General Medical Council v Arnaot [2007] EWHC 1930 (Admin)

Case No CO/2225/2007[2007] EWHC 1930 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 26th June 2007
Before
MR JUSTICE CALVERT SMITH
Between
THE GENERAL MEDICAL COUNCILClaimant-v-
Between
DR. MAY RAMZEY ZAINAL TALHA ARNAOTDefendant
Computer Aided Transcript ofof 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. A. Colman appeared for Claimant.Mr. P. Engleman appeared for Defendant.
J U D G M E N T
[1]MR. JUSTICE CALVERT -SMITH: This is an application under section 41A(6) of the Medical Act 1983 to extend an interim order of suspension on the defendant, Dr. May Arnaot. The order was originally made on 2nd November 2005 for 18 months. It was reviewed, as is required under the statutory framework, on 11th April 2006, 6th October 2006 and, most recently, on 13th February 2007. On the latter date a Fitness to Practise Panel of the claimants directed that the Registrar apply to this court for the interim order to be extended. On the basis that the application would be granted, the panel determined further to review the extended order within three months of the court's determination. The original order was due to expire on 1st May 2007 but was extended by this court on 18th April 2007 until 1st July. The extension was ordered by Sullivan J in order primarily to enable the defendant to prepare her case and in the hope that there may be more common ground by that time.[2]A short adjournment this morning before argument was allowed to see whether the defendant's apparent concession within a skeleton argument presented today, that a speedy hearing before the General Medical Council of the defendant's case, would be possible in view of her concession that the conviction and sentence, which is now the subject of an appeal to the Court of Appeal, Criminal Division, could be considered as a valid conviction and sentence. This adjournment bore no fruit. The claimant is concerned that the defendant, who has a litigious history, may be represented by others, or indeed by herself, in any such disciplinary proceedings. In addition, the claimant indicated that she was not able to undertake a substantive hearing in three months, which was the longest period which the defendant was prepared to consider.[3]The background to the application is extensive. The General Medical Council was first informed of concerns in respect of the defendant in 1996, and in that year and in 1997 there were concerns about the defendant's personality, possible evidence of mental illness and the like. However, that period culminated with a decision of the GMC to allow the defendant to continue to practise with no conditions.[4]In 2003 there was complaint made to the GMC by a medical secretary. In the summer of 2004 a doctor found that she suffered from a paranoid personality disorder but the decision was taken that the defendant should be allowed to practise under supervision. In November 2004, since there was no "evidence of complaints from patients or poor clinical practice", the defendant was once again allowed to practise without conditions.[5]The matters which gave rise to the application on 2nd November 2005 date from about that period. In the autumn of 2004 it is alleged that the defendant used foul and abusive language to employees of a firm of solicitors when pursuing an outstanding invoice. In October 2004 she committed a racially aggravated assault on a member of staff at Kings Cross Station. On 29th June 2005 she was convicted of that assault and sentenced to four months' imprisonment suspended for two years. She appealed against that conviction at the magistrates' court. The Crown Court reheard the case and dismissed the appeal on 15th February 2007. On 10th August 2005 it is alleged that she drove a car dangerously and in doing so assaulted a pregnant woman by pinning her to a post with her car after an argument over driving. The same day a wholly independent person reported to the police an angry confrontation over a parking space.[6]The following day, 11th August 2005, the defendant had a serious operation designed to deal with a medical condition. On 11th May 2006, so it is alleged, she attempted to order a prescription pad for controlled drugs from a Primary Care Trust, thus, it is alleged, being in breach of the order for her suspension. On 1st October 2006 the defendant was convicted for the assault on the pregnant woman and dangerous driving. Sentence was imposed on 30th March 2007 of six months' imprisonment suspended for two years but consecutive to the original sentence of four months. In respect of that latter conviction she has appealed to the Court of Appeal, Criminal Division, and has the leave of the single judge to present that appeal.[7]The legal framework against which this decision is to be made has been put before the court. Section 35C of the Medical Act 1983 states:
"(1) This section applies where an allegation is made to the General Council against - a fully registered person; that his fitness to practise is impaired."
[8]subsection (2):
"a person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of - misconduct; deficient professional performance; a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence."
