Kamel, R (on the application of) v General Medical Council [2007] EWHC 313 (Admin)

Case No CO/135/2006[2007] EWHC 313 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 7th February 2007
Strand
London WC2
B E F O R E:
MR JUSTICE MITTING
THE QUEEN ON THE APPLICATION OF KAMEL
(CLAIMANT)
-v-
GENERAL MEDICAL COUNCIL
(DEFENDANT)
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MR M AFEEVA (instructed by Direct Access) appeared on behalf of the CLAIMANT
MR B JAFFEY (instructed by the GMC) appeared on behalf of the DEFENDANT
J U D G M E N T
Between
Kamel, R (on the application of)ClaimantGeneral Medical CouncilDefendant
[1]MR JUSTICE MITTING: Dr Kamel appeals against the decision of the Fitness to Practise Panel of the General Medical Council made on 8 December 2005 to continue his suspension from the Register of Medical Practitioners for 12 months. The facts are straightforward. The statutory background against which the facts must be assessed is not.[2]I deal, first of all, with the facts. Dr Kamel retired from the general practise in Reading on 14 July 2003. He did so with the good wishes, as far as I can tell, of the great bulk of his patients and with, at a minimum, many of his staff and colleagues, but not all. On 18 March 2003, that is to say about four months before he retired, Dr Smith, the Clinical Governance Lead of Reading Primary Care Trust, referred Dr Kamel to the General Medical Council's Fitness to Practice Directorate expressing concerns about his ability to work with colleagues.[3]On 15 August 2003, the GMC invited Dr Kamel to agree to an assessment of his professional performance by an Assessment Panel. He declined. On 24 October 2003, Dr Kamel was notified that a hearing would take place before an Assessment Referral Committee on 1 December 2003. He did not attend. The hearing was adjourned until 23 February 2004. Again Dr Kamel did not attend.[4]The Assessment Referral Committee proceeded in his absence. It decided that Dr Kamel's professional performance may have been seriously deficient and directed that he undergo a performance assessment. He did not do so.[5]On 5 June 2004, he was notified of a hearing by the Committee on Professional Performance, which would be held on 5 July 2004. He did not attend that hearing. On 5 July 2004, after considering material that took some 30 pages of closely typed transcript to deploy, the Committee decided that Dr Kamel's professional performance may have been seriously deficient in three respects: team working, relationships with colleagues and patient confidentiality. It, therefore, directed that an assessment of his performance be performed within three months. Dr Kamel declined to submit to that assessment.[6]On 19 October 2004, the Committee decided to conduct a hearing on 25 November 2004 and duly notified Dr Kamel. He asked for an adjournment, which was refused. He did not attend the hearing. On 25 November 2004, the Fitness to Practise Panel, the statutory successor of the Committee on Professional Performance, decided, as follows:
"The Panel have determined that he has failed to comply with the reasonable requirements of the Assessment Panel as directed by both the Assessment Referral Committee and the Committee on Professional Performance. Having concluded that Dr Kamel has failed to comply with the reasonable requirements to undertake an assessment of his professional performance, the Panel determined that, because of the nature of the alleged deficiencies as outlined by the GMC, it is necessary for the protection of the public to make a direction regarding his registration."
It went on to consider whether it would be sufficient to impose conditions upon his registration and concluded that it would not. It therefore directed that his registration be suspended for a period of 12 months.[7]On 8 December 2005, a review hearing was held by the Fitness to Practise Panel which Dr Kamel did attend. The Panel made a number of findings. I will examine some of them in due course when I have dealt with the statutory provisions, but it made this critical finding:
"Having taken account of all the evidence before it today, the Panel finds that despite repeated written invitations since November 2004 you have refused to comply with the reasonable requirements to undergo an assessment of your professional performance and therefore your fitness to practise continues to be impaired."
