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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 George [2008] EWHC 1337 (Admin) (06 June 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1337.html Cite as: [2008] EWHC 1337 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		6th June 2008

1. MR JUSTICE LLOYD JONES: This is an application by the General Medical Council for the extension of an interim order of suspension pursuant to section 41A(7) of the Medical Act 1983. On 21st November 2001, Dr George was referred to the General Medical Council following the decision of his NHS Trust to suspend him from work on 14th December 2001 due to concerns relating to his clinical practice.
2. On 6th March 2003 the Interim Orders Committee, as it then was, made an interim order of suspension and that has been extended by this court on a number of occasions. It was extended on 1st September 2004 for a period of six months; on 24th February 2005 for a period of 12 months; on 28th February 2006 for a period of four months; on 28th June 2006 for nine months, on 27th March 2007 for three months; on 19th June 2007 for six months; and on 19th December 2007 until 31st March 2008. On 17th March 2008, an order was sealed by consent, extending the order until 31st May 2008. Indeed, the interim order of suspension expired on 31st May 2008. A previous application to this court for a further extension some weeks ago could not be heard because of insufficient notice to the defendant. The matter now comes before me on the basis that the General Medical Council seeks a further extension of 12 months.
3. The matter was last before me on 19th December 2007. On that occasion, I lifted a stay on the hearing before the Fitness to Practise Panel, which had been granted pending judicial review proceedings. I ordered that the proceedings before the Fitness to Practise Panel be resumed and I extended the period of suspension for a period of three months to permit the hearing to take place before the Fitness to Practise Panel.
4. There is a very protracted history to this matter. In 2003, Dr George agreed to undergo a performance assessment. However, when invited to do so in February 2003, he refused. The matter was therefore taken before the Referral Committee. There were a substantial number of adjournments. On 9th December 2003, there was a direction that he undergo performance assessment. In September 2004, in proceedings before this court, it was accepted that at this stage Dr George was fit enough to undergo a fitness assessment. However, since then Dr George has maintained that on health grounds he is unable to undergo a health assessment and it still remains the case that he has not undergone a health assessment.
5. When the matter came before the Fitness to Practise Panel in March of this year, that panel decided that it had no jurisdiction to decide the matters before it. The background to the matter was that, following difficulties in relation to the performance assessment, in 2005 the GMC had invited Dr George to undergo a medical examination and he declined to do so. That was a matter which was later pursued before the Fitness to Practise Panel on the basis that he had failed to comply with a reasonable requirement of the assessment team. In fact, as it emerged at the hearing in March 2008, there had been no such requirement made by the assessment team. All that had happened was that there had been an administrative requirement. On that basis the Fitness to Practise Panel concluded it did not have jurisdiction to deal with the matter. Furthermore, the Fitness to Practise Panel came to the conclusion that the allegations made against Dr George in relation to deficient performance had not been properly referred to that Panel. They were not properly before the Fitness to Practise Panel and, again, it had no jurisdiction to deal with those matters.
6. It is a very unhappy history. It appears on the face of it that there have been many occasions on which Dr George has been uncooperative. It is also a history which does not reflect any great credit on the General Medical Council. The position has now been reached in which the General Medical Council, after a suspension of some five years of Dr George, still has to complete an assessment as to whether Dr George is fit to continue to practise. The point is made by Mr Coleman on behalf of the GMC that there has been no substantive funding in respect of his fitness to practise and that the concerns about the defendant's professional performance remain unresolved. He says that it is now proposed to pursue the question of the defendant's fitness to practise by focusing on his health and the unresolved performance issues. In this regard he points to the fact that two of the bases on which fitness to practise may be found impaired under section 35C(2) of the Act are deficient professional performance and adverse physical or mental health.
7. On 18th April 2008, the Interim Orders Panel of the GMC considered the matter of the suspension. It expressed its concern about the defendant's health and performance. It also expressed concern about the erosion of his medical knowledge and clinical skills which may have occurred since he last worked. It determined that it was necessary to maintain the order of suspension because the defendant could pose a real risk to patients if allowed to resume unrestricted practice and, it is said, would undermine the confidence that the public is entitled to place in the medical profession. In these circumstances, I am asked to grant a further extension of 12 months within which such further assessments and determinations may be concluded.
8. The application is opposed by Ms Bowron QC on behalf of Dr George. She makes the obvious point that he has been suspended from practising his profession for a period of some five years. It is a relevant factor that at the beginning of this suspension he was 60 years of age. Her primary submission is that there should be no extension of the period of suspension. I think it is fair to say that, in her oral submissions to me at least, she was alive to certain difficulties in that submission, given the protective nature of the jurisdiction which is exercised by this court under the Act. Her alternative submission is that, if there is to be an extension, it should be for the shortest possible period so that the court may, in effect, supervise the future conduct of this matter by the GMC.
9. In approaching this matter, I bear in mind the correct approach to the question of an extension as that laid down by the Court of Appeal in General Medical Council v Hiew [2007] 1 WLR at page 2007. The general principles can be summarised as follows:

(1) The court has the power and the duty to consider whether any extension of time beyond the initial period set by the GMC is appropriate. Under the scheme, this exercise in decision making is to be performed by the court as the primary decision-maker.

(2) The court has the power to determine that there should be no extension or that there should be the extension sought by the GMC or some lesser extension. In an appropriate case, the judge also has a power under section 41A(10) to terminate the suspension or to shorten the current period of suspension.

(3) The criteria to be applied are the same as for the original interim order under section 41A(1), namely the protection of the public, the public interest and the practitioner's own interests. The court can take into account such matters as the gravity of the allegation, 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.

(4) The onus of satisfying the court that the criteria are met falls on the GMC. The relevant standard is the civil standard.

(5) The judge must reach his decision as to whether to grant an extension on the basis of the evidence on the application, which will have been examined with care.

(6) The power to grant an extension and the power to make the orders set out in section 41A(10) represent the limit of the court's express powers in relation to interim measures. Parliament has not given the court power to determine in the first instance whether an interim suspension order or conditional order should be made. It has clearly taken the view that the GMC is better placed than the courts to decide such matters.

(7) It is not the function of the judge under section 41A(7) to make findings of primary fact nor is there any threshold test to be satisfied before the court can exercise its power of extension.

(8) The evidence on the application will include evidence as to the opinion of the GMC and the IOP or the Fitness to Practise Panel as to the need for an interim order. Appropriate weight will be given to that. All that is required is that the court should give that opinion such weight as in the circumstances of the case it thinks fit.

(9) Finally, the function of the court is to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension.

10. I am very concerned in this case at the period of time which has passed during which a professional man has been prevented from practising his profession. He has been suspended for a period of five years. I have regard also to the fact that at the start of the suspension he was 60 years of age. In the event that the suspension is lifted and he is allow to practise again, it is going to be increasingly difficult for him to find a permanent post. Ms Bowron in her submissions has made the point that at his age it is most unlikely that he will ever again obtain a substantive post. The effect may be mitigated to some extent by the fact that he has suffered ill health and may in any event have been unable to practise during parts of this period in any event. Nevertheless, it is a very serious matter to prevent a man from practising his profession. However, the GMC considers that there are real concerns as to the fitness of this doctor to continue to practise and that is a matter to which the court has to give great weight.
11. The question is essentially whether the allegations made against the practitioner justify the prolongation of the suspension. I am satisfied that there is a clear need that the fitness of this doctor to practise should be investigated further by the GMC, both in relation to his previous performance and in relation to his current state of health. This further investigation is to my mind necessary in order for the protection of patients and the protection of the public and necessarily outweighs the prejudice which has been suffered and which will continue to be suffered by Dr George as a result of his suspension. It also outweighs the concerns that I have as to the very considerable delays which have occurred during the proceedings before the General Medical Council.
12. Given the unhappy position which has now been reached, I consider that it is incumbent on the General Medical Council to employ the upmost expedition in pursuing these concerns in carrying out the assessments and referring them to the appropriate panels, if that should be necessary, and in bringing this matter to a speedy conclusion. That is necessary not only in the interests of Dr George but also in the public interest and the public's confidence in the systems which are operated by the General Medical Council.
13. It is Dr George's duty as a member of the profession to co-operate fully with his professional body in the necessary further investigations and procedures. In considering the appropriate period of the extension, I proceed on the basis that Dr George will be required to co-operate fully with the General Medical Council. There is no evidence before me to support the view that he is by reason of his medical condition unable to comply with such reasonable requirements as may be made of him by the General Medical Council in that regard.
14. Having regard to all of these matters, I propose to grant an extension of six months. I consider that, on the assumption of co-operation by Dr George, it should be possible for the General Medical Council to complete the necessary procedures within that time. It would, of course, be open to the General Medical Council to make a further application to the court for a further extension should those procedures not have been completed within the period of six months. I express now my view that I very much hope that no such application will be necessary. If such an application is made, of course, it will be a matter for consideration by the judge on that occasion. However, it is my view that the court will on such an occasion need to be persuaded that the General Medical Council has pursued this matter with the greatest expedition. It seems likely that a court on any such future application would consider that any further extension would require compelling justification.
15. For these reasons, I propose to extend the order for a period of six months. I direct that a transcript of this judgment be prepared and that, in the event of there being any further application to the court, the transcript of the judgment be placed before the judge hearing that application.

