Sandler v General Medical Council [2010] EWHC 1029 (Admin)

Case No CO/660/2010[2010] EWHC 1029 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/05/2010
Before
THE HON. MR JUSTICE NICOL
Between
Martin SandlerClaimantGeneral Medical CouncilDefendant
James Leonard (instructed by Radcliffes Le Brasseur) for ClaimantGemma White (instructed by GMC Legal) for General Medical CouncilHearing Hearing dates: 6 th May 2010
JudgmentMr Justice Nicol :
[1]On 18th December 2009 the Interim Orders Panel (‘IOP’) of the General Medical Council (‘GMC’) suspended Dr Sandler’s registration for 18 months. In these proceedings he asks the Court to exercise its power under s.41A(10) of the Medical Act 1983 (‘the Act’) to terminate that order.[2]Dr Sandler was and is employed by the Heart of England NHS Foundation Trust (‘the Trust’). On 10th December 2008 the Trust held a disciplinary hearing at which it considered a number of allegations against him. These all related to forms which Dr Sandler had completed under Cremation Act 1902 and its subsidiary legislation. Under section 7 of that Act the Secretary of State is obliged to make regulations prescribing in what cases the burning of any human remains may take place. At the relevant times the regulations were the Cremation Regulations 1930 as amended. Regulations 8 and 9 provide:
‘8. Except as hereafter provided, no cremation shall be allowed to take place unless: (a) a certificate in ‘Form B’ has been given by a registered medical practitioner who has attended the deceased during his last illness and who can certify definitely as to the cause of death, and a confirmatory medical certificate in Form C be given by another medical practitioner who must be qualified as prescribed in Regulation 9 …. 9. The confirmatory medical certificate in Form ‘C’, if not given by the Medical Referee, must be given by a registered medical practitioner of not less than five years’ standing…’
Form C requires the doctor to confirm (amongst other things) that he has seen the body of the deceased, that he has examined the body externally and that he had seen and questioned the medical practitioner who had attended the deceased during his last illness and who had completed Form B.[3]The allegations against Dr Sandler (together with the Trust’s conclusions after the disciplinary hearing) were as follows: i) Failed to see the bodies of patients for whom he completed Form C between January 2007 and May 2008 (Admitted). ii) Failed carefully to examine externally the bodies of patients for whom he completed Form C between January 2007 and May 2008 (Admitted). iii) Failed to meet with and question or speak on the telephone to the medical practitioner who had completed Form B between January 2007 and May 2008 (Partially admitted). iv) [not relevant because not proven] v) Received a total payment from the Trust in the sum of £4,549.50 for the period of 2007 – 2008 for Cremation duties required by Form C but not carried out the duties (Partially proven). vi) Failed to meet his professional duties as required by the GMC under ‘Good Medical Practice’ (Admitted). The Trust in consequence gave Dr Sandler a final written warning. It also imposed conditions that Dr Sandler did not sign any further cremation forms and discontinue his role as Clinical Director. It said that it would refer his case to the GMC and may also refer the matter to the police.[4]The Trust did refer the matter to the GMC on 16th February 2009 and it also notified the police.[5]On 18th November 2009 DS Alan Darby of the West Midlands Police wrote to the GMC about the Claimant. He said that they had conducted a six month investigation into the matter. In liaison with the Crown Prosecution Service they had decided to charge Dr Sandler with offences under s.8(2) of the Cremation Act covering a period from 2001 – 2008.[6]Section 8(2) provides, ‘Every person who shall wilfully make any false representation, or signs or utters any false certificate, with a view to procuring the burning of any human remains, shall (in addition any penalty or liability which he may otherwise incur) be liable to imprisonment not exceeding 2 years.’ DS Darby continued that the Claimant was to be summonsed to the magistrates court on 8th December 2009 to enter a plea in relation to 6 specimen charges under s.8(2). A seventh specimen charge of wilfully singing 110 false certificates under s.8(2) would also be laid against him.[7]It was on 8th December 2009 that the GMC referred the matter to the IOP to consider whether any interim order should be made against Dr Sandler. The powers of the IOP are contained in s.41A of the Act. This says:
‘(1) Where an Interim Orders 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 18 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 18 months as may be specified in the order, with such requirements so specified as the panel thinks fit to impose (an ‘order for interim conditional registration’).’
