R (Malik) v Waltham Forest Primary Care Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS,MR JUSTICE COLLINS |
| Judgment Date | 17 March 2006 |
| Neutral Citation | [2006] EWHC 487 (Admin) |
| Docket Number | Case No: CO/2890/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 March 2006 |
[2006] EWHC 487 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before MR JUSTICE COLLINS
Case No: CO/2890/2005
Philip Engelman (instructed by Messrs Edwards Duthie) for the Claimant
Jeremy Hyam (instructed by Capsticks) for the Defendant
Jason Coppel (instructed by The Treasury Solicitor) for the Secretary of State for Health
1. The claimant is a doctor who, until his suspension on 21 January 2005 ran a National Health practice in East London. In these proceedings, he challenges the lawfulness of that suspension on a number of grounds. He also claims damages, but it is accepted that, if he was to succeed in persuading me that the suspension or any part of it was unlawful, any subsisting claim for damages should be adjourned. I am therefore only concerned with the lawfulness of the suspension.
2. In order to practise as a general practitioner within the NHS, a doctor must be included in a ‘performer's list’. Section 28X of the National Health Service Act 1977 reads:
“Regulations may provide that a health care professional of a prescribed description may not perform any primary medical services for which a Primary Care Trust … is responsible unless he is in a list maintained under the Regulations by a Primary Care Trust …”
The relevant Regulations are the National Health Service (Performers List) Regulations 2004 (S.I. 2004 No. 585), which require Primary Care Trusts (PCTs) to prepare and publish a medical performers list (Regulation 3). Regulation 22 provides that a doctor must be included in a list in order to practise within the NHS. Regulation 24(2) reads, so far as material:
“… [A] PCT shall … refuse to admit a medical practitioner to its medical performers list if …
(c) he is included in the medical performers list of another PCT, unless he has given notice to that Trust that he wishes to withdraw from that list.”
3. Once he is on the list, the GP must enter into a contract with the PCT if he is to provide services: see the National Health Service (General Medical Services Contracts) Regulations 2004 (S.I. 2004 No. 291). Those regulations set out in some detail what must be included in such contracts and how any disputes are to be resolved. I need not refer to them. However, Paragraph 53 of Schedule 6 to the Regulations provides, so far as material,:
“53(1) … [No] medical practitioner shall perform medical services under the contract unless he is –
(a) included in a medical performers list for a PCT in England;
(b) not suspended from that list or from the Medical register; and
(c) not subject to interim suspension under Section 41A of the Medical Act 1983 (Interim Orders).”
4. The Performers Lists Regulations confer power on the PCT to remove from the list (Regulation 10) or to direct what is called ‘contingent removal’ (Regulation 12), that is to say, to impose conditions with a view to removing any prejudice to the efficiency of the services in question. There is in addition power to suspend while consideration is being given to action under Regulations 10 or 12. It is this power which is in issue in this claim. The relevant regulation is 13. So far as material, it provides:
“13(1) If a PCT is satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest, it may suspend a performer from its performers list, in accordance with the provisions of this regulation –
(a) while it decides, whether or not to exercise its powers to remove him under Regulation 10 or contingently remove him under Regulation 12;
(b) while it waits for a decision affecting him of a court anywhere in the world or of a licensing or regulatory body …
(2) Subject to Paragraph (8), in a case falling within paragraph (1)(a), the PCT must specify a period, not exceeding six months, as the period of suspension.
(3) Subject to paragraph (8), in a case falling within paragraph (1)(b), the PCT may specify that the performer remains suspended after the decision referred to in that paragraph has been made for an additional period, not exceeding six months.
(4) The period of suspension under paragraph (1)(a) or (b) may extend beyond six months if –
(a) on the application of the PCT, the Family Health Services Appeal Authority [FHSAA] so orders; …
(8) The PCT may extend the period of suspension under paragraph (2) or impose a further period of suspension under paragraph (3), so long as the aggregate does not exceed six months.
