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 M60 9DJ
		28th January 2014

1. THE DEPUTY JUDGE: This is an application by the claimant, General Medical Council, for an extension of an interim order of conditions. The matter last came before this court on 29th October 2013, on an application to extend the interim order of conditions for 12 months, from 31st October 2013 to 30th October 2014.
2. On that occasion Supperstone J concluded that the order should only be extended for a period of 3 months. Accordingly the order is due to expire on 30th January 2014. The claimant seeks a 10-month extension, which would run until the 30th November 2014. Effectively and quite remarkably it seeks an extension to a period beyond that which it requested only 3 months ago.
3. The background to this matter is helpfully set out in Supperstone J's judgment and I read from paragraph 2:

"2. Mr Agrawal is a consultant in hepatobiliary and pancreatic surgery. He took up his first consultant's position at the East Lancashire Hospitals NHS Trust in March 2011. On 11th October 2011 he was excluded by the trust following concerns. On 26th November 2011 the trust produced an investigation report. There were clinical performance issues arising from his treatment of five patients and allegations that he had been unsupportive towards two junior members of staff.

3. The GMC wrote to Mr Agrawal on 2nd April 2012. His case was first considered by the Interim Orders Panel on 1st May 2012, when it was determined that it was necessary for the protection of members of the public and in the public interest to make an order imposing conditions upon his registration. This order was reviewed and maintained on 5th October 2012.

4. On 25th March 2013 the conditions were varied. At paragraph 22 of its decision it is stated that:

'The panel has taken into account the submission that the conditions imposed by the previous panel were tantamount to a suspension. However, it is satisfied that workable conditions have been formulated which will allow you to return to work whilst addressing the concerns raised.'

The order was reviewed and maintained on 4th July 2013.

5. On 26th September 2013 the panel considered it was necessary to maintain the interim order conditions. However, the panel noted that in relation to the five clinical cases which the GMC is currently investigating the expert reports contain very little criticism of Mr Agrawal's clinical competence and much that is supportive. There is some criticism relating to note keeping, which is said to be below the required standard. He accepts this criticism. The panel went on to say that, in making its decision, it had taken into account the additional expert report dated 27th August 2013 from Mr Peel that his failure to support junior surgical staff potentially placed patients at risk and fell seriously below the standard expected of a consultant surgeon with responsibility for training junior surgeons and staff. After balancing the surgeon's interest and the interest of the public, the panel decided that an interim order is still necessary to guard against such a risk. The panel then said this:

'Whilst the panel notes that the order has restricted your ability to practise medicine, it is satisfied that the order imposed is a proportionate response in order to ensure that patient safety is protected whilst the issues raised continue to be investigated by the GMC. However, the panel noted that the GMC investigation has been going on now for approximately 17 months and it is concerned at the length of time that the GMC is taking to investigate and resolve these issues.'"

4. It appears from the judgment that essentially two points were taken by the defendant in opposition to the application in October 2013, namely the very considerable delay on the part of the claimant in dealing with this matter, and, that given the conditions were amended so that direct supervision was not required, the conclusion must have been reached that the defendant was not considered to be a direct risk to the public.
5. Supperstone J makes clear his concern at the delay which has occurred in the claimant's investigation of these matters. At paragraph 13 he recorded that the claimant does not suggest that delay has been caused by the need for further investigation into the clinical cases. The learned judge then concluded at paragraph 14:

"I consider that there has been undue delay in the investigation into the two cases concerning the lack of support for junior surgical staff in training. I note, in addition to the documents I referred to, that the letter of 23rd October 2013 from East Lancashire Hospitals NHS Trust that Mr Smith referred to states that the trust has responded to all requests from the GMC and that the GMC has confirmed that there is nothing outstanding from the trust."