[8]As I have said, the hearing of the IOP took place on 18th December 2009. The Claimant was represented by his solicitor. Counsel presented the case for the GMC. The IOP consisted of 3 lay (i.e. non legal) members but had the benefit of a Legal Assessor who gave his advice to the Panel in the presence of the parties. The IOP was told that the hearing of the summons on 8th December 2009 had been adjourned for the defence to consider the case. The Panel was also told that the Trust had excluded Dr Sandler from the workplace with effect from 7th December 2009. When it was learned that the court case had been adjourned to 20th January 2010 the Trust had decided to allow the doctor to return to work but it would at that point meet internally to decide whether immediate suspension should take place. Dr Sandler’s solicitor submitted that neither suspension nor the imposition of conditions would be appropriate. He referred to the fact that the Trust had considered it sufficient to impose the conditions which I have mentioned. The GMC had not thought it necessary to take interim measures for some 9 months after being notified by the Trust. Impressive testimonials were provided speaking to Dr Sandler’s abilities. Suspension would have a very serious impact on him. He drew attention to the case of Sheikh v GMC [2007] EWHC 2972 (Admin) in which Davis J had said (at [16]) that it would only be in a relatively rare case that suspension would be justified on the ground that an interim order was in the public interest and (at [23]) that an IOP had to take care to be sure that the measures it imposed were needed on an interim basis as opposed to a final sanction when and if the allegations against the doctor were established. Dr Sandler had a great deal to offer his patients. The allegations against him were not such as to call for any interim measure, but even if that was wrong, the Panel should impose conditions rather than suspension.[9]The Legal Assessor advised the Panel to consider first whether an interim order was necessary for the protection of the public. If that was not the case, it should then proceed to decide whether an interim order should otherwise be made in the public interest. He reminded them of what Davis J. had said in Sheikh about the need to be clear as to whether the reputation of the profession could be upheld by a final order as opposed to an interim measure. He stressed that ‘“proportionality” is the watchword’ – the panel had to balance the interests of the public against Dr Sandler’s interests in continuing his profession without restriction. If the panel considered that an interim measure at all was necessary in the public interest it should first ask itself whether conditions would be sufficient and only then ask whether this was a rare case where suspension was justified.[10]The Panel’s determination noted the action by the Trust and the police and the information which it had been given about the charges and the reaction of the Trust to those charges. It said (correctly) that it was not its function to make findings of fact about the allegations against Dr Sandler. It decided that it was not necessary to make an interim order for the protection of the public or in Dr Sandler’s own interests. However, it did think that ‘these are serious matters which demonstrate that there may be impairment of your fitness to practice which adversely affects the reputation of the profession in the eyes of the public, and, after balancing your interests against those of the public, an interim order is necessary.’ It continued:
‘In exercising its professional judgment and having determined that an interim order is in the public interest, the Panel then considered what would be the appropriate order. The Panel acknowledged that the sole concern was the public interest, and noted your wide ranging senior positions within the Trust Management as Clinical Director, regional and national duties for a range of professional organisations and other high level roles within the medical profession. The Panel noted in your curriculum vitae that you have been the Chairman of the Training Committee of Acute Medicine and are an Examiner for the Royal College of Physicians, positions which are widely respected and influential on junior doctors. In reaching its decision the Panel determined that the public interest includes upholding the standards of professional conduct and behaviour and the reputation of the profession, expected of a registered medical practitioner. The Panel has taken into account of the issue of proportionality and has balanced the need to protect the members of the public, the public interest and your own interests against the consequences for you of the suspension of your registration. Whilst the Panel notes that its order has removed your ability to practise medicine, it considers that, in view of the serious allegations in which you have made some admissions to, there are no conditions which would adequately protect the public interest, which includes the maintenance of public confidence in the medical profession and its practitioners. In all the circumstances, it considers that the suspension of your registration is an appropriate response.’
