B e f o r e :
THE HONOURABLE MR JUSTICE HADDON-CAVE
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Between:
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GENERAL MEDICAL COUNCIL
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Claimant
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- and –
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ADEKOLA
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Defendant
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(DAR Transcript of
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Mr Phillips QC (instructed by GMC Legal) appeared on behalf of the Claimant
Mrs Sarah Daley (instructed by Lester Morrill) appeared on behalf of the Defendant
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Mr Justice Haddon-Cave:
- The court has been much assisted in this case by the extremely helpful and lucid submissions of both Mr Phillips QC, on behalf of the GMC, and Mrs Sarah Daley, on behalf of the respondent, Dr Rapinder Adekola.
- The GMC seeks an extension of an interim order of conditions made on 30 August 2011. The interim order of conditions was originally an interim suspension order, and the application today is made in the usual way under section 41A(6) of the Medical Act 1983. The interim order of conditions was most recently reviewed and varied on 17 October 2012. It expires on 28 February 2013; hence the application before me today. The application made by Mr Phillips QC on behalf of the GMC is for an extension of nine months until 27 November 2013.
- The principles upon which the court acts in relation to applications such as this are well understood and rehearsed. They are set out very clearly in 41A(6). Under section 41A(7) the court may extend or further extend orders for up to 12 months if so minded. The court is the primary decision maker and is not simply restricted to reviewing the earlier decision of the IOP (Interim Orders Panel) (see GMC v Hiew [2007] EWCA Civ 369 at paragraph 26). The court looks at all the factors and "the court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued" (paragraph 28). The burden of persuading the court of the need and appropriateness of an extension is upon the GMC.
Background
- The defendant, Dr Adekola, commenced employment as a part-time salaried GP at Brackley Health Centre, Northamptonshire in 2005. Between 2005 and 2009 several employment issues appeared to have arisen in relation to Dr Adekola and relating to her relationship with other staff members and her reaction to stress which were dealt with at a local level, the lead partner in Brackley Health Centre stated.
- In 2009 there appears to have been some evidence that Dr Adekola was a victim of domestic violence. In 2010 it came to light that Dr Adekola had been suspended for a period of time during her GP training practice in Scotland but had not mentioned this to her employers.
- On 30 March 2011 Dr Adekola was arrested in connection with the acquisition of scorpion/spider venom, purportedly by a company, Ophiuchus Research. Detective Constable Ansell, who was involved in that arrest, described Dr Adekola as acting very strangely, shouting and being extremely aggressive and giving "the strangest reaction I have ever had in the whole time that I have been in the police". Charges in relation to that matter were not eventually proceeded with. Further general issues arose and on 21 July 2012, following a disciplinary meeting conducted by Brackley Health Centre, Dr Adekola was dismissed by her employers for gross misconduct.
- In August 2011, she was invited to undergo a health assessment in accordance with Rule 7(3) of the GMC (Fitness to Practise) Rules.
- If we fast forward to 17 October 2012, the Interim Orders Panel of the GMC made a determination, at a hearing at which Dr Adekola was neither represented nor present, that, having considered her case on 30 August and determined, it was necessary for the protection of members of the public and in the public interest to make an order suspending her registration, it was satisfied that it continued to be necessary for the protection of members of the public that her registration remained subject to a series of conditions and that she remain suspended.
- On 11 February 2013, a Rule 7 letter was sent to Dr Adekola, which set out in Annex A the gravamen of the charges against her. There were six charges against her. I will not repeat them here, but simply annex Annex A to this judgment. Individually, the charges made against Dr Adekola are themselves significant and serious. Collectively they form a very troubling series of allegations ranging from leaving her practice in March 2009 without notifying her colleagues, refusing to attend meetings on numerous occasions, troubling relationships with her colleagues, inappropriate prescribing and the bizarre attempt to procure toxic venoms, apparently for the purposes of research.
- Mr Phillips QC for the GMC has directed me to the statement of Stephanie Pollitt, which supports the application for the extension. Ms Pollitt in that statement, dated 18 January 2013, said that three statements were being sought in support of the case and a Rule 7 letter was going to be finalised and sent to Dr Adekola, and indeed that is precisely what has been done. Mr Phillips submits that, given the pilot scheme in place which allows for a meeting with Dr Adekola to see how the matter might be progressed, a period of nine months is a reasonable period in order to ensure the finalising of these proceedings.
- Mrs Daley for Dr Adekola, in her very helpful written and oral submissions, has made four points. Firstly, on analysis, there are no real clinical concerns in relation to Dr Adekola identified. Two, there has been considerable delay by the GMC in progressing this matter and no real excuse for taking 18 months to produce three witness statements. Three, the effect on Dr Adekola of continuing inability to work has been harsh. She is on benefits. Four, if the court is minded to grant an extension, it should also grant some variations of the conditions which Mrs Daley has identified in her skeleton.
