Arzhangi, R (on the application of) v General Medical Council [2005] EWHC 2510 (Admin)

Case No CO/399/2005[2005] EWHC 2510 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 26 October 2005
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF DR SAIM ARZHANGIClaimant-v-
Between
GENERAL MEDICAL COUNCILDefendant
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)
THE CLAIMANT APPEARED IN PERSON for in personMS DINAH ROSE (instructed by GMC) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is a challenge to a decision of the defendant's Professional Conduct Committee on 30 September 2004 to impose varied conditions on the claimant's registration as a medical practitioner. I put the matter in that way because it is not entirely clear procedurally whether this is intended to be a statutory appeal out of time or an application for permission to apply for judicial review out of time. Very properly, the defendant does not take any procedural point on the form of proceedings, although it does point out that whichever the challenge is, it is well out of time. It would appear that there were earlier judicial review proceedings which were dismissed at some stage because of a failure to serve the documents on the GMC, and these proceedings, by way of an appellant's notice rather than an application for permission to apply for judicial review, were received by the Administrative Court on 27 January 2005. The time limit for an appeal against a decision of this kind is 28 days, although the court does have power to extend time in appropriate cases.[2]If I had thought that there was any substance in the claimant's grounds, then I would have gone on to consider whether or not it would be appropriate to extend time. As it is, I simply set questions of time limits and procedure to one side and consider the substance of the challenge.[3]I have listened carefully to the claimant, who has represented himself in person, and it is perfectly clear to me that his primary complaint does not relate to the variations of the conditions as such, but rather to the fact that conditions were imposed in the first place, and in particular to the fact that he was found guilty of serious professional misconduct following a hearing in September 2003. It is plain that he feels very aggrieved by that finding and by the imposition of the original conditions, but as I sought to explain to him, whatever his views about the hearing in September 2003 may be, it is now far too late to challenge those findings. The consequence is that one starts from the position that the claimant was found guilty of serious professional misconduct in September 2003 and the Committee did impose a number of conditions on his registration.[4]The appropriateness of those findings is not challenged in these proceedings and it would be far too late to do so. I accept that it would have been perfectly open to the claimant to appear before the Committee in September 2004 and to explain why he had not been able to comply with the conditions and to explain why they were inappropriate and ought to be modified.[5]The position as found by the Committee was that the claimant, due to ill-health and various other difficulties, had not been able to undertake any medical practice at all between September 2003 and the hearing in 2004. Thus, unsurprisingly, he had been unable to comply with certain of the conditions: for example, those requiring him to work for at least six months in a supervised training post as approved by a mentor; to allow the GMC to obtain reports on his performance, and so forth. The Committee therefore found, and it is not challenged by the claimant, that he had as a matter of fact failed to comply with three of the conditions.[6]The Committee then went on to decide what it ought to do about that. It considered whether or not the claimant's name should be erased from the register, but concluded that that would be disproportionate, and that conditions would still provide sufficient protection for the public. Finally, the Committee:
"... carefully considered what conditions would be suitable to place on your registration, having regard to the fact that such conditions should not unnecessarily impede your prospects of employment whilst at the same time ensuring the protection of the public. They accept that there may be difficulties for you to obtain a 'training' post in Obstetrics and Gynaecology and have therefore decided to vary condition 4 to enable you still to address the deficiencies in your practice, but without having to remain in a 'training' position."
The Committee also decided to vary another condition to make it, as they put it, more practicable in a working environment.[7]The Committee Chairman then set out the conditions which would be imposed on the claimant's registration for a period of 12 months. I have been through the conditions one by one with the claimant and it is perfectly clear that he accepts that, simply looking at them as conditions, they are perfectly appropriate and sensible. His principal complaint would appear to be that due to, amongst other factors, his age, he is not able to obtain work and therefore he will not be able to comply with the conditions. I appreciate that there may to an extent be a chicken and egg situation here, but the Committee had to consider what was necessary in order to protect the public.[8]Bearing in mind the finding of serious professional misconduct and the particular circumstances of the misconduct alleged, it is clear to me that the Committee was fully justified in insisting that if the claimant was to practice as a medical practitioner at all, he could only do so subject to conditions of this kind. If the conditions make it difficult for the claimant to obtain employment as a medical practitioner, then so be it. Inevitably, as a matter of commonsense, if one is subject to conditions it may be more difficult to obtain employment than if one has no such conditions which one has to bring to the attention of any prospective employer. But the fact remains that the Committee was fully entitled to impose these conditions, and looked at simply as conditions, it is clear that there is really no criticism of them.[9]It is equally clear that the claimant's complaint does not really relate to the variation of the conditions. He does not contend that the conditions should have been varied in a different way. His essential argument, as he put it to me, was that there should not be any conditions at all because he has done nothing wrong. But that is simply an attempt to re-open the findings which were made in September 2003, and that is not open to the claimant.[10]So for these reasons, and whether this is to be treated as a statutory appeal or as an application for permission to apply for judicial review, I dismiss this application.[11]MS ROSE: My Lord, we do apply for our costs. Can I hand up a summary assessment?