Are there any other matters?

16. MR COLMAN: My Lord, I have no application in respect of costs. I understand there is in any event a procedural obstacle in the way of such an application in that there has been a recent meeting between those instructing me in the fissures of the court indicating that if there is no application for costs indicated on the claim form, with the proviso that the schedule will be served in due course, then no such application should be granted. As that meeting post-dated the serving of the claim form in this case, there is no such notification so I have told my learned friend in those circumstances I am not pursuing costs.
17. MR JUSTICE LLOYD JONES: Well, if you are not making the application I will not deal with it.
18. MS BOWRON: My Lord, can I just raise one tiny point on costs and that is the abortive hearing on 25th May, when Wyn Williams J reserved the costs to today. The amount of money we are talking about is tiny. I am not charging for my time. In fact, Mr Coleman and I spoke, he said "have you got a skeleton?" and I said "for what?" which is how it all came out that we did not know anything about it, but my instructing solicitor did come along to court and the sum that we are talking about is about £290. But I do seek the costs of that because that was, I am afraid, another error of the GMC in not giving us adequate notice.
19. MR JUSTICE LLOYD JONES: What happened on that occasion? It was listed before Wyn Williams J. You say you were not given sufficient notice.
20. MS BOWRON: I think the papers arrived with my instructing solicitor the preceding afternoon. Mr Colman very fairly spoke to me about six o'clock, when my solicitor had gone home. He, in fact, had been out of the office, so it was a bit of a mess. It came in front of Wyn Williams J and what was agreed was a two week extension to 31st May, so there was not a lacuna, which ties us over to today and then today was fixed. But, my Lord, I do say -- it is a tiny point but in the general scheme of things it is deeply unimportant in financial terms but we do seek the costs of that day, as I say in the sum £290, plus VAT, whichever figure that comes to. It should not be beyond my wit to be able to work that out. It is £340, or whatever it comes to.
21. MR JUSTICE LLOYD JONES: Mr Colman, what do you say about that?
22. MR COLMAN: My Lord, what happened essentially is that my friend had moved offices between the service of papers, which were served to his old address and forwarded only to his new offices the day or two days before the hearing. It seems that he communicated the change of address to one person at the GMC but that did not count for their purpose as a official communication, so that message did not get through to those instructing me, I am afraid, and there was that.
23. MR JUSTICE LLOYD JONES: Well, that is the explanation of what happened but I think in the circumstances the GMC should pay the costs wasted as a result of that hearing before Wyn Williams J, which I summarily assess in the sum of £290 plus VAT.
24. Mr Colman, Ms Bowron, thank you both very much. I am grateful.