12:

"As will be seen this case concerns an order imposed solely on the grounds of the public interest. Although of course the statutory grounds are no more and no less than those set out in the statutory provision, I do not disagree with the approach of Davis J in Sheikh v GDC [2007] EWHC 2972 when at para 15 having observed that as matter of strict language, no grammatical interpolation of the word 'necessary' fell to be applied to the phrase 'or otherwise in the public interest', he said that if 'the public interest' is to be invoked in this context, then '… that does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability' and when he further said at para 16 that '… in the context of imposing an interim suspension order, on this particular basis, … 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.' I accept also the observations of Nicol J in Sandler v GMC [2010] EWHC 1029 (Admin), 114 BMLR 141 when he said (para 14) in commenting upon these passages in Sheikh that the court should be cautious about superimposing additional tests over and above those Parliament has set, but I nonetheless agree with Davis J that it is 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."

And at paragraph 13:

"The importance of the principle of proportionality in determining whether an interim order should be made pending the resolution of as yet unproven allegations faced by the practitioner, cannot be overstated. A suspension has potentially three very important consequences for a practitioner. First there is the impact upon the person's right to earn a living: in this case the Applicant's pre-suspension salary was in the region of £150,000. Secondly, there is the obvious detriment to him in terms of his reputation. Thirdly it deprives the practitioner of showing that during the relevant period he has conducted himself well and competently and 'so, as it were, enhanced his prospects in front of the panel undertaking the final hearing' (per Davis J in Sheikh at para 18). I note that in Sandler Nicol J agreed that 'the Panel must consider very carefully the proportionality of their measure (weighing the significance of any harm to the public interest in not suspending the doctor against the damage to him by preventing him from practising).'"

29. In Patel v General Medical Council [2012] EWHC 3688 (Admin), Eady J stated, at paragraph 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."

The submissions of the parties

30. Mr. Simon Phillips QC, who appeared for the GMC, reminded me that the facts of Houshian were unusual. The suspension was based principally on the findings of an employment tribunal that the doctor had fabricated documents which he had presented to the tribunal as genuine. But, as King J pointed out, the referral to the IOP had not been made until over 18 months after publication of the judgment that raised the issues of probity that were said to make the suspension necessary (and four years after the dismissal that gave rise to that hearing) and at a time when the FTP Panel hearing was only four months away. King J based his decision to terminate the suspension primarily on grounds of proportionality and in the light of the delays. He also expressed reservations about the scope of the investigation before the tribunal (see paragraphs 34-36).
31. Mr. Butler submitted that the IOP had made a number of observations that were factually incorrect. First, he said that it was not correct that allegations of dishonesty by Dr. Bhatnagar had come from more than one source. Second, he said that it was wrong to suggest that Dr. Bhatnagar had appeared before the FTP Panel in the past where allegations of dishonesty against him had been made. Third, he appeared to dispute the allegation that Dr. Bhatnagar had been dishonest in allowing endoscopy to be carried out knowing that the process of variation by the Healthcare Commission was not completed.
32. Mr. Phillips challenged each of these points. He said that the FTP Panel in 2008/09 had found that Dr. Bhatnagar had been guilty of a want of probity. In addition, he submitted that the witness statement of the solicitor, Sian Morris, showed that she had been given information by Dr. Bhatnagar that was false.
33. In relation to the complaint relating to the use of endoscopy, he pointed out that that occurred during 2005/06 and it was not until 2008 that approval for the use of endoscopy was given. In Mr. Butler's written submissions it was suggested that the subject of the email from Mr. Manglam dated 16 September 2011 was a complaint against a different doctor. That is plainly wrong. Mr. Manglam made clear allegations against both that doctor and against Dr. Bhatnagar.
34. I agree with Mr. Phillips. For reasons that will become clear later in this judgment, I consider that Mr. Butler's submissions on these points put the case too high.
35. Mr. Butler also submitted that between 11 August 2011 and 3 August 2012 the GMC did not consider it necessary or appropriate to refer Dr. Bhatnagar to the IOP even though the allegations by Mr. Manglam had been made in September 2011. This is true. Mr. Butler submitted that Mr. Manglam was a disgruntled former employee with a personal vendetta against Dr. Bhatnagar and that there were witness statements submitted to the GMC (in November 2011) that cast doubt on Mr. Manglam's integrity.
36. If this is a fair description of Mr. Manglam, or at least of how he would have appeared to an objective observer when he made his allegations in September 2011, the GMC can hardly be criticised for attaching little weight to his allegations when they were first made, particularly in the light of the witness statements obtained by Dr. Bhatnagar from Ms. McDermott and Mr. Kennaugh, both of which were very scathing about Mr. Manglam.
37. However, at some stage between Mr. Manglam's e-mail of 16 September 2011 and the service of his witness statement in December 2012 the GMC were provided with copies of the documents produced by Mr. Manglam to support his allegations. In my view, these placed matters in a different light.

