General Medical Council v Haque [2013] EWHC 3115 (Admin)

Case No CO/11204/2013[2013] EWHC 3115 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue Manchester Greater ManchesterDate Wednesday, 11th September 2013
England
M60 9DJ
B e f o r e:
HIS HONOUR JUDGE PELLING QC
(Sitting as a Judge of the High Court)
Between
GENERAL MEDICAL COUNCILClaimantv
Between
HAQUEDefendant
Digital Audio Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Atherton (instructed by General Medical Council) appeared for Claimant for The Defendant did not appear and was not represented
J U D G M E N T
[1]HIS HONOUR JUDGE PELLING: This is an application made by the General Medical Council pursuant to section 41A(6) and (7) of the Medical Act for an order extending by 9 months an interim order of suspension, first made on 15th June 2012 by an Interim Orders Panel of the General Medical Council.[2]The first issue which arose on the hearing of this application was whether or not I could be satisfied that the claim form and evidence in support had been served as it should have been on the defendant. The certificate of service which was filed with the application indicated that the papers had been served at the registered address of the defendant by first class post or other service, which provides for next day delivery. A short bundle was provided to me which demonstrates, first of all, the address to which the material was sent is indeed the registered office, so far as the records of the claimant are concerned. The letter under which material was sent to the defendant is dated 14th August 2013. It indicated, in terms, in the third paragraph that the hearing to which the papers related was to take place on 11th September 2013 at Manchester Civil Justice Centre. Finally, the documents attached included an electronic record, prepared by the Royal Mail, which indicated, first, the materials had been supplied to the Royal Mail for delivery at the registered address of the defendant by a special shipment and that it was to be tracked. There is a record from the Royal Mail confirming that the materials had been delivered by the Harlow delivery office of the Royal Mail. In those circumstances and for those reasons I am satisfied there has been a proper service as required. Not merely the registered address maintained by the defendant a proper address for service in accordance with the Medical Act, it is by definition the usual last known residential or place of business address known to the claimants as well.[3]The question that then arises therefore is whether or not I should grant the extension sought and if in principle I should grant it whether I should grant it for the length of time sought by the General Medical Council. I should record the defendant does not appear and is not represented.[4]The test which is to be applied in deciding whether or not to extend a period of interim suspension is the test which must be applied by the IOP when first imposing such an order, that is to say, whether it is proportionate and necessary for the protection of the public, the protection of the doctor or otherwise in the public interest for the order sought to be made. The well-known case of GMC v Hiew, a decision of the Court of Appeal, sets out the principles to be applied by a court on an application of this sort. That case requires the court to focus upon the nature of the allegations made and emphasises that it is no part of the function of the court to seek to resolve those allegations on a hearing of this sort, even if the material could in theory permit such an exercise to be undertaken. The court is bound to give appropriate weight to the decision of an IOP but must make its own distinct decision applying the principles I have identified in deciding whether or not it is necessary and proportionate to extend a period of interim suspension.[5]Applying those principles, I am entirely satisfied that it is appropriate to continue the interim order of suspension in the circumstances of this case. The defendant's specialty was that of emergency treatment. The evidence which has been filed supports the suggestion that in a number of cases his practice has fallen seriously below or below the standard to be accepted of such a specialty doctor. In the course of its investigation the General Medical Council has engaged the service of an independent specialist to prepare a report, having reviewed the records of a sample of some 40 odd patients. The conclusions reached by the expert are summarised in paragraph 30 of the evidence in support of the application, by confirming that in the view of the independent expert the standard of care provided by the defendant fell below that to be expected of a specialty doctor in emergency medicine in 19 of the cases that he had examined and of these the defendant fell seriously below the standard of care expected in six. The conclusion of the expert, set out in paragraph 30 of the evidence in support of the application was to this effect:
"Taken overall the care offered by Dr H falls seriously below the level I would expect of a specialty doctor in emergency medicine. A review of these records has revealed evidence of poor record keeping, inadequate examination and misinterpretation of X-rays. In my opinion Dr H is not capable of interpreting X-rays adequately as there is evidence of abnormalities being missed which should be within the capability of a specialty doctor in emergency medicine. There is evidence of conflicts with patient and staff and inappropriate use of language in the medical records. Some of the records have been changed retrospectively."
[6]Some of those allegations are obviously more important than others. First and foremost, the conclusion that this doctor fell seriously below the standards to be expected of a specialty doctor in emergency medicine in six of the cases reviewed and that in 19 in total he fell below the standard to be expected of a specialty doctor is perhaps the most pressing consideration of all, particularly when the nature of those defects are as set out in the evidence and the documentation supplied with the application. Aside from that I would consider that the failure to keep adequate records of examinations and the changing of records retrospectively equally justify suspension when taken together with the treatment allegations which are made in the particular circumstances of this case. It is probable that the suggestion of conflicts with patients and staff and even the inappropriate use of language in medical records would not of themselves justify suspension. But those allegations must be taken together with the much more serious allegations to which I have referred and in the aggregate justify the continuation of the interim suspension period.[7]The next issue that arises is whether or not I should extend for the 9-month period sought by the General Medical Council in circumstances where it ought to be possible to get the hearing before the Fitness to Practise Panel concerning these allegations heard and determined within a period of 7 months. The fact is, however, that no hearing date has yet been fixed. There have been delays in supplying the defendant with the material that is required to be supplied to him before an effective hearing before a Fitness to Practise Panel can take place.[8]In those circumstances it is submitted that I should grant the extension for a period of 9 months in order to provide for difficulties which might arise. In the circumstances of this case I am prepared to make that order. First of all, the period that has elapsed since the first interim order of suspension was made by the IOP is not lengthy by the standard of the General Medical Council cases. It is not objectively sufficiently long enough to give rise to concern relating to unacceptable delay in the processing of the case.[9]The first order was made on 15th June 2012 and is due to expire on 13th September 2013. The extension that is sought is for a period of 9 months, that is to say less than the maximum period permitted by the Act and will expire on the 12th June 2014. This is just short of 2 years since the interim suspension was imposed. That is a lengthy period and any further extensions would require some careful consideration. But given the nature of the allegations and given the period of extension sought and given the need to get the matter before a Fitness to Practise Panel in proper order so that a hearing can be effective, I am prepared to grant the 9 months extension sought, recognising that if the hearing before the Fitness to Practise Panel takes place earlier than the expiry of the 9-month period and if the Fitness to Practise Panel considers that the appropriate course is to impose conditions or make no order, then the interim period of suspension will be brought to an end at that point.[10]MR ATHERTON: A draft order has been prepared.

