Kakade v General Medical Council

His Honour Judge Pelling Q:

Introduction

This is the hearing of a claim by the claimant, a registered medical practitioner, made pursuant to section 41A(10)(a) of the Medical Act 1983 (as amended) for an order terminating an interim order of suspension of his registration as a medical practitioner. The claimant maintains that the order made by the Interim Orders Panel was wrong in all the circumstances. The defendant maintains that the order should be upheld.

Statutory and legal framework

The powers of an Interim Orders Panel of the GMC to make orders either suspending a medical practitioner from practising as such or imposing conditions pending a hearing before a Fitness to Practise Panel are contained in section 41A of the Medical Act 1983. Insofar as it is material, it provides:

"(1) Where an Interim Orders Panel or a 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 a Fitness to Practise Panel have made an order under subsection (1) above, an Interim Orders Panel or a Fitness to Practise Panel -

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(b) may review it where new evidence relevant to the order has become available after the making of the order.

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(10) Where an order has effect under any provision of this section, the relevant court may -

(a) in the case of an interim suspension order, terminate the suspension.

(b) in the case of an order for interim conditional registration, revoke or vary any condition imposed by the order …"

It necessarily follows that whereas in relation to interim conditions the court may substitute its own conditions for those imposed by an Interim Orders Panel, it is not open to a court minded to terminate a suspension to substitute conditions for a suspension.

The conduct of applications for interim orders is governed by Part 7 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004. The phrase "interim order" is defined for the purposes of the rules as being an order made in accordance with section 41A of the 1983 Act. Insofar as material, Part 7 of the Rules provides:

"25(1) This Part applies where an allegation has been referred to an Interim Orders Panel by the Registrar for consideration as to whether to make or review an interim order.

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Notice of hearing

26(1) Prior to the initial or any review hearing relating to an interim order, the Registrar shall serve on the practitioner—

(a) a notice of hearing;

(b) a copy of any written evidence obtained by the General Council which is relevant to the question of whether or not an interim order should be made or reviewed; and

(c) in relation to a review hearing, a copy of the order to be reviewed,

in such time before the hearing as is reasonable in the circumstances of the case.

(2) The notice of hearing shall—

(a) state the matters set out at rules 15(2)(a) to (c);

(b) inform the practitioner of the power of the Interim Orders Panel to proceed in his absence under rule 31;

(c) set out briefly the reasons why it is necessary to make or review an interim order;

(d) inform the practitioner of the Interim Orders Panel's powers of disposal under section 41A of the Act;

(e) request the practitioner to notify the Registrar as soon as possible whether he intends to attend the hearing; and

(f) invite the practitioner, if he chooses not to attend the hearing, to submit any written representations, within such period as is reasonable in the circumstances and as is specified in the notice, to the Registrar.

Procedure at an interim orders hearing

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(4) At an interim orders hearing—

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(a) the practitioner may present his case and, subject to paragraphs (1) to (3), may adduce evidence in support of it …

(b) the Interim Orders Panel shall announce its decision, and shall give its reasons for that decision."

Rule 15(2)(a)-(c) sets out the duty of the registrar concerning the contents of a notice convening a hearing. The GMC is required to comply with those rules in relation to a hearing before the Interim Orders Panel. Where an interim is being sought, as is apparent from Rule 26(2)(a), Rule 15(2)(a)-(c) provides:

"Notice of hearing

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(2) The notice of hearing shall—

(a) particularise the allegation against the practitioner and the facts upon which it is based;

(b) specify the date, time and venue of the hearing;

(c) inform the practitioner of his right to attend the hearing and to be represented at the hearing in accordance with rule 33 …"

In my judgment, the requirements imposed by these rules are entirely clear. The notice must particularise the allegations made against the practitioner, as is required by operation of Rule 15(2)(a), and also because of the effect of Rule 25(1). Compliance is necessary in order that the practitioner can identify clearly the allegations he faces, so that he can prepare evidence for use at the hearing and/or make effective representations at the hearing in accordance with Rule 27(4)(b) or by way of written representations in accordance with Rule 26(2)(f). For that reason these rules create a vital procedural safeguard so far as the practitioner is concerned.

Compliance with this rule is of importance, too, from the point of view of IOPs, because compliance by the GMC with these rules will enable an agenda to be established that clearly identifies the allegations made, the facts relied upon to support the allegations and the basis on which it is contended by the GMC that it is necessary or desirable to make or review an interim order. Thus if complied with the Rules facilitate the efficient disposal of applications once listed. Above all, however, these rules are imposed for the purposes of ensuring procedural fairness so far as the practitioner is concerned. They are contained in an instrument made pursuant to statute and therefore are required to be complied with as a matter of law.

The approach to be adopted in relation to applications for interim orders is that identified by Arden LJ in GMC v Hiew [2007] EWCA Civ 369. In summary, the focus of IOPs when determining an application for an interim order and the court when determining an extension application is on whether, in the light of the allegations made, an order is necessary for the protection of the public or is otherwise desirable and in the public interest, or in the interests of the practitioner concerned, with the onus being on the GMC to establish the necessity or desirability and the proportionality of making the order sought by the GMC. It is not an inquiry which is concerned with the truth or accuracy of the allegations made, which is a matter for the Fitness to Practise Panel in due course.

The degree to which this approach is to be modified in relation to applications under section 41A(10) was considered by Nicol J in Sandler v GMC [2010] EWHC 1029 (Admin), where at paragraph 12 of his judgment he said:

"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… 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...