Discussion

The material produced by Mr. Manglam

38. The transcript of the telephone conversation between Dr. Bhatnagar, Mr. Manglam and Ms. McDermott on 4 August 2008, which was one of the exhibits to Mr. Manglam's witness statement, appears to show pretty unequivocally that Dr. Bhatnagar was instructing Ms. McDermott to put dates on documents that supported Dr. Bhatnagar's case before the FTP Panel, and also to alter fonts and layouts to make documents appear different. Dr. Bhatnagar is recorded as saying that he was proposing to present this material to the panel as additional documents that had been found. On a document containing a diagram showing the management structure, Dr. Bhatnagar asked someone, probably Mr. Manglam, to insert a line that went from Lynne Bennett to him because he wanted to show that others were involved in the management of the clinic. The other speaker (unidentified, but presumably Mr. Manglam) objected that it was not part of the structure and that he could only do it manually "… but that's not part of the management structure". Dr. Bhatnagar said that it could be done with a pen because he was going to give the panel photocopies.
39. The transcript of this telephone call appears to show that Dr. Bhatnagar was giving instructions to his staff to falsify documents that he intended to present to the panel the following day as evidence. If this is correct, then on any view it reveals a very high degree of dishonesty and a complete contempt on the part of Dr. Bhatnagar for the regulatory processes.
40. Next, Mr. Manglam produced a copy of minutes of a meeting which was said to have taken place on 28 October 2010 and which were, he alleged, produced to show that Dr. M was the Clinical Director at the time. He said that on the morning of that day he attended another meeting with Dr. Bhatnagar and a Joanna Henney and that he then left at about 12:45 to catch a plane to India. He said that Dr. Bhatnagar's electronic diary showed that he had a meeting with Ms. Henney and a case management conference in tribunal proceedings relating to the Care Quality Commission. There was no reference to any other meeting on that day.
41. He attached also the sign in/sign out register for the relevant building which, if correct, showed that one of the alleged attendees, Adam Kennaugh, did not enter the building on that day. The electronic diaries that he produced for Adam Kennaugh, Liz McDermott and Lynne Bennett showed no entry for a meeting on 28 October 2010 (however, Liz McDermott's diary for the month was completely blank - suggesting that she did not use it).
42. In support of Dr. Bhatnagar's case before the panel he produced a witness statement from Adam Kennaugh dated 7 November 2011, in which he stated that he had "never fabricated minutes of meeting". However, this statement did not say that Mr. Kennaugh had attended a meeting on 28 October 2010: it simply did not say anything about it. Dr. Bhatnagar also produced a statement from Liz McDermott dated 10 November 2011 in which she said, amongst other things, that she had never typed up any minutes of meetings that did not take place. She, too, did not say that she had attended the meeting on 28 October 2010. Of course, this may be - as Mr. Butler suggested - because neither she nor Mr. Kennaugh was asked to say whether or not they had been at the meeting. But if that is the case, one questions why they were not asked to say that. The issue was whether such a meeting ever took place and, therefore, whether Mr. Kennaugh and Ms. McDermott attended it.
43. In my view, this material adds to the evidence that suggests that Dr. Bhatnagar was involved in the production of false documents for the purpose of misleading the panel.
44. For the sake of completeness, I should mention that Mr. Manglam made three other allegations. The first involved the alteration of patient records. This appeared to involve only one record and the alteration, such as it was, did not seem to me to be of any great significance. In the context of the present allegations, I consider that it could be ignored. I should record that the IOP appears to have been mistaken in saying that this allegation was made in September 2011. As far as I can see, it was first made in his witness statement in November 2012.
45. The second allegation was an allegation that Dr. Bhatnagar had dishonestly obtained insurance for his business premises. This again was an allegation that was not made in the e-mail of September 2011, but was made at some later stage and notified to Dr. Bhatnagar by the GMC in December 2012. In my judgment it is not necessary to go into this allegation in any detail for the reasons that I give below in relation to the allegation relating to a fraud on a bank.
46. The third allegation was that he had been intimidated by Dr. Bhatnagar. The evidence about this allegation comes exclusively from Mr. Manglam himself. It is not supported by any independent evidence. I consider that this is an allegation to which relatively little weight can be attached.
47. However, the allegations of altering documents or creating false documents are in my view very serious. It seems to me that when an IOP is considering the proportionality of imposing a suspension it is entitled to have regard not only to the gravity of the allegations in themselves, but also (if it is in a position to do so) to the cogency of the evidence that is relied on to support them. It is one thing to have serious but unsubstantiated allegations and another thing to have serious allegations that are supported by what, on its face, appears to be reasonably cogent evidence.
48. In addition to these allegations made by Mr. Manglam, in the e-mail of 16 September 2011 he alleged also that Dr. Bhatnagar attempted to delay a bank from enforcing its security over some property owned by the Rotherham Hospital by producing a letter signed by Dr. M containing a bogus offer to purchase the property. A copy of this letter was before the IOP.
49. I do not propose to go into this allegation in any detail. Even if it was a dishonest ploy by Dr. Bhatnagar to obstruct the bank, like the allegation in relation to the insurance it had no direct relevance to Dr. Bhatnagar's fitness to practice and nor was it any evidence that he presented a risk to patients. This was not a matter to which I would have expected the IOP to attach much weight. In this context, I certainly do not do so.

