Patel v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady |
| Judgment Date | 20 December 2012 |
| Neutral Citation | [2012] EWHC 3688 (Admin) |
| Docket Number | Case No: CO/7609/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2012 |
[2012] EWHC 3688 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: CO/7609/2012
Trevor Burke QC (instructed by Tuckers Solicitors) for the Claimant
Ivan Hare (instructed by GMC Legal) for the Defendant
Hearing date: 11 December 2012
The nature of the application
The Applicant is a 73 year old general practitioner who was referred to the General Medical Council ("GMC") by the Metropolitan Police on 7 April 2011. He had been arrested in connection with the discharge of his duties as a governor of a school and the authorisation of substantial payments to members of staff to which they were allegedly not entitled. Over a year later, on 7 June 2012, he was charged with conspiracy to defraud and with committing fraud by abuse of position. It is said that the unauthorised payments totalled approximately £1.8m and that the wrongdoing extended over the period 2003–2009.
On 4 July 2012, an Interim Orders Panel ("the Panel") made an order of suspension for a period of 18 months in accordance with s.41A of the Medical Act 1983. An application is now made to the court to exercise its power under s.41A(10) to terminate the interim order. Essentially the ground relied upon is that the Applicant is a person of exemplary and unblemished character and that the interim order was neither necessary nor proportionate. Specifically, it is said that the public interest did not require interim suspension given that the allegations did not have any bearing upon clinical matters.
The Applicant was a member of the Board of Governors at Copland School in Brent and Chairman of the Finance Committee. During the initial telephone call on 7 April 2011 DC Wilkinson of the Fraud Squad informed the GMC of the intention to arrest him for fraud and/or conspiracy to defraud. Further detail was provided in an email dated 15 April 2011. Ultimately, as I have noted, he was charged with two offences on 7 June 2012; namely, conspiracy to defraud and fraud by abuse of position. The GMC was informed of this in an email from DC Hill dated 12 June 2012. The Applicant was notified, accordingly, by letter dated 19 June 2012 that his case was to be referred to the Panel for a hearing on 3 July. (The current position is that he faces only one count of conspiracy. There are four co-defendants, alleged not only to have conspired with the Applicant but also to have gained personally. The trial is due to take place in September 2013.)
It appears, from a letter dated 24 September 2012 and copied to the GMC (albeit not received until 11 October), that the North West London Primary Care Trust had not been informed by the Applicant either of the Panel's decision to suspend him or of the earlier arrest and charge. It is said that this constitutes a breach of Regulation 9 of the NHS (Performers Lists) Regulations 2004, which is in the following terms:
"(1) A performer, who is included in a performers list of a Primary Care Trust, shall make a declaration to that Trust in writing within 7 days of its occurrence, if he—
…
(i) becomes the subject of any investigation into his professional conduct by the licensing, regulatory or other body;
(j) becomes subject to an investigation into his professional conduct in respect of any current or previous employment, or is informed of the outcome of such investigation, where it is adverse."
The legal framework
The jurisdiction which the court is now asked to exercise is not by way of judicial review: it is an original jurisdiction arising from statute. Section 41A(10) provides as follows:
"(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;
(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)…"
It is well established that a court, in exercising such a jurisdiction in relation to a disciplinary tribunal, will pay due respect to its decisions because of its expertise and its familiarity with the requirements to uphold professional standards and public confidence in relation to the relevant profession: see e.g. Bolton v Law Society [1994] 1 WLR 512, 517–519; Gupta v GMC [2002] 1 WLR 1691; R (Shiekh) v General Dental Council [2007] EWHC 2972 (Admin); and Sandler v GMC [2010] EWHC 1029 (Admin) at [12]-[14].
It is necessary, before turning to the decision in this particular case, to consider a little further the role of the Panel itself, in the light of the 1983 Act. It is provided in s.41A(1) that:
"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 18 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 18 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')."
The conclusions of the Panel
It seems from the Panel's determination in the present case that the suspension was imposed simply as being "otherwise in the public interest": it is not suggested that the suspension was necessary "for the protection of members of the public". There is no reason to suppose, even if the charges brought against the Applicant are ultimately made out, that such conduct would reflect on his clinical competence or in any way have endangered the health of patients. The Panel did not see fit to impose any conditions when it made its order because it was unable to think of any which would serve the purpose of protecting "the interests of the public" during the relevant period.
I must bear in mind the important passage in the judgment of Sir Thomas Bingham MR (as he then was) in Bolton v Law Society, cited above, where he pointed out that a professional body (such as the Panel) is not primarily concerned with matters of punishment and that considerations which would normally be taken into account in mitigation will have correspondingly less effect on the exercise of this kind of jurisdiction. It can never be an objection to an order for suspension, for example, that a practitioner may be unable to re-establish his practice once the period has passed. This would not make an order for suspension wrong if it would otherwise be right. He concluded with these well known words at p.519:
"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."
(See also Gupta v GMC, cited above, at [21] per Lord Rodger and Raschid v GMC [2007] 1 WLR 1460, at [17], per Laws LJ.)
Nevertheless, in this case, the Panel took into account a number of "mitigation" points, including a letter of 2 June 2012 addressed to the GMC from the Practitioner Performance Manager, at NHS North West London, which stated that the Primary Care Trust was not aware of any concerns about the Applicant's fitness to practise and that no concerns had been raised in the past. It was also noted by the Panel that it was not being alleged that the Applicant had derived any personal financial benefit from the alleged wrongdoing; that his role as a governor was a voluntary one which did not involve any remuneration or other financial benefits; and that his involvement in charitable work had extended over a long period. Six character references were also read.
The determination contained the following important conclusions:
"The Panel is satisfied that there may be impairment of your fitness to practise which may adversely affect the public interest. In this case the public interest includes the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.
After balancing your interest with the public interest the Panel determined that an interim order is desirable in order to maintain public confidence in the profession.
…
The Panel then considered whether conditions would be sufficient to protect the public interest but determined that there are no conditions that would satisfactorily address the particular circumstances of this case and protect the interests of the public. The Panel therefore determined that the imposition of conditions would not be appropriate.
The Panel has taken account of the principle of proportionality and has balanced the need to protect the public interest against the consequences for you of the suspension of your registration. The Panel has deliberated the issue of necessity and the desirability of an interim order. Additionally, it has considered the harm to you and your patients if an order were made against the damage to the public interest, in all its meanings, if you were to remain in...
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