Madan v General Medical Council (Interim Suspension Order)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,MR JUSTICE NEWMAN |
| Judgment Date | 17 July 2001 |
| Neutral Citation | [2001] EWHC 577 (Admin) |
| Docket Number | CO/2213/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2001 |
[2001] EWHC 577 (Admin)
IN THE HIGH COURT OF JUSTICE
(THE ADMINISTRATIVE COURT)
(THE DIVISIONAL COURT)
QUEEN'S BENCH DIVISION
Lord Justice Brooke and
Mr Justice Newman
CO/2213/2001
MR GEORGE HUGH-JONES (instructed by LE BRASSEUR J TICKLE SOLICITORS, LEEDS LS1 2RU) appeared on behalf of the Claimant.
MR MARK SHAW (instructed by THE GENERAL MEDICAL COUNCIL INTERIM COMMITTEE. LONDON W1N 6JE) appeared on behalf of the Defendant.
I would invite Newman J to give the first judgment.
In this matter the claimant Dr Sudesh Madan applies to the court under section 41A(10) of the Medical Act 1983 to terminate an interim suspension order made by the Interim Orders Committee ("the Committee") of the General Medical Council on 11th May 2001.
The complaint falling for adjudication and giving rise to the initial order concerns an allegation that she had irresponsibly supplied appetite suppressants to three women patients whilst running a slimming clinic under the name of "Look Right". She practised also as a doctor, namely as a clinical medical officer employed by a National Health Service Trust. No complaint had been made in connection with the discharge of her duties in that regard.
On 11th May the Committee exercised its powers under section 41A(2) of the 1983 Act to review an initial order of suspension previously made on 21st November 2000. The Committee, having reviewed the matter, decided to permit the initial order of suspension to continue and resisted the submission that had been made to it that it should substitute for it an order by way of conditional registration.
It is necessary to set out, in the material parts, section 41A(1) and A(2). The section is headed "Interim orders". It has a little legislative history which I shall not set out. It provides:
"(1) Where the Interim Orders Committee 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 Committee may make an order-
(a) that his registration in the register shall be suspend (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 Committee think fit to impose (an "order for interim conditional registration").
(2) Subject to subsection (9), where the Interim Orders Committee have made an order under subsection (1), the Committee-
(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 before the end of the period of three months beginning on the date of the decision of the immediately proceeding review; 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), the Interim Orders Committee, the Professional Conduct Committee, the Health Committee or the Committee on Professional Performance may, subject to subsection (4)-
(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;
(d) if satisfied that the public interest, including the protection of the members of the public, or the interests of the person concerned would be adequately served by an order for interim conditional registration, replace an interim suspension order with an order for interim conditional registration having effect for the remainder of the term of the former."
Subsection (4) need not be set out, but it is important to note that it requires the Committee, in respect of any such hearing, to afford a person the opportunity of appearing before the Committee and being heard.
Finally, so far as statutory provisions are concerned, the court's powers are contained in subsection (10), namely:
"Where an order has effect under any provision of this section, the 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;
(c) in either case, substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it),
and the decision of the court under any application under this subsection shall be final."
A further review is to be heard on 26th July 2001, namely within a matter of a week or so. The disciplinary hearing in respect of the conduct is fixed for 22nd October of this year and is scheduled to last for some ten days.
On 21st November of last year Dr Madan was dismissed from her National Health Service employment. The original order of suspension was challenged. The challenge failed on 26th April of this year when Richards J rejected it for the reasons stated in a judgment to which I will refer.
At that hearing it was submitted on behalf of Dr Madan that the imposition of conditions on her registration would have served to protect the public and that the interim suspension was not necessary. The point underlying the submission was that since no complaint had been made in connection with Dr Madan's second job as a clinical medical officer and suspension had the effect of preventing her from working in a field in respect of which there had been no complaint, suspension was unfair. Further, that according to the outcome of such litigation as there was then in being by way of wrongful dismissal claim against the National Health Service Trust, suspension might lead to the continuation of the position in which she was prevented from pursuing her employment.
Richards J held, in dismissing the complaint that insufficient weight had been paid to the second job, as follows:
"In no way could it be said to have been manifestly wrong (or, I would add, in judicial review terms, unreasonable) to conclude that the matters alleged against Dr Madan in relation to irresponsible prescribing in respect of the Look Right clinic justified an interim suspension from the register, even though that would or might prevent her participating by way of her second job in activities that did not themselves involve prescribing and in respect of which no complaint had been made."
There was a reasons challenge which the judge held was very closely bound up with the substantive challenge. But he concluded:
"In my judgment, the reasons for the committee's decision, which I have already quoted, are adequate and intelligible reasons, sufficient to comply with the duty, be it a statutory duty or a duty at common law, to give reasons for the decision. The basis upon which the Committee concluded that a suspension was necessary is clearly articulated. Dr Madan can have been left in no doubt as to that basis. The possibility of bringing a legal challenge was open to her. There was no question of some uncertainty as to the nature or basis of the decision having being created by a failure to give inadequate reasons and thereby impeding Dr Madan's ability to come to court to complain about some legal error in the decision."
By the time of the review hearing on 11th May Dr Madan had been unemployed for some six months. The fact of her dismissal had obviously not been before the Committee on the original or initial suspension. It was manifestly a proper point to raise on the review (see section 41A(2)(B) which provides the Committee with its own discretion to review where new evidence relevant to the order has become available after the making of the order). But a further point not made at the original hearing, and related to the loss of employment, was made in connection with article 6 of the European Convention on Human Rights. It is that point and the procedure adopted by the Review Committee in connection with the argument which has been central to the present application.
The essence of the complaint, as shortly stated in the Skeleton Argument for Dr Madan, is that the Committee were wrongly advised by the legal assessor that the claimant's right to a fair trial under article 6 of the Convention need not be taken into account by the Committee.
In paragraph 12 of the witness statement in support of this application the matter is put in this way:
"The legal assessor directed the Committee not to consider the applicant's right to a fair trial under Article 6. It is asserted that this advice was wrong in law and that a practitioner's right to a fair trial begins at an interim stage and continues through until disposal by the PCC itself."
I shall have to revert to the transcript to examine the nature of the exchanges which took place between Mr...
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