R (Kailash Shanker) v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WALKER |
| Judgment Date | 16 September 2009 |
| Neutral Citation | [2009] EWHC 2459 (Admin),[2005] EWHC 97 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 September 2009 |
| Docket Number | CO/1192/2009 |
[2009] EWHC 2459 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Walker
CO/1192/2009
Mr Philip Newman (instructed by Public Access) appeared on behalf of the Claimant
Mr Ivan Hare (instructed by GMC Legal) appeared on behalf of the Defendant
: Two cases are listed today involving Dr Kailash Shanker, CO/1192/2009 and CO/5398/2009.
The background is that, having been a registered medical practitioner since 1976, in 1998 Dr Shanker set up a general practitioner's practice in Eston, Cleveland. His strongly held belief is that a rival doctor there conducted a vendetta against him. The vendetta led to the involvement of the defendant, which I shall refer to as “the GMC”. The GMC is the regulatory body for the medical profession under the Medical Act 1983, and for that purpose maintains a number of panels. These include the Fitness to Practise Panel, which I shall refer to as “the Panel”. Previously that Panel was known as the Committee on Professional Performance, which I shall refer to as “the Committee”.
Events prior to 2009 are summarised in the defendant's summary grounds in CO/1192/2009 dated 5 May 2009 in this way:
“The claimant's appearances before the Committee began in November 2001 when the Committee found that his standard of professional performance was seriously deficient and directed that he should be suspended for 9 months. Periodic suspensions were continued until July 2004, when the Committee … imposed an indefinite suspension. The claimant appeared before the Panel on 30 January 2008 and a 12-month suspension was imposed under the (amended) 1983 Act.”
A three-day hearing was listed before the Panel from 2 to 4 February 2009 to consider two matters. The Panel first considered a new allegation of misconduct. On 3 February it concluded that there had been dishonest conduct, and for that reason Dr Shanker's fitness to practise was impaired. It deferred consideration of sanction until the second matter had been resolved. This was a review of the 12-month suspension imposed on 30 January 2008. However, for reasons which I need not examine, that review could not be completed during the time set aside for the hearing. The hearing was to be resumed in June 2009, and the Panel decided to extend the suspension for nine months so that it would continue pending the resumed hearing.
On 9 February 2009 Dr Shanker issued a judicial review claim form in the Administrative Court. This is the claim form which I shall for convenience refer to as being in the case “1192”. Although Dr Shanker had been represented by counsel at the hearing before the Panel, he acted in person for the purposes of his judicial review claim. His claim form described the decision complained of as “determination” and gave the date as 2 to 4 February 2009. However, the relief sought was “dismiss determination … of 4.2.09”.
A judicial review claim can only proceed if the court grants permission to do so. Defendants are required to lodge an acknowledgment of service explaining whether they oppose the application, and if so to give a summary of their reasons. An acknowledgment of service with summary grounds was lodged by the GMC on 5 May 2009 as I have mentioned. The summary grounds noted that the claim form was unclear as to what decisions it challenged. Assuming that the decisions in question encompassed all decisions on both 3 and 4 February, in the acknowledgment of service it was stated that the GMC opposed the grant of permission. The summary grounds made an initial point which it urged was a complete answer to any complaint about the finding of impairment. This was that section 40 of the Medical Act 1938 conferred on Dr Shanker a full right of appeal by way of re-hearing in the Administrative Court. Paragraph 12 of the summary grounds of 5 May 2009 put the matter in this way:
“12. To the extent that the claimant is seeking to challenge the Panel's determination on impairment by way of these proceedings, the defendant submits that such a challenge is an abuse of the process of the court, inappropriate and/or premature. Section 40 of the 1983 Act provides a full appeal by way of re-hearing to the Administrative Court against the decisions of a Panel to impose a sanction on a registered practitioner. The claimant therefore has a right to appeal within 28 days against the Panel's decision to suspend him from the register. The letter informing the claimant of the Panel's decision dated 6 February 2009 expressly drew his attention to his right of appeal and to the 28-day deadline for such an appeal. The claimant has not brought such an appeal and to allow him to challenge an appealable decision of the Panel by way of judicial review would subvert the intention of Parliament as expressed in the 1983 Act and, as such, is an abuse of process. Further the claimant will have a right of appeal against any determination on sanction by the Panel at the resumed hearing in June 2009 and, to that extent, this application is premature.”
