General Medical Council v Dutt [2007] EWHC 1031 (Admin)

Case No CO/2365/2007[2007] EWHC 1031 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 30 March 2007
Strand
London WC2
B E F O R E:
KENNETH PARKER QC
Between
THE GENERAL MEDICAL COUNCILClaimant-v-
Between
DEV DUTTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR IVAN HARE (instructed by GMC Legal) appeared for CLAIMANT for The Defendant did not attend and was not represented
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an application by the General Medical Council under section 41A(7) of the Medical Act 1983 ("the 1983 Act") for the interim order of suspension imposed by the GMC Interim Orders Panel on 4th October 2005 in relation to Dr Dutt, the defendant to these proceedings, to be renewed for a period of 12 months valid until 2nd April 2008.[2]By faxes sent on 26th and 27th March Dr Dutt stated that he was ill in London and that he was unable, therefore, to attend this hearing and requested that this hearing be adjourned. No attempt was made in those communications to point to any independent and objective evidence that the doctor was ill as he claimed. In particular, there is not any medical certificate before the court to support his claim that he is indeed ill and unable to attend this hearing.[3]I have to take into account on that aspect of the matter the judgment of HHJ Hawkesworth QC on 16th November 2004 at the termination of civil proceedings in which Dr Dutt was an unsuccessful claimant. In those proceedings Judge Hawkesworth had found that Dr Dutt was a very unreliable witness indeed, and had given inaccurate evidence to the court which the doctor must have known was not truthful. Furthermore, HHJ Hawkesworth referred in passing to a number of occasions in which Dr Dutt claimed that he was unfit or unable to attend hearings and asking for a succession of adjournments. It is plain from the tenor of the judgment of Judge Hawkesworth that he did not believe that the doctor was unable to attend, at least on a significant number of those occasions when he claimed that he was unable so to attend. Therefore, with that background and in the absence of any medical evidence and taking into account the urgency of this application and the very important public interest that it supports, I refuse the application for an adjournment and proceed to the substance of the application.[4]The relevant background is set out in paragraphs 10 to 64 of the witness statement of Janet Gray on behalf of the GMC. In outline, there are two complaints against Dr Dutt: the first raised by Huddersfield Central and South Huddersfield PCT about his clinical competence and the second from David and Julie Ruddiman concerning litigation Dr Dutt had pursued against them and others.[5]So far as the PCT complaint is concerned Dr Dutt came to the attention of the GMC as a result of receipt of a letter on 27th April 2005 from the PCT referring to significant clinical concerns about Dr Dutt's care and treatment of patients.[6]The PCT had suspended Dr Dutt from its Performers' List on 4th February 2005. The PCT commissioned a number of further reports into Dr Dutt's practice. As a result of the serious and widespread concerns contained in these reports the PCT decided to remove Dr Dutt from its Performers' List on 24th May 2006.[7]On 12th June 2006 Dr Dutt was declared bankrupt. The GMC subsequently received a further e-mail of 8th August 2006 indicating that Dr Dutt's appeal against his removal had been dismissed and attaching further correspondence which purported to be from patients who complained about the manner in which Dr Dutt had been treated. The PCT indicated that it suspected that Dr Dutt was the real author of these letters.[8]On 17th August 2006 the PCT indicated to the GMC that it suspected that Dr Dutt may still be working as a doctor in the Leeds area.[9]The GMC has subsequently, on 11th September 2006, received a report from Dr Harker, which expressed further concerns based on Dr Harker's assessment of patient records, and this morning Mr Ivan Hare, who appeared on behalf of the GMC, specifically took me to that evidence.[10]The GMC has also commissioned separate expert reports from Professor McWilliam and Dr Pidd, received on 28th November 2006 into Dr Dutt's mental state.[11]In relation to the second matter, the Ruddiman complaint, the Ruddimans wrote to the GMC on 8th February 2005. Dr Dutt had issued county court proceedings against the Ruddimans, claiming very substantial damages. As a result of this litigation and some nine other cases Dr Dutt had brought HHJ Walsh recommended a civil restraint order should be made in relation to Dr Dutt. An extended civil restraint order was subsequently made. The Ruddimans also raised serious questions about Dr Dutt's professional integrity based on the fact that Dr Dutt appeared to have indicated that Mr Ruddiman was medically predisposed to lying on the basis of his medical history, and again this morning Mr Hare referred me specifically to Volume 2 page 871 of the application bundle and referred me to the affidavit evidence that indicated that indeed Dr Dutt had behaved in the unprofessional and unethical way alleged by Mr Ruddiman.[12]The IOP's powers are set out in section 41A of the 1983 Act and I need not recite those provisions because they are well known.[13]At the hearing before the IOP the IOP suspended Dr Dutt for 18 months. The IOP considered some 141 allegations concerning Dr Dutt's fitness to practice, and I summarise the core finding of the IOP, namely:
"The panel is particularly concerned about the performance issues outlined today which would appear to demonstrate serious and wide ranging deficiencies in your practice. The Panel has concluded that these matters demonstrate that your fitness to practice may be impaired and that you may pose a real risk to members of the public, the public interest and your own interests if you were to continue in practice. ... The Panel has taken account of the issue of proportionality and has balanced the need to protect members of the public, the public interest and your own interests against the consequences for you of the suspension of your registration. While it notes that its order has removed your ability to practice medicine in it considers that there are no conditions that would adequately protect members of the public, the public interest or your own interests. It is therefore satisfied that the order of suspension is a proportionate response."
