Dr Shreedhar Vasudeo Vaidya v General Medical Council

Hearing dates: 18 & 19 October 2010

This is an adjourned application by the applicant, Dr Shreedhar Vaidya, to set aside the general civil restraint order ("the Order") made on 25 June 2010 by Sir Charles Gray, sitting as a High Court Judge, and sealed on 16 July 2010. The Order was made in response to an application by the respondent, the General Medical Council ("GMC"), which was issued on 8 June 2010. Dr Vaidya's application is founded on the fact the Order was made in his absence, he relies upon the following matters:

i) He was out of the country on 25 June 2010, and had informed the GMC of this fact prior to the fixing of the hearing date;

ii) He was unaware of the GMC's application before leaving the country;

iii) To issue the Order in his absence breached his rights under Article 6 (1) of the ECHR;

iv) The Order was disproportionate.

It is the GMC's case that Sir Charles Gray was informed of Dr Vaidya's position. The judge was familiar with requests for adjournment made by Dr Vaidya. Dr Vaidya was aware of the intention of the GMC to apply for a general civil restraint order before he left the country. The judge was entitled to proceed in Dr Vaidya's absence. In any event, Dr Vaidya's Article 6 rights are fully protected by the hearing before this court. The Order made by Sir Charles Gray was proportionate.

Background

Dr Vaidya was a registered medical practitioner who previously worked as a staff grade physician. On 14 September 2006 he was found guilty of serious professional misconduct by a Fitness to Practise Panel ("FPP") of the GMC, who determined that his name was to be erased from the Medical Register. The matters which came before the FPP related primarily to Dr Vaidya's conduct when working for the United Lincolnshire Hospitals NHS Trust and for working during three periods of suspension. Dr Vaidya appealed the decision of the FPP to this court pursuant to section 40 of the Medical Act 1983 ("The 1983 Act"). The majority of his challenges were rejected by Bennett J who described some of his grounds as "unsustainable", two grounds were upheld as was the finding of serious professional misconduct. The issue of sanction was referred back to the FPP. Dr Vaidya sought permission to appeal various aspects of Bennett J's decision, this was refused on papers by Waller LJ. Dr Vaidya renewed his application for permission to appeal, this was rejected by Pill LJ.

The remitted hearing on sanction was listed for 31 March to 4 April 2008. Dr Vaidya sought to have this hearing postponed, he issued judicial review proceedings, an application for urgent consideration being rejected by Griffiths Williams J. During the FPP hearing, repeated applications were made by Dr Vaidya to postpone the proceedings, further judicial review applications were made by Dr Vaidya, all of which were refused. In June 2008, the FPP ordered the erasure of the doctor's name and made an immediate order to suspend Dr Vaidya's registration. Dr Vaidya's appeal against the order was rejected on all grounds following a two day hearing before Plender J.

Dr Vaidya embarked upon a series of proceedings against the GMC, arising from his disciplinary process. On 21 October 2008 the GMC made an application for an extended civil restraint order. The matter came before Mr Kenneth Parker QC (as he then was), sitting as a Deputy High Court Judge on 11 May 2009. On that date, the judge was not prepared to make the order sought but indicated:

"I do emphasise, however, that this is very much a border line decision and I again must give a very forceful warning to Dr Vaidya that if any further claims are made – and those of course will include the current claim of 7 May 2009 – that are found by the court to be wholly without merit, having regard to the full background in this case and the persistent resort to litigation against the GMC, that it would be most unlikely that the court would then not make an order in the terms that are sought in this application."

Dr Vaidya continued to issue proceedings in various tribunals against a number of defendants including the GMC, NHS Trusts and individual medical practitioners. Two separate actions, Claim No. HQ09X01892 ("Claim 1892") and Claim No. HQ09X01466 ("Claim 1466"), were issued. The first against the GMC, the second against seven defendants, the first defendant being the GMC. Applications in these claims were heard by Sir Charles Gray. All applications by Dr Vaidya were rejected and applications by the defendants to strike out Dr Vaidya's claim were successful. Of note is the final paragraph of the judgment, Sir Charles Gray stated:

"Finally, I should record the fact that Mr Hare has given notice of the intention of his client to apply for a restraint order against Dr Vaidya. My supposition is that the second to seventh defendants will support that application. It will be apparent from what I have already said that I regard all the claims brought by Dr Vaidya as being totally without merit. It is nevertheless inappropriate, as well as impracticable, for me to deal with this application when this judgment is handed down. A separate hearing will have to be arranged."