The evidence of Sian Morris

50. The GMC also relied on the witness statement of Sian Morris, a legal executive acting for a claimant who complained of negligent surgical treatment at the Birkdale Clinic. The treatment involved breast augmentation. The solicitors acted for a number of clients and had been advised that the failure of the implant was the result of a manufacturing defect, although the manufacturers of the implants claimed that in some cases they had been damaged during surgery. In March 2011 Ms. Morris wrote to Ms. McDermott requesting the name of the liability insurers of the Birkdale Clinic. The letter received an unhelpful reply. The e-mail thread leading to this reply showed clearly that it came from Dr. Bhatnagar himself. The correspondence, which was in the papers before the IOP, continued for some six months, by which time Ms. Morris had got nowhere. She described Dr. Bhatnagar's behaviour as "obstructive, evasive and unprofessional". In my view that was a fair summary. His behaviour was also verging on the dishonest, as the IOP noted.
51. Whilst this correspondence showed Dr. Bhatnagar in a very bad light and involved activities closely related to his professional work, it was not in my view an allegation that would justify an application to suspend a doctor from practice. However, I do agree with the IOP that this lends support to the allegations of dishonesty against Dr. Bhatnagar and that it carries some weight because it is an allegation made independently of Mr. Manglam.

The Care Quality Commission allegations

52. The other material that was, of course, relevant to the IOP was the raft of allegations made by the Care Quality Commission following its inspections of the clinic in Rotherham in June and October 2009. In addition to denying the allegations, Dr. Bhatnagar said that he had delegated the day to day running of the clinic to others and that he had put in place robust systems to ensure that the clinic was operating to the required standard. This is a very similar defence to that which he ran before the FTP Panel in 2008/09.
53. For my part I would readily accept that these allegations, serious as they are (and were presumably supported by appropriate evidence), are probably not of a character that, taken by themselves, would justify a suspension.

