General Medical Council v Mahinda [2014] EWHC 524 (Admin)

Case No CO/114/2013[2014] EWHC 524 (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 Friday, 31st January 2014
M60 9DJ
B e f o r e:
VINCENT FRASER QC
(Sitting as a Deputy Judge of the High Court)
Between
GENERAL MEDICAL COUNCILClaimantv
Between
DR LUCY MAHINDADefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Jackson QC (instructed by the GMC) appeared for Claimant for The Defendant did not appear and was not represented
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an application for an extension for 2 months from 2nd February to 2nd April 2014 of an interim order of suspension. There has been no attendance by the defendant, Dr Mahinda, but she has submitted letters dated 18th and 21st January in which she objects to the application.[2]This morning Mr Jackson, who appears on behalf of the claimant also handed to me a copy of an e-mail exchange between the claimant and the defendant and on the 30th January it appears that, having been offered a further opportunity to agree to an order in this case, the defendant responded simply saying that her decision remains unchanged.[3]The current application is supported by a witness statement made by Stephanie Pollitt. After setting out the background to matters coming before the claimant Miss Pollitt explains that the matter was referred, first, to the claimant in June 2012, with a formal referral being made in July 2012. The referral contains concerns about the defendant who had been acting as a locum and the concerns included errors in prescribing and significant difficulties in taking blood from patients.[4]The claimant's Interim Orders Panel first considered the matter on 3rd August 2012 when it made an interim order of conditions and by letter dated 30th August 2012 the defendant was invited to attend the performance assessment. In November 2012 the defendant informed the claimant that she would not comply with the performance assessment, she stated that prescribing errors are part of the medical profession and suggested that the type of errors she made would normally be quickly picked up by nursing staff. She said that they did not merit investigation or prosecution unless there is a cause associated to the error. The defendant also stated that incompetence in venipuncture presents no risk to patient safety and accordingly should not be investigated.[5]The Interim Orders Panel considered the matter again and the order was amended so as to be one of suspension. That occurred on 10th December 2012. By this time, in the light of the defendant's response and failure to co-operate the view was taken that she lacked insight into the deficiencies in her medical practice and was a significant risk to patient safety.[6]The matter was considered again by the Panel in February and July 2013 and then most recently on 14th January 2014. The defendant did not attend on that last occasion and the Panel concluded, in paragraph 7 to 9:
"In reaching its decision, the panel has taken into account your submission that in view of the performance and misconduct concerns, Dr Mahinda's apparent lack of insight and her apparent lack of engagement with the GMC, it remains necessary for the protection of members of the public and in the public interest for the interim order of Suspension to remain in place on Dr Mahinda's registration pending the outcome of the imminent fitness to practise hearing. The panel has accepted your submission and has determined that, based on the information before it today, there may be impairment of Dr Mahinda's fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest. After balancing Dr Mahinda's interests and the interests of the public, the panel determine that an interim order remains necessary to guard against the risks identified. Whilst the panel notes that the order has removed Mr Mahinda's ability to practise medicine it is satisfied that the order imposed is the proportionate response. In view of the misconduct and wide ranging performance concerns raised, Dr Mahinda's withdrawal from the GMC Performance Assessment on 19 November 2013 and her apparent lack of insight, the panel does not consider there are any Conditions that can be formulated to address such concerns. It has therefore determined that Suspension remains necessary to safeguard patients and the public interest until these matters are resolved by a fitness to practise panel."