[11]The jurisdiction of this Court is conferred by s.41A(10) of the Act. This says:
‘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; (b) in the case of an order for interim conditional suspension, revoke or vary any condition imposed by the order; (c) in either case, 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]Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr Sandler’s suspension (or to substitute a different period) is not dependent on showing some error of law on the part of the IOP. That is the point that I understand the Court of Appeal to have made in GMC v Hiew [2007] 1 WLR 2007 where at [27] Arden LJ said ‘the powers conferred by s.41A(10) are also original powers and not merely powers of judicial review.’ In that case, the Court was directly concerned with an application to extend a doctor’s suspension. The maximum period for which an IOP can suspend a doctor is 18 months. Any longer extension can only be granted by the Court under s.41A(7). In such a situation, the only order or orders by the IOP will have expired (or be about to expire). If nothing further is done the suspension will come to an end. It is unsurprising in these circumstances that the Court of Appeal characterised the Court’s jurisdiction as ‘original’. The position with an application under s.41A(10) is different. The IOP has suspended Dr Sandler. His application is for that suspension to be terminated. My consideration of the application must surely start from the position that the IOP has thought that interim suspension is the right course. I also note that s.41A(10) applies ‘where an order has effect under any provision of this section’. One of the previous subsections is s.41A(7). Thus, it is open to a doctor whose order for suspension has been extended by the Court under that provision to apply for the suspension to be terminated under s.41A(10). There, too, the Court would surely have to start from the position that a suspension was currently in place before deciding whether that position ought to be altered. In R (Stephen James Walker) v GMC [2003] EWHC 2308 (Admin) Stanley Burnton J. (as he then was) was also considering an application to terminate a suspension under s.41A(10). He said at [3] ‘The terms of subsection 10 indicate that the appeal to the Court is a full appeal, that is to say, the Court does not interfere on a review ground but itself decides what order is appropriate.’ To describe the process as an ‘appeal’ may not do full justice to the power of the Court. It would seem to me that the Court does have power to consider subsequent developments and (where appropriate) fresh evidence. However, in my judgment the term does correctly acknowledge that in this context, unlike an application under s.41A(7), the Court is faced with an extant order of the IOP which it would only terminate if it thought that order was wrong.[13]The exact analysis may not matter a great deal since both parties acknowledged that the opinion of the Panel was entitled to respect. As Davis J. said in the Sheikh case at [10] ‘in the ordinary way the court will show respect for the decision of a Panel in this context, given that the Panel is an expert body which is well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and public confidence.’ In Hiew the Court of Appeal also commented on the significance of the views of the IOP or the GMC. I recall that since the court was considering an application for an extension of the doctor’s suspension, the views of the IOP (or GMC) were given in the form of evidence as to whether suspension should continue rather than an order that it should. Arden LJ said at [32] ‘It is for the court to decide what weight to give to that opinion, It is certainly not bound to follow 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.’ At [42] she added, ‘I would prefer to say that the approach of the court to the opinion of the IOP is not a question of giving respect but of attaching appropriate weight to the evidence in the ordinary way. In contrast to the giving of respect, there can be no automaticity about the attaching of weight to evidence. Weight does not attach to evidence by virtue only of his experience or status. The giving of weight to opinion evidence entails a holistic evaluation of the persuasiveness of the evidence on the relevant issue, having regard to the relevant circumstances including its content as well as the viewpoint of the author of the opinion.’[14]There was some debate at the hearing as to whether the IOP could only suspend Dr Sandler on public interest grounds if this was ‘necessary’. In my judgment, the Legal Adviser was plainly right to observe that, while the statute allows suspension on public protection grounds only if this is necessary, there is no such qualification to the public interest limb. In Sheikh at [15] Davis J. thought that nonetheless ‘if the public interest is to be invoked in this context under the statute, then that to my mind, does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability.’ He added at [16] ‘At all events, in the context of imposing an interim suspension order, on this particular basis, it does seem to me, adopting the words of Mr Winter [counsel for the Claimant], that the bar is set high; and I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality.’ I certainly agree that a doctor could not be the subject of interim suspension unless this was at least desirable in the public interest. I also agree that the Panel must consider very carefully the proportionality of their measure (weighing the significance of any harm to the public interest in not suspending the doctor against the damage to him by preventing him from practising), but I do, with respect, think that the Court must be cautious about superimposing additional tests over and above those which Parliament has set.[15]The parties were also agreed that it is not open to the Court on the present application to substitute an order for interim conditional registration for interim suspension. In addition, unlike on an application for judicial review where the court may quash a decision and remit for reconsideration to the primary decision-maker, there is no equivalent power to quash the order for suspension and remit the matter for reconsideration by the IOP.[16]In this case, Mr Leonard argued that Dr Sandler’s suspension should be terminated because it was not justified in the public interest and because it was disproportionate. He observed that the Trust had thought it sufficient to give a final warning and impose the conditions which I have mentioned, but otherwise allowed him to continue to practise. Given the 9 months which elapsed before the GMC referred the matter to an IOP, it could not be said that there was some urgency or substantial public interest which called for interim suspension. The glowing testimonials which had been produced on Dr Sandler’s behalf showed that he was a valued doctor. The allegations against him concerned a very specific aspect of his practice and if any interim measure was required it ought to have been limited to this area of his work by carefully crafted conditions. Because the criminal proceedings had only just begun and because a Fitness to Practice Panel (‘FPP’) would not consider the substantive disciplinary case against him until after the criminal process had concluded, Dr Sandler was facing the prospect of a suspension which was likely to continue for some 3 years. Even if the FPP later exonerated him or decided that a lesser penalty than suspension or striking off was appropriate, he would by then have substantial difficulties in showing that he was not deskilled by his absence from practice. Overall, therefore, suspension was disproportionate.[17]Mr Leonard also sought to rely on two witness statements which were not before the IOP. Ms White, on behalf of the GMC, opposed this but did not object to me reading the statements de bene esse. Mr Samuel Flew is Dr Sandler’s solicitor. His witness statement dated 27th April 2010 produces a copy of the summons which was served on Dr Sandler on 19th November 2009. As DS Darby had notified the GMC, all the charges are under s.8(2) of the Cremation Act 1902. There are 6 specific offences and a seventh which alleges that Dr Sandler wilfully signed 110 false certificates between 31st December 2005 and 1st June 2008. The first specific charge alleges that the certificate was signed on 22nd June 2009. Mr Flew’s witness statement says that this was amended at court to 2006. The second witness statement is from Dr Sandler. It, too, is dated 27th April 2010. He makes the point that at present he receives no NHS income because he is unable to undertake his duties for the Trust. This is causing him acute difficulties.[18]Mr Leonard wished to deploy Mr Flew’s witness statement to show that the period during which it was alleged that Dr Sandler had been signing false cremation certificates was not the 7 years which DS Darby had said to the GMC (and which was repeated in the Panel’s decision) but the considerably shorter period of some 2 ½ years. He wished to use Dr Sandler’s witness statement because it showed that the impact of suspension was greater than the Panel might have appreciated. While it was obvious that a suspended doctor could not practise, it did not necessarily follow that he would cease to receive any income from the employing Trust. Some Trusts, Mr Leonard said, would continue to pay a doctor who was subject to an interim suspension and the Panel might have thought that was to be the case here. Furthermore, because the IOP did not have the advantage of these two witness statements, I should accord less weight to their views than I might otherwise do.