The summary grounds of 5 May 2009, by way of fall-back in relation to the challenge to the decision on impairment, gave substantive reasons for opposing permission as regards the decision on 3 February 2009 that Dr Shanker's fitness to practise was impaired. The summary grounds of 5 May 2009 also gave substantive reasons for opposing permission as regards what happened on 4 February 2009. In particular, as regards a complaint that the Panel members in June could not be those who had sat in February, the GMC pointed out that this was a misunderstanding of rule 6 of the Procedure Rules.
The question of permission came before Blair J for consideration on the papers. By an order dated 10 June 2009 he refused permission. The order set out observations to the effect that the appropriate route of challenge to decisions of the Panel was by way of section 40 of the Medical Act 1983. Those observations, in effect, accepted the knock-out point advanced by the GMC in relation to the impairment decision of 3 February 2009. The observations in the order did not, however, expressly address any aspect of what happened on 4 February 2009.
On 15 June 2009, Dr Shanker lodged a notice of renewal. This is listed for hearing today. Meanwhile, on 3 June 2009, prior to Blair J's order in 1192, Dr Shanker issued a judicial review form in claim number CO/5398/2000. For convenience I shall refer to this as “5398”. This renewed his assertion that the Panel members in June could not be those who sat in February. It identified as the decision to be reviewed a decision to reappoint them. However, it also asked for additional orders: that the resumed hearing should not take place until 1192 was resolved; that his suspension in February 2009 be declared unlawful; that the decision on impairment was unfair; and that the GMC should not be permitted to erase his name from the Register. He also sought interim relief, and accordingly the matter came before Calvert Smith J for urgent consideration on the papers. By an order dated 12 June 2009, he refused permission to apply for judicial review. The June proceedings were adjourned proceedings, not fresh ones, and rule 6, he observed, therefore had no relevance. His order dated 12 June 2009 did not expressly deal with the additional orders sought in the claim form. On 15 June 2009, Dr Shanker lodged notice of renewal in 5398. This too is listed for hearing today.
There was no court order prohibiting the resumed hearing, and it accordingly went ahead. The result was that on 23 June 2009 the Panel decided on the sanction for the misconduct and impairment identified on 3 February 2009. The Panel's decision was that the sanction should be that Dr Shanker's name be erased from the Register. In those circumstances, the question of Dr Shanker's continued suspension fell away.
On 17 July 2009, Dr Shanker issued a judicial review claim form in CO/7723/2009. For convenience I shall refer to this as “7723”. It complained of the decision to erase. A further claim form was issued by Dr Shanker and was given the reference number CO/9450/2009. I shall refer to this as “9450”. This was an appeal (by now well out of time) against the finding in February that Dr Shanker's fitness to practise was impaired.
Up until yesterday morning, so far as the court was aware, Dr Shanker was acting in person in relation to all these matters. However, yesterday afternoon my clerk was advised in e-mails from Mr Newman, who appears today on behalf of Dr Shanker, and Mr Hare, who appears today on behalf of the GMC, that Mr Newman had been instructed to appear on behalf of the claimant. Those instructions were by way of direct access, and they were limited to instructions to seek today that there be an adjournment of the renewal applications in each of 1192 and 5398. This morning, Mr Newman helpfully e-mailed a skeleton argument explaining that, because he was only instructed very recently, it had not been possible to prepare a skeleton argument earlier.
In the skeleton argument, as regards 1192, it was stated that Dr Shanker had acted in error in commencing proceedings by means of judicial review. He had used the wrong procedure, and ought instead to have made a statutory appeal within the 28-day period which had been specified in the GMC's written notification. That notification was served on 9 February 2009, and required any appeal to be lodged by 9 March 2009. The...
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