Sosanya, R (on the application of) v General Medical Council [2009] EWHC 2814 (Admin)

Case No CO/9232/2009

Case No CO/11229/2009

[2009] EWHC 2814 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 6 October 2009

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE DAVIS

Between

THE QUEEN ON THE APPLICATION OF DR JULIANNA SOSANYAClaimant

Between

GENERAL MEDICAL COUNCILDefendant

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Mr Andrew Hockton appeared for Claimant

Mr Paul Ozin appeared for Defendant

J U D G M E N T

[1]MR JUSTICE DAVIS: This claim form was issued on 18 August 2009. The claimant is Dr Julianna Sosanya. By these proceedings she challenges a decision of a panel of the General Medical Council (GMC) given on 10 August 2009 which decided that she should be suspended for a period of 18 months on an interim basis in the light of the matters which I will come on to recite.

[2]The proceedings as started were by way of conventional judicial review claim. However more recently the proceedings have been amended so as to include also an application for termination of her suspension pursuant to the relevant provisions of the Medical Act 1983, as amended. With some encouragement from the Bench the parties have wisely not sought to go into the niceties of whether or not proceedings of this kind are better pursued as proceedings for judicial review or better pursued as proceedings for an application for termination of suspension. There has been quite a lot of law in this particular field. Some authorities seem to tend in one direction; other authorities seem to tend in another direction.

[3]The practical reality is, for today's purposes, that Dr Sosanya wants to know whether or not she continues to be suspended. Accordingly I have not thought it necessary for myself to invite counsel to go down the intricacies of jurisdictional points. There is no doubt that, for one reason or another, I can interfere with the decision made provided it is right and proper for me to do so.

[4]I should first of all briefly remind myself of the statutory context. The relevant provisions so far as interim orders are concerned are contained in particular in Section 41A of the Medical Act 1983, as amended, which deals with interim orders. By Section 41A (1) it is provided: (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 — (a) 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 (b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order .....

[5]..... (10) Where an order has effect under any provision of this section, the relevant court may — (a) in the case of an interim suspension order, terminate the suspension; ..... " It is not necessary to set out more. It is accepted that this court constitutes the relevant court for these purposes.

[6]I should also add that by the terms of Section 47 (3) of the Act, it is provided that none of the specified suspension events should terminate an appointment as mentioned but the person suspended should not perform the duties of such an appointment during the suspension.

[7]The background leading up to Dr Sosanya coming before the Interim Orders Panel is, shortly put, this. Dr Sosanya is married. Her husband is apparently an accountant. Relatively recently her husband was charged with what has been described as an advance fees fraud. In due course he pleaded guilty. He was sentenced to a term of two years and nine months' imprisonment. Dr Sosanya herself was arrested in the latter part of 2008. In March 2009 she was herself charged with an offence, being an offence of money laundering. The details of the offence with which she is charged are very sparsely set out in the papers before me. They were very sparsely set out in the papers placed before the panel. At all events, the reference documents of the GMC in explaining the reasons for referring the matter to the Interim Orders Panel stated:

"Dr Sosanya has been charged with money laundering and will stand trial at Inner London Crown Court."

That trial is due to take place, I gather, in the earlier part of next year.

[8]Dr Sosanya denies the charge or charges made against her and has pleaded not guilty. Neither I nor the panel have been shown any indictment or defence statement for example, nor is it revealed what sums of money are at stake. Given the fact that her husband has on his own plea been convicted of an offence of fraud, it may be that it is alleged that moneys which apparently are said to have gone into Dr Sosanya's bank account may have come from a fraudulent source connected with her husband: although that in itself is not revealed at the moment. It may be that the real issue in her criminal case is whether or not she had the relevant knowledge. I think Mr Hockton, appearing on her behalf, was entitled to say that the details relating to the criminal charge brought against her were exiguous. That might be so, albeit Dr Sosanya was herself in a position to supplement some of the background; that seems not to have happened.

[9]At all events, it seems clear on the face of the reference that what prompted the matter to be put before an Interim Orders Panel of the GMC was the fact that Dr Sosanya had been charged with money laundering and was facing trial in the Crown Court.