HIS HONOUR JUDGE PELLING: Yes.

[12]MR ATHERTON: Your Lordship will have seen from the service bundle that the doctor was put on notice of an application to costs in the event that he did not consent to the application.

HIS HONOUR JUDGE PELLING: Yes.

[14]MR ATHERTON: The costs schedule comes to a total of £1,835.50 and I respectfully invite your Lordship to assess the costs summarily. May I hand forward for your Lordship a copy of the statement of the costs?

HIS HONOUR JUDGE PELLING: I have a statement of costs.

[16]MR ATHERTON: And a draft order.[17]HIS HONOUR JUDGE PELLING: So the costs come to this. The preparation work has been done principally by a grade D fee earner and the rate that is being claimed is the Manchester Standard rate for a grade D fee earner. There has been review of some of the work done on documents by a grade A fee earner and that has been charged at the Manchester recommended rate as well. Counsel's fee is the standard fee paid by the General Medical Council for applications of this sort.[18]MR ATHERTON: Correct my Lord, yes.[19]HIS HONOUR JUDGE PELLING: I will assess the costs in the sum sought on the grounds that they are reasonable and proportionate in the circumstances.[20]MR ATHERTON: I am very grateful.[21]HIS HONOUR JUDGE PELLING: Right, so a draft order. The defendant pay the costs (which I suppose we should say now) are assessed. There is the order. I have amended it and initialled the amendment so that should be capable of being sealed fairly quickly.[22]MR ATHERTON: I am very grateful.