[14]In accordance with the 1983 Act, the IOP reviewed its decision on 31st March 2006, 26th September 2006 and 31st January 2005.[15]In relation to the present application the court has an original jurisdiction and does not merely exercise its supervisory powers. Secondly, the court is required to apply the same tests as the IOP, to which I have referred, under section 41A; and thirdly, the court must attach due weight to the view formed by the IOP which is the expert and experienced body in relation to fitness to practice and the public interest. This is particularly the case where the IOP has formed a judgment about the professional competence of a doctor.[16]I am satisfied that the conditions have been made out in this case and I make the order in the form of the draft order that is contained in Volume 2 of the trial bundle. I make that order principally on the following grounds: firstly, the suspension imposed by the IOP will lapse on 3rd January 2007; secondly, the suspension was imposed, as I have explained, in relation to allegations of serious performance, shortcomings and other concerns about Dr Dutt's integrity; thirdly, the suspension was considered necessary and proportionate by the IOP on the basis of the clear evidence of the experts' reports and the Ruddimans' complaint, and I have found nothing in the material that would suggest that the IOP decision on that matter is in any way questionable; fourthly, Dr Dutt's case is now listed before the FPP for a six-week hearing beginning on 15th October 2007; and fifthly, the effect of the FPP's decision will be to replace that of the IOP with an order for 12 months which will give sufficient time in this case in case there is a need for an adjournment and it will avoid the inconvenience and difficulty of the applicant coming before the court again. So for those reasons I make the order in the terms of the draft before the court.[17]Is there anything particularly you want to say about the form of the order before I formally endorse it?[18]MR HARE: I have actually done a redraft of the order, partly because of your Lordship saying that the matter of substance was drafted on the basis that it was an application for the doctor's consent, which of course we know was not forthcoming.[19]THE DEPUTY JUDGE: I will take that out.[20]MR HARE: I have also indicated on the basis of an indication from the doctor's solicitors that I had at the time, my Lord, that Dr Dutt would be in attendance, and therefore included "on the hearing of defendant in person", which perhaps your Lordship may wish to strike out.[21]THE DEPUTY JUDGE: I delete that.[22]MR HARE: As you will see from paragraph 2 there is one other matter that I have included in that order that I would like to address your Lordship on; that is the question of the GMC's costs of today.[23]THE DEPUTY JUDGE: I did not have your schedule sent over to me.[24]MR HARE: As your Lordship is aware, the GMC is required to make the application in relation to the expiry of the 18 months original order and therefore we cannot properly claim anything in relation to the preparation for that order, therefore my instructing solicitor's time should be taken off. But as your Lordship may be aware from tab 2 of the bundle, in any event I have brought copies of these letters along, the GMC did invite the doctor to consent to this order and in those letters both to him and to his solicitor warned him that if he did not consent then the GMC would apply for its cost of appearance today, which obviously would not have been necessary had he done so. So my Lord, I do say that the GMC ought to be entitled to some of its costs; that they can be properly summarily assessed, and I would suggest the sum that relates to my preparation of skeleton argument and appearance today should be the appropriate sum, my Lord.[25]THE DEPUTY JUDGE: Is that £650?[26]MR HARE: £650, my Lord.[27]THE DEPUTY JUDGE: That is significantly lower than some of the orders I made in relation to these applications, so it does not seem, on the face of it, to be disproportionate. So far as costs are concerned therefore, I will rule that you are entitled to your costs in circumstances in which on the evidence you have made it plain to the defendant and his representatives that if he did not consent and you were successful on this application that you would be asking for your costs. Had he consented, there would have been no need for this hearing and no costs. However, he did not appear either in person or through a representative. The matter has proceeded. The application has been successful and, in my judgment, it was necessary for this application to be made in the public interest and for a proper appearance to be made in the absence of any indication from the defendant that he would not be appearing.[28]As for the quantum, I have before me a schedule which shows very substantial costs of preparing the documentation in relation to this hearing. That work had to be done and indicates the amount of work that is done, but quite properly the application for costs is limited to the actual costs of today, which is claimed in the sum of £650. As I said, I have a certain amount of experience in relation to these applications and that sum does appear reasonable and proportionate, having regard to the complexity of the matter and the importance of having the applicant properly represented before the court.[29]MR HARE: I am obliged, my Lord.