General Medical Council v Hiew
|England & Wales
|Lady Justice Arden,Lord Justice Lawrence Collins,Lord Justice Tuckey
|30 April 2007
| EWCA Civ 369
|Case No: C1/2006/2302
|Court of Appeal (Civil Division)
|30 April 2007
 EWCA Civ 369
Lord Justice Tuckey
Lady Justice Arden and
Lord Justice Lawrence Collins
Case No: C1/2006/2302
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (BEAN J)
Mr Philip Engelman (instructed by Messrs Edwards Duthie Solicitors) for the Appellant
Mr Robert Englehart QC (instructed by The General Medical Council) for the Respondent
Hearing date: 5 February 2007
This is an appeal by Dr Stephen Hiew from the order of Bean J dated 17 October 2006 extending, for a period of six months, an order for the suspension of Dr Hiew's registration as a medical practitioner previously made by an Interim Orders Panel (“IOP”) of the General Medical Council (“the GMC”). The order was made on an interim basis. That means that there has not been any finding of misconduct against Dr Hiew. The suspension has been ordered for the reasons explained below on a preventative basis.
The judge's order was made under section 41A(7) of the Medical Act 1983 (set out below). The original order of the IOP had originally been made on 29 April 2005 for a period of eighteen months but had been reviewed, but not revoked, on three occasions prior to the application to Bean J. On 19 January 2007, after the date of the judge's order and before the hearing of this appeal, the IOP reviewed Dr Hiew's suspension again and substituted for the interim suspension order various conditions designed to ensure that Dr Hiew practises under supervision. To that extent, the position of Dr Hiew has changed in his favour since the date of the judge's order. The IOP indicated that it would apply to the High Court for a further extension of the interim order, as so varied by them, when it expires.
However, we are nonetheless asked to consider whether the judge erred in making his order and generally to give guidance as to the approach which the court should take to an application under section 41A(7). We took the view that it would be right to continue hearing the appeal for this purpose. The IOP discharges duties that affect the public. Litigation by an individual medical practitioner is one of the means by which the position of the IOP can be reviewed by the court. By means of such review, the jurisprudence on the legality of the exercise by the IOP of its functions can be developed. By this process, litigants provide the raw material for the court to spin into cloth, but the time has perhaps now come to work those pieces of cloth into some kind of garment that is more useful to those who are concerned with these provisions, recognising of course that such a garment may have to be refashioned as needs require at a later stage.
The GMC was established as long ago as 1858. The Medical Act 1983 (“the 1983 Act”) deals first with its organisation and internal management. The 1983 Act has been heavily amended and references in this judgment to the 1983 Act are to that Act as now in force. Schedule 1 to the 1983 Act refers to a number of committees of the GMC including the IOP.
The 1983 Act also deals with the registration of medical practitioners and their education and qualifications. The registration of medical practitioners is one of the matters for which the GMC is statutorily responsible. Certain qualifications obtained outside the United Kingdom, particularly in the European Community or in a contracting state of the European Economic Area, are recognised by statute and the holders of these qualifications may be entitled to be registered on one of the registers maintained by the GMC. Parts VI and VII of the 1983 Act deal with the privileges of registered practitioners, offences and miscellaneous matters.
Part V of the 1983 Act (covering sections 35 to 46) sets out the powers of the GMC with respect to professional conduct and fitness to practise. Section 41A(7) of the 1983 Act was inserted in 2002. Part V also provides for the investigation of allegations about the fitness to practise of medical practitioners registered with the GMC. It establishes a Fitness to Practise Panel, whose function it is to decide whether a practitioner's fitness to practise is impaired, whether on account of misconduct, deficient performance, health or any other of the prescribed grounds. A Fitness to Practise Panel can, if they think fit, direct that the name of a person be erased from the register or that his registration should be suspended. Part V also provides for an Investigation Committee and an IOP. Under section 35C of the 1983 Act, the Investigation Committee can refer to an IOP the question whether a suspension order should be made in relation to a registered practitioner pending the completion of an investigation.
Section 41A of the 1983 Act endows the GMC with powers to deal with the situation that can arise where it has become aware of an issue as to whether a practitioner should be permitted to practise, or at least should only be permitted to practise subject to conditions, but before any decision has been reached as to his continued registration. The GMC has to have powers to deal with this situation in order to provide protection for the public, or indeed in the interests of the practitioner himself. The scheme of section 41A is that an IOP or Fitness to Practise Panel may decide that the registration of a practitioner may be suspended for up to 18 months or that his registration should be subject to conditions. That order must be reviewed at least every six months. They must give the person in question an opportunity of appearing before them. However, the GMC cannot itself extend the period of time for which any order is in force. If it considers that an extension is required, it must apply to the court. The maximum extension that the court can give on any one occasion is 12 months. The court is also given power to terminate the suspension or to substitute a new period for the period in the original order.
Section 41A accordingly provides in material part as follows:
“(1) Where an Interim Orders Panel or Fitness to Practise Panel are 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 a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Panel may make an order –
(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an “interim suspension order”); or
(b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose (an “order for interim conditional registration.”).
(2) Subject to subsection (9) below, where an Interim Orders Panel or Fitness to Practise Panel have made an order under subsection (1) above, an Interim Orders Panel or Fitness to Practise Panel
(a) shall review it within the period of six months beginning on the date on which the order was made, and shall thereafter, for so long as the order continues in force, further review it —
(i) before the end of the period of six months beginning on the date of the decision of the immediately preceding review; or
(ii) if after the end of the period of three months beginning on the date of the decision of the immediately preceding review the person requests an earlier review, as soon as practicable after that request; and
(b) may review it where new evidence relevant to the order has become available after the making of the order.
(3) Where an interim suspension order or an order for interim conditional registration has been made in relation to any person under any provision of this section (including this subsection), an Interim Orders Panel or a Fitness to Practise Panel may, subject to subsection (4) below
(a) revoke the order or revoke any condition imposed by the order;
(b) vary any condition imposed by the order;
(c) if satisfied that to do so is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, replace an order for interim conditional registration with an interim suspension order having effect for the remainder of the term of the former; or
(d) if satisfied that to do so is necessary for the protection of members of the public, or is otherwise in the public interest, or is in the interests of the person concerned, replace an interim suspension order with an order for interim conditional registration having effect for the remainder of the term of the former.
(4) No order under subsection ( 1) or (3)(b) to (d) above shall be made by any Panel in respect of any person unless he has been offered an opportunity of appearing before the Panel and being heard on the question whether such an order should be made in his case; and for the purposes of this subsection a person may be represented before the Panel by counsel or a solicitor, or (if rules made under paragraph 1 of Schedule 4 to this Act so provide, and he so elects) by a person of such other description as may be specified in the rules.
(5) If an order is made under any provision of this section, the Registrar shall without delay serve a notification of the order on the person to whose registration it relates.
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