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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> General Medical Council, R (on the application of) v Crate [2006] EWHC 2080 (Admin) (27 July 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2080.html Cite as: [2006] EWHC 2080 (Admin)

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

		Royal Courts of Justice Strand London WC2
		27 July 2006

1. MR JUSTICE BURTON: This has been an application by the General Medical Council against Mr Ian Crate, who is a consultant surgeon, against whom proceedings are being considered by the General Medical Council and against whom an interim order has been made by the Interim Orders Panel.
2. The interim order was made on 1 February 2005, and unless otherwise extended, will expire on 31 July 2006. Under section 41A of the Medical Act 1983 (as amended) there can be an application, but it has to be made to the court, for an interim order to be extended for up to a period of 12 months. So far as the interim orders made against the defendant are concerned, they are, in the circumstances of his qualifications, very stringent. They do not amount to a suspension from practice in terms, but, given what he is permitted to do, that is more or less how they end up. He is unable to carry out clinical responsibility and he has heavy qualifications on his non-clinical work. He is, in effect, only able to carry out operations under supervision in the theatre, and his latest witness statement indicates that that is very difficult to achieve at the Bassetlaw Hospital, where he is the consultant general surgeon. Indeed, at Bassetlaw Hospital there is insufficient manpower to provide a consultant colleague to supervise him.
3. He is restricted from private practice work, which results in a loss of earnings of approximately £2,500 per calendar month, and he is having to enter an individual voluntary arrangement (IVA). His daughter has left her private school because he cannot afford the fees. His younger son is now not able to consider going to university because he cannot afford the tuition fees; and he has not had a holiday since September 2005 because he cannot afford one.
4. As I put to counsel in the course of the application, this is rather equivalent to a civil case in which a freezing order has been made, one which is well-justified no doubt on the facts of the case, but whose consequences are such that the court will ordinarily order the speediest possible trial in the Chancery Division or the Queen's Bench Division, or wherever it comes to be heard, in order that such burdensome conditions can be dealt with one way or the other as soon as possible, and if they are to be made permanent, then at least that can have been resolved on a full consideration of the merits. If they are to be discharged or alleviated, that is to be done in the shortest possible time.
5. In argument before me, I have been told by Mr Hare, for the General Medical Council, that cases which have already gone through the vetting system of the case examiner are presently being listed for April. But nothing has been put before me which indicates that there is any particular preparation that needs to be further done in relation to this case. Of course, it is a substantial case. That can be seen. Three files of documents are before me, and the matter will need to be considered by a case examiner, although as has been put to me by Mr Holl-Allen for the defendant, the very fact that sufficient consideration has been given to the case such as to result in a letter of 10 July 2006 in which detailed undertakings on a possible permanent basis were sought from the doctor, which have in fact been rejected, shows that the case examiner or those advising him will and must already have carried out a good deal of consideration and preparation in relation to this case.
6. Plainly, this court must understand and accept the burden which the General Medical Council carries on behalf of the public and it is important that that burden should not be under-emphasised. Equally, if there are other doctors who are being dealt with, their position must also be considered. It may be that others are in a similar position to this doctor in terms of the crushing burden which they are suffering while their investigation continues.
7. The public of course have to be protected, and it is important that consideration of the case should not be over-rushed in case, on the one hand, the public is under-protected by an inadequate examination of the position or, on the other hand, a case which might be thrown out at an early stage is rushed on for judgment without proper consideration having been given as to whether it has to.
8. I accept, however, Mr Holl-Allen's submission that it appears that the case examiner will have, if he has been prepared to consider and put forward the undertakings in question, sufficient to consider the matter now to be likely to be about to send the matter forward to a Panel, and at the end of the day I consider that the real question is how quickly can the General Medical Council get together what is bound to be a five-day hearing.
9. I note the problems for the Panel. I also note Mr Hare's submission that Mr Crate could have accepted the undertakings offered on 10 July and thereby possibly avoided the need for a Panel in its entirety. However, it is clear to me that the undertakings do not alleviate the position very much, if at all, compared with the conditions that are presently imposed, and if Mr Crate wishes, as he does, to resist any finding of the Panel, then clearly he must be entitled to refuse these undertakings and not be prejudiced by such refusal, and, as a result, it is accepted that these conditions must remain in place. The only issue before me is as to how long they must remain in place.
10. Mr Holl-Allen submits that, if the continuation is for four to six months, that will enable the matter to be properly dealt with, and he submits that there is no reason why a Panel should not be convened before Christmas. I am determined that the extension which I propose to give now is a final extension and that there will be no further consideration by the court in any circumstances, save the most exceptional, of any further extension. Given that background, I do not propose to make the extension as short as that which Mr Holl-Allen has sought.