- Dealing briefly with each of those submissions, firstly, it is quite clear to me looking at the rule 7 allegations, both individually and as a whole, that there is a formidable case for suggesting that Dr Adekola's fitness to practise is impaired and that the overriding duty of the GMC and the court to ensure the protection of the public is one which is very much engaged in this case. Secondly, as explained by Mr Phillips, there has been good reason for the time which has been taken to progress this case. Quite a lot of it has to be laid at the door of Dr Adekola, who was invited, as I have said, to undergo a health assessment, but took five months to respond. Thirdly, the conditions do not entirely prevent Dr Adekola from practising. No doubt the fact that she has been suspended by both Northampton and on the national list count against her in any applications, but the court must balance the rights of the individual against the needs to protect the public and the integrity of the profession.
- I am satisfied as to the following:
1. This case has been progressed with reasonable expedition by the GMC in all the circumstances.
2. There are good reasons put forward for an extension of time in this case.
3. For the reasons explained by Mr Phillips QC, an extension of three months plus six months, ie nine months, is reasonable in all the circumstances.
- I am not satisfied that it would be appropriate for the court to seek at this juncture to consider potential variations, the potential variations to the conditions as sought by Mrs Daley. It is not pellucid under section 41A(10) as to whether or not the court has the power to do so in any event, since any decision by the relevant court under section 10, if section 10 application had been formally made in this case (which it has not), that any order of the court would be "final".
- It seems to me that it be rare that the court makes such an order without having had the benefit of the deliberations and guidance and first stab by the IOP. As Mr Phillips QC points out, if an extension is granted in this case, the matter will revert pretty soon to the IOP and, if Dr Adekola is advised by her legal advisers to make an application to them for any variation, then they will no doubt consider it and either reject it or ameliorate the conditions as they see fit.
- For those reasons, I grant the GMC's application for an extension of nine months as asked.
- I am grateful to both counsel for their assistance and to the court staff for sitting on.
MR PHILLIPS: My Lord, I do not wish to intrude into the short adjournment break for the court staff. I have prepared a draft order for your Lordship's attention. I wonder if I might submit that?
MR JUSTICE HADDON-CAVE: Thank you. (Handed)
MR PHILLIPS: It is in the terms in which your Lordship has ruled.
MR JUSTICE HADDON-CAVE: That was optimistic of you.
MR PHILLIPS: Well, I did have in mind an opposition to any costs application if it was being made by my learned friend if my learned friend was successful, but on this occasion the GMC have made application. The application has been granted and I do invite your Lordship to order costs to follow. We have prepared a schedule with a statement of costs with that in mind, which has been served on my learned friend. Can I briefly say in relation to that schedule it does not of course include any court fee. The reference to counsel's fees are the rates for junior counsel in the case. There is no uplift in the application. Your Lordship will see the number of hours that have been claimed in respect of those instructing me. My learned friend or the doctor were on notice when the application was served that the claimant would be seeking costs in the application. The claimant had the option of agreeing to the order as sought and a draft consent order was supplied to the doctor, which provided of course in the usual terms that there would be no order as to costs.
MR JUSTICE HADDON-CAVE: Yes.
MR PHILLIPS: The doctor has resisted that opportunity and we would invite my Lord to award costs in the sums sought, which are specified £1,990.80.
MR JUSTICE HADDON-CAVE: Yes.
MR PHILLIPS: That is the application.
MR JUSTICE HADDON-CAVE: Thank you.
MRS DALEY: My Lord --
MR JUSTICE HADDON-CAVE: Mrs Daley, you came and you fought in a spirited manner and you lost.
MRS DALEY: Yes, I came to court under Legal Aid functioning I should clarify, so I would ask for detailed assessment of the defendant's public funding. But I would also -- I appreciate that costs do follow the event, but in this case I would say that the claimant's conduct of the case is relevant to your decision on the issue of costs, as it has been stated by my learned friend, that the defendant had all the information and she had the consent order and she could easily have agreed to it and avoided costs. As I mentioned at the outset, my Lord, the defendant did not have all of the information to hand when she was presented with that. There has been significant filing of evidence late in these proceedings, which has necessitated a further statement by the defendant, and that is of course where we have court rules so that the defendant can be appraised of the position of the claimant early and assess how to proceed. I have also mentioned in my skeleton that the claimant has not acted in accordance with the CPR and did not, of course, file their evidence in the fashion stated there and it is obligatory that they must file evidence there and I am sure the claimant was aware of that. So, for those reasons, I would oppose the order as to costs.