[9]the regime for interim orders is contained in section 41A of the same Act. Subsection (1):
"where an Interim Orders Panel or a Fitness to Practise Panel are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the panel may make an order - that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an 'interim suspension order'); or that his registration shall be conditional on his compliance.... with such requirements so specified as the Panel think fit to impose."
[10]by subsection (6) the General Council may apply to the relevant court for an order made by an Interim Orders Panel or a Fitness to Practise Panel under subsection (1) or (3) above to be extended, and may apply again for further extensions." subsection (7):
"on such an application the relevant court may extend (or further extend) for up to 12 months the period for which the order has effect."
[11]subsection (10):
"where an order has effect under any provision of this section, the relevant court may - in the case of an interim suspension order, terminate the suspension; .... substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it) and the decision of the relevant court under any application under this subsection shall be final."
[12]The test which the Interim Orders Panel imposes upon itself is said to be as follows. If the IOP is satisfied that(a) in all the circumstances there may be impairment of the doctor's fitness to practise which poses a real risk to members of the public or may adversely affect the public interest or the interests of the practitioner, and(b) after balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk, the appropriate order should be made. In addition, therefore, to replicating subsection (1) of section 41A, the IOP imposes upon itself a duty to balance the interests of the doctor and the interests of the public.[13]I have been referred by Mr. Engleman who represents the defendant to a case of the General Medical Council v Hiew in which the Court of Appeal judgment was given as recently as 30th April 2007, neutral citation [2007] EWCA Civ 369. This case concerned an interim order in respect of a doctor who was at the time it was made suspected of various forms of misbehaviour. The court was asked to hear the appeal which to some extent had become otiose because of a change of circumstances, so that some guidance could be given to the approach that courts such as this should take to an application under section 41A(7). A number of important statements of principle were made. At paragraph 26, having set out the relevant scheme, Arden LJ said:
"parliament could have provided that the IOP or Fitness to Practise panel, rather than the court, should have power to determine whether the period of any interim suspension order or conditional order should be extended. The courts could then review that determination on an application for judicial review in an appropriate case. That is not, however, the scheme for which Parliament has provided. Parliament has not provided that the IOP or the Fitness to Practise panel should in this respect simply operate in the shadow of judicial review, but rather that the court should have the power and duty to consider whether any extension of time beyond the initial period is appropriate. Under this scheme, the exercise in decision-making is to be performed by the court as the primary decision-maker." in paragraph 27 she went on: "in an appropriate case, and having given the parties an opportunity to be heard, the judge also has power under section 41A(1) to terminate the suspension or to shorten the current period of suspension. The powers conferred by section 41A(10) are also original powers and not merely powers of judicial review."
At paragraph 28:
"section 41A(7) does not set out the criteria for the exercise by the court of its power under that subsection in any given case. In my judgment, the criteria must be the same as for the original interim order under section 41A(1), namely the protection of the public, the public interest or the practitioner's own interests. This means, as Mr Englehart QC, for the GMC, submits, that the court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued. The onus of satisfying the court that the criteria are met falls on the GMC as the applicant for the extension under section 41A(7). Although Mr Engleman submitted that the standard of proof was the criminal standard, I prefer Mr Englehart's submission that the relevant standard is the civil standard, namely on a balance of probabilities. Proceedings for the extension of an interim suspension order are not criminal proceedings."
At paragraph 29:
"the judge must, however, reach his decision as to whether to grant an extension on the basis of the evidence on the application. He will need to examine that evidence with care."
Paragraph 31:
"the statutory scheme thus makes it clear that it is not the function of the judge under section 41A(7) to make the findings of primary fact about the events that have led to the suspension or to consider the merits of the case for suspension. There is, moreover, no express threshold test to be satisfied before the court can exercise its power under section 41A(7), such as a condition that the court should be satisfied that there is evidence showing that there is a case to answer in respect of misconduct or any other matter. On the other hand, if the judge can clearly see that the case has little merit, he may take that factor into account in weighing his decision on the application. But this is to be done as part of the ordinary task of making a judicial decision, and a case where a statutory body makes an application on obviously wholly unsupportable grounds is likely to be rare." pausing there for a moment, the court in Hiew was dealing with allegations which were all at that stage unproven, whereas in this case, at least as part of the background to the application, we are dealing with two separate criminal convictions. At paragraph 32: "the evidence on the application will include evidence as to the opinion of the GMC, and the IOP or Fitness to Practise Panel, as to the need for an interim order. It is for the court to decide what weight to give to that opinion. It is certainly not bound to follow that opinion. Nor should it defer to that opinion. All that is required is that the court should give that opinion such weight as in the circumstances of the case it thinks fit. Weighing up the opinion of a body that has special statutory responsibilities and relevant experience and expertise is again part of the ordinary task of judicial decision making." later in her judgment she dealt with the question of the requirement for proportionality which, as I have indicated, the IOP has incorporated into its guidance to itself. Having held that article 6 has no application, she said this: "but, like the Privy Council, I consider that there may be little, if any, difference between the Convention requirement for proportionality in this context and the requirements of the common law."
