Sandler v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 14 May 2010 |
| Neutral Citation | [2010] EWHC 1029 (Admin) |
| Docket Number | Case No: CO/660/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 May 2010 |
[2010] EWHC 1029 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon. Mr Justice Nicol
Case No: CO/660/2010
James Leonard (instructed by Radcliffes Le Brasseur) for the Claimant
Gemma White (instructed by GMC Legal) for the General Medical Council
Hearing dates: 6 th May 2010
Mr Justice Nicol:
On 18 th December 2009 the Interim Orders Panel (‘IOP’) of the General Medical Council (‘GMC’) suspended Dr Sandler's registration for 18 months. In these proceedings he asks the Court to exercise its power under s.41A(10) of the Medical Act 1983 (‘the Act’) to terminate that order.
Dr Sandler was and is employed by the Heart of England NHS Foundation Trust (‘the Trust’). On 10 th December 2008 the Trust held a disciplinary hearing at which it considered a number of allegations against him. These all related to forms which Dr Sandler had completed under Cremation Act 1902 and its subsidiary legislation. Under section 7 of that Act the Secretary of State is obliged to make regulations prescribing in what cases the burning of any human remains may take place. At the relevant times the regulations were the Cremation Regulations 1930 as amended. Regulations 8 and 9 provide:
‘8. Except as hereafter provided, no cremation shall be allowed to take place unless: (a) a certificate in ‘Form B’ has been given by a registered medical practitioner who has attended the deceased during his last illness and who can certify definitely as to the cause of death, and a confirmatory medical certificate in Form C be given by another medical practitioner who must be qualified as prescribed in Regulation 9 ….
9. The confirmatory medical certificate in Form ‘C’, if not given by the Medical Referee, must be given by a registered medical practitioner of not less than five years’ standing …’
Form C requires the doctor to confirm (amongst other things) that he has seen the body of the deceased, that he has examined the body externally and that he had seen and questioned the medical practitioner who had attended the deceased during his last illness and who had completed Form B.
The allegations against Dr Sandler (together with the Trust's conclusions after the disciplinary hearing) were as follows:
i) Failed to see the bodies of patients for whom he completed Form C between January 2007 and May 2008 (Admitted).
ii) Failed carefully to examine externally the bodies of patients for whom he completed Form C between January 2007 and May 2008 (Admitted).
iii) Failed to meet with and question or speak on the telephone to the medical practitioner who had completed Form B between January 2007 and May 2008 (Partially admitted).
iv) [not relevant because not proven]
v) Received a total payment from the Trust in the sum of £4,549.50 for the period of 2007 – 2008 for Cremation duties required by Form C but not carried out the duties (Partially proven).
vi) Failed to meet his professional duties as required by the GMC under ‘Good Medical Practice’ (Admitted).
The Trust in consequence gave Dr Sandler a final written warning. It also imposed conditions that Dr Sandler did not sign any further cremation forms and discontinue his role as Clinical Director. It said that it would refer his case to the GMC and may also refer the matter to the police.
The Trust did refer the matter to the GMC on 16 th February 2009 and it also notified the police.
On 18 th November 2009 DS Alan Darby of the West Midlands Police wrote to the GMC about the Claimant. He said that they had conducted a six month investigation into the matter. In liaison with the Crown Prosecution Service they had decided to charge Dr Sandler with offences under s.8(2) of the Cremation Act covering a period from 2001 – 2008.
Section 8(2) provides,
‘Every person who shall wilfully make any false representation, or signs or utters any false certificate, with a view to procuring the burning of any human remains, shall (in addition any penalty or liability which he may otherwise incur) be liable to imprisonment not exceeding 2 years.’
DS Darby continued that the Claimant was to be summonsed to the magistrates court on 8 th December 2009 to enter a plea in relation to 6 specimen charges under s.8(2). A seventh specimen charge of wilfully singing 110 false certificates under s.8(2) would also be laid against him.
It was on 8 th December 2009 that the GMC referred the matter to the IOP to consider whether any interim order should be made against Dr Sandler. The powers of the IOP are contained in s.41A of the Act. This says:
‘(1) Where an Interim Orders 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 thinks fit to impose (an ‘order for interim conditional registration’)’.’
As I have said, the hearing of the IOP took place on 18 th December 2009. The Claimant was represented by his solicitor. Counsel presented the case for the GMC. The IOP consisted of 3 lay (i.e. non legal) members but had the benefit of a Legal Assessor who gave his advice to the Panel in the presence of the parties. The IOP was told that the hearing of the summons on 8 th December 2009 had been adjourned for the defence to consider the case. The Panel was also told that the Trust had excluded Dr Sandler from the workplace with effect from 7 th December 2009. When it was learned that the court case had been adjourned to 20 th January 2010 the Trust had decided to allow the doctor to return to work but it would at that point meet internally to decide whether immediate suspension should take place. Dr Sandler's solicitor submitted that neither suspension nor the imposition of conditions would be appropriate. He referred to the fact that the Trust had considered it sufficient to impose the conditions which I have mentioned. The GMC had not thought it necessary to take interim measures for some 9 months after being notified by the Trust. Impressive testimonials were provided speaking to Dr Sandler's abilities. Suspension would have a very serious impact on him. He drew attention to the case of Sheikh v GMC [2007] EWHC 2972 (Admin) in which Davis J had said (at [16]) that it would only be in a relatively rare case that suspension would be justified on the ground that an interim order was in the public interest and (at [23]) that an IOP had to take care to be sure that the measures it imposed were needed on an interim basis as opposed to a final sanction when and if the allegations against the doctor were established. Dr Sandler had a great deal to offer his patients. The allegations against him were not such as to call for any interim measure, but even if that was wrong, the Panel should impose conditions rather than suspension.
The Legal Assessor advised the Panel to consider first whether an interim order was necessary for the protection of the public. If that was not the case, it should then proceed to decide whether an interim order should otherwise be made in the public interest. He reminded them of what Davis J. had said in Sheikh about the need to be clear as to whether the reputation of the profession could be upheld by a final order as opposed to an interim measure. He stressed that ‘“proportionality” is the watchword’– the panel had to balance the interests of the public against Dr Sandler's interests in continuing his profession without restriction. If the panel considered that an interim measure at all was necessary in the public interest it should first ask itself whether conditions would be sufficient and only then ask whether this was a rare case where suspension was justified.
The Panel's determination noted the action by the Trust and the police and the information which it had been given about the charges and the reaction of the Trust to those charges. It said (correctly) that it was not its function to make findings of fact about the allegations against Dr Sandler. It decided that it was not necessary to make an interim order for the protection of the public or in Dr Sandler's own interests. However, it did think that ‘these are serious matters which demonstrate that there may be impairment of your fitness to practice which adversely affects the reputation of the profession in the eyes of the public, and, after balancing your interests against those of the public, an interim order is necessary.’ It continued:
‘In exercising its professional judgment and having determined that an interim order is in the public interest, the Panel then considered what would be the appropriate order. The Panel acknowledged that the sole concern was the public interest, and noted your wide ranging senior positions within the Trust Management as Clinical Director, regional and national duties for a range of professional organisations and other high level roles within the medical profession. The Panel noted in your curriculum vitae that you have been the Chairman of the Training Committee of...
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