Dr Sheela Jogula Ramaswamy v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 15 June 2021 |
| Neutral Citation | [2021] EWHC 1619 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/655/2021 |
| Date | 15 June 2021 |
[2021] EWHC 1619 (Admin)
THE HONOURABLE Mr Justice Morris
Case No: CO/655/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Daniel Matovu (instructed on direct access) for the Appellant
Christopher Knight (instructed by General Medical Council) for the Respondent
Hearing dates: 6, 7 and 10 May 2021
Further written submissions: 24, 26 and 27 May 2021
Approved Judgment
Introduction
This is an appeal against two determinations (“the Determinations”) of a Medical Practitioners Tribunal (“the Tribunal”) dated 12 January 2021. By the Determinations, the Tribunal found that Dr Sheela Ramaswamy (“the Appellant”) had failed to comply with a direction made by the General Medical Council (“the GMC”) that she undergo a health assessment for the purposes of a fitness to practise investigation (“the Non-Compliance Determination”) and further directed that the Appellant's registration be suspended for a period of nine months (“the Sanction Determination”). As part of her appeal, the Appellant challenges further decisions of the Tribunal: first, the decisions made by the Tribunal, both before, and on, 11 January 2021, to refuse to postpone the hearing and, on 11 January 2021, to proceed in the Appellant's absence. A further appeal against the determination to make the suspension effective immediately has not been pursued. The appeal is made under paragraph 5A(5) of Schedule 4 to the Medical Act 1983, as amended (“the Act”). The respondent to the appeal is the GMC.
The Appellant aged 42 is a registered doctor who has practised as a speciality doctor in elderly medicine. In August 2018 the GMC opened an investigation into the Appellant's fitness to practise arising from concerns about correspondence between her and the GMC and made a formal direction pursuant to Rule 7(3) of the General Medical Council (Fitness to Practise) Rules 2004, as amended (“the Rules”) that she should undergo a medical assessment arising out of a concern as to her fitness to practise. The background to that correspondence is a relationship between the Appellant and another doctor, and the Appellant's subsequent use of that doctor's name. On 29 July 2020 the GMC made a further direction that the Appellant should undergo a health assessment. The Appellant did not comply with that direction and in October 2020 the GMC referred that non-compliance to the Tribunal. A hearing date of 11 and 12 January 2021 was fixed. In decisions, made by a Medical Practitioners Tribunal Service (“MPTS”) case manager, prior to the hearing (on 11 December 2020 and 7 January 2020) the Tribunal refused to adjourn the hearing. The Tribunal considered the reference at a hearing on 11 and 12 January 2021. On 11 January 2021 the Tribunal refused a further application to adjourn. The Appellant did not attend on 11 January 2021; she attended in person on 12 January 2021. In the Non-Compliance Determination, issued at the start of the hearing on 12 January 2021, the Tribunal held that the Appellant had failed to comply with the direction and that there was no good reason for that failure. The Tribunal then proceeded to hear argument on sanction. In the Sanction Determination, the Tribunal imposed the sanction of suspension. The Tribunal directed that the suspension take effect immediately.
The Appellant challenges the Non-Compliance Determination on the grounds that it was unjust due to serious procedural irregularity and/or was substantively wrong. She challenges the Sanction Determination on the grounds that it was unnecessary, excessive and disproportionate.
The relevant legal framework
The Act: The GMC and the Medical Practitioners Tribunal
The statutory framework for the GMC and the Tribunal is to be found in the Act, and the Rules made under the Act.
The over-arching objective and the over-riding objective
Section 1(1A) of the Act provides that the “over-arching objective of the General Council in exercising their functions is the protection of the public”. Section 1(1B) expands on this, providing that “the pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives: (a) to protect, promote and maintain the health, safety and well-being of the public; (b) to promote and maintain public confidence in the medical profession; and (c) to promote and maintain proper professional standards and conduct for members of that profession.”