The 2008/09 FTP Panel

54. The allegations before this Panel were of mismanagement of the Birkdale Clinic, London Road, Daventry. They included allegations such as: a failure to document the particulars of patients at the clinic; the lack of a system for auditing the performance of the anaesthetists who worked at the clinic; the failure to implement a system for auditing the quality of the services provided for patients at the clinic; the lack of a system for ensuring that documentation in respect of patients attending the clinic for treatment was promptly completed; the failure to implement a policy in respect of Recovery Room monitoring, and so on. These allegations, together with several other similar allegations, were found proved.
55. As I have already mentioned, one other allegation that was found proved was that Dr. Bhatnagar permitted the use of upper gastrointestinal endoscopy services to be provided at the clinic when he knew that the Healthcare Commission had not completed the process of varying the registration of the clinic in respect of such services and had been told that they could not be provided at the clinic until written confirmation had been received. Dr. Bhatnagar was found to have been in breach of this requirement by using endoscopy in 2005/06. Confirmation of approval to use it was not received until 2008. The FTP Panel found that in relation to this allegation Dr. Bhatnagar's conduct was dishonest.
56. In the light of its findings the Panel determined that Dr. Bhatnagar's fitness to practice was impaired by reason of his misconduct. The sanction imposed by the Panel was a period of six months suspension (although it was not directed to take effect forthwith).

The proper approach

57. The issue for the IOP was whether the combination of the allegations made by the Care Quality Commission and the allegations of dishonesty made by Mr. Manglam, together with the conduct revealed by Ms. Morris's witness statement and the findings of the 2008/09 FTP Panel, justified suspension. That is to say whether they justified a conclusion that the suspension was necessary in the public interest.
58. The IOP had to ask itself - and did ask itself - what a reasonable onlooker would think, in the event of the doctor ultimately being convicted of formal allegations arising from the complaints that had been outlined, about his being allowed to go on practising in the meantime. If this hypothetical onlooker would expect the doctor to be suspended from practice, then it would be legitimate to conclude that it was necessary that he should be suspended in order to maintain confidence in the medical profession.
59. Mr. Butler made the point that there is no allegation that Dr. Bhatnagar has caused any harm to a patient and, indeed, there is no suggestion that he has personally ever been guilty of harming a patient through medical malpractice. In the context of suspension this is a powerful point. If a doctor has practised for many years without directly harming a patient, what justification exists for suspending him?
60. In my view the answer lies in the allegations of dishonesty in connection with his practice and, in particular, dishonesty calculated to pervert the course of the GMC's regulatory procedures. This is, to my mind, quite different from, for example, committing fraud by abusing a position as a governor of a school: see Patel v The GMC [2012] EWHC 3688 (Admin). The allegations made by Mr. Manglam go close to the heart of Dr. Bhatnagar's activities as a doctor, not as, for example, a school governor or a property owner.
61. I consider that a reasonable onlooker would be concerned if a doctor who was accused of fabricating or altering the records of one of his clinics in order to avoid suspension was permitted to continue to practise, assuming of course that the allegations appeared to be supported by cogent evidence and were not just unsubstantiated claims. He or she would be reinforced in his conclusion if he or she knew that at an earlier hearing another FTP Panel had found that Dr. Bhatnagar had been guilty of dishonesty in the management of the clinic.
62. The reasonable onlooker test is, in effect, a combined test of necessity and proportionality. However, it still remains for the IOP and the Court to consider the consequences of the sanction in the context of the individual case. I agree with the IOP that, on the material before it, there was no appropriate condition that could meet the circumstances of this case: the question was whether or not Dr. Bhatnagar should be permitted to continue to practise pending the final hearing.
63. Dr. Bhatnagar is 66 and, at that age, suspension would be likely to make it difficult, if not impossible, for him to find other work. It is clearly a draconian measure. However, in my view Dr. Bhatnagar has demonstrated that he is not to be trusted. He has shown a persistent disregard for the requirements of good management and that he is prepared to resort to calculated dishonesty in order to get his way.
64. In these circumstances I consider that upon the material before the IOP it was not unnecessary, disproportionate or wrong to suspend Dr. Bhatnagar. I turn now to the question of reasons.

The adequacy of the IOP's reasons

65. As Lindblom J observed in Abdullah v General Medical Council [2012] EWHC 2506 (Admin), at paragraph 102:

"Paragraph 41 of the GMC's guidance discourages the giving of 'long detailed reasons'. What the IOP had to do - no more and no less - was to explain why the decision was the one they had announced. In most cases, probably in every case, this can be done briefly. The IOP were exercising a statutory power framed in simple terms. Three interests are embraced in that provision: first, 'the protection of members of the public', second, 'the public interest', and that, 'the interests of the registered person'."