This judgment was handed down on 5 May 2010.

The intention of the GMC to apply for a civil restraint order against Dr Vaidya was known. On 26 March 2010 James Percival made a witness statement in support of an application for the order. Dr Vaidya informed this court that since October 2008 he had been aware of the intention of the GMC to seek such an order.

On 12 May 2010 the GMC filed an application notice with the court seeking a general civil restraint order pursuant to CPR 3.11 and paragraph 4.1 of Practice Direction 3(C). Procedurally, it was not necessary for the GMC to instigate these proceedings but this court was told that it had been advised to do so in order to assist the listing of the application. The application was not stamped until 8 June 2010, notification of a hearing was given on 14 June 2010, the hearing date being 25 June 2010. On 4 June 2010, by a special delivery letter, Dr Vaidya wrote to the GMC and other courts and tribunals informing them that he would be out of the country or otherwise unable to deal with correspondence until after 10 July 2010. Specifically, the letter to the GMC referred to outstanding claims which Dr Vaidya was pursuing, it made no reference to a civil restraint order. On 10 June 2010, Dr Vaidya was in email communication with the Civil Appeals Office at the Royal Courts of Justice, this related to his appeal of Sir Charles Gray's decision of 5 May 2010. In that letter he stated: "I have no information and to date have not received any notice of hearing of any "application for a civil restraint order" or whether it has been listed." The letter further stated "as you are aware, I would be away and/or not available for dealing with any correspondence until after 10 July 2010."

The GMC, on being informed of the hearing on 25 June 2010, wrote a letter to Dr Vaidya on 14 June 2010 informing him of the hearing date. By a fax of 15 June 2010 Dr Vaidya's wife responded to the GMC's letter in a pro forma letter which stated: "Kindly note that Dr S Vaidya is away, or otherwise would be unavailable to deal with your correspondence up to 10 July 2010." By a letter dated 16 June 2010, Mr Percival on behalf of the GMC, sought urgent clarification of Dr Vaidya's location and movements, the reason being that there were three hearings in different matters on 25 June, 29 June and 8 July 2010. By a letter dated 18 June 2010, Mrs Vaidya replied. She confirmed Dr Vaidya's non-availability for the hearing on 25 June 2010 and stated in respect of the later hearings that Dr Vaidya would either attend or be represented.

At the hearing before Sir Charles Gray on 25 June 2010, Dr Vaidya did not appear nor was he represented. The GMC made an application to proceed in his absence and put before the court the correspondence to which I have referred, save for the letter of 4 June 2010. Sir Charles Gray heard the application and determined that the matter should proceed in Dr Vaidya's absence. In his judgment, he dealt with the application as follows:

"9. It is clear that Dr. Vaidya knew, because he was in court when the judgment was handed down, that it was the GMC's intention to apply for a civil restraint order. There was then an exchange of e-mails in the middle of May, when the GMC indicated that the application for a civil restraint order would be listed for hearing in London before me on Friday, 25 ^th June. It was apparent to Dr. Vaidya that the application would be made on that date. A further letter was sent on 14 ^th June by the GMC informing Dr. Vaidya of the hearing date and enclosing a sealed copy of the application notice for the civil restraint order. There had been some difference of view as to whether it was necessary for an application notice to be prepared. Whether or not it was necessary, the fact is that it was prepared and served on the 14 ^th June on Dr. Vaidya.

10. By way of response, as I understand it, to the receipt of that letter from the GMC Mrs. Vaidya sent a fax headed "Notification Non-Availablity Out of Country". The text of the note was as follows: "Kindly note that Dr. S. Vaidya is away or otherwise would be unavailable to deal with your correspondence up to 10 ^th July 2010."

11. 10 ^th July is a fortnight from today. In response to Mr. Vaidya's fax the GMC, by letter dated 16 ^th June 2010, sought urgent clarification...