MR JUSTICE SULLIVAN: Has the assessment been given to Mr Arzhangi?

[13]MS ROSE: The position is that we made repeated attempts to fax it to him yesterday, and I am instructed that we received a message that the full document had not been transmitted. Therefore, as I understand it, he received this schedule only shortly before the hearing, and I appreciate that on that basis you may be reluctant to grant summary assessment and it may be more appropriate to grant detailed assessment if the amount cannot be agreed. I am instructed to say that the amount here is just over £6,000, but we would be content to accept £5,000.[14]MR JUSTICE SULLIVAN: Mr Arzhangi, what do you want to say about that? You can ask for detailed assessment if you want to, but you may end up not doing as well as accepting the offer of £5,000. I am bound to say in my experience of these matters, £5,000 is certainly not far off the mark for the GMC's costs. But you are entitled to ask for detailed assessment. If there is anything you want to say as to why you should not pay their costs in principle, then you can do so.[15]CLAIMANT: If I am allowed to add something more, subject of the financial affair, in end of July the solicitor of the GMC wrote to me saying that if I withdraw my appeal, then they would not charge me any expenses.

MR JUSTICE SULLIVAN: That would be usual.

[17]CLAIMANT: I wrote back and said I have no place, nothing in my mind to confront General Medical Council. I am quite happy to withdraw on a condition that you delete whatever wrongfully you have written under my name and under my position. They say, no, we would not accept conditional withdrawal. Coming back to the financial situation, whilst I have not worked for over two and a half years, I am at the moment --[18]MR JUSTICE SULLIVAN: I am sorry, I am not here to decide whether you can pay. If you do not have any money, then they cannot get the money.[19]CLAIMANT: What is the position? Are you going to hang me because I do not have the money?[20]MR JUSTICE SULLIVAN: I just have to decide whether or not, in principle, you should pay. It is not for me to decide whether you have the money to pay or not. That is a different process.[21]CLAIMANT: I do not have a penny to even meet my rent this month.[22]MR JUSTICE SULLIVAN: But you have told me, and in fact I would have expected this to happen anyway, that the GMC's solicitor has actually written to you, saying: look, withdraw and we will not claim our costs. If you proceed, you do so at your own risk.[23]CLAIMANT: I said I am happy to withdraw on the condition that I have complied with whatever you have asked for and just to correct it. I have not asked for anything. With all respect, my Lord, next month I reach the age of 65. As a matter of employment, if I had the money I would be more than happy to accept to be represented by a lawyer, which they stand up for me. I do not. That is the crux of the matter. I am sorry.[24]MR JUSTICE SULLIVAN: Effectively you could take the offer to accept £5,000, and I would assess it in that sum -- summarily assess it; or if you think that is wrong, you could ask for a detailed assessment, which means that all these figures would be looked at in detail. But you may end up actually paying more than £5,000.[25]CLAIMANT: With all respect, I have not got a penny. I leave it entirely up to your judgment to tell me what to do, what not to do.

MR JUSTICE SULLIVAN: Detailed assessment costs money and it takes time.

[27]CLAIMANT: I appreciate what you are saying.[28]MR JUSTICE SULLIVAN: Frankly, it is not for me to advise you, but if you ask me to order detailed assessment, I will, but unless you ask me to order detailed assessment, I shall summarily assess the costs in the sum of £5,000.[29]CLAIMANT: I do not know what is my position, what is the best for me. You kindly said that they charged me extra, I do not know. Perhaps General Medical Council could pay this money out of its surplus, which as a matter of 34 years I have contributed as everybody else.[30]MR JUSTICE SULLIVAN: Thank you. I am satisfied that the claimant should pay the GMC's costs. I will say as an aside, for the assistance of the GMC, I certainly commend the practice of trying to persuade those who are not represented to withdraw, if at all possible. It is clearly sensible to try and do that if possible, but unfortunately it did not work in this case.[31]While the claimant is entitled to ask for detailed assessment, he has not done so. It does seem to me that would be disproportionate, bearing in mind the size of this case. In any event, the GMC has said that it would be prepared to accept £5,000. That includes VAT?[32]MS ROSE: Yes, my Lord.[33]MR JUSTICE SULLIVAN: That is to be compared to the schedule of costs which is a little over £6,300. In all the circumstances, I think that the sensible thing to do is to summarily assess the costs in the sum of £5,000 including VAT. Thank you very much.

Cited in 1 later judgment