General Medical Council, R (on the application of) v George [2006] EWHC 570 (Admin)

Case No CO/1483/2006[2006] EWHC 570 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 28th February 2006
Strand
London WC2
B E F O R E:
MRS JUSTICE BLACK DBE
Between
THE QUEEN ON THE APPLICATION OF GENERAL MEDICAL COUNCILClaimant-v-
Between
GEORGEDefendant
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 GMC) appeared for CLAIMANTMR K COONAN (instructed by Clyde & Co) appeared for DEFENDANT
J U D G M E N T
[1]MRS JUSTICE BLACK: The defendant in the application in front of me today is Dr George, who is a registered medical practitioner specialising in paediatric work. The claimant is the General Medical Council. The claimant wants an order under Section 41A(6) of the Medical Act 1983 extending the suspension of Dr George's registration for a further 12 months.[2]Dr George was originally suspended for 18 months by the Interim Orders Committee of the General Medical Council on 6th March 2003. That suspension followed the receipt of evidence concerning alleged problems in a number of areas of Dr George's professional work, including his competence, his dealings with other staff, with patients and with families, and his failure to cooperate with health service complaints and child protection procedures.[3]The original intention was that Dr George would undergo an assessment of professional performance. He agreed to such an assessment but then subsequently refused to undergo it. He was then directed to do so by the Assessment Referral Committee. That Committee had been delayed in hearing the matter because of a number of requests for the adjournment of its proceedings by Dr George on the basis of his ill health. Ultimately, his requests for adjournment were refused and the Assessment Referral Committee heard the matter anyway. By virtue of their direction, the assessment was to take place within three months. It did not happen. Dr George had missed a deadline with his own portfolio of work along the way, but then subsequently the assessment was postponed wholesale by virtue of his ill health.[4]A date was fixed for it to be completed in the Autumn of 2004. That had to be rescheduled at the last moment when Dr George told the GMC of a potential conflict of interest with the lead assessor, and a replacement could not be found at short notice. The identity of the assessor had been known to Dr George in July 2004, and in particular was known to him when the matter appeared in front of Sullivan J in September 2004 on an extension application. At the time of the application before Sullivan J, assurances were being given that the matter was going to proceed without further delay and nothing was said about the potential conflict of interest with the lead assessor. It was only a matter of days after that hearing before Sullivan J that that issue was raised. The assessment was then rescheduled for Spring 2005. A couple of weeks before it was due to begin, the doctor sought an adjournment of it, again on medical grounds.[5]The GMC responded by asking that he be assessed by two medical examiners. He did not agree to that proposal, he said in the interests of his recovery. Finally, because he had not complied with the assessment requirements, the matter was referred to the Fitness to Practise Panel and listed for hearing in August 2005.[6]In the early summer the doctor sought to have the matter relisted because his chosen counsel was unavailable. That request was refused in June 2005. In fact, the August hearing had to be adjourned at the last moment. That was for a relatively complex reason. There had been a considerable amount of procedural argument in the first two days of the hearing scheduled for August. The unfortunate result of that was that the lead medical assessor, who had been going to give evidence in the hearing, became unavailable to give his evidence and the matter could not proceed. It needs to be noted, however, that there had been an underlying application by Dr George to the Panel for an adjournment, again for a medical reason. It is clear from the transcript of those proceedings that by the time that the hearing began in August 2005, Dr George had gone to India. He said that he was forced to do so because of his medical condition. Whilst, therefore, it is not fair to say that that hearing went off because of his medical condition -- indeed it appears that it was proceeding despite it -- it is also worthy of note that this was yet another occasion upon which he had attempted to have the matter adjourned because of a medical difficulty.[7]Unfortunately, the next available date for a hearing in front of the Fitness to Practise Panel was 26th May for five days, leading up to 2nd June 2006.[8]Meanwhile, the suspension of Dr George has been continuing throughout. It was extended in September 2004 by Sullivan J. He extended it for the relatively short period of six months in the hope that the matter would come to a final resolution during that period, at that stage because it was planned that there would be an assessment of professional performance. Munby J then extended it by consent for 12 months in March 2005. It is that last extension which is the one that is now due to expire. The last review by the Interim Orders Panel was in October 2005. The Panel recommended that there be an extension application and that (for reasons which I do not understand as to the lateness of the application) is the genesis of the application before me.