Dr Promod Kumar Bhatnagar v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 24 July 2014 |
| Neutral Citation | [2014] EWHC 2562 (Admin) |
| Docket Number | Case No: CO/2075/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 July 2014 |
[2014] EWHC 2562 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/2075/2014
Mr Simon Butler (instructed by Messrs BSG Solicitors) for the Claimant
Mr Simon Phillips QC (instructed by GMC Legal) for the Defendant
Hearing date: 11 July 2014
Introduction
This is an application brought under section 41A(10) of the Medical Act 1983 ("the Act") seeking the termination of an interim suspension order imposed upon the Applicant, Dr Bhatnagar, by the Medical Practitioners' Tribunal Service's Interim Orders Panel ("IOP") on 7 April 2014 by which Dr Bhatnagar's registration as a medical practitioner was suspended.
Dr Bhatnagar is a Consultant Opthalmologist and was self employed prior to his suspension.
The issue raised by this application, as formulated by Mr Simon Butler, who appears for Dr Bhatnagar, is whether the decision of the IOP was unnecessary, disproportionate and wrong in all the circumstances.
The Facts
The material facts relating to the period 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 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 [Panel] 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 Mr Bhatnagar notifying him that it had been decided to refer his case to an IOP to consider whether or not it was in the public interest that an order should be made suspending Dr Bhatnagar's registration, or imposing conditions on his registration. The letter invited Dr Bhatnagar to appear before the IOP on 10 January 2013. That hearing was postponed for a week to 17 January 2013 at Dr Bhatnagar's request."
On 17 January 2013 the IOP imposed an interim order of suspension on Dr Bhatnagar's registration for a period of 12 months.
Dr Bhatnagar challenged that decision. His application was heard by Edwards-Stuart J on 28 June 2013.
On 16 July and 11 October 2013, differently constituted panels of the IOP reviewed the interim order of suspension and determined that an interim order of conditions was appropriate.
On 31 October 2013, prior to handing down judgment Edwards-Stuart J gave leave to Dr Bhatnagar to adduce evidence of the IOP determinations of 16 July and 11 October 2013. On 11 November 2013 Edwards-Stuart J dismissed Dr Bhatnagar's application to terminate the interim order of suspension.
On 7 April 2014 a differently constituted Panel of the IOP reviewed the interim order of conditions and determined that an interim suspension order was appropriate.
The Decision of Edwards-Stuart J of 11 November 2013
Having reviewed the material produced by Mr Manglam (paras 38–49), the evidence of Ms Morris (paras 50–51), the Care Quality Commission allegations (paras 52–53), and the allegations before the 2008/09 FTP Panel (paras 54–56), Edwards-Stuart J considered "the proper approach" to be adopted. He stated:
"57. The issue for the IOP was whether the combination of the allegations made by the Care Quality Commission and the allegations of dishonesty made by Mr Manglam, together with the conduct revealed by Ms Morris's witness statement and the findings of the 2008/09 FTP Panel, justified suspension. That is to say whether they justified a conclusion that the suspension was necessary in the public interest.
58. The IOP had to ask itself—and did ask itself—what a reasonable onlooker would think, in the event of the doctor ultimately being convicted of formal allegations arising from the complaints that had been outlined, about his being allowed to go on practising in the meantime. If this hypothetical onlooker would expect the doctor to be suspended from practice, then it would be legitimate to conclude that it was necessary that he should be suspended in order to maintain confidence in the medical profession.
59. Mr Butler made the point that there is no allegation that Dr Bhatnagar has caused any harm to a patient and, indeed, there is no suggestion that he has personally ever been guilty of harming a patient through medical malpractice. In the context of suspension this is a powerful point. If a doctor has practised for many years without directly harming a patient, what justification exists for suspending him?
60. In my view the answer lies in the allegations of dishonesty in connection with his practice and, in particular, dishonesty calculated to pervert the course of the GMC's regulatory procedures. This is, to my mind, quite different from, for example, committing fraud by abusing a position as a governor of a school, see Patel v The GMC [2002] EWHC 3688 (Admin). The allegations made by Mr Manglam go close to the heart of Dr Bhatnagar's activities as a doctor, not as, for example, a school governor or a property owner.
61. I consider that a reasonable onlooker would...
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