[10]The matter came before the panel in the usual way. Dr Sosanya was represented by counsel. Counsel also appeared on behalf of the GMC in its capacity as prosecuting authority, if I might put it in that way. There was a relatively short hearing. As I gather is the normal practice in interim cases of this kind, there was no oral evidence given and no cross-examination. There was a debate about the circumstances. After counsel had presented their arguments the chairman asked whether there were any questions from the panel. One member, according to the transcript, asked this question:

"Q Could I just ask, please, in the application to the vocational training programme, did you disclose the issues that have been discussed today and today's proposed hearing? MR HOCKTON: The application preceded these matters. It was in January, I understand."

That particular point then fizzled out so far as question and answer were concerned.

[11]The point seems to have been this. Dr Sosanya had been arrested by the police in September 2008. She had then applied to the General Practitioners Vocational Training Scheme in January 2009. It appears that she had not given disclosure of her arrest at that stage. At that stage she had not been charged. When she was in due course charged in March 2009 she did not herself volunteer that fact to the GMC. She was saying that she did not appreciate she was under a responsibility to do so and assumed that the police would have reported it to the GMC directly. That seems to be the background to the question raised by the panel member, although that particular matter had not been raised in the original reasons for referral to the panel.

[12]The panel gave its decision, and its reasons for the decision as required by the rules, on that date. Having set out some opening comments, the panel stated:

"Having taken account of all the circumstances the Interim Orders Panel were satisfied that in accordance with Section 41A of the Medical Act 1983, as amended, it is necessary and in the public interest to make an order suspending your registration for a period of eighteen months."

The panel went on to record the conviction - on his plea - of her husband and the fact that the applicant herself had pleaded not guilty to a charge or charges of money laundering.

[13]The panel then went on to refer to paragraph 58 of the Good Medical Practice which states:

"You must inform the GMC without delay if anywhere in the world you have accepted a caution, been charged with or found guilty of a criminal offence."

The panel recorded that in a letter of the applicant, dated 19 June 2009, she had admitted that she had failed to inform the GMC of the charges against her, recording the reasons she had given that she was unaware of her responsibility to do so and so on.

[14]Then this is stated:

"The panel has heard from Mr Hockton [he being then and now counsel for Dr Sosanya] that you did not disclose your arrest in September 2008 on your application for the General Practitioners Vocational Training Scheme in January 2009. The panel consider this may indicate a lack of probity."

That particular comment cannot find justification of itself by reference to paragraph 58 of the Good Medical Practice which refers to a caution, charge or conviction but not to arrest. It seems as though the panel was taking it that there was a wider obligation on the part of Dr Sosanya to disclose her arrest when she applied to the vocational training scheme some months after her arrest. It is a little unclear just how firm a conclusion the panel was drawing from that when it stated that it considered that this "may" demonstrate a lack of probity. Of course it would have been quite a strong thing to make a positive finding of lack of probity on the basis of - as here - effectively one question answered by counsel and lack of substantive evidence on this issue.

[15]The panel went on to note a letter from Dr Yasmin Drabu, who was the Medical Director of Barking, Havering and Redbridge University Hospitals at which Dr Sosanya had been employed. It appears from the letter of that doctor that in effect there was no adverse criticism to be made in any shape or form of Dr Sosanya in her clinical capacity. Indeed the letter may be described as very strongly supportive of her in that respect.

[16]The panel in its decision stated:

"Having taken account of all the information available, the panel is satisfied that there may be impairment of your fitness to practise which poses a real risk to members of the public or may adversely affect the public interest or your own interests and, after balancing your interests and the interests of the public, an interim order is necessary to guard against the risk."

[17]The panel then went on to record that its function was not to resolve conflicts of evidence or disputes of fact and that it was not satisfied that the imposition of conditions would be appropriate in a case of this kind given "the seriousness of the allegations made against you." The panel stated:

"The panel has taken account of the issue of proportionality in that the panel must act in a way which is fair and reasonable. Whilst it notes that its order has removed your ability to practise medicine, the panel has determined that the suspension of your registration is a necessary and proportionate response to the risks posed."

