R (Gupta) v General Medical Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NEWMAN |
| Judgment Date | 09 August 2001 |
| Neutral Citation | [2001] EWHC 631 (Admin) |
| Docket Number | Case No: CO/2496/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 August 2001 |
[2001] EWHC 631 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT
QUEENS BENCH DIVISION
Lord Justice Brooke and
Mr Justice Newman
Case No: CO/2496/2001
Cherie Booth QC (instructed by Edwards Duthie for the Applicant)
Mark Shaw (instructed by Field Fisher Waterhouse for the Defendant)
This is the judgment of the court, which I have prepared.
In this matter Dr Prabha Gupta (the applicant) applies to the court pursuant to Section 38(6) of the Medical Act 1983 as amended ("the Act"), seeking termination of the suspension of her registration as a medical practitioner ordered by a Committee of the General Medical Council at the conclusion of a hearing on l June 200On 25 July we announced in court that we were granting her application, and that we would give our reasons in writing in due course. These are our reasons.
Section 38(1) provides as follows:
"In giving a direction for erasure or a direction for suspension under section 36( 1) or (2), 36(A) or 37( 1) or (2) above, or under rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act in respect of any person, the Professional Conduct Committee, the Committee on Professional Performance or the Health Committee, if satisfied that to do so is necessary for the protection of members of the public or would be in the best interests of that person, may order that his registration be suspended forthwith in accordance with this section; and in this section the reference to section 36(2) includes a reference to that provision as applied by section 36(5) and the reference to section 37(2) includes a reference to that provision as applied by section 37(5)."
Where the Committee gives a direction but does not order registration to be suspended forthwith, Schedule 4 paragraph l0(1) of the Act provides that in the event an appeal is brought and not withdrawn or dismissed for want of prosecution, the direction shall not take effect until an appeal is dismissed. It follows that unless the Committee exercises the specific power conferred by Section 38(1) to order suspension to take place forthwith, so long as an appeal is issued within the time allowed, a practitioner can continue to practise until the dismissal of the appeal. The statutory scheme demonstrates that it was contemplated that in the normal course practitioners could continue to practise until an appeal had been dismissed, but circumstances might arise in a particular case where immediate suspension was appropriate. The power has a close resemblance to the power conferred upon the Interim Orders Committee pursuant to Section 4lA(1) of the Act. The jurisdictional basis for the exercise of power is in identical terms, namely satisfaction that an order is "necessary for the protection of members of the public or would be in the best interests of that person". In a judgment dated 17 July 2001 in the case of Sudesh Madan v The General Medical Council 2001 EWHC Admin 577, this court had occasion to consider an application under Section 41A(10) of the Act. For reasons special to that case it was not necessary to grant relief, but the court took the opportunity to state the principles which should govern the giving of reasons when an interim suspension order was made and the approach which should be adopted when considering the adequacy of such reasons. The case illustrates the value which the Human Rights Act l998 has had in clarifying the essential content of reasons in connection with decisions which interfere with Convention rights.
On 30 May and l June, the Committee had heard and determined certain charges brought against the applicant. The charges were of serious professional misconduct, namely allegations that she had permitted her husband and former medical partner to hold consultations with patients at two surgeries from which she, in company with another, practised as a general practitioner. It was alleged that she well knew that he was holding consultations at the practice surgeries and well knew that his name had been erased from the Register. The charges covered a period of some two years and seven months between May l996 and December l998. The particulars of the charges varied in some respects. Some consultations were alleged to have taken place in company with the applicant, others whilst her husband was on his own, and in some instances the occasions were particularised and the patients involved in the consultations were identified.
Rule 28 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules (S.I. l988 No.2255) provides:
"1. Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the Solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.
2. The Chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid."
In this instance, having heard the evidence and submissions upon it, the Committee retired and, in accordance with Rule 28, deliberated and thereafter returned to state which facts they had found proved and which facts they had not found proved. The Committee did not find proved facts alleged in support of allegations she had been present when her husband was giving consultations and she was therefore acquitted on those charges. Nevertheless they did find proved charges to the effect that he had held consultations from the surgeries. It had never been in dispute that the applicant's husband had been erased from the Register and that the applicant knew that. The Committee stated that it would proceed to consider and determine whether they found the applicant guilty of serious professional misconduct in relation to the facts proved against her. Rule 28 was fully complied with and the Committee informed the applicant that it would "proceed to consider whether Dr Gupta has been guilty of serious professional misconduct in respect of those facts which have been found proved against her and if so they would go on to consider and decide whether or not they should make any directions regarding the registration of Dr Gupta".
Rule 30 provides the Committee with a choice. It may postpone the determination whether to make a direction (Rule 30(1)), or it may decide that no postponement is necessary and determine that it is sufficient to make no direction (see Rule 30(2)). Rule 31(1) provides that "if the Committee determine neither to postpone their determination under Rule 30(1) nor that it shall be sufficient to conclude the case under Rule 30(2), they shall proceed to make a direction in accordance with the following provisions of this Rule". The "following provisions" of Rule 31 provide for a number of options, including conditions being attached to the registration, suspension of the registration, and if neither suspension nor conditions are appropriate, the power to direct that the name of the practitioner shall be erased from the Register.
Rule 32 provides as follows:
"If in any case the Committee determine to suspend registration of a practitioner or to erase his name from the...
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