When the application was first made and written arguments put in opposing it, many of them were effectively an invitation to review the way in which the interim panel had come to its decision and to investigate whether the panel had, for instance, sufficiently taken into account the interests of the defendant, in particular, the consequences to her of this lengthy period of suspension and the further, as it is suggested, disastrous consequences to her of it being continued.[14]With that and other matters in mind, the court has read with some care the previous findings of the panel from the 2nd November 2005 onwards. But the court has considered the case today on the basis of the evidence before it, some of which post dates any finding by the IOP. The decision of 3rd October 2006 reads as follows:
"the panel has comprehensively reviewed the order today, and in so doing it has taken account of your submissions, the information before it previously, and the further information received today, including the transcripts of the previous hearings. In all the circumstances, the panel remains satisfied that it continues to be necessary for the order of suspension to remain in place. In reaching this decision the panel has taken account of Dr Arnaot's conviction on 29th June 2005 for racially aggravated assault for which she was sentenced to four months' imprisonment suspended for two years. Dr Arnaot has also been charged with serious criminal offences relating to driving and assault. Dr Arnaot has indicated in her letter of 25th September 2006 that the allegations will be heard on 23rd October 2006. The panel has also taken account of the allegation that since the last review of the order in April 2006 Dr Arnaot has acted as a medical practitioner in breach of the interim order suspending her registration by prescribing and also by acting as a medical examiner for the purposes of diving medical examinations. The panel notes the information received about Dr Arnaot's conduct and behaviour in relation to a solicitors firm with whom she had dealings in a professional capacity as an expert witness. The panel is satisfied that in all the circumstances there is continuing and ongoing cause for concern relating to Dr Arnaot's conduct and behaviour which, by her own previous admission, is occasionally inappropriate and dysfunctional. The panel considers that, owing to Dr Arnaot's conviction and the on-going criminal proceedings and also her alleged breach of the interim order imposed on her registration, she may pose a risk for the confidence that the public are entitled to place in the medical profession and its practitioners if her registration were to remain unrestricted. Having also considered the matters relating to Dr Arnaot's health as well as the submissions made by the GMC previously, the panel has further determined, on the basis of this information, that an interim order is necessary to protect not only patients but also her own interests. 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 Dr Arnaot's own interests against the consequences for her of the suspension of her registration. Whilst it notes that its order has removed Dr Arnoat's ability to practise medicine, it considers that, bearing in mind the serious nature of these matters, there are no conditions that would adequately protect members of the public and provide sufficient safeguards for the public interest or protect Dr Arnaot's own interests. In all the circumstances it considers that the suspension of Dr. Arnaot's registration is a proportionate response."
[15]Mr. Colman, in presenting the application to the court, has relied in particular on the question of the risk to the confidence that the public are entitled to place in the medical profession and its practitioners and the general standing of the profession in justifying the continued suspension of this practitioner. He points to a long history of aggressive behaviour of one kind of another, exemplified in particular by the instances in 2005 where she stands convicted of separate offences of assault, but more so upon outbursts of temper within the professional context, albeit none of them connected with her treatment of individual patients.[16]Mr. Engleman on her behalf points to a number of factors which in his submission should lead to the refusal of the application or, in the alternative, to the granting of it for a far shorter period than is sought by the claimant. He accepts, for the purposes of this hearing, that there is indeed sufficient evidence in connection with the racially aggravated assault, the driving assault matter, the matter concerning the solicitors and the apparent breach of the order by prescribing or examining diving tests. He submits, however, that those matters, serious though they may be, do not sufficiently impinge upon the interests. If members of the public, the public interest generally or indeed her own interests. He stresses the fact that there is no evidence that any patient has been put at risk. There have been no incidents of any kind of that type since August 2005 when the defendant had the operation for the medical condition from which she was suffering.[17]In support of his submission he relies upon reports from a Mrs. Wilson and a psychologist, Dr. Mann. It is also fair to say that, to some extent, the claimant too relies on those findings. Her report is dated 16th June 2007. She had been supplied with a great deal of the background information, including all the matters to which I have referred in summary as forming the background to the application. She points out in paragraph 4.1 that the defendant refused to engage in psychological assessment on meeting. She questioned her experience and age and felt that she did not have the necessary experience to assess her. A little later she was intimidating and dismissive. However:
"once Dr. Arnaot agreed to continue with the assessment she calmed quickly and was able to engage fully with no further difficulties."
