England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		14 February 2017

1. MRS JUSTICE WHIPPLE: This is a statutory application which comes to me under section 41A(10) of the Medical Act 1983. There are in fact two Part 8 claim forms before the court.

First claim form, 10 August 2016

2. By the first claim form, Dr Abbass Neima Kalaf, the claimant, challenges the decision of the Interim Orders Tribunal of the General Medical Council dated 4 May 2016. On that date, the claimant had appeared before the IOT, as I will call it, representing himself. The IOT had determined in accordance with section 41A of the 1983 Act that it was necessary to impose an interim order for the protection of members of the public and in the public interest and imposed conditions for a period of 15 months.
3. The claimant initially sought judicial review of that decision by a judicial review claim form issued on 21 July 2016 under court reference CO/3669/2016. He was informed, as I understand it, by court staff that the challenge should not have been by way of judicial review but should have been a Part 8 claim, following which he issued notice of discontinuance of the judicial review and instead issued a Part 8 claim form dated 10 August 2016, which now proceeds under court reference CO/4024/2016.
4. The claimant's grounds of challenge are set out in a letter dated 10 August 2016 and can be summarised as follows: (1) he was not represented before the IOT at the hearing on 4 May 2016, and was in consequence at a disadvantage; (2) the criticisms of his professional skills are not justified because he is a competent doctor; (3) there was a failure to take account of the fact that English is his second language; (4) he was at the date of the hearing shocked by news of his suspension from another hospital just days earlier (this is, I believe, a reference to his dismissal by the Surrey and Sussex Healthcare NHS Trust, which I shall come to later); (5) and in any event there were a number of problems in the referring Trust, namely the Hywel Dda University Health Board ("the Board"), which had nothing to do with him.

Second claim form, 12 January 2017

5. The second Part 8 claim form is dated 12 January 2017. It bears the same court reference as the first claim form. It was not sealed by the court office. By that second claim form, the claimant challenges the IOT's determination dated 23 December 2016 to continue an interim order of suspension of the claimant. That interim order of suspension was originally imposed in place of the earlier conditions on 7 October 2016. It was continued following the hearing on 23 December 2016. The claimant was not present at the hearing on 23 December 2016, which proceeded in his absence. As the IOT found, however, he was aware that the hearing on that date was to take place. He had been represented, although he was not present, at the earlier hearing on 7 October 2016 when the suspension was first imposed.
6. His grounds of challenge to the decision of 23 December 2016 are in summary: (1) that the evidence presented to the IOT about his competence was inaccurate on the basis that Dr Lyon, an independent expert who had reported for the benefit of the IOT, has no experience of his clinical work and his colleagues were meanwhile not consulted; (2) the claimant's references were ignored; (3) the claimant is anticipating the results of a medical examination that he has now taken by late February of 2017, and is to take a further English language test which he had applied for on 21 January 2017, which will, so he says, demonstrate his competence.
7. Following the second claim form, the claimant lodged an application dated 8 February 2017, by which he sought to revoke or vary the decision of the IOT dated 23 December 2016. That application notice has been sealed by the court. It bears the same court reference which relates to the first claim form. The claimant repeats in this application notice the grounds which I have already summarised which were set out in the second claim form. Perhaps the application notice is, in effect, an application to amend the first claim form; I am not sure. No fee has been paid to issue the second claim form and no fee has been paid to issue the application on 8 February 2017. However, I am told that the claimant has a fee remission certificate and that this has been produced at the court office.
8. I add that before me the claimant is unrepresented and acts in person. He says that he is unable to afford legal representation and has tried to find pro bono representation but without success.