6. After reminding himself of the legal principles set out by the Court of Appeal in the case of GMC v Hiew [2007] 1 WLR 2007 he concluded in paragraph 16:

"I have to conduct a balancing act between the interests of the individual doctor and the public interest. I have decided, whilst having considerable sympathy with Mr Agrawal's situation, that the order should be extended. However, in the light of the length of time that has passed since this exclusion by the Trust and the delay in the investigation into the supervision issue that has taken place, that I should only extend the order for three months. There is a real need for expedition and it will be for the GMC to justify a further extension in terms of the gravity of the matter if they decide to do so in due course."

7. The current application is supported by a witness statement made by Stephanie Pollitt. After setting out the background to the matter coming before the claimant, which I should interject was unusual in that it was in fact the defendant himself who initially referred these matters to the claimant, Miss Pollitt explains that the claimant received a report from consultant surgeon, Mr Peel, in September 2012 and a report completed by the Royal College of Surgeons in October 2012. Both of these reports contain serious criticisms of the defendant, with respect to at least one clinical case reported to the claimant. Mr Peel was of the view that the care provided by the defendant was on at least one occasion seriously below the standard to be expected of a consultant surgeon.
8. 8.1. Looking at the helpful chronology that has been provided the report from Mr Peel was in fact received in August 2012. In February 2013 and March 2013 the defendant provided the claimant with reports prepared by independent consultant surgeons with considerable expertise and reputation in the relevant field in which the defendant practised. In effect these reports conclude that the defendant's management in the particular cases was within good clinical practice. There is, accordingly, on the state of the papers at present, a genuine difference of professional opinion with respect to this matter.
9. The claimant received a supplementary report from Mr Peel on 10th July 2013 in which he sought further information, and further clarification from Mr Peel on 2nd September 2013. Quite remarkably, although the claimant had been in receipt of the reports from the defendant, it did not seek any view from Mr Peel in respect of those reports. When I quizzed the claimant about that matter this morning, I was told that effectively that is something still to be put in hand and the report is expected from Mr Peel dealing with that matter next month although it has not yet formally been commissioned.
10. Reverting to Miss Pollitt's witness statement at paragraph 28 she says:

"In October 2013 a member of the Claimant's legal time identified that nine witness statements are currently required to elaborate on the evidence held by the Claimant. Contact has been made with all nine witnesses and two statements have been taken. Three further statements will be taken before the end of 2013. The Claimant will continue to gather the remainder of these statements in early January 2014.

29. On 14 November 2013, the Claimant requested further information from the Trust and on 28 November 2013 the Claimant received on-call rotas and contact information for witnesses. The Trust did not however provide other information such as call logs which it described as 'unobtainable'. The Claimant is continuing to engage with the Trust to obtain the outstanding documents.

30. Once the witness statements from these individuals are completed, the Claimant will revert to Mr Peel for a further opinion on the Defendant's actions. The Claimant's planned completion date for gathering all evidence in this case is the end of [there should be a month inserted here – please check the relevant date] 2014."

11. The matter came before the Interim Orders Panel again on 22nd January 2014 and the Panel concluded that the conditions should remain in the terms in which they had been set. In particular at paragraph 12 of its reasons the Panel explained:

"In reaching its decision the Panel notes the original concerns that were referred were wide ranging, involving several serious surgical complications, your ability to investigate patients, your decision making and your ability to support and train junior staff. Whilst it notes the submission that the clinical and supervision concerns appear to have become less significant, it does not consider that there is sufficient information to assuage concerns about patient safety and safeguarding the public interest. The Panel is mindful of your comments as to impact which the delay in GMC completing its investigation had on your career and your ability to obtain employment and return to work.

13. In all the circumstances it has determined that based on the information before it there may be impairment of your fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest. After balancing your interests and the interests of the public the Panel has determined an interim order remains necessary to guard against the risks identified.

14. Whilst the Panel notes the order has restricted your ability to practice medicine, it is satisfied the order imposes a proportionate response. The concerns about your performance are wide ranging, as indicated in the General Medical Council expert reports and RSC report commissioned by the Trust, which identified serious clinical issues and poor insight. It is also borne in mind that you had only worked for 1 year in consultant post when the several concerns were raised which are still being investigated and that you have not worked since 2011. The Panel also notes your submission that the conditions preclude you from obtaining employment. On balance the Panel considers that the existing conditions requiring supervision of your practice are workable and remain necessary to safeguard patients and the public interest whilst matters are fully investigated by the General Medical Council."