[18]She showed no obvious signs of mental illness during the assessment session but she scored very high on a number of psychological assessment indicators. She scored high for what was described as trait anger, angry temperament and anger expression, which gave rise to her opinion that Dr. Arnaot "is quick tempered and readily expresses her anger and feelings with little provocation. Such individuals are often impulsive and lacking in anger control but not necessarily vicious or vindictive in attacking other persons. This may indicate a strong authoritarian trait and may use anger to intimidate others."[19]A little later is an indication that she frequently expresses her anger in expressive behaviour directed to other persons or objects in the environment. This may be expressed in physical acts, such as assaulting others. A little later she was said to have exhibited elevated scores in a number of other clinical features, paranoia, aggression, dominance and treatment rejection. So far as the latter is concerned, the score reflects: "a person who admits few difficulties and has no desire to change the status quo. Such individuals are not likely to seek therapy on their own initiative and will likely be resistant if they do begin treatment. They will probably dispute the value of therapy and have little if any involvement in any therapeutic attempts." a little later on: "the nature of the incidents and offences described do not indicate that paranoia was the motivating factor behind Dr Arnaot's aggression. It appears that an inability to control her anger rather than paranoid or delusional thought processes is the salient factors behind her aggression. As such, there is no clear indication that the presence of personality disorder increases her risk of aggression to others." when dealing with the question of fitness to practise and risk, Dr. Mann said: "there is no evidence to suggest that these paranoid beliefs have affected Dr Arnaot's ability to practise as a physician to date or that such beliefs are linked to increased risk of aggression or violence towards others. Dr. Arnaot is someone who has a very angry temperament, is very quick to anger, and will express this verbally and on occasion physically. On the whole, Dr. Arnaot's anger has been expressed verbally and the two instances of physical aggression appear to have occurred at a particular time of great stress. It appears that Dr Arnaot has the capacity to manage her anger so that she does not react physically apart from times of great stress. The risk of physical aggression towards others appears to be low unless circumstances involving stress and possible medical issues are repeated." a little later: "although Dr. Arnaot's high level of anger is likely to continue to present, it appears that the risk that her anger will be directed towards her patients or that it would affect her ability to practise is low." finally she says: "to date Dr. Arnaot's anger difficulties and her paranoid beliefs have not directly affected her ability to function as a physician. She has never received complaints from a patient and it is likely that her continued practice would not present further risks to her patients or in her ability to practise professionally." that said, none of the submissions that Mr. Colman has made are based upon any allegation that Dr. Arnaot is incapable, through any medical or mental condition, from practising her profession.[20]Mrs Wilson's report of 20th March 2007 describes the condition which led to the operation on 11th August, to which I have already referred. She suggests that most women who come to hospital for major surgery of this kind have the opportunity to relax the night before and prepare themselves, as well as having the support of friends and family:
"Dr. Arnaot told me that she was driving at 9 o'clock the evening before trying to tie up commitments before she came in early the next day. The incident to which she referred occurred that evening. She was subsequently admitted on 11th August 2005 and underwent her operation and was discharged a week later." the incident had been the incident involving the driving and the assault. The report goes on: "
I believe she has gone through a very distressing time." she described the condition:
"secondly, she is a sole practitioner and is not well supported in her practice, so that all of the responsibilities fall upon her shoulders and, thirdly, she is prone to perimenopausal mood swings. She admitted this to me. She is always regretful when she has lost control but feels that this happens because of her age." a little later: "
