General Medical Council, R (on the application of) v Walker [2005] EWHC 122 (Admin)

Case No CO/6403/2004[2005] EWHC 122 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 2 February 2005
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF GENERAL MEDICAL COUNCILClaimant-v-
Between
STEVEN JAMES WALKERDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S BRASSINGTON (instructed by the General Medical Council) appeared for CLAIMANTMR S MILLER QC (instructed by Radcliffes Le Brasseur) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE STANLEY BURNTON: The unusual facts of this case came before me on 15th August 2003. On that occasion I considered an appeal by Mr Walker, the respondent to the application I have before me today, from an order of the Interim Orders Committee of the GMC which had made an order for his interim suspension in unusual circumstances referred to in my judgment.[2]Those circumstances were that there had already been an investigation by the GMC, and indeed a decision by the GMC, on certain events involving the deaths of certain patients. That had not resulted in either the suspension of Mr Walker or his being struck off. Subsequently, however, proceedings were commenced against him for manslaughter and proceedings relating to the finding at his home of certain documents, including a record of surgery carried out at the hospital where he worked. On 15th August 2003 I upheld the order for his suspension, although I made certain remarks about the inadequacy of the reasons given by the Interim Orders Committee.[3]Mr Walker has remained suspended since that date. The criminal proceedings resulted, on 17th June 2004, in a plea of guilty to one count of manslaughter at the Central Criminal Court. Other charges, including charges of manslaughter, were ordered to lie on the file. It follows from that that those charges were not the subject of any finding of guilt or innocence. On 23rd June 2004 Mr Walker was sentenced to 21 months' imprisonment but that sentence was suspended for a period of two years. There was no appeal against that sentence.[4]The result of Mr Walker's conviction on his own plea of guilty is that what is now the Fitness to Practise Panel of the GMC must consider whether further disciplinary orders should be made against him. The conviction is subject to a mandatory referral to that panel. On the basis of that conviction they, as I understand the position, may make such orders as they think appropriate, though they will have to bear in mind the previous proceedings before the GMC relating, as I understand it, to the same patient whose death was the subject of the manslaughter charge to which Mr Walker pleaded guilty.[5]The suspension of Mr Walker has been continued, most recently by an order of the Interim Orders Committee of 16th September 2004. There was argument before the Committee as to whether or not it was appropriate to continue his suspension, which precludes him from practising as a doctor in any way. The manslaughter charge related to surgery and Mr Walker accepts that surgery is outwith any practice as a doctor in which he is entitled to, or will, engage. The question therefore before the Interim Orders Committee was whether he should be allowed to practise as a doctor, not conducting surgery, and whether his full registration should be restored.[6]The decision of the Committee was to continue the suspension. It stated that it had comprehensively reviewed the[7]I interject to say that that is the application which is before me today. The Committee continued:
"Should the High Court extend the interim order, the Committee will again review the order at a further meeting to be held within three months of the High Court's determination, should the matters before the Committee not be concluded before that date."
[8]The present position is that only yesterday did the GMC write to Mr Walker informing him that his conviction for manslaughter would proceed straight to a Fitness to Practise Panel. The GMC added that other matters were under consideration by the GMC, about which it would write to him separately. I understand those matters include the possibility of allegations that the CV that he provided, on the basis of which he obtained employment at hospitals, contained false statements, but no decision has been made as to that today.[9]In some respects the position is unsatisfactory. Only yesterday was Mr Walker informed that his conviction would proceed to a Fitness to Practise Panel. I have before me no material relating to the other matters which are under consideration by the GMC. Those matters, as I understand it, are the subject of documentation that has been delivered to the Registrar, but those matters must go before an examiner who must consider them to decide whether it is appropriate, having regard to the matters revealed by those documents, to refer additional charges to the Fitness to Practise Panel. I accept unhesitatingly the submission on behalf of the GMC that the Fitness to Practise Panel should consider all outstanding matters against Mr Walker at the same time.[10]The chronology of events since Mr Walker's suspension satisfies me that there has not been undue delay on the part of the GMC in pursuing the proceedings against Mr Walker in circumstances which are certainly unusual and to some extent complex. The question arises: in those circumstances, what order should be made by the court?[11]I am invited by Mr Miller QC, who appears on behalf of Mr Walker, to refuse an extension on the basis that the GMC can return to the Interim Orders Committee and obtain, if the Committee thinks it appropriate, an interim suspension on the basis of the charge which is now being referred and any further charges. Clearly it would be appropriate for the Interim Orders Committee to be fully apprised of the additional matters which should have been referred by the time any meeting of that Committee could be convened.[12]The GMC seeks an extension of time of 12 months, which would be sufficient to permit all matters currently under consideration by the GMC to go before a Fitness to Practise Panel. The question before me is which of those extreme steps is appropriate, and whether there is some intermediate step that I should take.[13]In my judgment, considerable weight must be given to the decisions of the Interim Orders Committee, decisions which it is not sought to challenge on the basis of unreasonableness or any other unlawfulness. The salient facts are the conviction and the sentence of imprisonment. It is true that that sentence of imprisonment was suspended, for reasons set out in the sentencing remarks of the court, but nonetheless a significant sentence of 21 months' imprisonment was passed, indicating the seriousness with which the court regarded the offence in question, and the suspension sought is within that period of imprisonment.[14]Moreover, if I do extend, the suspension must come back before the Interim Orders Committee within three months and, indeed, could come back more speedily if the Committee thought fit, during which time the Committee could be apprised of the additional matters which may by then -- and should by then -- have been the subject of referral to an Interim Orders Committee if they are to be referred at all. If they are not to be referred, then the Interim Orders Committee will know that the only matter outstanding against Mr Walker is his conviction for manslaughter. To some extent, therefore, in practical terms the difference between the two extremes may not be great because the Interim Orders Committee will have an opportunity to consider whether it is appropriate to continue the suspension, whatever order I make.[15]In my judgment the appropriate order to make in this case is to extend the suspension for a period of nine months. I say so for these reasons. First, it is apparent from the decision of the Interim Orders Committee of 16th September 2004 that it considered it necessary to continue the suspension of Mr Walker. Secondly, the fact that the suspension will be considered at any event within three months means that the Committee will have a full opportunity to consider whether or not the suspension I order today should come to an end in the light of all the facts, including any decision made by the Medical Examiner as to any further charges.[16]I do consider that, having regard to Mr Walker's conviction and sentence, such an extension is appropriate and, for reasons similar to those evinced by the Committee on 16th September 2004, a proportionate response to a serious conviction. Moreover, the matters now under consideration may themselves be serious. Whether or not that is so will be known within, as I understand the matter, something like two weeks, possibly a little longer.[17]What I shall do, therefore, in these circumstances is extend the suspension for nine months. That is sufficient for all matters now under consideration by the GMC to come for hearing and decision before the Fitness to Practise Panel, and it is on that basis that I have determined that period. I invite the Interim Orders Committee to consider fully whether it is appropriate to continue that suspension and I invite them to do so within a period of two months from today's date, that being more than sufficient for the full facts concerning pending proceedings against Mr Walker to be considered by them and for a meeting of the Committee to be convened. In the circumstances, that is my order.[18]MR BRASSINGTON: My Lord, in relation to costs, can I ask for costs to be assessed, subject to being agreed with the other side.[19]MR MILLER: Are you asking for costs?[20]MR BRASSINGTON: Yes.

