Dr. Promod Kumar Bhatnagar v The General Medical Council

JurisdictionEngland & Wales
JudgeMr. Justice Edwards-Stuart
Judgment Date11 November 2013
Neutral Citation[2013] EWHC 3412 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/4158/2013
Date11 November 2013

[2013] EWHC 3412 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Rolls Building, 7 Rolls Buildings

London EC4A 1NL

Before:

Mr. Justice Edwards-Stuart

Case No: CO/4158/2013

Between:
Dr. Promod Kumar Bhatnagar
Claimant
and
The General Medical Council
Defendant

Simon Butler Esq (instructed by BSG Solicitors) for the Claimant

Simon Phillips Esq, QC (instructed by GMC Legal) for the Defendant

Approved Judgment

Hearing dates: 28 th June 2013 and 31 st October 2013

Introduction

1

There is before the court an application brought under section 41A(10) of the Medical Act 1983 seeking the termination of an interim suspension order imposed upon the applicant, Dr. Bhatnagar, by the General Medical Council's Interim Orders Panel ("IOP") on 17 January 2013 by which Dr. Bhatnagar's registration as a medical practitioner was suspended for 12 months. Shortly after the hearing I notified the parties of my decision that the application should be dismissed. This judgment contains my reasons for that decision.

2

Dr. Bhatnagar is a Consultant Ophthalmologist and was self-employed prior to his suspension.

3

The issues raised by this application, as formulated by Mr. Simon Butler, who appeared for Dr. Bhatnagar, are whether or not:

i) It was unfair to impose an interim suspension order;

ii) It was disproportionate to impose an interim suspension order;

iii) It was wrong to impose an interim suspension order;

iv) The IOP failed to give reasons, alternatively adequate reasons, to explain its decision.

4

This is not an appeal by way of mere review. It is well established that the court is exercising an original jurisdiction and, whilst it will give careful consideration and appropriate weight to the decision of the IOP, it must ultimately make up its own mind and set the order aside if satisfied that it was wrong.

5

In the context of this application it is worth setting out the observations made by Nicol J, at paragraph 12 of his judgment in Sandler v The General Medical Council [2010] EWHC 1029 (Admin). That was also an application to terminate a suspension.

"Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr. Sandler's suspension (or to substitute a different period) is not dependent on showing some error of law on the part of the IOP. That is the point that I understand the Court of Appeal to have made in GMC v Hiew [2007] 1 WLR 2007 where at [27] Arden LJ said 'the powers conferred by s.41A(10) are also original powers and not merely powers of judicial review.' In that case, the Court was directly concerned with an application to extend a doctor's suspension. The maximum period for which an IOP can suspend a doctor is 18 months. Any longer extension can only be granted by the Court under s.41A(7). In such a situation, the only order or orders by the IOP will have expired (or be about to expire). If nothing further is done the suspension will come to an end. It is unsurprising in these circumstances that the Court of Appeal characterised the Court's jurisdiction as 'original'. The position with an application under s.41A(10) is different. The IOP has suspended Dr. Sandler. His application is for that suspension to be terminated. My consideration of the application must surely start from the position that the IOP has thought that interim suspension is the right course. I also note that s.41A(10) applies 'where an order has effect under any provision of this section'. One of the previous subsections is s.41A(7). Thus, it is open to a doctor whose order for suspension has been extended by the Court under that provision to apply for the suspension to be terminated under s.41A(10). There, too, the Court would surely have to start from the position that a suspension was currently in place before deciding whether that position ought to be altered. In R (Stephen James Walker) v GMC [2003] EWHC 2308 (Admin) Stanley Burnton J. (as he then was) was also considering an application to terminate a suspension under s.41A(10). He said at [3]:

'The terms of subsection 10 indicate that the appeal to the Court is a full appeal, that is to say, the Court does not interfere on a review ground but itself decides what order is appropriate.'

To describe the process as an 'appeal' may not do full justice to the power of the Court. It would seem to me that the Court does have power to consider subsequent developments and (where appropriate) fresh evidence. However, in my judgment the term does correctly acknowledge that in this context, unlike an application under s.41A(7), the Court is faced with an extant order of the IOP which it would only terminate if it thought that order was wrong."

The facts

6

Dr. Bhatnagar qualified as a doctor in 1968. For the past 15 years or more he has been the proprietor of private hospitals. From April 1999 to October 2009 he was a director of Parkfield Hospital Ltd (previously known as Birkdale Clinic (Rotherham) Ltd). That hospital ran into serious financial difficulties and went into administration in October 2009. Dr. Bhatnagar was also a director of Rotherham Private Hospital Ltd.