[19]Ms White observed that these were proceedings under CPR part 8. Rule 8.5(1) requires a claimant to file any written evidence on which he intends to rely when he files his claim form. This Claim Form was issued on 18th January 2010. The witness statements were not served then. Indeed they were only provided under cover of the Claimant’s solicitor’s letter of 29th April 2010 i.e. a few days before the hearing of Dr Sandler’s application to the Court. There is no evidence to explain the delay. Dr Sandler had had the summons since 19th November 2009. Indeed, he would have had it at the time of the IOP hearing on 18th December 2009. Dr Sandler’s witness statement was silent as to when the Trust took its decision not to continue paying him. Ms White acknowledged that the Court could give permission to a Claimant to rely on evidence even if it was not served in accordance with r.8.5 – see r.8.6(1)(b). However, she argued that the Court should refuse permission. When the GMC had received the statements on 29th April 2010 it had considered that these were matters which the IOP might wish to consider. Accordingly, it had arranged an urgent review of the interim suspension order pursuant to s.41A(2)(b). This was due to take place on 18th May 2010. It had suggested to the Claimant that the present hearing should be adjourned until after that date, but the Claimant had not agreed to that course. Thus, Ms White submitted, the late service of the evidence had prejudiced the GMC. There was no evidence to show why the evidence could not have been served in a timely manner. If it had been, a review hearing would and could have been arranged speedily and the Court would have had the benefit of the views of the IOP on the new material. Mr Leonard responded that it was obviously in the interests of justice for the evidence to be received. The Court was exercising an original jurisdiction and he did not think that the contents of the witness statements were likely to be disputed.[20]Rule 8.6 gives the Court a discretion as to whether to receive evidence which was not filed with the Claim Form. I recognise that s.41A(10) would allow the Court to admit evidence which was not before the IOP. An example of that appears to have occurred in R (Julianna Sosanya) v GMC [2009] EWHC 2814 (Admin) see [28]. In this case, however, I decline to exercise that power to admit the evidence of Mr Flew and Dr Sandler. Ms White has given reasons which I consider to be sound as to why I should not. Furthermore, it is not just the GMC which is prejudiced by the late service of the evidence. The Court has been deprived of the views of the IOP of the impact of this additional material. Correspondingly, the argument which Mr Leonard would wish to make (that I give less weight to the views of the IOP because it did not have this material) is only possible because the evidence was served so late. Absent any evidence explaining why the evidence was not served in January or any earlier than it was, I am not in a position to conclude that there was some good reason for the delay in serving these two witness statements. I also bear in mind that, even though I decline to take these witness statements into account and even if I should dismiss the present application, Dr Sandler will have the opportunity of persuading the IOP at the imminent review hearing to take a different view of his suspension in the light of them.[21]I turn to the substance of the application for the termination of the IOP’s order. Ms White submits that the application should be refused. She argues that the criminal charges Dr Sandler faces are serious. They allege wilfully making false statements in relation to a very large number of cremation certificates. The maximum penalty for an offence under s.8(2) is 2 years imprisonment. On the information available to the Panel these allegations spanned some 7 years. (I add, but only in parenthesis, that even on the evidence in the summons themselves which I have ruled that I will not take into account, the period was still not inconsiderable being about 2 ½ years). This lack of probity (if the charges are proved) took place in a clinical setting. The Act and Regulations rely on the honest statements of a senior doctor to ensure that bodies are not cremated unless the correct procedures have been followed. Only a senior registered doctor can sign Form C. Mr Leonard indicated that Dr Sandler would or might contest the admissibility of the admissions to the Trust as evidence on which the prosecution could rely in the Crown Court. That may be, but it was not for the IOP (nor is it for me) to consider the truth of the allegations against Dr Sandler. That would be the task of the criminal court and, possibly, a future FPP. However, Dr Sandler’s admissions to the Trust of at least some of them meant that it was not open to him to submit (nor did he) that the allegations were manifestly baseless. Dr Sandler’s position within the Trust and his national and regional duties meant also that he was in positions which were widely respected and influential on junior doctors. All of this supported the conclusion of the IOP that an interim measure was required, that conditions were not sufficient and that, despite the impact on Dr Sandler, suspension was a proportionate order for it to make.