[8]As I will explain, it seems to me that the finding encapsulated in the words, "and therefore your fitness to practise continues to be impaired" was one which the Panel was not required to make, and arguably should not have made. Having made that finding and invited Dr Kamel to say anything he wished about any order that should be imposed consequent upon it, and elicited from him the response that he did not wish the say anything, the Panel extended the period of suspension by 12 months. Noting that Dr Kamel said nothing about the order that should be made, it stated:
"Having taken account of these matters, the Panel first considered whether it would be sufficient for the protection of patients, members of the public, the public interest and your own interests, to place conditions on your registration. In doing so, it has had regard to the issue of proportionality. The Panel was unable to identify appropriate and practicable conditions that would be sufficient to protect patients and the public. The Panel then went on to consider whether suspension would be appropriate. In view of the alleged deficiencies in your professional performance and your repeated failure to comply with the reasonable requirements to undergo an assessment of your professional performance, the Panel has determined that your registration should be suspended for a further period of 12 months."
It is against those findings and that decision that Dr Kamel appeals.[9]The hearings before and decisions of the Committees and Panels of the GMC were made during a period of transition in medical law. The Committee, which made the direction for assessment in July 2004, was operating under the provisions of the Medical Act 1983 before it was amended, or more accurately, further amended, by regulations made under sections 60 and 62 of the Health Act 1999. Regulations made under the unamended primary legislation included the General Medical Council (Professional Performance) Rules Order 1997. Part 6 dealt with directions which may be given by the Committee on Professional Performance. Rule 27 provided:
"The Committee on Professional Performance is authorised to give directions requiring an assessment to be carried out."
Rule 29 provided for the consequence of failure to comply with such requirements:
"(1) The Committee on Professional Performance may make directions of a kind which may be made under section 36A of the Act for the suspension of or attachment of conditions to a practitioner's registration where the practitioner fails to comply with reasonable requirements imposed by an Assessment Panel for the purposes of carrying out an assessment in accordance with a direction of the Committee."
Section 36A of the Medical Act, as it then stood, provided:
"(1) Where the standard of professional performance of a fully registered person is found by the Committee on Professional Performance to have been seriously deficient, the committee shall direct— (a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding 12 months as may be specified in the direction; or (b) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with the requirements so specified …"
[10]Thus under the statutory scheme, as it existed in July 2004, the Committee on Professional Performance was authorised to give the directions, which it gave, for an assessment to be carried out within three months. It was empowered to make directions of a kind which may be made under section 36A, that is to say suspension for a period not exceeding 12 months, or conditional registration for three years in the event of a failure by the practitioner to comply with such requirements.[11]When the Fitness to Practise Panel conducted its hearing in November 2004 it did so under transitional provisions, which required it to apply the old law. It was, therefore, applying rule 29 of the 1997 rules. Its direction, suspending Dr Kamel for 12 months, was accordingly made as if it had been made under section 36A of the Medical Act. The Panel, which sat in December 2005, was required to apply the new law.[12]Paragraph 36 of Schedule 2 to the Medical Act 1983, inserted by the Medical Act 1983 (Amendment) Order 2002, provides:
"In any case, where as a result of the provisions of this Schedule a direction or order has been made under the old sections 36 to 39 ... of the Act, any further consideration of that case otherwise than by way of an appeal shall be dealt with as if the order or direction had been made under the corresponding new sections of the Act."
The corresponding sections of the new Act are to be found in section 35D. The relevant provisions are:
"(1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below shall apply." (Section 35C deals with a situation where an allegation is made to the General Council against a fully registered person that his Fitness to Practise is impaired.) "(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit- a) except in a health case, direct that the person's name shall be erased from the register; (b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or (c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements as specified as the Panel think fit to impose for the protection of members of the public or in his interests."
Thus, where the Fitness to Practise Panel is considering an allegation that a practitioner's fitness to practise is impaired under the new provisions, it has power to erase, suspend or order conditional registration.[13]Subsections (4) and (5) contain wider provisions:
"(4) Where a Fitness to Practise Panel have given a direction that a person's registration be suspended - (a) under subsection (2) above; (b) under subsection (10) or (12) below; or (c) under rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act, Subsection (5) below applies. (5) In such a case, a Fitness to Practise Panel may, if they think fit - (a) direct that the current period of suspension shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction; (b) except in a health case, direct that the person's name shall be erased from the register; or (c) direct that the person's registration shall, as from the expiry of the current period of suspension, be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests, but, subject to subsection (6) below, the Panel shall not extend any period of suspension under this section for more than twelve months at a time."