I sincerely believe that this woman requires help with counselling with management of her anger and I believe the symptoms she has suffered from in the last two or three years are typical of problems that many women in their early 50s experience." she indicates that when she last saw her on 14th March 2007 "she told me that she had felt very much better."[21]Mr. Engleman's principal submission on her behalf is that the series of events which form the major part of the complaint against her are unlikely to reoccur as a result of, to a large extent, the operation of 2005, supported by the fact that there are no such incidents reported since then. She has put in, in support of her resistance to the application, a number of references and letters from patients, all of which attest to her professionalism and an absence of the sorts of difficulties which she seems to have experienced outside the surgery. In addition, she has presented -- it does not appear that it has been presented before in the detail that the court has had today -- the consequences to her of this long period of unemployment. She has lost her home as a result of her inability to work and is living in a caravan. A number of threatening letters and county court judgments have been issued against her during this period. Mr. Engelman submits that a period of two and a half years, were this application to be granted, is simply too long. It is unfair to wait until the criminal process, which has taken already nearly two years, to finish. Finally, he submits that the GMC should, within the next three months, set down a date for a hearing on the basis that, if the conviction for assault and dangerous driving has still not been tested in the Court of Appeal, Criminal Division, the hearing should proceed on the basis that they are valid convictions.[22]I have considered these conflicting submissions against the background of the helpful framework provided by the judgment in the case of Hiew. I have come to the firm conclusion that the combination of the psychiatric and medical history, the two serious criminal convictions, the alleged -- that is all it is at the present -- abuse of fellow professionals, and the alleged deliberate flouting of the order by prescribing drugs, do justify the continuation of this order. However, even though it could be said that in respect of the first conviction the proceedings were prolonged by the defendant's refusal to accept the verdict of the magistrates and pursuing the matter to the Crown Court for a full rehearing, and even though it can be said that there is a final decision by a jury in respect of the latter matter, Dr. Arnaot is entitled and now has the leave of the Court of Appeal, Criminal Division to appeal that latter conviction. The period of suspension is a very long one. It seems to the court that the Court of Appeal, Criminal Division, could easily accommodate what should be a short hearing on two particular issues at the trial in the near future, and that the claimant could start to fix a date, so that there is some certainty about when the final decision on this defendant's practice can be made.[23]In view of the conviction, which is not the subject of the appeal and the other matters to which I have been referred, there is bound to be a hearing, and therefore it seems to the court that that hearing should be fixed. By the time it takes place it will be known whether there are two set of convictions to be considered or one. To wait for the Court of Appeal's decision before even deciding when to convene a panel, bearing in mind Mr. Colman's information that, even were they start to look for a hearing date now, it would not be until the end of the year that one would be available, it is essential that process begins now. Accordingly, the order I propose to make is that the application is granted, but to the extent of eight months which will take us to the end of this year. From the date the order expires it will be open to the defendant under section 41A to apply for a further extension. I imagine that the court would be quite unsympathetic unless it was for a short period.[24]MR. ENGLEMAN: In relation to the costs of this application, the only order I seek is that the defendant's costs of this application are to be assessed on the standard basis and subject to a detailed assessment in accordance with the Community Costs Regulations.[25]MR. JUSTICE CALVERT SMITH: You may have that order.[26]MR. COLMAN: I have an application for costs. It will be a matter for the General Medical Council to consider whether any such order is worth enforcing. My application is for costs against the defendant. I have a summary assessment which I hand up.[27]MR. JUSTICE CALVERT SMITH: In the normal case -- this is a conviction case rather than an investigation case -- to obtain costs from somebody who has not been convicted yet is a bit harsh. Is it normal?[28]MR. COLMAN: It is normal to apply for costs. Normally the court apply the normal principle that costs follow the event. Before any application such as this gets to court, a draft consent order is sent out.[29]MR. JUSTICE CALVERT SMITH: There could have been a consent?[30]MR. COLMAN: That was done in this case.[31]MR. JUSTICE CALVERT SMITH: On the other hand, you have not got everything you asked for.[32]MR. ENGLEMAN: I oppose the application for three reasons; firstly, this is still an allegation; secondly, my friend has only succeeded in getting eight months as opposed to a year, and, thirdly, I am publicly funded. It is not worth the candle unless my client's fortunes improve. For those reasons I submit that there should be no order for costs.[33]MR. JUSTICE CALVERT SMITH: I do not think it appropriate to make the order.