Arzhangi, R (on the application of) v General Medical Council [2008] EWHC 815 (Admin)

Case No CO/7672/2006[2008] EWHC 815 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 3 April 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF SAID ARZHANGIClaimantv
Between
THE GENERAL MEDICAL COUNCILDefendant
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)
for The Applicant did not appear.Mr I Hare (instructed by the General Medical Council) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: Dr Arzhangi appeals against the decision of the Fitness to Practise Panel of the GMC, on 18 August 2006, that his registration should be suspended with immediate effect and for 12 months. He has acted for himself in this appeal in person. He has not appeared at the hearing today. Accordingly, I took such steps as I could to ascertain whether or not he had been properly notified of today's hearing. On the appeal papers he gave as his address 6 Eastgate Court, Stanhope Avenue, London N3 3LX. That is the address at which he is registered as a medical practitioner with the GMC. He has a statutory duty to notify the GMC of any change in that address. He has an obligation in relation to litigation that he is conducting, to notify the court of any change in his address where documents can be served upon him.[2]He has notified no change either to the court or to the GMC. He was notified by the court of today's hearing by letter on 7 January 2008. The GMC have attempted to serve their core bundle of documents on him and their schedule of costs, and have attempted to telephone him at the number that they have for him at that address. All those attempts have been unsuccessful. An attempt made by the court to telephone his address has likewise been unsuccessful. The probability, therefore, is that he has departed that address without notifying either the GMC or the court of his change of address. The responsibility for his absence, therefore, rests squarely upon him. No injustice, in my view, would be caused to him by my continuing to determine this appeal, which I do.[3]First of all, it is necessary to say a little about the background. Dr Arzhangi is now 65. He has practised for at least 35 years in the field of gynaecology. At a Professional Conduct Committee hearing held between 15 and 19 September 2003 an allegation that while working as a local registrar he had touched the sexual organs of female patients inappropriately, and in one case indecently, was found proved. He was found guilty of serious professional misconduct. Conditions were imposed upon his registration for a period of 12 months.[4]His case was reviewed in September 2004. On that occasion the Committee found formally that he had not complied with all of the conditions imposed on his registration. The Committee, therefore, renewed and slightly varied the conditions and imposed them for a further period of 12 months. He challenged the Committee's decision by an appeal to the Administrative Court. While those were pending a further review took place in September 2005. The Panel, as it now became, reimposed the conditions for a further period of six months. Dr Arzhangi's challenge was rejected by Sullivan J in the Administrative Court on 26 October 2005 (see R v (on the application of) Arzhangi v GMC)[2005] EWHC 2510 (Admin). Thereafter the conditions were reimposed for a further short period.[5]The relevant conditions for the purpose of the hearing, which resulted in his suspension, were 4 and 7. They provide:
"4. During this year he shall work for at least six months in a supervised training post in Obstetrics and Gynaecology that is approved by the mentor on behalf of the Royal College of Obstetricians and Gynaecologists and a Regional Postgraduate Dean. In this post he shall improve your clinical skills in Obstetrics and Gynaecology, particularly in regard to gynaecological examinations and breast examinations and his interpersonal and communication skills with patients and colleagues. ... 7. In seeking or undertaking this post he shall inform his prospective employer of the conditions imposed on his registration and the reasons why they have been improved. He shall also inform the GMC of any post to which he is appointed."
It was common ground before the Panel that Dr Arzhangi had not worked in any capacity since September 2003 and so accordingly was in breach of condition 4. More contentious was the allegation that he had breached condition 7. It was eventually established that he had sought work via an agency without notifying the agency of the conditions imposed upon his registration. In due course that led to an express finding that he had sought work from the agency without notifying them of the conditions imposed upon his registration, and so was a breach of condition 7.[6]On the face of it, that finding was surprising because although he had not notified the agency, the agency did not appear to be his employer. However, Mr Hare, who appears for the GMC today, explains to me that which would have been understood by the Panel as an expert body, that in the tripartite relationship between doctor, agency and hospital, the agency is in fact the employer. Therefore, by seeking work at a hospital through an agency, without notifying the agency of the conditions, Dr Arzhangi was in breach of condition 7.[7]There is in fact no challenge in the grounds of appeal to the Panel's findings that Dr Arzhangi was in breach of those conditions, but I thought it right to explore what appeared to be an anomaly in the findings of the Panel, and to ascertain and give that answer.[8]Dr Arzhangi's grounds of appeal are, in effect, twofold. First, that he had offered an undertaking to the Panel, which the Panel should have accepted in lieu of imposing conditions. Its reason for refusing to accept the undertaking was its view that it would be deprived of jurisdiction to impose, or continue to impose, conditions on Dr Arzhangi if it accepted the undertaking. He maintained that that was an error of law. Secondly, he contended that it was disproportionate in the circumstances to suspend him from practice for 12 months for the breaches of condition that were admitted or found.[9]The first ground of appeal requires brief reference to the General Medical Council (Fitness to Practise) Rules Order of Council 2004.