Schedule 4 of the Act addresses proceedings before the Tribunal (and other relevant tribunals) and requires the GMC to make rules in respect of proceedings before the Tribunal. Paragraph 1(1A) provides that “The “over-riding objective” of the [GMC] in making rules under this Schedule with respect to the procedure to be followed in proceedings before a Medical Practitioners Tribunal … is to secure that the Tribunal … .deals with cases fairly and justly”. Paragraph 1(1B) goes on to provide that, where the GMC consider that there is a conflict between meeting their over-riding objective and their over-arching objective, priority must be given to meeting the overriding objective i.e. that cases are dealt with fairly and justly. (See further paragraph 5A(3H) of Schedule 4 below, where the Tribunal must have regard to the over-arching objective. I consider that that duty is also subject to the over-riding objective.)
Fitness to Practise proceedings
Section 35C(2) of the Act provides that a person's fitness to practise shall be regarded as impaired for the purposes of the Act by reason only of one of five specified matters, including “(a) misconduct… (d) adverse physical or mental health…”. It is well established that under section 35C the determination of impairment of fitness to practise involves a two-stage process. First the issue of whether there has been misconduct or adverse health (or other grounds) and, secondly, whether as a result of the relevant ground, fitness to practise is impaired.
Part 2 of the Rules deals with the “Investigation of Allegations”. An “allegation” is defined as an allegation that fitness to practise is impaired (rule 2). An allegation is to be initially considered by the Registrar and where he considers that an allegation does not fall within section 35C(2) the Registrar must notify the maker of the allegation (if any) accordingly (rule 4(2A)).
Interim orders
Section 41A of the Act provides that the Tribunal or the Interim Orders Tribunal may make an order to suspend registration (an interim suspension order) or an order that registration is conditional on compliance with requirements specified in the order (to which I refer as an “interim conditions order”) where it is satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest or is in the interests of the registrant.
Directions and non-compliance: Schedule 4 paragraph 5A of the Act
The power to make a direction
At the heart of the present proceedings is paragraph 5A of Schedule 4 to the Act. The power to direct an assessment is set out in sub-paragraphs (1) to (2B) which provide, inter alia, as follows:
“(1) The General Council may make rules—
(a) authorising the giving of directions by any of—
(i) the Investigation Committee,
(ii) a Medical Practitioners Tribunal,
(iii) such other persons as may be specified in the rules,
requiring an assessment of a kind referred to in sub-paragraph (1A) to be carried out;
…
(1A) The assessments referred to in sub-paragraph (1) are—
(a) in the case of a registered person, an assessment of the standard of a person's professional performance;
…
(c) … an assessment of the person's physical or mental health.
…
(2B) An assessment of a person's physical or mental health may include an assessment of the person's physical or mental health at any time prior to the assessment and may include an assessment of the person's physical or mental health at the time of the assessment.”
Non-compliance: Reference to the Tribunal and the Tribunal's consideration
The power to refer non-compliance with a direction to the Tribunal is set out at sub-paragraphs (3) to (3H) of paragraph 5A, which provide, inter alia, as follows:
“(3) If the Registrar is of the opinion that a registered person who is required to submit to an assessment by virtue of this paragraph has failed to submit to that assessment or to comply with requirements imposed in respect of the assessment, the Registrar—
(a) may refer that matter to the MPTS for them to arrange for it to be considered by a Medical Practitioners Tribunal, and
(b) if he does so, must without delay serve on the person concerned a notification of the making of such a referral.
…
(3B) Where a matter is referred to the MPTS under sub-paragraph (3) …, the MPTS must arrange for the matter to be considered by a Medical Practitioners Tribunal.
…
(3D) The Medical Practitioners Tribunal, on their consideration of a matter under sub-paragraph (3B) …, may, if they think fit—
(a) direct that the person's registration in the register is to be suspended (that is to say, is not to have effect) during such period not exceeding twelve months as may be specified in the direction; or
(b) direct that the person's registration is to be conditional on the person's compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Tribunal think fit to impose for the protection of members of the public or in the person's interests.
(3E) Where, under sub-paragraph (3D), the Tribunal give a direction for suspension or a direction for conditional registration, the MPTS must without delay serve on the person...
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