Procedural position

9. Procedurally the position is this: (1) the first claim form has not been withdrawn; (2) the claimant's clear intention in issuing the second claim form with the application notice was to invite the court to consider the supervening suspension order which postdates the decision originally challenged in the first claim form; (3) the circumstances underlying the IOT's decision to impose conditions and subsequently to suspend are closely connected. In other words, the first and second claim forms arise out of similar, although not identical, facts; (4) as a pragmatic response to this unclear procedural picture, I proceed on the basis that the claimant seeks to challenge both of the IOT decisions under review, namely the decision of 4 May 2016 to impose conditions the subject of the first claim form and the decision of 23 December 2016 to suspend, the subject of the second claim form and the application. His focus is inevitably greater on the decision to suspend, because that decision has the greater impact on him and anyway reflects the current circumstances.

Background

10. The claimant was born in Iraq and is qualified as a doctor in Holland. He tells me he worked in Holland for some years before coming to the United Kingdom, where he obtained a GMC registration on 12 August 2014. Once in the UK he has, he says, worked without problems at a hospital in Kent. Then he came to be employed by the Board as an LAS, or locum, paediatrician on a six-month fixed-term contract from 5 August 2015, and this really is where the story begins.
11. The key elements of that story are as follows. On 7 October 2015 an incident was reported to the Board where the claimant was said to have prescribed the wrong quantity of a drug called trimethoprim. Instead of 2 milligrams per kilogram for the child's age group (she was then aged two months), the doctor had written 50 milligrams twice daily. This amounted to an overdose of approximately 20 times [see counsel's post-judgment comments], so I am informed. In fact, no harm was caused but the error was brought to the Board's attention.
12. On 19 October 2015 a meeting took place. In attendance were a number of doctors, some I believe to be consultants, some to be registrars of the Board, and a variety of complaints about the claimant's performance were communicated. It was said that he had been late in arriving on the ward, he had not accorded treatment to a patient as requested and there were communication issues, this amongst other complaints. Of note is the fact that his supervisor, Dr Marcus Andrews, was present on that date.
13. On 23 October 2015, the Board received an email from one of its specialist nurses in the Paediatric Ambulatory Care Unit ("PACU"). She passed on a few complaints that she had received from the staff in PACU concerning the claimant. One of these complaints related to the prescription of trimethoprim, which I have referred to; other complaints related to allegations that the claimant had decided to discharge unwell patients without getting the registrar to review the patients. It was also said that his referral-taking work was poor, and that two very experienced staff nurses working with him in the PACU had felt that he could not cope with the demand and that was why he wanted to discharge patients prior to the registrar's having reviewed them. The email concluded thus:

"PACU staff felt unsafe today with Dr Abas [sic] and with this in mind may I recommend that if Dr Abas continues to work in PACU that he is supervised/supported by another Dr at all times."

14. On 26 October 2015 another meeting took place. The claimant was present, as were two other doctors from the Board. The various problems were discussed. Dr Toni Williams concluded thus:

"Throughout the discussion I was concerned that Dr Kalaf didn't fully appreciate our concerns. He usually didn't volunteer information about problems encountered unless he was pressed. There was also an element of blaming others - particularly the middle grades which is of a concern."

She recorded that other issues had been reported and that she had requested feedback, and a plan of six points was put in place to support the claimant in his work.

15. There was in November 2015 an exchange of emails. Those in and of themselves are not necessarily important, save that in one of the emails the claimant wrote seeking to explain what he had earlier written to other doctors and said, "I think you did realize my linguistic capability is not adequate," and went on to say that he was seeking to improve his English.
16. On 11 November 2015 his supervisor, Dr Marcus Andrews, recorded the action plan to deal with three issues: first of all prescription errors; secondly communication difficulties with middle grades; and, thirdly, written communication and documentation difficulties. However, on 18 November 2015, in an email which was copied, amongst others, to Dr Marcus Andrews, the Board terminated the contract with the claimant. The reasons given were this:

"During the time you have been employed by us, a number of concerns have been raised with you and meetings taken place to draw your attention to the following issues:

•Prescription errors

•Communication difficulties with middle grades

•Written communication/documentation."

The email recorded that an action plan had been put in place but that problems remained, and that in all the circumstances the Board, with regret, felt that there was no alternative other than to bring the fixed-term contract to an end with immediate effect.