7

Between July 2008 and October 2009 a Fitness to Practise Panel ("FTP Panel") considered allegations against Dr. Bhatnagar arising out of the management of the Birkdale Clinic at Daventry during 2005 and 2006 to the effect that Dr. Bhatnagar's management of the clinic was deficient. Dr. Bhatnagar admitted one of the complaints and many others were found proved. Dr. Bhatnagar's defence was that he was not responsible for the day to day management of the clinic, which he left to others. The FTP Panel found also that Dr. Bhatnagar's conduct in allowing endoscopy services to be provided when he knew that he had not received written confirmation that such services could be provided, was dishonest and showed a cavalier disregard for proper processes. The FTP Panel found that Dr. Bhatnagar's fitness to practice was impaired by misconduct. However, it noted that there was no evidence of any actual harm to a patient. In October 2009 the FTP imposed a period of suspension of six months, but the registration was not suspended forthwith.

8

In June and October 2009 the Care Quality Commission inspected the clinic in Rotherham, which was under the control of Dr. Bhatnagar, and identified a number of areas of concern. This came to the attention of the GMC in 2011 and resulted in a Rule 7 letter to Dr. Bhatnagar dated 11 August 2011 setting out the allegations that had been made against him. Dr. Bhatnagar's defence was again that he did not have the day to day management of the clinic and so was not responsible for what had happened. A hearing to investigate these complaints was subsequently fixed for 15 October 2012.

9

By an e-mail dated 16 September 2011 Mr. Niraj Manglam, a former employee at one of Dr. Bhatnagar's clinics, made a number of allegations against a Dr. M, whom he alleged to be Dr. Bhatnagar's mistress, and various allegations against Dr. Bhatnagar himself. The allegations, in brief, were as follows:

i) There was a high level of forging and fabrication of documents taking place at the clinic under the direct instruction of Dr. Bhatnagar.

ii) Dr. Bhatnagar and Dr. M fabricated a letter purporting to appoint Dr. M as the manager of the clinic in order to mislead the FTP Panel that considered the allegations against Dr. Bhatnagar in 2008/09.

iii) Dr. M also helped Dr. Bhatnagar to forward a letter to the Clydesdale Bank fraudulently purporting to make a genuine offer to buy the buildings occupied by the clinic.

iv) That on various occasions Dr. M and Dr. Bhatnagar had stayed together in the RMO's room at the clinic.

v) Dr. M ill-treated a patient in December 2010, but when the matter was reported to Dr. Bhatnagar he chose to ignore it.

10

On 24 October 2011 the GMC wrote to Dr. Bhatnagar enclosing a copy of the e-mail from Mr. Manglam and inviting his response within four weeks. On 16 November 2011 Dr. Bhatnagar sent his initial response to these allegations to the GMC. In this document he blamed Mr. Manglam for a number of shortcomings at the clinic, since, he said, Mr. Manglam was the registered manager. He denied all allegations of fabrication of documents and accused Mr. Manglam of corrupting or altering data held on the clinic's computer system.

11

On 22 November 2011 the GMC notified Dr. Bhatnagar that the allegations in relation to the management of Parkfield Hospital in 2009, namely that his governance and management of the clinic was deficient, were to be referred to the FTP Panel. The letter did not refer to the allegations made by Mr. Manglam in the e-mail of 16 September 2011.

12

On 3 August 2012 the GMC wrote to Dr. Bhatnagar to say that it had now reviewed the case with counsel, who had advised that the new allegations made by Mr. Manglam were inextricably linked with the existing allegations and that there was an overwhelming public interest in having all matters heard together. Accordingly, the GMC gave notice that it intended to vacate the hearing that had been fixed for October 2012

13

On 12 December 2012 the GMC wrote to Dr. Bhatnagar enclosing the witness statements of Mr. Manglam and a solicitor, Sian Morris. The letter also referred to voice recordings obtained by Mr. Manglam, the transcripts of some of which were attached to Mr. Manglam's witness statement.

14

On 4 January 2013 the GMC wrote to Dr. Bhatnagar notifying him that it had been decided to refer his case to an IOP to consider whether or not it was in the...

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1 cases
  • Dr Promod Kumar Bhatnagar v General Medical Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 24 July 2014
    ...leading up to the hearing before the IOP on 17 January 2013 are set out by Edwards-Stuart J in his judgment in Dr Bhatnagar v GMC [2013] EWHC 3412 (Admin) at paragraphs 6–14 which I gratefully adopt: "6. Dr Bhatnagar qualified as a doctor in 1968. For the past 15 years or more he has been t......

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