[14]Subsection (4)(b) has no application to the facts of this case, and I make no further reference to it. Subsection (c) refers to paragraph 5A(3) of Schedule 4 to the amended Medical Act which provides:
"Rules under this paragraph may authorise a Fitness to Practise Panel to make directions of a kind which may be made under section 35D of this Act, for the suspension of, or the attachment of conditions to a person's registration, where the person fails to comply with reasonable requirements imposed by an Assessment Team for the purposes of carrying out an assessment of the standard of his professional performance in accordance with a direction made under rules under this paragraph."
[15]It is unnecessary for me to refer to the detail of rules made under that subparagraph, save to say that they broadly, although not in detail, fulfill the same purpose as the rules under the unamended Act, but less elaborately: to consider whether or not a practitioner should be ordered to submit to an assessment and, if he fails to do so, to consider what, if any, order should be made consequent upon his failure, including erasure, suspension and conditional registration.[16]The Panel, sitting in December 2005, was, by virtue of (new) paragraph 36 of Schedule 2 to the Medical Act considering the case on the premise that the Panel, which sat in November 2004, made its order under the corresponding new sections of the Act -- that is to say under section 35D(5). These convoluted provisions, I am told, have caused difficulties for the General Medical Council and its legal advisers. This appeal gives rise to the possibility of clarifying at least some of them.[17]Before I turn to the way in which the Fitness to Practise Panel dealt with the matter in December 2005, I should express my view on the law. Mr Jaffey, for the Council, submits that the situation, which arose in this case, does not sit comfortably within any of the provisions of section 35D(5); but he submits, the least uncomfortable comparison is that made by section 35D(5)(a). If I have understood his argument correctly, it is to this effect: in July 2004 the Committee on Professional Performance ordered Dr Kamel to submit himself to an assessment. His failure to do so amounted to misconduct so as to bring him within the terms of section 35C of the amended Act, which provides:
"(2) A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of- (a) misconduct; ..."
[18]By its finding that he had failed to comply with the direction for an assessment, the Fitness to Practise Panel, which sat in November 2004, has impliedly, at least, found him guilty of misconduct. Therefore, by virtue of section 35C(2)(a) his Fitness to Practise is to be regarded as impaired. Accordingly, under section 35D(5)(a), the Fitness to Practise Panel was empowered under subsection (5) to suspend him for a further period of 12 months. This reasoning appears to have been at the back of submissions that were made on behalf of the Council by its counsel at the hearing in December 2005.[19]It is, in my view, misconceived. The Fitness to Practise Panel, which sat in November 2004, made no finding of misconduct, let alone that Dr Kamel's fitness to practise was in fact impaired. As I have indicated in the passage from its decision which I have cited, all it decided was that he had failed to comply with reasonable requirements to undertake an assessment. All that it determined was: because of the nature of the alleged deficiencies, it was necessary for the protection of the public to make a direction regarding his registration.[20]The consequence of Mr Jaffey's contention is that the doctor, against whom no finding of misconduct or unfitness to practise has been made, is deemed, by dint of the transitional provisions, to have had such a finding made against him. Further, Mr Jaffey argues, for reasons which I have explained, in my view, correctly, that Dr Kamel was not entitled to challenge the underlying merits of the accusations against him in December 2005. Accordingly, if his argument is right, a practitioner, against whom no finding of misconduct or unfitness to practise has been made, is nonetheless deemed to have had such a finding made against him and to be unable to challenge it on its merits at a subsequent hearing.[21]However elaborate the statutory provisions may be, I cannot believe that Parliament had such an intention in mind when it enacted or approved them. Accordingly, it is necessary to see whether there was any other statutory basis for the order made in December 2005. The only other candidate is section 35D(4)(c). It is true, as Mr Jaffey submits, that the new provisions for ordering assessment and for failure to submit to an assessment are not identical to the old ones. The old rules did not envisage an assessment team, as the new provisions do. Dr Kamel could not in 2004 have failed to comply with reasonable requirements imposed by an assessment team. He did not do so. What he did was to fail to submit to a direction ordered by the Committee on professional practice.