17. On 22 December 2015 the Board made a referral to the General Medical Council Fitness to Practise Directorate. It drew the Directorate's attention to the problems which had caused the claimant's employment to be terminated, namely prescription errors, communication difficulties with middle grades and written communication/documentation issues. The Board attached a bundle of documentation for the GMC's review.
18. On 13 January 2016 the GMC wrote to the claimant telling him that he was under investigation by the Fitness to Practise Directorate. It is clear that he received that letter because he filled in and returned an accompanying form to the GMC.
19. On 4 February 2016 the claimant applied for a job as a doctor with the Surrey and Sussex Healthcare NHS Trust. In order to do so, he filled in an application form. There was a question on the application form as follows: "Are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or in any other country?", to which he answered "No". That application form is dated February 2016.
20. On 5 April 2016 [please see Ms Emmerson's comment re this being 5 April] the claimant signed a form required by the Disclosure Barring Services ("DBS"), which was part of his application to the Surrey and Sussex Healthcare NHS Trust. On that form he was asked: "Are you currently the subject of any investigation or fitness to practise proceedings by any licensing or regulatory body in the United Kingdom or in any other country?", and he answered "No".
21. On 20 April 2016 the case examiner referred the claimant's case to the IOT under the relevant procedures, and on 25 April 2016 the GMC wrote to the claimant informing him of that referral and that there was a possibility that he would be found to be impaired.
22. On 28 April 2016, the Surrey and Sussex Healthcare NHS Trust reported to the GMC that the claimant had not declared that he was the subject of a GMC investigation on the application form and indeed on the DBS form. At about that time he was suspended by that Trust where he had been working for a little time pending an investigation. His appointment with that Trust was subsequently terminated.
23. On 4 May 2016 the claimant's case came before the IOT, and the IOT, in a reasoned decision, imposed conditions on his practice. The IOT had three concerns: his performance, his misconduct and inadequate English. Restrictive conditions were imposed allowing him only to take up an F1 training post while the conditions remained in place. That is the first IOT and is the subject matter of the first claim form.
24. Subsequent to that, further pieces of evidence or information emerged. On 21 June 2016 the claimant failed the Royal College of Paediatrics and Child Health exam. On 2 August 2016 Dr Lyon completed his independent expert report and provided that to the GMC. Dr Lyon is a consultant paediatrician independent of any Trust involved in proceedings with the claimant and unknown to the claimant. Dr Lyon concluded, having reviewed the papers in this case, that the claimant's care:

"... fell seriously below the standard expected for any reasonably competent LAS doctor in paediatrics. I would also consider the care to be seriously below the standard of any reasonably competent doctor in paediatrics irrespective of grade at which they are employed."

He went on at the end of his conclusion to say this:

"However, the overall picture is of a doctor who was struggling to cope and was functioning seriously below the standard of even the most junior doctor."