[7]The defendant's fitness to practise hearing is in fact currently underway although I was also informed today that she has not attended that. It is due to complete its hearing next week.[8]I remind myself of the relevant provisions of section 41A Medical Act 1983 and the guidance provided in the authority of GMC v Hiew [2007] EWCA Civ 369. I bear in mind that in applications of this nature, the court is the primary decision maker and whilst the opinion of the Interim Orders Panel is an important consideration, I am not bound by that opinion nor am I required to defer to it.[9]However, I also have to keep in mind it is not for me to make findings of primary fact about the events that result in the interim order and my function is to ascertain whether the allegations made against the medical practitioner rather than their truth or falsity justify prolongation of the suspension.[10]The primary consideration for me is whether the General Medical Council have satisfied me on the balance of probability that the order should be extended on the basis that the extension is necessary for the protection of the public, the public interest or the practitioner's own interest. In considering this it is accepted by the General Medical Council, as it was accepted in Hiew, that matters I can properly take into account include the gravity of the allegation, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if the interim order is continued. Considering those matters in this case these are serious allegations supported by good evidence. There is no reason to doubt potentially they give rise to a serious risk of harm to patients.[11]I am concerned by the delay in this case. This appears to be a relatively straightforward case and I see no reason why it should have taken 18 months to get to hearing, but I have taken into account that it is currently at hearing. The extension of the order will doubtless cause prejudice to the defendant and I have taken that into account albeit no particulars are provided by the defendant. I take into account the limited nature of the extension currently sought by the claimant.[12]The defendant raises issues with respect to Articles 3 and 6 of the European Convention on Human Rights. With respect to Article 3 the defendant says that precautionary suspension of the nature involved here, particularly if prolonged beyond a reasonable time, is a real torture. Article 3 prohibits torture or inhuman or degrading treatment or punishment.[13]I readily accept that a suspension of the nature under consideration will have serious implications for any practitioner and is doubtless a cause of much anguish. However, it is clearly necessary that medical practitioner's should be properly regulated and that the public should be kept safe. I have not heard this contention with respect to Article 3 argued before me by the defendant and I do not see anything in the materials which would raise any real issue that an extension of this order would contravene Article 3.[14]Article 6 secures a fair trial. Everybody is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal. Article 6 does not prohibit or prevent the making of interim orders prior to a trial. An example of where such orders may be appropriate and justified must include where patient safety is at risk in the absence of any such order.[15]The application before me concerns an interim order and the legislation provides for such orders subject to safeguards which include the need to come before this court for any extension beyond 18 months. The defendant quite justifiably raises concerns about the time within which the claimant deals with complaints. I am prepared to accept that the claimant does not deal with complaints as expeditiously as it should. I have already accepted it has not dealt with this complaint as quickly as it should and I have taken that into account in considering whether an order should be made.[16]Whilst I do have serious concerns about the delay in this case, taking into account the fact that the matter is now before the fitness to practise hearing and the length of the extension which is now sought, I do not consider that the delay in this case, at present, amounts to a reason under Article 6 why an extension should not be granted.[17]Accordingly, on the basis of the information currently before me and taking into account the stage the investigations have reached, I am persuaded the claimant has made out a case for a short extension of the order and I would accede to the application for the order to be extended by a period of 2 months to 2nd April 2014.[18]MR JACKSON: Can I follow that up. Has your Lordship seen a statement of costs?[19]THE DEPUTY JUDGE: I do not recall having seen them -- oh yes, I think I have. Bear with me a moment. Yes, I have it here.[20]MR JACKSON: I seek an order for costs in favour of the claimant, in the total set out on page 4, on the basis that the appellant has been given every opportunity to compromise this matter, most recently by e-mail yesterday which your Lordships has seen referred to, where my instructing solicitor, Mr Lightfoot, noted "the hearing is listed to take place tomorrow should you consider it apt and it is still possible to resolve this matter by signing and returning the attached consent order." That followed on from earlier correspondence warning the defendant as to the risk of the costs or as the consequence of challenging the application.[21]THE DEPUTY JUDGE: Looking at the schedule of costs on the third page there is a subtotal of £472. I cannot find any break down at all in preceding pages.[22]MR JACKSON: The very last page.[23]THE DEPUTY JUDGE: No, the third page, there is a subtotal of £472.[24]MR JACKSON: I am sorry my Lord. If you turn to the last page there is a break down.[25]THE DEPUTY JUDGE: Just looking at that, I cannot see in item 2, how if the hourly rate is £118, half-an-hour comes to £118?[26]MR JACKSON: Would your Lordship give me a moment? It is £108.50 that half-an-hour. It is a half-an-hour I am told that relates to Mr Lightfoot -- sorry Mr Stables, not Mr Lightfoot. The three hours was for Mr Lightfoot and then the half-an-hour was for Mr Stables. The half of the £227 should be up.[27]THE DEPUTY JUDGE: I have to say I am not entirely satisfied at the way that this has been drawn up Mr Jackson. It is appropriate that the claimant should recover its costs in this matter and looking at matters in the round I am prepared to summarily assess at a sum of £1,400.[28]MR JACKSON: Thank you my Lord.