[22]Mr Jaffey submits that paragraph 36 of Schedule 2 to the amended Act does not have the effect of requiring the Fitness to Practise Panel, sitting in December 2005, to make its decision as if the order of the Panel, sitting in November 2004, had been made under section 35D(5)(c). The consequences of his submission need analysis. If he is right, and if my construction of section 35D(5)(a) is correct, then the Panel sitting in December 2005 had no statutory power to extend Dr Kamel's suspension. Again that cannot possibly have been the intention of Parliament.[23]It seems to me that paragraph 36 of Schedule 2 has a perfectly clear intent. Where, in closely analogous provisions, dealing with the same subject matter, a Committee or Panel of the GMC has made a direction for assessment, and when that direction has not been complied with, has ordered suspension, the Panel operating under the new rules is required to treat that order of suspension as if it had been made under corresponding new sections of the Act.[24]The order for suspension was made under section 36A by dint of rule 29 of the 1997 rules. The corresponding provision to section 36A in the amended Act is to be found in sections 35C and 35D. It therefore follows that an order of suspension made by the Panel under section 36A is deemed to have been made under section 35D. If, as I believe, it could not have been made under section 35D(2), it had to have been made under section 35D(5)(c).[25]Accordingly, in my view, in determining whether or not it had the power to make the orders set out in section 35D(5), the Fitness to Practise Panel had only to decide whether or not Dr Kamel's registration had been suspended under section 36A, by reason of his failure to comply with a direction of the Committee for Professional Performance made under rule 27 of the 1997 rules. That fact was never in issue. Dr Kamel conceded that he had not complied with the direction. Accordingly, and for that simple reason, the Fitness to Practise Panel was empowered to order suspension.[26]What actually happened at the hearing was that these complex statutory provisions were misconstrued by the legal adviser. His misconstruction was followed by counsel for the Council when making submissions to the Panel. It is not necessary for me to set out in detail the route by which the erroneous advice came to be given by the legal adviser, merely to set out what his final advice of law was. He said:
"Mr Chairman, members of the Panel, the issue today for you to determine is whether Dr Kamel's fitness to practise is impaired. The matter come before you under section 35D of the Medical Act 1983 ... The matter comes before you specifically following an earlier suspension under section 35D(4)(c), arising out of a failure by Dr Kamel to undergo an assessment. The matter is now before you under section 35D(5) and the first issue you have to decide and the main issue you have to decide is whether the General Medical Council have satisfied you so that you are sure that Dr Kamel's fitness to practise is presently impaired. As to the meaning of fitness to practise, those words are defined on the pages before, page 30, under section 35C(2): 'A person's fitness to practise shall be regarded as impaired for the purposes of this Act by reason only of...' and I think Mr Ferguson [counsel for the GMC] is relying, and he has not actually specified it, but I imagine he is relying simply on sub-paragraph (b), deficient professional performance. As I understand, Mr Ferguson, that would be your position? MR FERGUSON: No, I am sorry, that is not clear. It is the combination of the prima facie case of performance and then there is the conduct issue in relation to the failure to comply with the directions. THE LEGAL ASSESSOR: So it is (a) and (b), very well. So that is the position there."
In the advice given to the Panel he went on to suggest that the first question which should be asked is:
"... are you satisfied that the doctor's fitness to practise is presently impaired and, if so, what steps should be taken by the Committee?"
[27]Unsurprisingly, in the light of that advice, the Committee went on to consider that question. Having recited the procedural history, it posed this question:
"Today the Panel has considered whether your fitness to practise continues to be impaired. In doing so, the Panel has given careful consideration to all the evidence adduced, including the history of the case outlined by Mr Ferguson on behalf of the General Medical Council, your own detailed submissions [detailed submissions as to the underlying merits of the accusations against him] and all the documentary evidence you have provided. The Panel has also noted and accepted the Legal Assessor's advice that it is not open to the Panel to go behind the determinations of the previous Committees and Panels against which you did not appeal. Rather, the Panel's function has been to consider evidence relating to your activities since the last hearing in November 2004 and whether your fitness to practise today is impaired."
