General Medical Council v Hiew [2006] EWHC 2699 (Admin)

Case No CO/7971/2006[2006] EWHC 2699 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 17th October 2006
Strand
London WC2
B E F O R E:
MR JUSTICE BEAN
Between
GENERAL MEDICAL COUNCILApplicant-v-
Between
DR STEPHEN CHEE CHEUNG HIEWRespondent
(Computer-Aided Transcript of the Palantype Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR IVAN HARE (instructed by the General Medical Council in-house legal team) appeared for ApplicantMR PHILIP ENGELMAN (instructed by Messrs Edwards Duthie) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE BEAN: This is an application by the General Medical Council under section 41A(6) of the Medical Act 1983 (as amended) for an order made by the Interim Orders Committee against Dr Hiew to be extended for a period of 12 months. The Interim Orders Panel has considered Dr Hiew's case four times: on 22nd April 2005, when they made an order suspending his registration for a period of 18 months; and at review hearings on 19th October 2005, 6th April 2006 and, most recently, 25th July 2006. In each case the determination was to maintain the suspension.[2]Dr Hiew has since July 2004 been under suspicion of committing fraud on the National Health Service and of falsifying records, and also has been the subject of criticisms which would not be the subject of criminal prosecution relating to alleged poor management of his practice. The criminal allegations were investigated by the CPS, who very recently have indicated that they do not propose to prosecute Dr Hiew. They are, however, prosecuting another doctor, whose name I have not been given and to whom I shall refer as Dr X. Dr X's case is said to be due to come to trial "in early 2007". On the employment front, the Enfield Primary Care Trust is bringing proceedings to remove Dr Hiew from the list of performers in its area, and in July 2006 it indicated that it would reconvene a removal hearing following completion of the criminal case relating to Dr X.[3]The GMC's application is supported by a witness statement from its in-house solicitor, Ms Smerdon, which simply recites the history, in particular of the prosecution, and says this at paragraphs 13 and 14:
"13. By letter dated 11 July 2006, the CPS advised the GMC that there was insufficient evidence of any offence and there was no realistic prospect of conviction as a result. In the circumstances the CPS had not authorised the police to charge Dr Hiew with any offence. 14. On 20 September 2006 the CPS advised the GMC that although it had recommended that Dr Hiew not be charged, it was not able to release documentation to the GMC as the case was linked to that of another doctor whom the CPS had recommended be charged. This related case is unlikely to be heard until early 2007. Therefore the GMC will not receive the CPS documents until sometime in early 2007."
[4]Ms Smerdon concludes, in paragraphs mysteriously numbered 31 to 33, although they follow paragraphs 1 to 18:
"31. This application to extend the interim order of suspension imposed by the IOP on 22 April 2005 and due to expire on 21 October 2006 for a further 12 months is not one the claimant undertakes lightly. 32. The reason that an extension of 12 months has been requested is due to the length of time required to complete the Claimant's fitness to practise procedures in light of the necessary delay in obtaining the CPS and Police documents. This documentation will need to be received and considered prior to a Fitness to Practise Panel hearing being listed. 33. In the circumstances the Claimant invites the Court to extend the interim order of suspension for a further 12 months from 21 October 2006 to 20 October 2007."
[5]Mr Philip Engelman for Dr Hiew valiantly sought to persuade me that on the material which was before the IOP there was simply, in effect, no case to answer and that they were wrong in their last hearing, if not earlier, to extend the period of suspension and that it would follow that I should refuse to do likewise and give the GMC any more time. I am not prepared to accede to this submission. Although Mr Engelman was able to point me to one witness statement and supporting documents which did not seem to me to amount to very much, I was not invited, either orally or in the skeleton arguments, to examine each of the witness statements which was before the IOP in detail and in effect rule myself that there is no case to answer. Any judge of this court naturally pays great respect to the view of the evidence taken by the IOP, who have immense experience in considering interim orders against doctors. I am not prepared to say on the submissions before me that there was no case justifying suspension or the renewal of suspension.[6]However I must say the way the application for a 12-month extension is put is inviting the court almost to act as a rubber stamp. It is plain from the structure of section 41A that the court is not bound simply to endorse a decision of the Interim Orders Committee that extensions should be granted, and particularly not where, as here, the allegations against the doctor were first made more than two years ago and the first appearance before the Interim Orders Panel was 18 months ago.[7]I do not regard it as a satisfactory basis for a 12-month extension of suspension that a prosecution is proceeding against Dr X. It would be of course very different if Dr Hiew himself were being prosecuted. But after the periods of time to which I have referred, it seems to me that Dr Hiew is entitled to say to the GMC that the time has come to put up or shut up. If the witness statements were evidence on which orders for suspension could properly be made, then I do not understand why the regulatory case against Dr Hiew cannot be brought to a hearing, irrespective of the pending prosecution against Dr X. If the CPS refuse to release documents relating to Dr Hiew and not to Dr X, that is, if I may say so, regrettable, but not something about which I have power to make an order. Nevertheless, here we are in autumn 2006 and either there is a case to be made against Dr Hiew or there is not.[8]Mr Hare for the GMC told me that the Fitness to Practise Panel is at present listing two-day cases nine months ahead. I am afraid I do not regard that either as a good reason, given the delays which have already occurred in this case, for allowing Dr Hiew's period of suspension to be extended until what would be 3¼ years from the time when the allegations against him were first made.[9]I shall grant an extension under section 41A(6) for a period of six months from 21st October 2006 to 20th April 2007.[10]MR HARE: My Lord, I am afraid I do not have a draft order to hand up. If you wish me to do a draft order with my friend I am sure we can do so. There is a fairly close similarity, apart from the six months rather than 12 months, to the order your Lordship did make earlier today.

MR JUSTICE BEAN: Yes, certainly.

[12]MR HARE: My Lord, on the question of costs, plainly the GMC has succeeded to some extent. It has not succeeded to the extent which it sought. Under normal circumstances, I would request that the GMC's costs of my attendance today, that I would apply for those costs, given that of course the GMC has to make the application but it does not have to send along counsel to today's hearing. My Lord, I do not propose to make an application. I would submit it is an appropriate case for each party to bear their own costs, bearing in mind the result.

MR JUSTICE BEAN: Mr Engelman?

[14]MR ENGELMAN: My Lord, I say the same.[15]MR JUSTICE BEAN: Mr Hare is quite right. I shall say no order as to costs.[16]Thank you both very much.