11. I recognise that the position of the General Medical Council and the other people dealt with by them must be recognised. If cases are now being listed for April, I see no reason why this case should not be listed for that period also and a space be kept for it against the unlikely possibility that the case examiner does not decide to send it forward, although, as I have indicated, I suspect that he will.
12. I propose to say that this matter must be finished one way or the other by Easter of next year. Easter is April 5, or at any rate Maundy Thursday is April 5. I propose to grant an extension up to and including Thursday, April 5, and there will, as I have indicated, be no further extensions allowed by the court, save in exceptional circumstances.
13. MR HARE: I am obliged, my Lord. In those circumstances, where the GMC has obtained the order which is sought, although admittedly for a somewhat shorter period than originally submitted, the GMC would apply for its costs of today, my Lord, and there is a schedule of those costs which should be before your Lordship and has been served on my opponent.
14. MR JUSTICE BURTON: When did you appreciate that the extension per se was not opposed, but it was simply its length?
15. MR HARE: My Lord, I appreciated that when I received my learned friend's skeleton argument, which was this morning. As your Lordship is probably aware, the GMC in these sorts of proceedings always writes to the doctor or their instructing solicitors, as in this case, and invites the doctor to consent to the draft order which is attached.
16. MR JUSTICE BURTON: Was there any correspondence to say --
17. MR HARE: I have copies of it here, if I can hand those up.
18. MR JUSTICE BURTON: Thank you.
19. MR HARE: As your Lordship can see, it is 21 July, the GMC wrote to Mr Dexter, who is Mr Crate's solicitor, enclosing a draft consent order and inviting consent. The reply to that letter is over the page.
20. MR JUSTICE BURTON: I have seen that. Now, two things have occurred: one is that you have not got the 12 months you sought; and the second is that I have made an order contrary to that which you indicated, namely: oh well, if the worst comes to the worst we can almost get an extension, which has almost foreclosed that possibility. But you say: well, they did not even come back and say four to six months. The trouble is of course if they had come back and said four to six months, you would have stuck to your guns. You did not rise in response to Mr Holl-Allen today and say: oh well, if they are going for four to six months, I will buy that. You pushed on for your full year.
21. MR HARE: With respect, in your Lordship's consideration we were correct to do so in the sense that four to six months would not have been an appropriate period.
22. MR JUSTICE BURTON: No.
23. MR HARE: What the court is not in a position, with respect, to second guess is what the result might have been had Mr Holl-Allen come back and said: well, what about a slightly shorter period, rather than just saying --
24. MR JUSTICE BURTON: I did send you both out this morning rather in the hope that some lesser period than a year might be capable of agreement.
25. MR HARE: I accept that, my Lord, and the indication given by my learned friend was as he indicated in court, as indeed was the indication that I gave to the court.
26. MR JUSTICE BURTON: Yes, now what do you say about costs?
27. MR HOLL-ALLEN: My Lord, I am a little stunned that my learned friend --
28. MR JUSTICE BURTON: Just let me understand, you have a schedule somewhere, Mr Hare, and how much is it?
29. MR HARE: My Lord, we accept that, of course, the GMC would have had to come to court in any event, so we do not seek any of my instructing solicitor's costs, which are on the first page of that schedule. It is only the question of my appearance today and the production of the skeleton argument, which is £700.
30. MR JUSTICE BURTON: Yes, but you would have had to come to court in any event to get the order.
31. MR HARE: No, my Lord, not if it was consented to.
32. MR JUSTICE BURTON: What if it was not consented to?
33. MR HARE: It was not consented --
34. MR JUSTICE BURTON: No, but not opposed, and they say: well, you must go and get your order. What if they said you must go and get your order?
35. MR HARE: That would have been not consenting, and the GMC would then have had to come to court and explain to your Lordship why it was appropriate to make such an order, and at the end of that, the GMC would have sought its costs in the normal course of events.
36. MR JUSTICE BURTON: The GMC have just had a case in which they came to court to ask for documents against the defendant, and counsel -- you probably were in court at the end – in the costs argument indicated that the GMC would have had to come to court anyway to ask the court to make an order to override the confidence of the patients. You too would have had to come to court anyway. It would have been nice to have had a consent, but in the light of this it is pretty unlikely they would have given their consent in the light of their witness statement. So if you had to have come to court anyway, your costs have been exacerbated only by production of the skeleton argument.
37. MR HARE: My Lord, we would not have had to come to court had it been consented to. That is the point. It has not been consented to and that is why I appear.
38. MR JUSTICE BURTON: There it is. Yes?
39. MR HOLL-ALLEN: My Lord, I apply for my costs against the General Medical Council. My Lord, again with reference to my chronology, your Lordship will see that this application was not notified to Mr Crate. In fact, as I understand it, it was not made until last Friday, 21 July. This effectively has been a rush as far as the General Medical Council is concerned. Your Lordship will note that, in accordance with its powers under Rule 27(5) of the Fitness to Practise Rules, the Interim Orders Panel itself made a direction on 23 May that an application should be made for the extension of an interim order, but that application was not made, as I say, until last Friday.
40. MR JUSTICE BURTON: So the Fitness to Practise Panel made an order that an application for an extension should be sought, and they did that on 23 May. Is that in the papers I have?
41. MR HOLL-ALLEN: My Lord, I think it is.
42. MR HARE: Tab 3.
43. MR JUSTICE BURTON: Yes, I am looking at the transcript. It is at the end, is it?
44. MR HOLL-ALLEN: My Lord, it will be. If you just give me a moment.
45. MR JUSTICE BURTON: Yes, page 24:

"It has therefore determined under Rule 27(6) ... to direct the Registrar ... to make an application."

46. MR HOLL-ALLEN: Yes. My Lord, that application was not made until 21 July, and, my Lord, the position that the General Medical Council has maintained throughout --
47. MR JUSTICE BURTON: It was made on 20 July.
48. MR HOLL-ALLEN: My Lord, it was notified to us on 21 July. I am not sure that I have seen a sealed copy of the application, but certainly my instructing solicitors received the particulars of claim and the witness statement in support on Friday, 21 July.
49. MR JUSTICE BURTON: Yes.
50. MR HOLL-ALLEN: My Lord, the position that the General Medical Council has maintained throughout was that the maximum period was required. There would, in my respectful submission, have been no prospect of an agreement falling short of that without full argument in front of your Lordship. Your Lordship provided my learned friend with the opportunity to take instructions this morning, and the message came back: no, we are not prepared to consent to anything less than 12 months. In substance, Mr Crate has had to come to argue his case. He has substantially succeeded. The extension granted by your Lordship is, as I understand it, of the order of eight months or a little over. But this, in my submission, my Lord, is not a matter of counting months; it is a question of determining who in substance has succeeded on the application, and that, in my submission, is Mr Crate and he should have his costs of today.
51. MR JUSTICE BURTON: Thank you.
52. MR HARE: Just very briefly on that matter, my Lord, the reason why the GMC did not put in its full application is because it had not had the indication that there was no consent to it until 20 July, and that explains why the application was put in on the date that it was.
53. MR JUSTICE BURTON: Well:

"I believe from my recent conversation with Anne Green that this is unlikely to be consented to, but I ask that you take instructions."

So you sought instructions on 21 July, by which time you had spent all the money, apart from counsel coming along.

54. MR HARE: That is correct, my Lord.
55. MR JUSTICE BURTON: I propose to make no order as to costs.