It went on to note that he had attended two lectures but received no other evidence that he kept himself up-to-date with continuing professional development. It then set out its conclusion, which I have already recited, and for convenience will state again:
"Having taken account of all the evidence before it today, the Panel finds that despite repeated written invitations since November 2004 you have refused to comply with the reasonable requirements to undergo an assessment of your professional performance and therefore your fitness to practise continues to be impaired."
[28]The essential finding in that sentence, that Dr Kamel had failed to comply with the reasonable requirements to undergo an assessment, and impliedly had been suspended by the Fitness to Practice Panel in November 2004 by reason of such failure, was all that it was necessary for it to make. It was decisive of the issue. Its observations about fitness to practise were simply not in point. It is understandable that they were made. They do not vitiate its essential, and inevitable, finding that Dr Kamel had been suspended by the Panel in November 2004 and had not undergone the assessment of his professional performance ordered by the Committee in July 2004.[29]Mr Afeeva, in his amended grounds of appeal, submits that there was no basis for the Panel's finding that Dr Kamel's fitness to practise "continues to be impaired" because nobody had ever, in fact, found that his fitness to practise was impaired. That submission is clearly right, but it is not in point, for the reasons that I have explained.[30]When I put to him my first blush impression of the effect of the statutory provisions, Mr Afeeva altered his submission to the effect that the Panel should have examined the question whether the requirements imposed upon him in July 2004 were reasonable requirements. Therefore, it should have analysed the material which supported that conclusion, namely the detailed accusations against Dr Kamel, which he chose not to answer at that stage, at any rate, by attending and arguing his case at the hearing.[31]There are two difficulties with this submission. First, nobody at the hearing suggested that the issue was whether the requirements were reasonable. Dr Kamel's objection was that the accusations made against him were false and that the Panel should say so. Secondly, it overlooks the clear words of section 35D(5)(c) of the amended Act. The only requirement which must be satisfied, before a Fitness to Practise Panel reviewing an order for suspension can reimpose it, is that a Fitness to Practise Panel has already given a direction that a person's registration be suspended under any of the provisions identified in subsection (4). Once it has reached that decision it is empowered on review to order a further suspension.[32]There is no statutory test set out which governs the principles upon which it should order suspension, but they are familiar from case law over many years, namely, and primarily, the protection of the public interest. It is not suggested that if the Panel had the power to order suspension that its reasons for doing so were erroneous, or inadequately stated. I have already recited them and do not repeat them. In my view, the Panel was plainly justified, for the reasons which it gave, to order a further period of suspension. That is sufficient to dispose of the main grounds of appeal, but to demonstrate that I have not overlooked the remaining grounds I will deal with them rapidly.[33]The third, fourth and fifth grounds amount, in effect, to the suggestion that the Panel should have at least made an inquiry into the general merits and reached some sort of view upon them. For the reasons, which I have indicated, it was not required to do that. The procedure was designed to ensure that the practitioner complied with a direction for an assessment and nothing else. The sixth ground of appeal is that the Panel should have had in mind provisions in rule 17.8 of the 2004 rules. I need not set them out in full. They are directed, and directed only, to circumstances in which a Panel is required to assess whether or not a practitioner's fitness to practise is impaired. For the reasons I have explained, that is not necessary in this case.[34]Finally, Mr Afeeva relies upon claimed breaches of Article 6 of the European Convention of Human Rights and Article 1 of the First Protocol to the Convention, but he concedes that if the suspension was lawful then both requirements are satisfied, and I am satisfied that they are.[35]For the reasons given this appeal is dismissed. Are there any consequential matters?[36]MR JAFFEY: The GMC have no application for costs.

MR JUSTICE MITTING: Quite right.