England and Wales High Court (Administrative Court) Decisions

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

		2 Park Street Cardiff South Wales CF10 1ET
		18th October 2013

1. MR JUSTICE CRANSTON: Dr Adeela Kashif, the appellant ("the doctor"), challenges the decision of the General Medical Council's Interim Orders Panel ("the Panel") dated 29th May 2013 to maintain an interim suspension order for 18 months.
2. The background is this. At the material times the doctor was employed by the Eforestfach Medical Centre in Swansea. In a letter dated 13th November 2012 the partners at the centre referred her conduct to the General Medical Council. There were a number of concerns raised in the letter, including a misleading explanation as to why she had not attended a tutorial at the surgery; the examination of patient JH, now known as patient "A"; the examination of a female patient; the changing of records retrospectively; communications with patients; and concerns about her basic medical knowledge.
3. The General Medical Council acted quickly. On the 18th December there was a meeting of the Panel which imposed an interim suspension order for 18 months pending the outcome of an investigation.
4. Before that Panel explanations were offered on behalf of the doctor: her inexperience, her lack of confidence, the fact that she had experienced a serious traffic accident the year before and her anxiety in the face of senior colleagues.
5. The Panel reviewed the interim order, as I have said, in late May 2013. By this time there were witness statements available from the doctors at the practice. In particular there was a witness statement from Dr Santori. In the course of his witness statement, Dr Santori said that the patient, JH, returned to the surgery for a rectal examination. In the presence of the doctor he, Dr Santori, had explained the need for a rectal examination and asked the patient whether this had been done before by the doctor. Initially he had said "no". The appellant then corrected him and said that: she had done a rectal examination in August, prompting the patient. The patient in Dr Santori's view seemed quite uncomfortable but reluctantly agreed with the doctor.
6. At the hearing of the Panel in late May, there were also two reports from Dr Isaacs, who had been commissioned by the General Medical Council to prepare a report on the case. One was dated 29th April, the other the 7th May. There is no need to recount what Dr Isaacs said in the course of those reports but at one point he said that, in his opinion, if found proved the the doctor's standard of care did fall seriously below the standard expected of a reasonably competent general practitioner.
7. Before the Panel Mr Climie, who now represented the doctor, made a number of submissions, seeking to explain the various allegations. He submitted that she was a junior doctor. He pointed to the interruption to her training and the implications of the road accident in 2011. In particular he sought to explain the allegations of dishonesty, albeit that the Panel was not engaged in fact finding. One explanation which he noted was the lack of confidence that the doctor had and also the context in which she worked, where her confidence was adversely affected by what she regarded as an unfavourable climate for a junior doctor such as herself.
8. Notwithstanding his submissions that the extension of suspension was disproportionate, the Panel maintained the interim suspension order. In the course of its determination the Panel recounted Mr Climie's submission. It is said that nonetheless in the light of serious concerns raised, regarding the doctor's clinical skills, communication, confidence and probity, it was satisfied that there might be an impairment of her fitness to practise which posed a real risk to members of the public, and which might adversely affect the public interest. The Panel gave weight to Dr Isaacs' reports but nonetheless considered that conditions on her practising would not be sufficient to guard adequately against the risk identified or to protect the public or the public interest. The Panel stated that it had taken account of proportionality.
9. In August the General Medical Council prepared its rule 8 letter. Allegations which had been before the two hearings of the Panel were significantly narrowed. The allegations were now divided under two heads. The first related to the consultation with patient "A" on the 3rd October 2012. The allegation was that 1(a) the doctor had failed to conduct a prostate examination; (b) had ignored the request of a partner in the practice to conduct a prostrate examination; (c) given conflicting accounts to the partners as to whether she had carried out the examination within the consultation; (d) gave conflicting accounts of why she had been unable to carry out a prostrate examination within the consultation and (e) had amended the patient's medical records following a meeting with the partners to include a statement that she was unable to carry out the prostrate examination.
10. Under the second head the allegation was that when "A" had returned to the surgery on 4th October 2(a) the doctor had requested "A" to agree that she had previously conducted a prostrate examination and (b) carried out a prostrate examination that demonstrated poor clinical technique.
11. There is no need to examine in detail the relevant legal principles which both sides accept apply in this case. Under section 41A(10) of the Medical Act 1983, this court may, in the case of an interim suspension order, terminate the suspension and substitute for the period specified in the order another period.
12. The leading authority is General Medical Council v Hiew [2007] EWCA Civ 369. Giving the judgment of the Court of Appeal Arden LJ said at paragraph 28 that the court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the harm, the risk of harm to patients, the reasons why the case had not been concluded and the prejudice to the practitioner if an interim order was to continue. The onus is on the General Medical Council to the civil standard. At paragraph 31 Arden LJ stated that the statutory scheme made clear that it was not the function of the judge to make findings of primary fact.
