Kumar v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Underhill |
| Judgment Date | 06 February 2013 |
| Neutral Citation | [2013] EWHC 452 (Admin) |
| Docket Number | CO/10789/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 February 2013 |
[2013] EWHC 452 (Admin)
Mr Justice Underhill
CO/10789/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
The Claimant appeared in person
Mr D Pievsky (instructed by General Medical Council) appeared on behalf of the Defendant
This is an application under section 41A (10) of the Medical Act 1983 asking the court to revoke conditions imposed on the applicant by a decision of the Interim Orders Panel (IOP) of the Medical Practitioners Tribunal Service (MPTS) on 11 September 2012. The proceedings have been initiated in the form of an appeal. Strictly speaking they should have been brought by way of a claim under part 8 of the Civil Procedure Rules but the respondents, who are the General Medical Council (GMC), sensibly take no point on that.
The applicant, Dr Kumar, has appeared in person and has made his submissions, if I may say so, courteously and moderately. The GMC is represented by David Pievsky of counsel. I am grateful to him for a helpful skeleton argument. In the event, partly because of the helpfulness of his skeleton argument, I have not had to call on him for substantial submissions although he has helped on one or two points.
The relevant history can be sufficiently summarised as follows. The applicant is a doctor. In late 2010 he was working as a middle grade locum in the emergency department of the Worcestershire Royal Hospital. On 3 December a consultant, Dr France, wrote to the agency through whom he had been recruited complaining of problems both with his attitude and with his clinical management of patients. On 8 December his appointment was terminated following a particular incident in which his clinical competence was called into question. On 23 December that correspondence was submitted to the Fitness to Practise Directorate of the GMC. I will return in due course to the circumstances in which that occurred.
The decision was eventually taken to investigate the applicant's Fitness to Practise, and on 26 September 2011 he was sent a letter notifying him accordingly and inviting him to attend before the Interim Orders Panel on 10 October 2011. Unfortunately he did not receive that letter because he was away, and the hearing on 10 October proceeded in his absence. Conditions were imposed: I will come back to the substance of them in due course. When the applicant was notified of the conditions he protested that he had not received the letter of 26 September, and an early further hearing was arranged before the Panel, which took place on 27 October.
As a matter of form, the hearing of 27 October 2011 was a review of the earlier decision. However, it is clear that because the applicant had not attended the previous hearing it was essentially treated as a hearing de novo. The applicant was represented by counsel. By way of preliminary, he applied to revoke the earlier decision on the basis that the applicant had not had notice of the hearing, but that application was refused. The hearing then proceeded to deal with the substantive question of whether the conditions should be maintained. The Panel decided that they should be.
There was a further review hearing on 14 March 2012. The applicant was present but was not represented. The initial conditions were somewhat modified. The one that matters for present purposes is as follows:
"You must confine your medical practice to either NHS hospital posts, no higher than CT1 or SHO level, where your work must be closely supervised by a consultant, or, posts in general practice in practices with not less than three partners, including yourself, where your work will be supervised by a GP principal."
That then brings us to the decision to which the current application relates, which was made, by way of further review, on, as I have said, 11 September 2012. The applicant was on that occasion represented by a friend without professional qualifications, a Mr Maguire. The Panel decided to maintain the conditions in the form imposed at the previous hearing. It required that those conditions be reviewed within five months, and a hearing for that purpose has been fixed for 7 February, which is in fact tomorrow.
The substantial investigation proceeded in the meantime. The Fitness to Practise Directorate obtained reports from a consultant in A&E, Dr Burdett-Smith, dated 23 October and 12 December 2011 which reviewed the notes of five patients with whose care the applicant had been involved at Worcester. Most of those cases were reviewed in the first report and Dr Burdett-Smith's conclusion was that:
"Although individually the first three cases could be defended, taken as a whole, the picture is of a doctor who is not competent at middle grade level. In my opinion the overall standard of care offered by this doctor fell below the standard expected in the case of [the fourth patient]. This fell seriously below the level expected."
The later report was also critical of the applicant's treatment of the fifth patient, describing the actions that he took as "seriously below what I would expect of a locum middle tier in emergency medicine".
Following those reports, a Rule 7 letter was sent to the applicant on 28 January 2012. It raised allegations in relation to his treatment of all five patients in respect of who Dr Burdett-Smith had reported. The applicant was asked to respond and did so at considerable length and in considerable detail. In a report dated 15 April 2012 Dr Burdett-Smith considered his original criticisms in the light of the applicant's response. In the case of one patient he withdrew the criticism, but he maintained it in relation to the remaining four.
That is the history to date. The substantive hearing before the Fitness to Practise Panel is due to be heard in two weeks from today, on 18 February. A further hearing before the IOP is listed for tomorrow. I am bound to say that it seemed to me when I first read these papers rather a waste that a further hearing of the Interim Orders Panel should be necessary to cover a period of no more than 11 days. And I found it equally hard to see what in practice could now be achieved even if the claimant were successful in the present application, given that any variation of the interim conditions imposed in September would be superseded in a few weeks by the conclusion, one way or the other, of the Fitness to Practise Panel. However, the applicant told me this morning that he has applied for an adjournment of the Fitness to Practise hearing for several months. If that is granted, the question of interim orders of course may resume some real importance. It is not for me to say anything about the application to adjourn: I cannot, however, help observing that the stress which the applicant has understandably been under as a result of these outstanding allegations against him is bound to be increased by any further delay.
I should say something about the nature of this hearing and of the hearing before the Panel to which it relates. Section 41A(1) of the 1983 Act provides that where an Interim Orders Panel 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 a fully registered person for the registration that of person to be suspended or to be made subject to conditions the panel may make an order" for, among other things, conditional registration for a period of up to 18 months. It is important to understand that it is not the function of the Interim Orders Panel itself to investigate or make findings of fact regarding allegations against the doctor in question; that is a matter for the Fitness to Practise Panel. The Interim Orders Panel is concerned only with the question of what conditions, in a conditions case, are necessary for the protection of members of the public. For that purpose it has to assess the risk that may be posed if the doctor continues to practise in an unrestricted manner. But that is inevitably an assessment of risk rather than a finding of actual fact. For that purpose it may indeed have to be satisfied that the allegations against the doctor raise a prima facie case of clinical incompetence, or clinical incompetence at a particular level, but it cannot go further than that. I will return to this point further in due course.
As for the role of this court on an application under section 41A(10), it is recognised that, although the application is not by way of review but is an original jurisdiction (see Patel v General Medical Council [2012] EWHC 3688 (Admin) per Eady J at paragraph 5), the court will inevitably pay such respect to the decisions of the panel as is appropriate in the light of the particular issues raised, recognising the expertise of the panel and its familiarity with what is required in order to uphold professional standards and public confidence (see in particular R(Shiekh) v General Dental Council [EWHC] 2972 (Admin), at paragraph 10, per Davies J; and Sandler v GMC [2010] EWHC 1029 (Admin) at paragraphs 12 to 13, per Nicol J).
Against that background, I turn to the grounds of challenge pleaded by the applicant. They are threefold.
The first point concerns the first hearing before the Interim Orders Panel on 10 October 2011, being the hearing of which he did not receive notice. It is his case that that hearing should not have proceeded. He refers to Rule 31 of the General Medical Council (Fitness to Practise) Rules Order 2004, which reads as follows:
"Where...
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