It went on to indicate that in deciding the period of 18 months, the panel had decided such an order was necessary "owing to the time it may take to investigate and resolve all the issues relating to your fitness to practise."

[18]Some of the language adopted by the panel, it may be noted, does not track precisely the language of Section 41A. To the extent that the panel made reference to impairment of fitness to practise, it seems that the panel had in mind the guidance notes which had been promulgated on behalf of the GMC with regard to imposing interim orders, these being promulgated in April 2008 and revised in August 2009. In paragraph 6, for example, it is said that the public interest can include maintenance of public confidence in the profession and declaring and upholding the proper standards of conduct and behaviour. In paragraphs 18 and 19 it states:

"The IOP must consider ..... whether to impose an interim order. If it is satisfied that: a. in all the circumstances that there may be impairment of the doctor's fitness to practise which pose 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."

It is obvious that in stating its reasons as it did the panel had paragraph 18 very much in mind. Paragraph 19 goes on to give further guidance as to the circumstances in which an interim order may be considered to be made. Paragraph 20 stresses that it was for the panel to decide what weight to give to the relevant factors in the case.

[19]Mr Hockton also drew attention to the annexe to the guidance notes where, with regard to risk to patients involving non-clinical issues, it is suggested that - "4 This category includes cases where the doctor faces allegations of a nature so serious that it would not be in the public interest for the doctor to hold unrestricted registration whilst the allegations are resolved even though there may be no evidence of a direct risk to patients ..... " In paragraph 5 it is said that matters of this kind, which would normally already be under investigation by the police, would "include very serious alleged offences including murder, attempted murder, rape, attempted rape and sexual abuse of children."

[20]Mr Hockton did not suggest that that in any way should be taken as setting out an exhaustive list. He did however suggest that that was at least indicative of the kind of seriousness of offence involving non-clinical issues which might attract a reference to an interim orders panel. At all events, he can make the point that a charge of this kind is not one actually set out in that particular annexe. That is true, although clearly these things have to be considered by reference to each particular charge concerned in any individual case.

[21]Overall Mr Hockton, on behalf of Dr Sosanya, says that there was no basis for the panel suspending Dr Sosanya as it did. He puts his case in a number of ways. I think the matter can conveniently be summarised by reference to one part of the written grounds:

"It is submitted that the IOP was wrong and acted unreasonably in deciding that a decision to suspend was necessary and in the public interest or the claimant's interest or that the claimant might pose a risk to members of the public."

One point that can be made, and is made by Mr Hockton, seems to me to have very great force. In its reasons the panel seems to rely on all three potential limbs of Section 41A (1) (a) in deciding to suspend. The panel seems to have concluded that there may be a real risk to members of the public or that it was in the public interest or that it was in the interests of Dr Sosanya herself. But self-evidently there was no evidence to suggest that the conduct of Dr Sosanya relied upon had any bearing on clinical issues. There was no suggestion that the charge of money laundering had any relevance in itself to a clinical issue; indeed the evidence was to the contrary, that Dr Sosanya had shown herself a good doctor.

[22]It is also very hard to understand why the panel concluded that it was in Dr Sosanya's own interest that she be suspended. She, of course, was resisting suspension. This was her only employment. Her husband could not earn because by now he was in prison. She had two young children to look after. Above all, she had her reputation to think of.

[23]So it was very unclear as to why the panel thought that all three limbs of the section could be invoked in this context. I think there is force in the submission that in effect this particular panel was simply parroting the formula. It seems to me that the real ground on which the panel seems to be relying was that it was in the public interest that Dr Sosanya be suspended at this stage.

[24]Mr Ozin, in the course of his arguments on behalf of the GMC, gave a number of reasons why all three limbs could be relied upon. I have to say with respect that they did not strike me as at all cogent. Indeed, in effect, Mr Ozin was reduced either to rationalising or trying himself to supplement a lack of reasons in the panel's decision with a view to justifying the conclusion that was announced. I fully accept that it is quite undesirable that a panel should be required to give detailed reasons in the way a court of law might expect. At the same time it is very difficult to get a purchase as to why this particular panel thought the position was as it set out. In effect, it simply announced its conclusion without giving any particular reason for that, save only perhaps with regard to its comments about the failure of Dr Sosanya to admit the fact that she had been arrested and then charged, a matter with which the panel dealt rather cursorily and inconclusively as it seems to me.

