General Medical Council v Hiew [2007] EWHC 1078 (Admin)

Case No CO/3049/2007

[2007] EWHC 1078 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 20th April 2007

Strand

London WC2

B E F O R E:

MR JUSTICE COLLINS

Between

GENERAL MEDICAL COUNCILClaimant

-v-

Between

STEPHEN CHEE CHEUNG HIEWDefendant

(Computer-Aided Transcript of the Palantype Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

MR ANDREW COLMAN (instructed by GMC Legal, Manchester M1 6FQ) appeared for Claimant

MR SHAUN MURPHY (instructed by Messrs Edwards Duthie, London E13 8PT) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE COLLINS: This is an application by the General Medical Council ("the GMC") for the extension of an interim order made against Dr Stephen Hiew, whereby conditions have been attached to his registration. Until recently, the interim order comprised a suspension. But that has been amended to the imposition of conditions, to which I will come in due course. The amendment took place on 5th January 2007, following a hearing before the Interim Orders Panel of the GMC, which itself followed a decision of Bean J whereby he extended for a period of six months the order of suspension. Bean J's decision was reached on 17th October 2006.

[2]The history, briefly, is this. In July 2004 the relevant Primary Care Trust gave information to the police which alleged that there were fraudulent practices within the practice in which Dr Hiew was then a partner. Broadly speaking, the allegations were that treatment allegedly provided and advice on contraception and so on allegedly given had not been provided or given; that hours worked and claimed for had not in fact been worked; and that there were gross deficiencies in the manner in which the practice was run, in that patients were not able to get appointments when they ought to have done, so that monies were obtained from the public purse to which the practitioners were not entitled. The practice had as its practice manager the husband of one of the doctors, by name Thapar. Following that allegation the Committee of the GMC met, in private originally, in July and were asked to decide that in principle the problems that had been identified justified some action to be taken against Dr Hiew and perhaps against the other doctor, but I am not concerned with her.

[3]However, it was not until April 2005 that proceedings were ultimately taken. Mr Murphy makes the point in the context of this application that it is, to say the least, strange that the GMC, if it was such a serious matter and such a risk to patients, took nine months to do anything about it.

[4]However, the decision in April 2005 was that there should be a suspension for a period of 18 months. As the legislation provides, such an order, whether it be to impose conditions or to suspend, has to be reconsidered by the Interim Orders Panel ("the IOP") at periods of not more than six months. So although they may say 18 months, that is not 18 months certain. It is 18 months, subject to consideration from time to time.

[5]I should add that in addition to the allegations to which I have referred there was apparently some search or investigation made at the practice premises. It was discovered that there were a number of defects. In particular, in Dr Hiew's room he had prescription pads in an unlocked cupboard. There were apparently returned drugs being around not properly accounted for. There were patients' records and information about patients also lying about, and indeed not properly kept under control. All of that was potentially damaging to patients and to their care. In addition, it was discovered that in one of the nurse's rooms the refrigerator was not working properly, so that vaccines kept had deteriorated and were no longer of any use, and indeed might be dangerous. There were various other defects, the details of which it is not necessary for me to go into at this stage.

[6]So, so far as proceedings relating to conduct were concerned, there was not only the overall allegation of dishonest conduct, but also concerns about the dangers to patients, as a result of the dishonest conduct, but also as a result of the lack of proper control apparently exercised in the practice.

[7]In any event, as I say, the IOP decided to suspend, and those suspensions continued for the full period of 18 months. An application was made to Bean J on 17th October for an extension. He decided, although the application was for an extension for 12 months, to permit an extension for six months.

[8]Bean J's decision was appealed to the Court of Appeal. I am told that the appeal has been heard, but that judgment is due to be given some time next month. Broadly speaking, what was a ground of appeal was that Bean J should have but did not consider the merits (if I may put it that way) of the case against Dr Hiew. He should have gone on to consider what were the nature of the allegations and the strength of those allegations before reaching his decision that it was appropriate to extend. His order has now expired: it ran for six months from October. The claim before me is for a further extension of 12 months, but not of suspension but continuation of the conditions.

[9]So far as the criminal investigation was concerned, that resulted in a decision by the Crown Prosecution Service to take no further action against Dr Hiew. But proceedings were brought against Dr Thapar and her husband, the practice manager. Those came before the court in due course. I think the matter was finally disposed of in December 2006. Mr Thapar, the practice manager, pleaded guilty to a number of charges, I assume, or perhaps an omnibus charge and was, I am told, sentenced to 18 months' imprisonment. The decision was made that no further action should be taken against Dr Thapar, and so she was discharged. I assume that some proceedings have been brought against her before the GMC, but I have no information about that and, as I say, it is not directly material for the purposes of these proceedings.