(h) provides that:

"the FTP Panel may take into account any written undertakings (including limitations on his practice) entered into by the practitioner - (i) which it considers to be sufficient to protect patients and protect the public interest..."
Section 35D of the Medical Act provides:
"(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit- ... (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 so specified as the Panel think fit to impose for the protection of members of the public or in his interests."
Subsections (11) and (12) provide:
"Where a direction that a person's registration be subject to conditions has been given under- (a) subsection (2) ... (b) ... subsection (12) below applies. (12) In such a case, a Fitness to Practise Panel may, if they think fit- ... (c) direct that the current period of conditional registration shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction..."
The statutory scheme accordingly permits the Panel to impose and reimpose conditions on a medical practitioner when it has previously imposed such conditions, but it gives it no such power when it simply accepts that undertaking. If therefore the Panel considers that the undertaking is not sufficient to protect patients and the public interest, it is plainly entitled to refuse to accept it and to impose conditions instead.[10]The undertaking by Dr Arzhangi was in these terms:
"I, Dr Said Arzhangi, do hereby undertake not to practise medicine until I have resolved the issue of perjury which may have arisen in the original Professional Conduct Committee hearing of September 2003."
As that proposed undertaking demonstrates, what Dr Arzhangi was really concerned about was the adverse finding made against him in 2003. The reality appears to be that he wished to remain a registered medical practitioner simply for the purpose of challenging that finding. Sullivan J in the earlier hearing discerned that, and it is plain from the documents that I have seen that that remains the main focus of Dr Arzhangi's concern.[11]The Panel noted that if an undertaking was accepted it would lose its jurisdiction. In giving its reasons for refusing to accept the undertaking, and to reimpose conditions instead, it stated:
"The Panel considers that patient safety and the public interest would not be served if it accepted your undertaking. The Panel is not satisfied that your undertaking covers any of the conditions that might have been appropriate and the Panel is equally not satisfied that you have sufficient insight to abide by any written undertakings. Additionally, the Panel would lose its jurisdiction over the matter and this would be wholly untenable given the circumstances of the case and your previous non-compliance with conditions which have been imposed upon your registration on a number of earlier occasions. The Panel has therefore declined to accept the undertaking that you submitted."
That reasoning, far from demonstrating any error of approach or law, seems to me to be wholly justified. I reject the first ground of appeal.[12]In considering whether or not to impose suspension for breaches of the conditions that I have identified, the Panel expressed itself as follows:
"The Panel then considered whether it would be sufficient to impose a further period of conditional registration. It bore in mind that the Indicative Sanctions Guidance indicates that at review hearings a panel needs to satisfy itself that the doctor has fully appreciated the gravity of the offence which was found proved at the initial hearing; that he has not re-offended; that he has maintained his skills and knowledge; and that patients will not be placed at risk by resumption of practice or by the imposition of conditions. No information put before the Panel today has satisfied it as to any of those circumstances. The Panel considers that conditions relating to retraining only work with a doctor who has demonstrated a willingness to retrain and has some insight into his deficiencies. You have had a significant period of time in which to demonstrate a genuine desire to comply with conditions. That has not been demonstrated and, indeed, to the contrary, you have breached some of the conditions. The Panel therefore determines that it would be wholly insufficient to impose a further period of conditional registration."
It went on to note correctly that its primary duty and concern was the protection of patients and members of the public. It gave as its reason for imposing a period of suspension the following:
"A period of suspension protects patients and the public interest and also offers you yet one more opportunity to reflect upon and acknowledge your failings and to decide whether you wish to take the positive steps which are necessary to address the concerns in your practice first identified by the Professional Conduct Committee in 2003. You repeatedly failed since September 2003 to comply with the conditions previously imposed. The Panel has therefore determined to suspend your registration for the maximum period of 12 months. Public confidence in the profession would be damaged if a lesser period were imposed. The Panel also considers that the maximum period is necessary to send the appropriate message to you as to the seriousness of the impairment of your fitness to practise, your repeated failure to comply with conditions on your registration and your lack of insight."
Again, far from demonstrating any error, those observations of the Panel demonstrate that it had in mind all, and only all, of the appropriate considerations when determining whether or not to impose a period of suspension. As it made plain, although part of the purpose was to draw to Dr Arzhangi's attention the seriousness of the impairment of his fitness to practise, it had at the forefront of its mind the need to protect the public from a doctor who had not, by the stage at which it made its decision, practised for three years. He had not undertaken any supervised work, which, in the professional judgment of the Panel and of its predecessors, was necessary to ensure that the public would not be put at risk by his continuing to practise.[13]In adopting that approach the Panel accurately applied long-standing jurisprudence of the Privy Council now adopted in this court, following the observations of Laws LJ in Rashid v the GMC [2007] 1 WLR 1460 at paragraphs 16 to 20, that the purpose of the imposition of sanctions in most cases is primarily the protection of the public and the maintenance of the reputation of the profession, rather than the imposition of a punishment upon an individual practitioner. Applying those principles, this Panel's approach was correct and its determination as to the sanction to be imposed unimpeachable.[14]There is a possible primary subsidiary ground of appeal arising out of the Employment Equality (Age) Regulations 2006. It can be dealt with by the simple observation that they were not in force until 1 October 2006 and so had no application to this hearing. Had they been in force, the reasoning of the Panel would plainly lead to the conclusion that even if it were more difficult for Dr Arzhangi, aged 65, to comply with these conditions than it would be for a younger practitioner, nevertheless the imposition of the sanction of suspension was justified by the need to protect the public and the reputation of the profession. For those reasons, this appeal is dismissed.[15]MR HARE: My Lord, I am obliged. Just one matter in relation to the very last part of your judgment. Your Lordship said at the very end that it would be justified to impose conditions.