(judgment on costs)
Mr Justice Haddon-Cave:
- The GMC seek their costs of this hearing in the summary assessment of £1,990.80 on the basis that proper notice was given of the application for an extension and it was being resisted by Dr Adekola. Mrs Daley resists the application for costs on the basis of the late filing of evidence by the GMC and the general conduct of the GMC of the matter.
- I have already ruled that the GMC's conduct of the matter has been pretty faultless in dealing with this unusual case. It does not seem to me that the late filing of any evidence has made a great deal of difference to the outcome or would have led to an earlier throwing in of the towel by Dr Adekola.
- The costs claimed are modest and proportionate. The court has had the benefit of leading counsel at a moiety, for which it is grateful. It seems to me that the draft bill of costs is reasonable. I, therefore, summarily assess the costs of today in the sum of £1,090.80. And since Dr Adekola is legally aided I make the usual order, whatever the formulation is. If it could be added if necessary in manuscript to the draft which I have just initialled. And I wish you all a late lunch and a pleasant day. Thank you very much indeed.
Annex A
Rule 7- Dr Rapinder Adekola
That, being registered under the Medical Act 1983 (as amended):
- Between October 2005 and 23 July 2011 you worked as a part-time, salaried, General Practitioner at the Brackley Health Centre, Halse Road, Brackley, NN13 6EJ (the 'Practice').
- In relation to your clinical practise;
a) On 31 March 2009 you;
i) Left the Practice without notifying your colleagues of your expected return time;
ii) Did not arrange suitable cover for your patients' medical care;
b) On 6 April 2009 you refused to attend a meeting with the Practice Partners to discuss your conduct referred above at paragraph 2 (a);
c) In November 2009 you did not provide a response to Patient A who had made a complaint to the Practice about you.
- In relation to your dealings with the Primary Care Trust ('PCT');
a) In March and April 2009 you;
i) Did not respond to correspondence from the PCT in respect of their Child Protection requirements;
ii) Refused to attend a meeting with the Practice Partners and the PCT;
iii) When advised that your non-cooperation could affect your inclusion on the Performers List you stated "Well, I'll just sign on another list," or words to that effect;
b) In July and August 2011 you failed to respond to correspondence from the PCT regarding your inclusion on the Performers List.
- In relation to your behaviour at work;
a) On 7 October 2008 you complained that a urine specimen had purposefully been left in your room and alleged this was a racially motivated act, without good reason;
b) In 2010 you;
i) Refused to attend a number of Practice meetings;
ii) Failed to read a number of internal emails sent to you;
iii) Failed to attend the Cardiocall Event Monitoring Training on 13 October 2010 for no good reason;
iv) As a consequence of 4 (b)(i)-(iii) above, you did not keep your knowledge and skills up to date;
v) In June 2010 refused to accept or use your NHS Care Records Service Smartcard;
vi) Did not always notify your colleagues when you were leaving the building;
vii) Did not always check the message book for messages;
viii) On 22 September 2010 you complained about a conversation between staff regarding the shape and size of fruit, alleging the conversation to be racist without good reason;
ix) Ignored your colleagues when they spoke to you;
x) As a result of 4(a) and (b)(vi)-(ix) you did not maintain appropriate relationships with your colleagues.
xi) In December 2010 failed to provide a copy of your Hepatitis B status as requested by the Practice Manager;
xii) Deleted files from the shared 'p' drive without permission.
- In relation to your prescribing practise;
a) In April 2010 in relation to Patient B you;
i) Prescribed 12.5 mg of Methotrexate per week instead of the required 15 mg;
ii) Prescribed 10 mg Methotrexate contrary to the Northamptonshire Prescribing Advisory Group Shared Care Protocol;
iii) Prescribed almost a year's supply of 10 mg Methotrexate despite the high risk of overdose;
b) When informed of your error by the Pharmacist at Lark Rise Pharmacy you;
i) Appeared disinterested and irritated by the interruption;
ii) Told the Pharmacist that you had prescribed almost a year's supply of 10 mg Methotrexate because you "thought it would be cheaper for the patient" or words to that effect.
- In March 2011 you:
a) Allowed your name and title as a Doctor to be used for the attempted procurement of toxic venoms by your husband to give credibility to his order;
b) Failed to co-operate with Police Officers A and B (the 'Officers') of Northamptonshire Police (the 'Police') when they attended at your home address on 30 March 2011;
c) Demonstrated aggressive and threatening behaviour towards the Officers;
d) Opened the police car door when Officer A was in the car, shouted at her and then slammed the car door, causing Officer A to fear for her safety.
And that in relation to the facts alleged your fitness to practise is impaired by reason of your misconduct and/ or your deficient professional performance.