25. On 20 August 2016 the claimant sat his English test. The test report from the IELTS demonstrated that his overall band score was 5.5, having achieved something between 5 and 6 in all the individual categories in which he was tested. The threshold to qualify to work as a doctor in this jurisdiction is an overall band score of at least 7.5, with every category in excess of 7.
26. In light of these further pieces of evidence, the GMC brought forward the time frame for review of the interim order, and on 7 October 2016 the IOT considered the claimant's case. On the day of that hearing certain documents were handed to the Panel, including references for the claimant. Those references were the subject of submissions by the claimant's counsel, as recorded in the transcript for that hearing.
27. Taking account of all the material that was before it on that occasion, the IOT decided to suspend the claimant. It concluded that conditions were not sufficient. It noted the recent three pieces of evidence and concluded at paragraphs 11 to 14 of the determination that there were serious concerns regarding the claimant's clinical practice as well as concerns regarding his ability to communicate effectively in the English language. It concluded that an interim order of conditions remained appropriate and proportionate. It had taken account of the testimonials, it had taken account of the IELTS test and it had taken account of Dr Lyon's report. It expressed itself to be particularly concerned by Dr Lyon's conclusion that the claimant was a doctor who was struggling to cope and was functioning seriously below the standard of even the most junior doctor.
28. In view of Dr Lyon's conclusion and the recent IELTS test, the Tribunal said it could not be satisfied that the current conditions, while very restrictive, could meet the risks identified regarding the claimant's clinical practice and knowledge of the English language, and in view of that the Tribunal determined that conditions were no longer workable to guard against the risks identified and that an interim order of conditions was not sufficient or proportionate to protect patients or to maintain public confidence in the profession. The Tribunal was satisfied that an interim order of suspension was the only appropriate and proportionate response to concerns raised. It concluded that a fully informed member of the public would expect a doctor in these circumstances to be suspended.
29. Since then, the GMC has written a letter under Rule 7 of the relevant Rules to the claimant. That was on 10 November 2016. The claimant has not yet responded to that letter. The IOT reviewed the suspension on 23 December 2016. That is the focus of the second claim form and of the application. The claimant did not attend that hearing and was not represented, but the IOT proceeded in his absence. The IOT noted that, since the matter had last been before it in October, the claimant had been erased from the Dutch register of doctors and that he had been sent a Rule 7 letter but there was to date no response. That IOT concluded that it was necessary to continue the suspension on an interim basis because there was a risk to the public and an adverse impact on the public interest due to clinical practice, language and probity issues.
30. The core of the IOT's reasoning is set out at paragraphs 9 to 12 of the determination. The IOT balanced the claimant's interests and the interests of the public, and concluded that an interim order remained necessary. The IOT took account of the concerns about clinical practice, concerns about his ability to communicate effectively in English and also the probity issues. It concluded that the conditions would not be a sufficient safeguard and that the order of suspension was the only proportionate and appropriate response to the concerns raised. It concluded that a fully informed member of the public would expect a doctor in these circumstances to remain suspended.
31. The claimant has since then received notification that his case is to be referred to the Medical Practitioners Tribunal Service ("MPTS") under Rule 8 of the relevant Rules. He was so informed by letter dated 18 January 2017. He will now, therefore, face the substantive allegations at a hearing. The charges remain in the same form as were originally notified to him by the rule 7 letter and the letter of notification suggests there is a realistic prospect that he will be found to be impaired in his practice.

Legal framework

32. The primary legislation governing the registration of doctors in England and Wales is the Medical Act 1983. The role of the IOT is to consider whether a doctor's registration should be restricted on an interim basis, either by suspension or imposing conditions on registration, where a doctor is the subject of allegations of such a nature that it may be necessary for the protection of members of the public, or otherwise in the public interest, or in the interests of the doctor, for registration to be restricted while those allegations are investigated and if appropriate considered by Medical Practitioners Tribunal Service at a hearing.
33. The IOT's role is governed by section 41A of the Act. It is not the role of the IOT to investigate or make findings of fact regarding allegations against the doctor in question at this interim stage.
34. The role of this court is governed by section 41A(10) of the 1983 Act. The role of this court was summarised in GMC v Dr Anyuam-Osigwe [2012] EWHC 3884 (Admin) as follows:

"[...] the powers of the court that the court exercises are properly to be regarded as 'original' powers. However, since the application is to terminate an extant order made by a professional disciplinary body charged by statute to discharge its function in support of the General Medical Council's role to protect, promote and maintain the health and safety of the public, then the discretionary power to terminate an interim order should only be exercised where the court considers that the Panel was wrong to make and maintain such orders. In exercising its powers the court necessarily undertakes a review, even if it is not purporting to judicially review the decision making process and similarly, in reaching a conclusion that the Panel was wrong in reaching its own determination, the court is exercising similar and familiar powers to those exercisable when hearing an appeal."