MR JUSTICE MITTING: I meant to say, and I should have said, the sanction of suspension.

[17]MR HARE: I am obliged, my Lord.

MR JUSTICE MITTING: Thank you for that correction.

[19]MR HARE: I do have an application for the GMC's costs.

MR JUSTICE MITTING: Unfortunately the figures on the copy which has come through to me are obscured.

[21]MR HARE: In which case I have a spare copy to hand up. (same handed) The only points to make about this are that plainly all of the grounds advanced by Dr Arzhangi have been rejected in your judgment. Your Lordship will cast his own eye over the costs there. We say that in the circumstances in which the GMC has produced the bundle for the appeal the solicitors' costs are not excessive. Your Lordship will have seen that my own fee covers the provision of the skeleton argument before your Lordship. We would submit that those costs, in those circumstances, are proportionate.[22]MR JUSTICE MITTING: The preparation of 9.8 hours, just under 10 hours, is plainly reasonable. The hourly cost is well within Central London rates. The attendance at the hearing has not been quite as long as might have been anticipated. That figure has to come down a little. Knock three hours off that. Travel, and so forth is, not affected. Why is it five hours' travelling?[23]MR HARE: Because my instructing solicitor is from the GMC Managers, which was the original locus of the first hearing.[24]MR JUSTICE MITTING: That is perfectly reasonable. Your own fee is plainly reasonable. I approve the bill, subject to knocking off £540 plus VAT. If somebody can do the arithmetic on that, I will be grateful.[25]MR HARE: On that basis that will be beyond me immediately. Are you happy for me to give that figure?[26]MR JUSTICE MITTING: Indeed I am. I assess the respondent's costs at the sum claimed in the schedule of £5,306.10, plus VAT of £306.25, less £540 plus VAT, if appropriate, I think it is not. Accurately the sum is even within my own arithmetical capacity, I hope: £5,072.35. Subject to errors and omissions, I assess costs at £5,072.35 and order that the appellant pay that sum to the Respondent.