Anthonipillai Nicholas-Pillai v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWHC 305 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2060/2013 |
| Date | 22 January 2015 |
[2015] EWHC 305 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Elisabeth Laing
CO/2060/2013
Mr James Counsell (instructed by Raj Selvaskandan) appeared on behalf of the Appellant (Mr Selvaskandan appeared on behalf of the Appellant at read-out judgment)
Mr Ivan Hare (instructed by GMC Legal) appeared on behalf of the Respondent
This is an appeal by Dr Nicholas-Pillai ("the appellant") under section 40 of the Medical Act 1983 ("the 1983 Act"). It is an appeal against a decision of the Fitness to Practise Panel ("the FPP") of the General Medical Council ("the GMC"). That decision, which I will refer to as "the decision", was made in January 2013, and the decision was that the appellant's name should be erased from the medical register.
The appeal in this case was lodged on 22 February 2013 and originally listed for hearing in October 2013. On that day, the appellant sought an adjournment on the grounds of his ill-health, which was unopposed. That request was granted by Turner J. The appeal was re-listed for hearing in March 2014. On 21 March 2014 the appellant sought a further adjournment on the same grounds. That was opposed by the GMC. On 23 March 2014, Hamblen J ordered that the hearing be adjourned to be listed on the first available date after 12 May 2014 and that there should be no further adjournment on the grounds of the appellant's ill-health or on the grounds of his failure to instruct a representative. He made further directions for the hearing.
The hearing was re-listed on 28 October 2014. On 28 October 2014, Turner J ordered that the hearing be adjourned, with directions, to a date to be fixed, with a time estimate of one day. The appellant had the day before the date listed for the hearing served new grounds of appeal in which he sought to raise a new point, effectively that the competence of his representative at the FPP hearing had deprived him of his right to a fair hearing.
Turner J made an order dated 31 October 2014 adjourning the appeal. He gave the appellant permission to rely on further grounds of appeal as set out in the document filed on 24 October 2014, and he gave the appellant permission to rely on fresh evidence contained in a statement dated 21 October 2014. Paragraph 4 of the order provided that when the appellant's solicitor received a sealed copy of the order, he was to serve a copy of it forthwith on the appellant's previous counsel, Mr Joseph, and was to serve a copy of the covering letter to Mr Joseph on the GMC's solicitors. Paragraph 5 of the order required Mr Joseph to file with the court and serve on the parties' solicitors a statement setting out whether he accepted the allegations of professional incompetence made against him by the appellant in the appellant's witness statement. Paragraph 6 of the order provided that if no statement had been received by the parties' solicitors by the date specified in paragraph 5 (25 November 2014), or if the statement took issue with the accuracy or veracity of the allegations set out in the appellant's statement, the respondent was to apply for further directions, to be given at a telephone hearing, and that hearing was reserved to Turner J.
The appellant's solicitors complied with paragraph 4 of that order. Mr Joseph, however, did not. When he was chased, he emailed the appellant's solicitors on 20 November 2014 to say that he had been out of the country, he did not have the papers in the case anymore and that he should not be emailed anymore about it. The appellant, he said, should be contacted instead.
The GMC did not comply with paragraph 6 of the order. It did not apply for directions. Its initial position in correspondence was that the hearing listed for January this year should be a directions hearing. It then approached Mr Joseph in January and obtained a short statement from him. The position of both sides on the day of the hearing was that they wanted the appeal to proceed in circumstances where, in some respects, the statements of the appellant and of Mr Joseph conflicted. There had been no application to cross-examine either the appellant or Mr Joseph.
The facts
The facts of the appellant's contact with the GMC are as follows. On 13 June 2008 he was suspended for six months by the FPP in relation to an allegation of misconduct. He appealed that decision unsuccessfully ( [2009] EWHC 1048 (Admin)), and the suspension entered into effect on 6 May 2009. On 11 July 2008 a remedial notice from Enfield Primary Care Trust ("PCT") to Bush Hill Park Medical Practice ("the practice") was addressed to the appellant. In April 2009, Nina Murphy Associates made a report on the practice. That report concluded that the practice's record keeping was "extremely poor" and "unacceptable"; that there were occasions when the practice's prescribing was "unacceptable and potentially dangerous"; that there was particular concern about the provision of services for women's health, gynaecology, paediatrics and chronic disease management; and that formal assessment of the practice's clinical competence was necessary. A referral to the GMC was recommended in that report.