There is further authority to the effect that this court will give considerable weight to the view of the expert panel of the GMC. Ms Emmerson has helpfully set out the legal framework in greater detail in her skeleton argument, and I adopt those submissions without setting them out in full here. There is not any dispute between the parties as to the applicable law.

35. I have also been referred to the GMC Fitness to Practise Rules 2004 (2004/2608), specifically Part 7 which deals with interim orders. And I have been shown the MPTS guidance on imposing interim orders. Paragraphs 23 to 27 of the latter deal with the test to be applied; paragraphs 32 to 36 deal with interim conditions or interim suspension; paragraphs 39 to 41 deal with public confidence. The guidance contains an annex A, which explains what "risk to patients" means where there are clinical issues, and what "risk to patients/public confidence" may mean where there are non-clinical issues.

Submissions

36. An outline of the claimant's grounds of challenge is set out above, and he has maintained all those arguments before me. But further and specifically, he has stressed before me the difficulty that he now finds himself in. He is in effect unable to work as a doctor, even though he has passed his exams and has worked successfully for some years before these events occurred. He has a history now of having been dismissed by two Trusts in the United Kingdom. He fears that he will not be able to find a job in the future, nor will he be able to find professional indemnity insurance given this history. He feels his profession may be lost to him.
37. He has before me also produced a small bundle of documents which were lodged with the court office yesterday but only reached me just before the hearing. In these pages he disputes the various criticisms that have been made of him on clinical grounds. He gives examples of where, he says, his own performance has surpassed that of his colleagues'. He makes criticism of some former colleagues' own clinical abilities.
38. Before me, he has accepted that there is, as things stand, a difficulty with his mastery of the English language. He accepts that he does not meet the required threshold by reference to the IELTS test that he undertook last summer. He hopes that his English may improve, but he accepts that as things currently stand his English is substandard. He argues that other aspects of the case against him, namely on clinical competence grounds and on probity grounds, are unfair and inaccurate.
39. The GMC has been present and represented before me by Ms Heather Emmerson of counsel, who has filed a skeleton argument in advance to which I have already referred and which was helpful. The GMC has submitted a bundle of documents and authorities to support its submission that this appeal is hopeless and must fail. The GMC argues that the IOT has acted properly and lawfully in imposing the various interim orders on the claimant, and specifically in concluding that only interim suspension is appropriate to meet the various concerns.

Conclusion

First claim form: decision to impose conditions

40. In light of the material before the IOT on 4 May 2016, I conclude that the Panel was not wrong to impose conditions on the applicant's practice for the reasons that were given by the IOT on that occasion. The IOT concluded that it was necessary for the protection of members of the public and in the public interest for the claimant's registration as a paediatrician to be made subject to conditions. This was a conclusion which the IOT was entitled to reach, and there was overwhelming evidence before the IOT to justify that conclusion.
41. So far as the claimant's professional competence was concerned, the IOT considered the bundle of documents that had been provided to it by the Board giving details of the various concerns raised in the form of communications between doctors and nurses. In particular, the IOT noted in its determination the email dated 23 October 2015 from the sister in the PACU stating that "the PACU staff felt unsafe today". It also noted the email dated 16 November 2015 by which Dr Toni Williams, a consultant at the Board, reported concerns about dealings with patients and noted that there had been numerous concerns since the claimant had started work, and that "despite very close supervision there has been no improvement. Don't think that there is anything else we can do."
42. So far as the claimant's failure to disclose the fact that the GMC was investigating when he applied for a job at the Surrey and Sussex NHS Trust, the IOT noted that the claimant had failed to declare that fact both on his application form and on his DBS form.
43. It was within the IOT's powers to conclude that there was a case raised and a risk suggested by that failure. After balancing the claimant's interests and the interests of the public, the IOT decided that an interim order of conditions was no guard against such risk, and it was satisfied that the information before it justified the need for such an order. It said this at paragraph 15:

"It was mindful that in a medical context, being unable to communicate effectively and to follow instructions from colleagues can put patients at risk. Furthermore public confidence would be undermined if you were allowed to practise unrestricted whilst the GMC investigation is ongoing. The tribunal has considered [...] submissions regarding performance issues but concluded that further information is needed regarding this potential area of concern."