[9]As a result of discussion earlier this morning, it is conceded on behalf of Dr George that there is a need for a further extension of the suspension. The argument between the parties concerns the time period for which that suspension should be extended. On behalf of Dr George, it is said that the period should be three months. On behalf of the General Medical Council, that it should be for a year.[10]The anxiety of the General Medical Council which underlies their request for a 12 month extension is that it is not possible in this case to predict the conclusion of anything because, on their case, matters are frustrated at every turn by difficulties that are put in the way by Dr George, they say going to the point where it could be said that he is failing to cooperate with his medical supervisory body. The GMC fear in these circumstances, given the history of the matter, that something will lead to the adjournment of the Fitness to Practise Panel in May and that they will simply be back here making another application for an extension if too short a period is granted.[11]There are a number of points that should be made in relation to that. First of all, what happens in May will be a matter for the Fitness to Practise Panel, but it is agreed that they have the power to proceed in Dr George's absence, even to the point of imposing sanction. They will take account of the whole history when they make their determination, if Dr George seeks to have the matter adjourned again. That history will include frequent applications for adjournment or postponement on medical grounds, the failure to be medically examined at the request of the GMC, and the scant medical evidence that Dr George himself has provided in support of his position. The Panel will also be able to take account of ways to enable Dr George to participate without attendance, if necessary. However, I acknowledge, on a positive note, that he did in fact attend today, although he has now gone after consultation with leading counsel.[12]The second point that needs to be made is that there is now an imperative for the GMC, and indeed Dr George's side, to ensure that they have their procedural tackle in order for the Fitness to Practise Panel in May. There are a number of evidential and other matters which need to be addressed. There has been profitable discussion between counsel today and it has been indicated that this will indeed be attended to. I would stress that it is most important that it is, because it would be unthinkable that more time should be lost at the Panel by addressing then matters which ought to have been addressed in advance.[13]I am not satisfied that if there is a postponement for a longer period, it will be any more effective in avoiding obstacles and the risk of the process being derailed than a shorter period. On one view it removes the concentration that is focussed by a shorter deadline. The GMC can come back to extend the current period of suspension if the worst were to come to the worst. There would be a cost involved in that process, of course, but what there would not be would be prejudice or a lack of protection to any of those who have an interest in protection in this case. Three months, as proposed on behalf of Dr George, is not enough for the extension. That would barely cover the hearing. The period, it seems to me, needs to be for four months, which would take it through until July, allowing a buffer in case the five days allowed for the hearing were not sufficient and allowing for a decision not being given precisely at the end of the five days scheduled. That would not prejudice Dr George, given that the medical certificate that he has provided said that he is unfit to work on medical grounds until August 2006 in any event.[14]I therefore intend to impose a period of a further four months of suspension, but to do so recording clearly that Dr George is saying today that he wishes that the proceedings should be concluded as soon as possible, if at all possible in May. He can be in little doubt of the strength of the GMC's application for the Panel to proceed in his absence if he were to advance medical problems again as a reason for an adjournment, particularly if he has continued to refuse to see two medical examiners as they have invited him to do. The test that I have applied in considering the period of the suspension is as follows, and I take this from the test set out in the proceedings in front of Sullivan J on 1st September 2004, which it is agreed by both counsel today is an appropriate one:
"In exercising its discretion, the court should consider whether allowing a suspension to continue is fair and reasonable and proportionate, balancing any need to protect the public interest on the one hand and the doctor's interest in working and right to a fair trial on the other."
Four months is proportionate in the current circumstances and that is the period that I grant.[15]MR BRASSINGTON: My Lady, the application we now make is for the costs of this hearing to be paid by the doctor. I do not have a schedule of costs that I can put before the court today but I say the following. The doctor did not consent to the extension of the interim orders suspension imposed upon him by the Interim Orders Panel. The doctor served a statement on Mr Turner indicating objection per se to the extension of the order. No suggestion was made that consent would be given to a shorter period until my learned friend Mr Coonan made that offer to me this morning outside this court. The General Medical Council have prepared fully -- as you can see from the bundles that have been provided -- for a contested hearing today. The order has been extended now by consent. In those circumstances, we say that the doctor should bear the costs. If you are with me, my Lady, I invite those costs to be assessed if not agreed between the parties.