13. Both parties before me have drawn my attention to the decision of Malik v General Medical Council [2013] EWHC 2902 (Admin). In the course of his decision in that case, His Honour Judge Raynor QC, sitting as a judge of the High Court, said at paragraph 3 that he had to consider the position on the evidence before him and the evidence was not limited to that which was before the Interim Orders Panel.
14. Before me Mr Climie has, in a sense, re-agitated the submissions he made before the Panel. He has submitted that that if one stood back from the allegations now set out in the rule 8 letter, when the matter came to fact finding strong submissions could be made. These would provide an explanation for what the doctor had done and would undermine the General Medical Council's case that there had been dishonesty. This was a doctor whose English was good but not perfect. She was a junior doctor. There were the ramifications of the serious injuries she had suffered in 2011 and, in the support programme process, she had been identified as someone who did lack confidence.
15. Taking factors such as these, there could well be a basis for misunderstanding. It could well be, and it would be strongly contended that there was no dishonesty. In relation to the rule 8 allegation regarding the amendment of the medical records, Mr Climie spent some time in examining the nature of these records and how the software worked. The basic point was that were the records to be examined it would be obvious when amendments were made. That went to the separate allegation of dishonesty under point 1(e).
16. In relation to the allegations under heading 2, Mr Climie submitted that it could well be, it would be strongly contended that they would not hold up.
17. Perhaps more importantly for me Mr Climie made two submissions in relation to the findings of the Panel. First, he pointed out that the Panel had identified a serious concern with communication which had not been raised directly before it. More importantly, he made the obvious point that the rule 8 allegations had been considerably narrowed from what was before the Panel both in December 2012 and May 2013. Given the narrowing of the allegations the level of dishonesty being alleged, which of course was denied, was low. It was certainly not with an intention to profit. The case therefore fell within the ambit of the decision in Malik v General Medical Council, where the position before me was different from what was before the Panel.
18. Mr Lumley QC, for the General Medical Council, very fairly that this was a young doctor and in normal circumstances the Council would take the view that she should be allowed to develop. She was in the early stages of her career and therefore, as a trainee, allowances should be made. Nonetheless, he submitted that the allegations set out in the rule 8 letter were too grave given that they raised issues of probity. Under the test set out in Hiew, Mr Lumley QC submitted, the interim order of suspension should be continued. He explained that the change of tack on behalf of the General Medical Council in the August rule 8 letter, from the case advanced before the Panel in May, was explained by the fact that the reports from Dr Isaacs had come in late. Following the hearing of the Panel in May, these were digested more thoroughly by the Council. It seems to me given the dates of those reports from Dr Isaacs, that was a perfectly proper point to make. No criticism can be attached to the Council in relation to the way the case was put before the Panel in May. Nonetheless, Mr Lumley submitted that these were serious allegations which survived in the rule 8 letter. The Panel had taken account of proportionality and that in all the circumstances the interim order should be continued.
19. I find this a troubling case. These are serious allegations. It is not for me to determine whether or not they are true. But the fact is that the process by which they have been considered has led to a narrowing of the allegations against the doctor. The situation before me is different from what it was before the Panel in May.
20. In the light of Malik v General Medical Council I need to consider the matter as it now is. In all the circumstances, it seems to me that the continuation of the the interim suspension order would be disproportionate. On that basis I will allow the appeal and discharge the suspension order.
21. MR CLIMIE: There is an application for costs. I do not know whether your Lordship has the statement?
22. MR JUSTICE CRANSTON: I think they came in but I have not got them.
23. MR CLIMIE: I handed my copy to my learned friend. I wonder if I could just recover it for a moment. If I may have my copy of the costs? Can I immediately concede that under the heading "Attendance at hearings" which is the last hearing under the solicitors attendances and the claim for 5 hours should be reduced to no more than 3.
24. MR JUSTICE CRANSTON: It is always helpful to have the other side's statement of costs.
25. MR CLIMIE: If you wish it, I have a copy of it. It may be that my learned friend does not have any observations save for one that was an obvious observation to make in terms of the time spent in. Are you content to?
26. MR LUMLEY: Absolutely.
27. MR CLIMIE: Certainly my Lord.
28. MR JUSTICE CRANSTON: It is always helpful to compare. I suspect that given Mr Lumley's frankness...
29. MR CLIMIE: The difference in terms of the bottom line is just over £2,000, the difference we would say is accounted for by virtue of the fact that it is of course our application and claim and inevitably we have to do the running in terms of the primary work. It may be that my learned friend has submissions. I know not. If he does not it may shorten matters.
30. MR LUMLEY: Other than to adopt what my learned friend says about the hours spent here.
31. MR JUSTICE CRANSTON: How does that come down?
32. MR CLIMIE: If your Lordship has page 3, 5 hours at £193 becomes 3 hours at £193, so we remove £386 from the total which then of course has to have VAT applied to £386, it will reduce it to £3,999.84 pence.
33. MR JUSTICE CRANSTON: What is the total?
34. MR CLIMIE: That is what I am trying to discern, VAT.
35. MR JUSTICE CRANSTON: Just give me the approximate figure.
36. MR CLIMIE: It will be approximately £450 off the total bill. So that will be down to £8,920.
37. MR JUSTICE CRANSTON: You had done the case before, had you not?
38. MR CLIMIE: Yes.
39. MR JUSTICE CRANSTON: £8,500 as a round figure.
40. MR CLIMIE: Thank you very much.
41. MR JUSTICE CRANSTON: Is there anything more?
42. MR CLIMIE: No.
43. MR JUSTICE CRANSTON: Thanks very much indeed.