This was a proportionate response to the matters before the IOT on that occasion, and it is notable that the IOT did not impose the interim order with regard to the performance issues but rather at that stage stuck to the communication issues and the fact of the GMC investigation.

Second claim form: decision to suspend

44. After conditions were imposed, the picture for the claimant worsened. He failed his IELTS test, as I have described, and Dr Lyon, the independent expert paediatrician, reported on 2 August 2016 making significant criticisms of the claimant's professional competence. The claimant challenges the decision to suspend.
45. As to the claimant's grounds of challenge, first of all ground 1: the evidence presented about his competence, he says, was inaccurate on the basis that Dr Lyon has no experience of his clinical work and his colleagues were not consulted and anyway they consider him competent. I reject this ground. The IOT was entitled to place significant weight on the expert report of Dr Lyon. He is an independent expert. His conclusions are highly critical, and written in strong terms. The fact that Dr Lyon did not know the claimant is the very reason why the GMC approached him for a review. It is not a weakness, as the claimant suggests. As to the views of colleagues and supervisors which the claimant suggests should have been taken into account and which were not, the claimant argued that Dr Marcus Andrews, his supervisor, was not consulted and was supportive. However, I note that Dr Andrews was party to the action plan to improve the claimant's performance and was present at various meetings to discuss the claimant's performance, so Dr Andrews certainly knew that there were problems and indeed was party to the attempted solution to them. So far as other colleagues are concerned, the referral was made by the Board itself on the basis of complaints and concerns expressed by colleagues of the claimant, who worked alongside him. This ground of challenge by the claimant is demonstrably weak.
46. Ground 2: the claimant's references were ignored, he says. As the GMC in a letter dated 7 February 2017 to the Court acknowledges, it is not clear whether the IOT had indeed seen all of these references which were handed up by the claimant at the hearing on 7 October 2016 and were certainly seen by that IOT. The transcript of the 7 October 2016 hearing was before the Panel on 23 December 2016, but the Panel on 23 December 2016 does not make specific reference to these documents. But the answer here is clearly, as the IOT on 7 October 2016 found, that these testimonials date back to an earlier time before the claimant starting working for the Board and before he encountered the difficulties which gave rise to his suspension. One of these testimonials relates to work in an anticoagulation clinic, which is different from the paediatrics context of the current complaints. The other two testimonials or references are fairly generic in form, and each recognises the need for some improvement. These references would not have weighed heavily in the balance, nor should they.
47. As to ground 3 where the claimant suggests that he is anticipating that the results of his medical examination and his English test will come through and demonstrate improvement, the answer there is that these actions or events lie, if at all, in the future. The outcome of these two tests is simply unknown. If the claimant does perform better in his English language test or indeed in his medical examination in the future, then that will give him a basis for returning to the IOT at that point and seeking a variation of the suspension. But unless and until he has proved that his English is of a competent standard, the IOT is entirely justified in suspending him. The IOT points to deficiency in his English language skills as one of three areas which pose a risk if the claimant is allowed to continue in practice.
48. I would add so far as language is concerned that I have understood the claimant in court today, but at times I have struggled. I have had the benefit of quiet in the courtroom and time to ask the claimant to repeat himself if I have not been able to understand first time around. The environment in this courtroom is very different from a busy paediatric ward.
49. Even if the claimant does show that he can speak English to a competent level in due course, then it still leaves the other areas of risk, namely his alleged lack of competence as a paediatrician and his alleged dishonesty in making two false declarations to the Surrey and Sussex NHS Trust. These latter areas would alone warrant consideration of whether ongoing suspension was justified.
50. The IOT concluded that it was necessary to maintain an interim order of suspension on the grounds of public protection and because it was in the public interest. It noted that Dr Lyon concluded that the claimant was functioning at "seriously below the standard of even the most junior doctor", and that there were concerns about his English language skills and his probity. The IOT noted the claimant's own position in a letter saying that he would resit the paediatrics exam and the IELTS exam, and that the suspension was having a catastrophic effect on his personal and professional life. It noted that the claimant was now suspended from the Dutch register and that the claimant had yet to offer any response to the Rule 7 letter, but it concluded that interim suspension had to be continued because conditions would not meet the risk posed by the claimant and that suspension was the only proportionate and appropriate response.
51. I have listened attentively to the claimant as he has explained his case to me. I agree with the IOT in its reasoning and its conclusion. The claimant does not seem to understand that risk to patients is and must be a key concern for the IOT, and indeed for me. Of course that risk has to be balanced against his own personal interests, in order to arrive at a proportionate outcome, but the claimant appears to give little credence to the existence of that risk. I am satisfied that there are very serious concerns about the claimant's performance. There may be impairment of his fitness to practise, and if impairment is established that impairment may be of a nature and extent which poses a real risk to members of the public and may adversely affect the public interest.
52. It is appropriate, balancing the interests of the claimant against the interests of the public, to impose an interim order. The risk is serious and public confidence in the medical profession would be seriously damaged if no such order was imposed.
53. As to suspension, having considered all the matters that have been put before me by the claimant in argument today, and all that I have read in the extensive papers that have built up in both of these Part 8 claims, I conclude that it is proportionate in this case to suspend this doctor from practice because conditions would not provide sufficient protection. I agree with the IOT that suspension is necessary to protect the public and desirable in the public interest given the concerns identified by the IOT.