MRS JUSTICE BLACK: What have the orders been on previous occasions?

[17]MR BRASSINGTON: My Lady has the judgment of Sullivan J.[18]MRS JUSTICE BLACK: Yes. That is payment of costs summarily assessed.[19]MR BRASSINGTON: Yes. Of course, there have been other extensions as well. I cannot tell you off the top of my head.[20]MRS JUSTICE BLACK: The other one was slightly different. There was a consent order.[21]MR BRASSINGTON: Yes. These cases are often dealt with by way of consent order which is drafted and sent to the doctor prior to the hearing. Then the exercise is simply a paper exercise. Given the doctor's presence here today, that could not take place.

MRS JUSTICE BLACK: Can you resist the principle, Mr Coonan?

[23]MR COONAN: My Lady, I do for two or three short reasons. First of all, the General Medical Council have to make this application in any event under the provisions of the Act. It has to be an order of this court. Now, had matters proceeded differently, these proceedings would have been over and done with by today. You already have the point, and you have made observations about it in your judgment, as to the reasons why the case went off in August. Equally, it is a matter of regret, and certainly no fault of Dr George's, that the matter could not be refixed until May of this year. You have already observed, for reasons that you do not understand, why that is the case. So the fact is that the GMC have brought this on themselves in a sense. Had matters been administratively dealt with in a rather different way, the hearing could now have been over and done with. That is the point of principle.[24]The second matter is that since the application had to be made, you will see that in the body of the skeleton argument this is an opportunity for the doctor, because it is being reviewed in effect by the High Court to express legitimate concerns that there may be about it. It is not until today that we have had senior counsel instructed by the GMC give comfort to Dr George and his advisors that these concerns will now be dealt with. You will see from the correspondence at SRT 1 that the only response there has been from the General Medical Council is a very short letter dated 5th December of last year which was an inadequate response to those concerns. Since then there has been absolutely nothing. So it was entirely right, in our submission, that Dr George have this opportunity of raising these matters before you. As it happened, it has resulted in real progress in the interests of justice overall.[25]For those two major reasons, we say that there should be no order for costs.[26]MRS JUSTICE BLACK: Thank you very much. The GMC make application for their costs in relation to this contested application for an extension of Dr George's suspension. That application is resisted on behalf of Dr George for three main reasons.[27]First of all, it is said that the GMC have to make this application in any event by virtue of the Act, which requires that a court order be in place to extend any period of suspension. Secondly, it is said that it is because of procedural difficulties within the GMC that this matter has not been concluded by now by a Fitness to Practise Panel. I have already dealt with the question of the August Panel hearing which had to be adjourned, ultimately, for reasons which were not Dr George's fault, and then could not be refixed until after the end of the existing suspension period. Thirdly, it is said that today has afforded a valuable opportunity which was required by Dr George to express legitimate concerns about the procedural preparedness for the Panel in May, and only today, with the benefit of senior counsel on behalf of the GMC, have appropriate assurances been given which should ensure that those concerns are dealt with.[28]Dealing with that last reason first, this set of proceedings is not in any way a directions hearing for the Fitness to Practise Panel and it does not seem to me, therefore, that the fact that this opportunity has been taken to air and deal with concerns about procedural preparedness for that Panel should in any way suggest that Dr George is entitled to escape from the payment of the costs incurred by the GMC in coming here. It is clear to me that these proceedings could have been curtailed and costs kept to a minimum with written application being submitted together with consent to this court for an extension of the suspension, had Dr George been prepared to give that consent. He was not. He indicated that he objected to any extension at all, and it was not until today that any proposal was made for an agreement to a shorter suspension. The GMC, therefore, inevitably prepared fully for these proceedings and they have succeeded in front of me. In those circumstances, they are entitled to their costs, to be assessed if not agreed.[29]MR BRASSINGTON: I am obliged, my Lady.[30]MRS JUSTICE BLACK: The associate has made the very kind offer that you can draw the order if you would like.[31]MR BRASSINGTON: I do have a copy of a consent order that was prepared. It may well be that with slight amendments I can pass that over to the associate.

MRS JUSTICE BLACK: Thank you very much.