12. With respect to the background of this matter I did press the claimant today to explain what was the time scale for ongoing matters. Quite remarkably, amongst other things, that revealed that even though Mr Peel, in his first report, in August 2012 had advised at the end of paragraph 6.3.5 that a statement from Mr Chang was mandatory, no step had been taken to obtain such a statement at the time of the last court hearing, some 14 months after receipt of that report from Mr Peel. I am told that such a report is now in the process of being obtained from Mr Chang. I mention that as simply one other example of many of the completely unsatisfactory approach that has been taken by the claimant to the investigation of this matter.
13. The defendant understandably complains that in practical terms the effect of these conditions is that he is unemployable because the moment he alerts any potential employer to these conditions, as he is required to do, they effectively lose any interest in him. He also indicated, when I asked what prejudice might be sustained if the conditions were maintained for a comparatively short period of time, that there were potential opportunities coming forward in the near future which effectively might be lost to him, if the conditions were maintained. He mentioned in particular opportunities in North Manchester and in Plymouth.
14. I bear in mind the complaint could be made that though the Interim Orders Panel were attempting to devise conditions which were workable and allowed Mr Agrawal to work, in practice the effect of those conditions is that they have prevented him from working, but it does seem to me that arguments as to reasonableness which could come before the court on a different form of action are not matters that are currently before me. I bear in mind that on applications of this nature the court is the primary decision maker and that whilst the opinion of the Interim Orders Panel is an important consideration I am not bound by that opinion nor am I required to defer to it.
15. However, I also have to keep in mind that it is not for me to make findings of primary fact about the events that have resulted in the interim order and my function is to ascertain whether the allegations made against the medical practitioner rather than their truth or falsity justify the prolongation of the order of conditions in this case.
16. Mr Jackson on behalf of the claimant confirms that the claimant's position remains as is recorded in paragraph 28 of Hiew, namely that relevant matters for the court to take into account include 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.
17. Looking at those various factors identified by the claimant as material ones for me to take into count, it is clear that the allegations in this case are serious allegations. With respect to the nature of the evidence they are supported by a report prepared by a consultant surgeon and also by a report from the Royal College of Surgeons. However, it is quite plain that they are very firmly contested by other eminent consultant surgeons in the field and, as I have already noted, it is quite remarkable that in the 12 months almost that the claimant has had those reports it has not done anything to try to resolve the dispute between the various surgeons or form any view on it whatsoever. Indeed it has not even gone back to its own consultant surgeon and invited him to comment on those reports.
18. The third factor is the seriousness of the risk of harm to patients. That is a particularly difficult matter on which I can form any view, bearing in mind that it is not for me to adjudicate between the dispute between the consultants but it does seem to me that I must take into account that whilst there is one body of opinion which raises serious concerns about the defendant's conduct and judgment there is another body of opinion which suggests that there is little if anything wrong with what was done by the defendant and it seems to me that those are factors that I must properly take into account in forming a view as to the seriousness of the risk of harm to patients.
19. Turning to the question of why the case has not been concluded, it is quite plain that the fault lies entirely and exclusively at the door of the claimant, who has dealt with this matter with a considerable absence of any proper expedition. It has been subject to criticism on at least two previous occasions about the dilatory nature of its conduct and I endorse those criticisms in the strongest possible terms. It is quite plain, given that the General Medical Council itself identifies that as a factor to take into account, that it must be a factor that I can take into account in, so to speak, favour of the defendant.
20. Finally, I turn to the question of the prejudice to the practitioner. Again I am quite satisfied that there is very significant prejudice being caused to the defendant in this case by the manner in which the claimant has chosen to deal with these proceedings.