On 23 April 2009, Enfield PCT told the GMC about concerns relating to the clinical care provided to patients by the appellant. On 9 November 2009 there was a hearing in front of the Interim Orders Panel ("the IOP"). Its conclusion was that, due to the comprehensive and serious nature of the deficiencies and the failure of the appellant to demonstrate insight and to initiate a structured plan to address them, the appellant should be suspended for 18 months. That suspension was maintained through a further seven hearings by the IOP.
On 11 December 2009 the GMC invited the appellant to undergo a performance assessment. He agreed to that. Between 14 and 16 March 2010 the peer review part of the performance assessment took place. I will say more about that in a moment. On 31 March 2010 the test of competence ("TOC") part of the performance assessment took place. On 16 July 2010 the performance report was produced. I will say more about that in a moment; I will simply set out its conclusions for the time being. They were that the performance of the appellant was "unacceptable" in three areas: assessment of patients' condition; providing or arranging treatment; and record keeping. There was "cause for concern" in the following areas: providing and arranging investigations; respect; laws; participating in audit, assessment, et cetera; relationship with colleagues; and communication with patients. The appellant was found to have performed below the minimum acceptable level in simulated surgery and in the objective structured clinical examination ("OSCE"). His clinical performance was found to be "unacceptable" and his performance was found to be "deficient". The assessors considered that the likelihood of his return to full independent practice was seriously doubtful.
On 6 September 2010 the appellant was referred to the FPP by the GMC. On 5 May 2011 the High Court extended the IOP's order of suspension for a further four months until 7 September 2011. On 3 June 2011 the appellant submitted an application to adjourn the hearing that was listed for 13 to 21 June 2011. Further patient notes had been requested only three weeks before the hearing. On 8 June 2011 the GMC adjourned the hearing by the FPP. The GMC noted that the request for patient notes had come three weeks before the hearing and that the practice had now closed. The GMC disclosed eighteen sets of notes on 28 November 2011, seven sets of notes on 17 January 2012 and one set of notes on 16 February 2012.
On 6 September 2011 there was a further extension by the High Court of an order made by the IOP, until 6 June 2012. On 31 January 2012 the appellant was notified of a further hearing before the FPP, and that the date had been set for 5 March 2012. On 17 February 2012 the appellant asked for that hearing to be adjourned, principally on the grounds of his ill-health. An adjournment of 9 to 12 months was asked for. Disclosure issues were referred to: only 38 out of 50 patient notes had been disclosed; the appellant had asked for the assessors' marking sheets, and the GMC was content to allow those to be seen if undertakings were signed by him, but he refused to do that. On 22 February 2012 the hearing by the FPP was adjourned.
On 1 June 2012 a further extension of the order by the High Court was granted, and that was to expire in March 2013 ( [2012] EWHC 2238 (Admin)). On 12 October 2012 the appellant applied unsuccessfully for the order made on 1 June 2012 to be set aside ( [2012] EWHC 3485 (Admin)).
Between 14 and 25 January 2013 the FPP hearing which is the subject of this appeal took place and, as I have mentioned, it resulted in a direction for the erasure of the appellant's name from the register.
The conflict of evidence
This is an appeal; the burden is on the appellant to show that the decision of the GMC was wrong. On the other hand, the October order put an onus on the GMC to apply for a directions hearing if witness statements revealed a conflict of evidence. That would have given the parties the opportunity to apply to cross-examine the appellant, or Mr Joseph, as the case may be. Equally, if the appellant wanted to argue that Mr Joseph's evidence should disbelieved, he should, regardless of the terms of the October order, himself...
To continue reading
Request your trial