[25]How then can it be said - and this was the panel's conclusion - that Dr Sosanya should on an interim basis be suspended on, at all events, the ground that it was in the public interest that she should be suspended? I repeat, the charges she faces have nothing to do with her abilities as a doctor. There is no suggestion that if she were to continue in practice she would be given access to moneys or might then become tempted into activities of the kind with which she is charged; nothing like that occurs at all. Nor did the panel state that maintenance of public confidence in the medical profession required interm suspension.

[26]The statutory test is there, and that is the one to be applied. One would like, all the same, to think that in all these kinds of cases of potential interim suspension an interim orders panel would at least be asking itself, as part of its thought process, the following: will it be acceptable for us not to suspend in a case of this kind if at the end of the day the charges are proved and the guilt of the applicant is established? That is one aspect. Another part of the thought process should be: will it be acceptable for us to suspend an applicant in a case of this kind if, at the end of the day, the applicant may be acquitted of all charges? Those considerations should form at least part of the thinking of an interim orders panel, as it seems to me.

[27]Why then was it thought necessary in the public interest to suspend Dr Sosanya from practice when she was facing charges, which can be described as serious charges no doubt but which were not of the gravest kind and which were charges which she was denying? She had been convicted of nothing. No risk in her continuing to practice in the interim was identified. Why, it may be asked, was it necessary to suspend her from practice? It may well be that if she was convicted at the end of the day a fitness to practise panel at that stage could impose the appropriate sanction as it thought necessary. But that does not meet the point as to whether it was necessary to suspend her on an interim basis.

[28]I should add that interim suspension seems to have had in this case an unfortunate consequence: because, as I have been told, since that hearing, the contract of employment of Dr Sosanya has been terminated. Quite how that has arisen is not clear, especially in the light of Section 47 (3). But I can agree with Mr Ozin that that could not have been foreseen by the panel.

[29]The panel does of course address the issue of proportionality in its decision, but again, with respect, it was simply announced and reasons of any substantive kind are not given. What it says is:

"It is determined that suspension of your registration is a necessary and proportionate response to the risks posed."

What were the risks posed? None are identified. Certainly it is, on any view, a dramatic step for a professional person such as a doctor to be suspended. As Lord Justice Sedley has pointed out in one particular case, in one sense suspension cannot be taken as a neutral act. Of course it involves no ultimately binding findings of fact: but it does have an immediate and dramatic impact on the reputation and potential career of any professional person.

[30]As it seems to me on the arguments which I have received I think I should show a degree of deference to the views of an interim orders panel of this kind. Parliament has entrusted the decision-making process to such a body and I must have regard to the fact that its members well know the demands and expectations of the medical profession. At the same time deference must not be subordinated into obsequiousness. With respect, I do not think the panel in this case has given any cogent reasons as to why, in this particular case, it is necessary in the public interest or otherwise for Dr Sosanya to be suspended as an interim measure. Put another way, exercising my own jurisdiction under sub-section (10), I think it only right and fair that suspension be terminated. I do not think interim suspension is necessary or proportionate given the nature of the charges which she faces (and which she denies). I cannot see any substantial ground in the public interest why she should be suspended at this stage. I repeat also that there is no evidence or finding that in allowing her to practise there is any real risk that she poses to the members of the public; nor is there any basis for saying that it is in her own interests not to practise.

[31]Accordingly, as it seems to me, whether I put it in terms of the decision of the panel not being able to stand or - which I think is the preferable course given the arguments before me - whether I should terminate the suspension, this court should intervene. And that is what I will do.

[32]MR HOCKTON: Can I clarify the position in relation to costs?

MR JUSTICE DAVIS: Yes. (Pause)

[34]MR HOCKTON: I have been handed the matter on costs. I was trying to clarify - - - - -

MR JUSTICE DAVIS: Has Mr Ozin seen this?

[36]MR HOCKTON: I believe so.

[37]MR OZIN: Those instructing me have.