MR JUSTICE STANLEY BURNTON: Is there a schedule?

[22]MR BRASSINGTON: No, I am afraid I do not have one.[23]MR MILLER: My Lord, the application had to be made. There was a statutory obligation to make an application to this court. It was only yesterday for the first time that we had the information --

MR JUSTICE STANLEY BURNTON: What are you asking me to do?

[25]MR MILLER: No order for costs.[26]MR BRASSINGTON: My Lord, I am inviting your Lordship to make an order for costs. My learned friend says the position changed yesterday. My submission would be that it has not changed since September. On that occasion, and at that hearing, Mr Walker heard unequivocally that his case would be referred to the Fitness to Practise Panel, arising from his conviction for manslaughter. The fact that the GMC wrote to Mr Walker yesterday in my submission is not significant. These orders are often dealt with by way of consent order. Had it been dealt with by way of consent order, then the review which would take place within two months would have taken place within three months. (inaudible) when the matter was first before the court. That would be a month closer than it is now. In the circumstances I invite the court to make an order for costs in any event.[27]MR JUSTICE STANLEY BURNTON: Thank you very much. I make no order for costs. I do so for these reasons. First, an application had to be made in any event. Secondly, my decision has been influenced, if not decided to a significant extent, by correspondence brought into existence only yesterday, and doubtless brought about as a result of these proceedings, and the fact that Mr Walker did not concede that there should be an extension. I note that in the past Mr Walker has not objected to extensions. Had the material available now been available to Mr Walker before, I do not know what course these proceedings would have taken. But I do make the order, in part because I deprecate steps being taken so late in proceedings of this kind. For those reasons, therefore, there will be no order as to costs.[28]Thank you both very much.

order

that is to say, the order of interim suspension. It referred to the conviction, and stated that it had taken account of the proportionality -- that is to say, the effect of suspension on Mr Walker -- and balanced against that the public interest. Having done so, it concluded that an order for suspension was a proportionate response. The Committee added this: "The Committee notes that the order imposed on 9 July 2003 expires on 8 January 2005 and has therefore determined under rule 12(8) of the Committee's Procedure Rules to direct the Registrar of the General Medical Council to make an application to the High Court for an extension of the interim order under section 41A(6) of the Medical Act 1983, as amended."

Cited in 2 later judgments