[10]The GMC is not aware of the extent of the material which led to the CPS's decision not to proceed against Dr Hiew, and equally does not have full details of the evidence that was available in criminal proceedings. They have asked the CPS to disclose, but for some reason (and on the face of it it cannot conceivably be a good reason) nothing has yet been forthcoming from the CPS. That on the face of it is disgraceful. The sooner the CPS comply with their obligations to provide the information, the better. The GMC has, I think, power to apply to the court if necessary to require the provision of material. If I am right about that and if an application were made, I would be very surprised if an order was not immediately made.

[11]The result is that Dr Hiew has found himself in a position, as a result of suspension followed by the imposition of conditions, of being unable to practise as a doctor for now some 2½/2¾ years. As a result he has obviously found himself in a very difficult situation. The fact is that interim orders are intended to hold the position before proceedings are taken. Although of course there is power to extend them beyond the 18 months, that ought to be an exceptional state of affairs. It is clearly not in the interests of anyone, least of all the doctor, that he should be unable to know his fate and if innocent should be cleared of any misconduct as soon as reasonably practicable. I appreciate in the circumstances of this case it is not the fault of the GMC that the CPS has not provided it with the necessary information.

[12]What I am bound to say does concern me is that on 23rd March 2007 draft allegations were formulated. Those draft allegations include allegations that Dr Hiew had, for example, made or instructed others to make entries into medical records which were false, and the result of that was that the patients were put at risk, and he had profited from the claims made to the PCT. At the end of the allegations it is said that his actions had been, among other things, dishonest. Accordingly, on the face of them the draft allegations were making allegations against him of criminal conduct which was the very conduct which the CPS decided should not result in criminal proceedings, and in respect of which the GMC had at the time no evidence in support. It seems to me that it is quite wrong for allegations of dishonesty to be made against a doctor unless the GMC has material which justifies the making of those allegations, and it did not have at this stage any such material available to it. Indeed quite the contrary, because all that it knew was that those allegations had been made to the police, the police had investigated them and the result of that investigation was that the CPS decided that no criminal proceedings should be brought against Dr Hiew.

[13]It is plain that it was those allegations which originally led to the decision to suspend. At the initial stage, before the police investigation had been concluded, it may well have been a justified move by the IOP to suspend. But once the decision had been made not to proceed, it seems to me that a decision to suspend became entirely inappropriate. It has not been suggested that Dr Hiew has mistreated patients or has failed to treat patients in a proper fashion. I appreciate there are the allegations about the falsification of the records, but it is his contention, and clearly has always been his contention, that he was not involved in that practice. That was not something which should be laid at his door. Whether or not in due course any of these allegations will be established I do not know, but I cannot assume and the IOP should in my view not assume in the light of the material that was available in this case that those allegations could be proved. However, they do not go to whether he should be allowed to practise as a doctor. They go to whether he should be allowed to practise in a position which means that he is in control, whether as a sole practitioner or perhaps as a managing practitioner. The likelihood of that happening is fairly remote, because he would in any event have to inform anyone with whom he was to go into practice of the outstanding proceedings before the GMC and the nature of them. Any such person could then make the necessary investigations to see what lay behind them, or what the allegations amounted to. Furthermore, he cannot practise within the National Health Service unless he is registered (if that is the right word) with a PCT, and of course the PCT will receive the necessary information about any proceedings and accordingly would be unlikely to approve any practice which allowed him either to manage or to practise on his own. In fairness, I do not understand that he wants to practise on his own or to be in a managerial position. Mr Colman points out that he would, unless there were conditions, be able to set up as a private practitioner and there were concerns about that.

[14]The conditions which are now in place were decided on by the IOP, as I have said, on 5th January 2007. They require:

"1. You must notify the GMC promptly of any professional appointment you accept for which registration with the GMC is required and provide the contact details of your employer and PCT on whose Medical Performers List you are included. 2. You must allow the GMC to exchange information with your employer or any organisation for which you provide medical services. 3. You must inform the GMC of any formal disciplinary proceedings taken against you, from the date of this determination. 4. You must inform the GMC if you apply for employment outside the UK."

[15]Pausing there, Mr Murphy does not on behalf of Dr Hiew object to those conditions if I were to decide that any conditions were required. He does submit that no conditions in the circumstances at this stage should be required, but, if any, then he does not object to those. What he does object to are the next three, numbers 5, 6 and 7. They read as follows:

"5.a. You must confine your medical practice to general practice posts under the supervision of a named supervisor. b. You must seek a report from your supervisor for consideration by this Panel, prior to any review hearing of this Panel. 6. You must not undertake any out-of-hours work or on-call duties. 7. You must not undertake any locum posts of less than 1 month's duration."

[16]Then condition 8 requires him to inform various parties that his registration is subject to whatever conditions are appropriate. Again that condition, if any conditions are to be imposed, cannot be regarded as objectionable.