[22]Ms White sought to argue, in addition, that interim suspension could be justified as necessary for the protection of the public since a doctor who was prepared to make false statements on documents in the course of his medical practice might be considered to present a risk to the public such as to necessitate an interim suspension. I indicated to Ms White that this argument sat uncomfortably with her submission that I should give great weight to the views of the IOP when the IOP had expressly rejected the proposition that suspension or any interim measure was necessary for the protection of the public. In my judgment the IOP was entitled to come to that conclusion which was, in any case, the one that I would also have reached.[23]However, I accept the principal submission of Ms White which I have summarised in paragraph 21 above. The charges which have been brought against Dr Sandler are serious. One incident might have been regarded as an aberration, but here the wilful signing of false certificates is alleged to have taken place on at least 116 occasions over a number of years. I agree with Ms White as well that it is significant that this lack of probity is alleged to have occurred in the course of the doctor’s clinical duties (a distinction, incidentally, from the frauds which were alleged in the Sheikh case and which Davis J. did not think justified interim suspension). The Trust thought a final warning and conditions would suffice. However, it referred the matter to the GMC and the police. The GMC has a wider responsibility and is not (of course) bound by the decision of the Trust. The scale of Dr Sandler’s alleged offending had also crystallised and enlarged somewhat by the time the IOP came to consider the matter. The disciplinary action by the Trust related to certificates signed in 2007 -2008. The IOP was informed that the matter had been going on for longer and affected at least 116 certificates. Mr Leonard argued that there could be no urgency justifying interim measures because the GMC waited 9 months before summoning an IOP. I do not regard this as persuasive. The GMC was entitled to wait for the outcome of the police investigation. Once this was known it took swift action. Mr Leonard argued that the impact on the reputation of the profession was a matter which could justify a final penalty imposed by a FPP, but it was difficult to see why it called for an interim suspension before the allegations were proved. I disagree. The reasons given by Ms White and the Panel show that the reputation of the profession could be adversely affected (and, correspondingly, the public interest could be damaged) if a doctor who faced such serious allegations was allowed to continue to practise while they proceeded through the criminal courts. These are matters on which the views of the IOP are particularly important and, in my judgment, entitled to particular weight. They were well aware of the warning which they had been given by their Legal Assessor not to confuse a suitable final penalty with a necessary interim measure. Likewise, they were well aware of the obligation to balance the harm to Dr Sandler from being suspended with the damage to the public interest if he was able to continue to practise in the meantime. I agree that I must reach my own view on this balance, but, here, too, I am entitled to, and do, give considerable weight to the views of the Panel that this balance comes down in favour of suspension.[24]Mr Leonard emphasised that an FPP might not hold a final hearing for some 3 years and a suspension of that length would have a devastating effect on Dr Sandler. I have to approach that submission with some caution. The application now before me is for the termination of the IOP’s present order. The present order lasts 18 months. Of course a suspension for even that length will have a serious effect on Dr Sandler. I can and do take that into account. But the additional adverse consequences of extending the suspension for as long as 3 years will be a matter for any application which the GMC makes to the Court under s.41A(7), rather than for the present hearing.[25]Taking all these matters into account, giving appropriate weight to the views of the IOP but exercising my own judgment, I conclude that I should not order termination of the interim suspension. Accordingly, this application is dismissed.

Cited in 27 later judgments

and 18 more of the most senior