(9) The effect of a suspension is that, while a performer is suspended under these regulations, he is to be treated as not being included in the PCT's performers list, even though his name appears in it.
(11) Where a PCT is considering suspending a performer … it shall give him –
(a) notice of any allegations against him;
(b) notice of what action it is considering and on what grounds; and
(c) the opportunity to put his case at an oral hearing before it, on a specified day, provided that at least 24 hours notice of the hearing is given.
Paragraphs (17) to (24) provide that payments may be made during a period of suspension and a right of appeal to the Secretary of State if the practitioner is dissatisfied with the amount of any such payment. The general rule, which was applied in this case, is to pay 90% of the practitioner's net income which is assessed in accordance with the terms of his contract with the PCT. The deduction of 10% is intended to reflect the fact that he will inevitably have had incidental expenses in connection with his practice which would have been met out of his income.
5. The claimant has received payments. There is a dispute whether he has received the proper payments. I am not concerned with that in these proceedings at this stage since there is an alternative means of redress.
6. Regulation 18 prohibits a practitioner who is suspended under regulation 13(1)(a) from withdrawing from a list (unless the Secretary of State consents) until the question whether he should be removed or be subject to contingent removal is formally decided. Thus suspension has the effect of preventing the practitioner from engaging in NHS practice so long as the suspension continues. But he will receive what is supposed to be the equivalent of his lost income in the meantime.
7. Following the coming into force of the Performers List Regulations in April 2004, the Department issued guidance on how they should be applied in August 2004. Paragraph 18 deals with suspensions. It reads:
“Suspension as a Neutral Act
18.1. Suspension is a neutral act, not a disciplinary sanction. It is intended to protect the interests of patients, staff and the doctor who is suspended. It should therefore be a rare event. Misuse of the suspension power can result in injustice, in damage to the doctor's reputation, career and personal life, and in waste of NHS resources. Therefore it should only be imposed once the PCT has considered whether there is a case to be answered and whether it has reasonable and proper cause to suspend. This is likely to be where there is:
• Compelling evidence of culpability, of seriously sub-standard performance or lack of competence; or
• Sufficient evidence to warrant suspension pending detailed further investigation; or
• An allegation or allegations that are sufficiently serious to justify suspension whilst an investigation is undertaken.
18.2. Suspension means that although a doctor's name stays on the PCT's Performers List, he is treated as though his name has been removed from it. As a result he cannot perform any aspect of any primary medical service for any patient.
18.3. For these reasons, alternatives to suspension in the interests of the doctor and of patients should be considered carefully before any decision is taken to suspend him. For example the PCT could ask the doctor to withdraw voluntarily from performing part of his normal duties, and/or find him suitable alternative NHS work away from direct patient contact, whilst investigations continue.
Duration of Suspension
18.4. Suspensions should last no longer than is necessary. Suspension by the PCT can last no longer than six months except where:
• The suspension is the result of regulatory body or criminal investigations or proceedings and the PCT is awaiting the outcome of those investigation or proceedings
• A PCT has decided to remove or contingently remove a doctor from its list, it may impose a suspension until the doctor has decided whether to appeal against the decision to remove (or contingently remove him) or, if he does appeal, until the outcome of that appeal – whichever is the later.
18.5. In all other circumstances a suspension can only extend beyond six months only with the prior of approval of the FHSAA. If the PCT does not apply to the FHSAA for an extension, before the six month period expires, the suspension lapses. When it considers an application for extension, the FHSAA will look for evidence that the PCT is taking all possible steps to conclude its inquiries. If the FHSAA agrees to extend the period of suspension, it will do so for a finite period.
18.6. This means that it is essential for PCTs to commit the resources necessary to deal with the cause of the suspension and to take substantive action to remove/contingently remove the doctor from the Performers List, or to permit him to return to work without conditions, as quickly as possible.”
Paragraph 20.2 notes that if the GMC has decided to suspend a practitioner as an interim measure, the PCT should consider making an...
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