[17]I have been very concerned to decide whether any conditions or any order is now appropriate, having regard to the lapse of time and more importantly to the fact that the allegations against Dr Hiew, in so far as there is any evidence before the GMC to support them, do not suggest on their face that as a practitioner he is a danger to patients. Of course, if he had been involved in falsification of records that would be different, but it is those allegations that on the face of them have not been pursued and in respect of which there is at present precious little, if any, evidence. The only matters which give me any cause for concern is that he has been involved in a practice which clearly was not run properly, and there is some indication from what was discovered in his room that he has been less than as careful as he should have been in the manner in which he has dealt with various aspects of his obligations in respect of patients.

[18]Mr Murphy makes the point that Dr Hiew will, if he obtains a post, be obliged to give the full information to any practice or any agency by which he is employed. Accordingly, he will not have the opportunity to fall below the proper standards in record keeping, in how he deals with various matters that doctors nowadays have to deal with. Indeed, if he were to, then there is no question than that he would not be able to maintain his employment. The only risk might be if Dr Hiew chose to try to set up practice as a private practitioner. That is, I suppose, a theoretical possibility, but I am satisfied that I am correct in my understanding that it is no more than a theoretical possibility.

[19]In all the circumstances, having regard to the history of this case and the manner in which it has been dealt with hitherto, I am not persuaded that it is at this stage necessary to extend any interim order. I do, however, make this point. When the GMC does receive the information from the CPS and has had a chance to digest it, it may be that it shows that there are indeed matters which are of real concern in respect of Dr Hiew and so it might be appropriate to impose conditions. There is no reason why the IOP should not reconsider the matter afresh if, but only if, there is produced material which is new and which does establish a real concern that there is a need for an interim order. One hopes of course that if that arises the situation will by then be that the GMC is able to formulate whatever charges are appropriate and that a hearing will take place within a reasonably short time, because by then the GMC will have available to it all the necessary information. I would not want it to be thought that this order of mine means that there can never be a fresh consideration and a fresh interim order if, as I say, but only if, there is material which is produced which shows that it is appropriate to make such an order.

[20]I suggest that the GMC tear up the draft allegations that they have made, certainly in so far as they rely on the allegations relating to criminal conduct. They can of course, and it is appropriate no doubt that they should, refer to the matters that do not depend upon the allegations of criminal conduct. That at least gives the doctor an indication of the sort of things that he is likely to have to face. But surely it cannot be until they receive the full information that they are in a position to prefer proper charges against Dr Hiew. I hope that will happen soon. I am quite content that my observations about the CPS's conduct should be conveyed to them, so that they know that they are likely to find themselves having to pay considerable costs if it is necessary for the GMC to make an application to the court in order to obtain material which ought to have been provided some time ago. We are now four months on from the request first made on 19th December 2006. As I say, on the face of it there can be no conceivable excuse for the failure to pass on the necessary information and material.

[21]But as it is, I do not extend the conditions and accordingly this application is refused.

[22]MR MURPHY: My Lord, can I deal with the question of costs of this hearing?

MR JUSTICE COLLINS: Yes.

[24]MR MURPHY: Can I pass up for your Lordship's consideration the statement of costs.

[25]MR JUSTICE COLLINS: Yes. (Handed) Sorry Mr Colman you have not done very well, have you, in the last two days. It is one of those things. May I immediately say it is no fault of yours.

[26]MR COLMAN: I am grateful.

MR JUSTICE COLLINS: You have done the best you could conceivably do in the circumstances.

[28]MR MURPHY: My Lord, could I just add this detail. On 18th April it was indicated to the GMC on behalf of Dr Hiew that he was minded to consent to a 3-month order. I would ask your Lordship to say that that was perhaps a very reasonable if not generous offer on his part. Needless to say it was refused by the General Medical Council, and so I pray that in aid in support of this application.

MR JUSTICE COLLINS: In aggravation.

[30]MR MURPHY: Yes, aggravating damages.

MR JUSTICE COLLINS: Mr Colman, I do not think you can resist, can you, an order?

[32]MR COLMAN: I cannot, my Lord.

[33]MR JUSTICE COLLINS: No. So what about amount? I mean, have you had an opportunity of studying this?

[34]MR COLMAN: My Lord, I have. Had your Lordship decided the matter in the other way, there would have been a similar amount sought by the GMC. So I cannot resist that.

MR JUSTICE COLLINS: So you cannot complain about the amount?

[36]MR COLMAN: No.

[37]MR JUSTICE COLLINS: Very well then, you shall an order in the sum of £2,506. Sorry, I am looking at the wrong --

[38]MR MURPHY: It is £2,975.

MR JUSTICE COLLINS: £2,975.10 including VAT.

[40]MR MURPHY: My Lord, yes.

[41]MR JUSTICE COLLINS: Very well. This is dismissed then with costs in that sum.

[42]MR MURPHY: Thank you.

[43]MR JUSTICE COLLINS: Thank you both for your assistance. Do not bother to wait. As you know I have a couple of matters where there is no attendance just to dispose of. Is there anything that either of you want back from the material that is before the court?

[44]MR COLMAN: I lent your Lordship the black folder.

MR JUSTICE COLLINS: Sorry?

[46]MR COLMAN: I think the folder that I passed up.