66. The IOP made it clear, paragraph 25, that the interest embraced in this case was that of the public interest. It noted that there were no substantive clinical issues before the panel. I have already quoted the conclusions of the IOP, but it is perhaps worth repeating what it said at paragraph 29 of those conclusions:

"The Panel has noted that the concerns raised about your probity encompass similar allegations of repeated dishonesty and are received from a number of separate sources. These concerns include similar issues to those for which you appeared before a previous FTP Panel and as a result which, you were suspended."

67. As already set out above, the IOP then went on to say that, having regard to the nature and seriousness of the allegations, there were no conditions that would adequately provide sufficient safeguards for the public interest and that public confidence in the medical profession would be seriously damaged if Dr. Bhatnagar was allowed to have unrestricted registration whilst these allegations were resolved.
68. Whether one agrees or does not agree with the views of the IOP, in my view the reasons it gave for its decision were perfectly clear. I therefore reject this ground of complaint.

Conclusion

69. For the reasons that I have already given, I reached the conclusion that, since the allegations made against Dr. Bhatnagar included very serious allegations of dishonesty in connection with his practice, the reasonable onlooker would be concerned if he was allowed to remain in unrestricted practice until the allegations against him had been resolved.
70. I therefore considered that this was one of those rare cases where interim suspension was justified and that the IOP was entitled to reach the conclusion that it did. I concluded that I would have reached the same conclusion on the material before it.
71. Accordingly, I notified the parties on 2 July 2013 that I had decided to dismiss this application and I then prepared this judgment in draft setting out my reasons for that conclusion.

An application to adduce further evidence

72. However, after preparing this judgment in draft (but before it had been issued to the parties), I was informed that Dr. Bhatnagar had made an application to adduce further evidence that he wished the court to consider before the judgment was handed down. The material that he wished to put before the court is the determination of the IOP made on 16 July 2013 on a review of the order made on 17 January 2013. Whilst the IOP remained of the view that it was both necessary and proportionate for an interim order to be imposed on Dr. Bhatnagar, it determined that the order could be varied from one of suspension to one of conditions and so varied it accordingly.
73. Dr. Bhatnagar submits that this is highly relevant to the conclusion that I had reached, and of which I notified the parties on 2 July 2013, and he asked for an urgent hearing of his application. This is therefore a case where the application to admit fresh evidence follows the notification of the decision but precedes the giving of the reasons for that decision or the sealing of any order giving effect to it. It has now been held by the Supreme Court in Re L & B (Children) [2013] UKSC 8, that an exceptionality test is not the correct approach to be adopted when a court is deciding whether or not to alter its decision at any time before the order giving effect to it is drawn up.
74. I decided that there should be an oral hearing of this application and, on 3 October 2013, I gave directions for such a hearing. It was fixed for 31 October 2013. That hearing duly took place and the parties were represented by the same counsel as before. However, since the hearing of the IOP held on 16 July 2013 there had been a further three month review, which was held on 11 October 2013. That resulted in a further decision and so Mr. Butler applied to amend his application in order to put that decision before the court also. I granted that application.
75. It is said that the IOP had before it on 16 July 2013 the same material that was before me, save for additional evidence in the form of the report of a computer expert who had analysed the mobile phone belonging to Mr. Manglam. However, I note that the IOP adjourned the hearing for one week (from 8 July 2013) in order to "to allow [Dr. Bhatnagar] to obtain further information". The determination itself refers to "the information sent to the Panel members in advance of the hearing, the information provided by you, your submissions and submissions made by Ms. Fairley on behalf of the GMC". Dr. Bhatnagar was not represented by counsel at that hearing and it seems that he may have represented himself.
76. It has to be said that the reasons given by the IOP (which was differently constituted) for its decision to substitute conditions for suspension on 16 July 2013 are fairly cursory. It appears that Dr. Bhatnagar had drawn the IOP's attention to various documents that he said supported his refutation of the allegations made against him and explained how, since his suspension, he had not been able to find work and that in consequence he had suffered financial difficulties.
77. At paragraphs 8 and 9 of its decision the IOP said this:

"8. After balancing your interests and the interests of the public, the Panel decided that an interim order is still necessary to guard against such risk. Whilst the Panel notes that the order has restricted your ability to practice medicine, it is satisfied that the order imposed is the proportionate response on the material available to the Panel today.