21. This is a difficult balancing exercise, as indeed I am sure it was found to be by the court on the previous occasion. I have given very careful thought to how that balance should be drawn. I have taken into account that if the claimant is correct as to how it intends to proceed with matters going forward, in one sense the end should be in sight. It has been explained to me that although Mr Peel has not been formally instructed to date, he has assured the claimant that his report would be available by the 21st February. I am told that the claimant's case examiners would then require 14 days to decide how to deal with the matter and to provide any rule 7 statement for the defendant. That would take us to 7th March. The defendant would then have 28 days in which to respond to any such statement and I am then told that the case examiners would require another 2 to 3 weeks in order to be able to determine how, if at all, the matter should proceed. Effectively that would be approximately a 3-month period.
22. I have therefore very carefully considered whether in the circumstances and on balance it is appropriate to extend the order of conditions and, if so, for what period of time. I am very firmly of the view that the period of time sought by the claimant is totally inappropriate in the circumstances of this case.
23. On balance and with some hesitation, I have concluded it would be appropriate to extend the order, taking into account the stage that the investigations have reached. I am on that basis prepared to extend the order for a period of 3 months. I do that because I share the concerns of the learned judge on the previous occasion and at the earlier hearing of the Interim Orders Panel about the delay in this case which is plainly unacceptable. Given the evidence that the claimant has presented to me and the assurances it has given, 3 months is more than adequate time in order for it to put its house in order and be able to deal with this matter finally. I obviously will not be commenting upon any further application that might be made in the future but doubtless, if any further application is made in the future, it will be considered in the light of the circumstance that apply at that time.
24. Accordingly, in the circumstances I am going to order that the order is to be extended for a further period of 3 months.
25. MR JACKSON: My Lord, can I hand that document?
26. THE DEPUTY JUDGE: I have seen the costs application.
27. MR JACKSON: There is draft one which obviously needs to be amended and those instructing me --
28. THE DEPUTY JUDGE: It is the principle of first of all whether you should get cost which you need to address me on.
29. MR JACKSON: I was dealing with the period.
30. THE DEPUTY JUDGE: I am sorry.
31. MR JACKSON: I am sorry.
32. THE DEPUTY JUDGE: I have not anything else, I thought it was the statement of costs.
33. MR JACKSON: The draft order obviously needs amending.
34. THE DEPUTY JUDGE: I am not sure I have a draft order actually.
35. MR JACKSON: Has your Lordship seen a statement of costs?
36. THE DEPUTY JUDGE: I have. Thank you.
37. MR JACKSON: Mr Smith, I will take it you have no comments to make on the draft order?
38. MR SMITH: My Lord, no.
39. THE DEPUTY JUDGE: In the light of the judgment I have given both parties I think are happy with that order which I will sign for you.
40. MR JACKSON: Thank you my Lord.
41. So far as costs are concerned, your Lordship has a statement. On the basis that whilst of course the court has been critical and there is a discretion we would submit, in short, we have been successful and these are reasonable and we would seek an order for costs in those terms.
42. THE DEPUTY JUDGE: Thank you Mr Jackson. Mr Smith?
43. MR SMITH: I am afraid that I would submit, as I did on the last occasion, there is a significant reduction in the amount of time that has been afforded by the court.
44. THE DEPUTY JUDGE: They have not been successful in what they have asked for, have they, and they brought these proceedings entirely upon their own head effectively?
45. MR SMITH: I agree.
46. THE DEPUTY JUDGE: Thank you Mr Smith.
47. I have given very careful thought to the question of costs but it seems to me, particularly in the light of the order that was made on the previous occasion, that the claimant really must have appreciated when it made the application in the first place, first of all an application for a period of 10 months which will take it beyond the time previously rejected by the earlier judge was inappropriate; indeed the very need to come back here on a contested order I am quite satisfied has arisen as a result of both the delays in the claimant's conduct of these investigations and also its request for what was an unrealistic time period in the application it made to this court.
48. In those circumstances and bearing in mind that I have not acceded to the request for that time period I am going to refuse your costs.
49. MR JACKSON: Thank you my Lord.
50. THE DEPUTY JUDGE: Thank you both for your assistance.