Conclusion

54. Neither of the IOT's determination under challenge was wrong. I conclude that it was well within the IOT's powers initially to impose conditions and subsequently to suspend. Those were proper exercises of that body's statutory powers, and this appeal must be dismissed.
55. Any further applications?
56. MS EMMERSON: My Lady, I am grateful. Before turning to costs perhaps I can just flag up two very minor points for the transcript. Firstly, at 2.48 your Ladyship refers to a 50-times overdose in respect of the prescription. The report of Dr Lyon refers to 20-fold.
57. MRS JUSTICE WHIPPLE: I will correct that when the transcript comes.
58. MS EMMERSON: The second point, at 2.58 your Ladyship refers to the DBS form being signed by the claimant on 27 April. It was in fact signed and dated on 5 April. Just two very minor matters.

MRS JUSTICE WHIPPLE: I will correct that too.

59. MS EMMERSON: The GMC does have an application for costs. I have an updated statement, which I can just hand up to you. The claimant already has a copy.
60. MRS JUSTICE WHIPPLE: When did the claimant get that schedule of costs?
61. MS EMMERSON: The claimant was served with the schedule of costs on the 7th, and I handed him the updated schedule just before lunchtime. It has been revised to be brought up to date as of today, and the additional £400 or so. But he has had the previous schedule for some days.
62. So, my Lady, firstly in terms of principle, I say this is a case where essentially costs follow the event, and having dismissed the claimant's application the GMC should get, in principle, its costs for these proceedings.
63. In terms of the amount, I would invite you to summarily assess the costs in the sum of £6,750.60. As I say, there has been some updating to the schedule which was previously with the court. I apologise it has been handwritten; it has been very recently updated. I will just talk the court through the schedule.
64. MRS JUSTICE WHIPPLE: Please do.
65. Do you have a copy of this?
66. THE CLAIMANT: Yes.
67. MS EMMERSON: In terms of conduct of this matter at the GMC end, it has been dealt with by a grade B solicitor who has been charging £192 an hour, which in my submission is a reasonable hourly rate and appropriate for this type of case to be dealt with by a grade B solicitor. In terms of the sums claimed, working down the schedule they are really quite a modest amount given the length of time and the various iterations of this claim, and 2 1/2 hours for attendances, 3.7 hours in relation to correspondence with the claimant. There has been a good deal of correspondence to and fro, as one might expect, on the procedural side of this claim, seeking to address concerns that the doctor had and to try to provide assistance to him about the procedure, which explains why perhaps the volume of letters in this case is slightly higher than it might be in a more straightforward matter. Attendances on others and work on documents are very limited, essentially just preparation for the bundle, so the solicitor's costs come to a total of £1,593.
68. In terms of counsel's fees, there is a draft copy of the fee note behind the schedule which sets out a breakdown of the costs. It is always not a very attractive proposition trying to justify one's own fees, but in my submission those fees are reasonable for a case of this nature which has run on for some months through various iterations. It is not an entirely straightforward case because of the procedural background, and it is not an obviously manifestly excessive amount of time or money to be spent on something like this. These types of claims actually rarely come to full hearing. These are not common cases to come before this court.