9. The Panel is mindful that the concerns raised about your practice do not question your clinical ability nor do they suggest a risk to patients. It is therefore determined that an interim order of conditions is a proportionate response, addressing the concerns about Dr. Bhatnagar's ability to work in a management role by directing you to obtain approval from the GMC for any post you wish to accept, whilst enabling you to undertake work in a clinical capacity should you wish to do so. The Panel notes that a future Panel may be assisted by any information you could provide about work that you do undertake between now and the date of the next review. It may also be assisted by an up to date appraisal and information about your progress towards revalidation."

78. Section 41(3) of the Medical Act 1983 gives a reviewing IOP the power to revoke an interim suspension order and to replace it with an order for interim conditional registration having effect for the remainder of the term of the original order. In order to do this, the IOP must be 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 the person concerned". This last consideration seems to me to reinforce the general requirement that any order must be a proportionate one. It is clear that the panel that carried out the review on 16 July 2013 had these provisions well in mind.
79. I was told at the hearing of the application that the uncertainty that existed in January 2013 about the time that the GMC would need in order to complete its investigations still remained at the time of the hearing on 16 July 2013. That, in my judgment, is very relevant because it would have been evident to the IOP that if Dr. Bhatnagar were to remain suspended until the conclusion of the hearing of his case, which was the purpose of suspension in a case such as this, the resulting period of suspension might well end up being much longer than that which could have been anticipated in January 2013.
80. As I have said, a further IOP (again, differently constituted) carried out the three month review on 11 October 2013. That panel rejected submissions made by the GMC that the interim order of conditions should be varied to one of suspension, and decided to continue the order on the same terms. The panel said this:

"… there is no new information before it today which justifies any departure from the decision of the previous review Panel. Also, both parties accepted that there is no new information before it which indicates any material change in circumstances since the last time the IOP reviewed the interim order. In addition, both parties agreed that you have complied with the conditions.

The Panel is satisfied that the order imposed is the proportionate response because the conditions are the minimum necessary to protect public confidence in the profession, whilst allowing you to continue in clinical practice."

81. Unfortunately, these observations do not provide much assistance in understanding what it was that led the previous IOP to substitute conditions for suspension. It seems clear that both panels were concerned at the effect on Dr. Bhatnagar of an order of suspension from practice. This is a factor that inevitably has more weight as time goes on without any date for a hearing of the allegations having been fixed. It appears also that the panel may have given some weight to the submissions of Mr. Butler as to the "paucity of information provided in support of the allegations" against Dr. Bhatnagar. This is not a submission that found much favour with me for the reasons that I have already given.
82. In spite of the forceful submissions of Mr. Butler, and his emphasis on the need for consistency of decision-making between successive IOPs, I am not persuaded that I should change my mind. My decision to dismiss the appeal will therefore stand.
83. I have reached this decision for the following reasons. First, I had already made my decision and communicated it to the parties: this is not a case where judgment had been reserved. Whilst it is open to me to revoke or vary my decision, I consider that in this type of case there would have to be compelling circumstances before such a course would be appropriate. Second, my decision was based on the situation in January 2013, not upon the situation in July 2013. The continuing uncertainty about when the substantive hearing will take place is a factor which could properly have carried more weight in July 2013 than it did in January 2013. Third, the determination of the IOP in July 2013 suggests on its face that it took into account some further information - whenever arising - over and above that which was before the IOP in January 2013 (and which was therefore before me) and there was no application to put that additional information before me in support of this application, save in the most general terms as reflected by the decisions of the two IOPs. This is not entirely surprising since Mr. Butler was not present at the hearing before the IOP in July 2013 and was therefore not in a position to know exactly what had been said on that occasion. For example, it seems fairly clear that the impact of suspension on Dr. Bhatnagar was something that weighed heavily with the two IOPs. Fourth, even if the IOP (albeit differently constituted) has simply changed its mind as to the sanction that would have been appropriate in January 2013, that is not of itself a reason why my appraisal of the situation - reached independently - should change.
84. In these circumstances I do not consider that the two recent decisions of the IOP provide any sound justification for altering the conclusion that I reached following the hearing. Accordingly, my decision must stand.