MR JUSTICE DAVIS: I cannot give you costs and attendance for the IOP.

[39]MR HOCKTON: No. I am trying to clarify that with those sitting behind me. It looks as though the sum sought includes a previous hearing. I would not seek to persuade your Lordship for that sum. I am told it is the sum of £12,572 less the figure in relation of the initial hearing. The initial hearing was £2,000.

MR JUSTICE DAVIS: Before we go there, Mr Ozin, do you have your own costs for your side?

[41]MR OZIN: Yes.

[42]MR JUSTICE DAVIS: Bear with me. Could I have a look at it? (Pause)

[43]MR HOCKTON: I think the figure is approximately £10,000, as I understand it.

MR JUSTICE DAVIS: What do you say about costs in principle, Mr Ozin?

[45]MR OZIN: In principle, my friend has won and should get a degree of costs. The difficulty is that we would respectfully submit that - as a result of my friend's short grounds - quite a number of issues were raised which had to be dealt with which included, for example, the distinction between the judicial review jurisdiction and the statutory relief. There were issues such as whether - exercising your Lordship's statutory relief - matters needed to be proved strictly.

[46]MR JUSTICE DAVIS: I think I rather indicated that even adopting the judicial review approach I would not have accepted this particular decision. You say some discount should be made for some legal work which needed to be done.

[47]MR OZIN: Yes.

MR JUSTICE DAVIS: Apart from that, in principle, can you oppose order for costs?

[49]MR OZIN: I think not.

[50]MR JUSTICE DAVIS: I think in the circumstances I am not going to make any decision on the grounds of the fact that judicial review of (Inaudible). Shall we deal with the quantum? I must say that looking at this: attendance on the claimant and others, 11 hours for a case of this kind; and 16 hours work done on documents, I find that a bit much.

[51]MR HOCKTON: I am told this reflects the work done by those sitting behind me.

[52]MR JUSTICE DAVIS: That resulted in this bundle. As you said, it is an exiguous file. The fat bundle, you put that together.

[53]MR HOCKTON: Yes. I think there was an initial bundle for judicial review - - yes, the two bundles were put together. If your Lordship feels that the sum is excessive - - I have spoken to those sitting behind me; I am sure they would be prepared for you to assess it.

[54]MR JUSTICE DAVIS: I would rather do it on a summary assessment basis. I am not happy to send it off for detailed assessment. Are you content that I paint with a broad brush here?

[55]MR HOCKTON: Absolutely.

MR JUSTICE DAVIS: Mr Ozin, are you content that I paint with a broad brush here?

[57]MR OZIN: Yes.

MR JUSTICE DAVIS: Is there any further comment you would like to make on this schedule of costs?

[59]MR OZIN: I think that the only comment I would make is that my. friend has referred to an original bundle. It was similarly exiguous to the documents that have found their way before you today.

[60]MR JUSTICE DAVIS: The parties have sensibly agreed that I should summarily assess costs. It seems to me that in principle Dr Sosanya, having succeeded, should have her costs of these proceedings. In the particular circumstances of this case I do not propose to make any discount to allow for debate as to whether judicial review or a statutory termination application was the appropriate procedure. The question has become one of quantum. The total of £12,572 is claimed. I am not prepared to grant any order for costs of the original hearing before the IOP. £12,572 is claimed as the grand total. I have to be correct on this. What is the total claim for this hearing?

[61]MR HOCKTON: I think it is around £10,000.

[62]MR JUSTICE DAVIS: The figure therefore would come to around £10,000 for costs of these proceedings included in that figure. It seems, with respect, much too high a claim for work done on documents and attendance on the claimant and others. In terms of actual paperwork, this has by no means been a heavy case. The extra material has been occasioned by the legal arguments that have arisen from the circumstances.

[63]Looking at it in the round, I think that the costs the appellant should recover is to be assessed in the sum of £8,000. I leave aside the question of costs before the panel; it is not a matter for me, as I see it.

[64]For the avoidance of doubt, Mr Ozin, if Dr Sosanya is acquitted at the end of the day all this will fall away. If she is convicted, then of course matters may stand on another footing. I just to make that quite clear.

[65]MR OZIN: Yes.