69. The fees have simply been updated to make sure they are bang up to date with all the appropriate increases to VAT and the total which gets us to £6,750.60, although essentially I ask the court to make an order in those terms. Of course I accept that Dr Kalaf is not working at the moment and that is really a matter for the GMC to consider in terms of enforcement and payment plans they might seek to agree if you are with me on the principle. Those are not matters which stop the court making a costs order in principle.
70. MRS JUSTICE WHIPPLE: Do you want to say anything? Do you have any objection to paying these costs?
71. THE CLAIMANT: I have said, I cannot pay any. I am unemployed.
72. MRS JUSTICE WHIPPLE: The position, Dr Kalaf, is that the usual rule is that the loser pays the winner's costs, and you are the loser today. So the ordinary rule would be you would pay the GMC's costs and I would assess the figure. Whether they enforce those costs against you, because as you say you do not have an income, that is really not a matter for me, that is something the GMC would have to consider. They are entitled to enforce those costs as a debt against you, as would anybody else to whom you owe money. But the point is they have had to come to court today and they have spent money doing that and they are entitled to look to you to recover that.
73. THE CLAIMANT: I am, I want to stress is the time now I have to focus on the condition, the condition is the (Inaudible) exam. I have to prepare for the exam and the medical exam. Two exam I have to pass.
74. MRS JUSTICE WHIPPLE: Yes, but I am asking you about the costs at the moment, whether you want to make any objection to these costs.
75. THE CLAIMANT: I am not at the moment. I'm not able to pay any cents.
76. MRS JUSTICE WHIPPLE: Ms Emmerson has written down, I am sure, what you have said, but that is not really for me. I am afraid that she is entitled to her costs of today. Whether the GMC actually tries to pursue you for those costs is really not something I get involved in, I am afraid. That is one that you will have to manage with them. But they hear what you say.
77. THE CLAIMANT: I have no power to say. I'm in a weak position.
78. MRS JUSTICE WHIPPLE: All right.
79. Well, in the circumstances, I am going to accede to the GMC's request for its costs of today. It seems to me that the ordinary rule, the general rule, should apply. There is no reason to disapply it given that the GMC has had to come to court to defend its decisions.
80. I have had no submissions at all from the appellant in relation to the quantum, but from my own experience it does not seem to me that these costs are a little excessive. I propose to simply assess them in round terms at £6,000 to reduce them a little bit. So I summarily assess the costs at £6,000.
81. MS EMMERSON: My Lady, I am grateful.
82. MRS JUSTICE WHIPPLE: Including VAT. You can work out what that will be.
83. MS EMMERSON: My Lady, I am grateful. Would it assist to provide a draft order to the court for approval?
84. MRS JUSTICE WHIPPLE: I think it is very straightforward, is it not? It is simply that the Part 8 claim is dismissed and the claimant is to pay the defendant's costs occasioned by the Part 8 claim forms summarily assessed in the amount of £6,000. I am sure we can draw that up. Thank you all very much indeed.