"In giving a direction for erasure or a direction for suspension under section 36(1) or (2), 36(A) or 37(1) or (2) above, or under rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act in respect of any person, the Professional Conduct Committee, the Committee on Professional Performance or the Health Committee, if satisfied that to do so is necessary for the protection of members of the public or would be in the best interests of that person, may order that his registration be suspended forthwith in accordance with this section; and in this section the reference to section 36(2) includes a reference to that provision as applied by section 36(5) and the reference to section 37(2) includes a reference to that provision as applied by section 37(5)."

Where the Committee gives a direction but does not order registration to be suspended forthwith, Schedule 4 paragraph l0(1) of the Act provides that in the event an appeal is brought and not withdrawn or dismissed for want of prosecution, the direction shall not take effect until an appeal is dismissed. It follows that unless the Committee exercises the specific power conferred by Section 38(1) to order suspension to take place forthwith, so long as an appeal is issued within the time allowed, a practitioner can continue to practise until the dismissal of the appeal. The statutory scheme demonstrates that it was contemplated that in the normal course practitioners could continue to practise until an appeal had been dismissed, but circumstances might arise in a particular case where immediate suspension was appropriate. The power has a close resemblance to the power conferred upon the Interim Orders Committee pursuant to Section 4lA(1) of the Act. The jurisdictional basis for the exercise of power is in identical terms, namely satisfaction that an order is "necessary for the protection of members of the public or would be in the best interests of that person". In a judgment dated 17 July 2001 in the case of Sudesh Madan v The General Medical Council 2001 EWHC Admin 577, this court had occasion to consider an application under Section 41A(10) of the Act. For reasons special to that case it was not necessary to grant relief, but the court took the opportunity to state the principles which should govern the giving of reasons when an interim suspension order was made and the approach which should be adopted when considering the adequacy of such reasons. The case illustrates the value which the Human Rights Act l998 has had in clarifying the essential content of reasons in connection with decisions which interfere with Convention rights.
3. On 30 May and l June, the Committee had heard and determined certain charges brought against the applicant. The charges were of serious professional misconduct, namely allegations that she had permitted her husband and former medical partner to hold consultations with patients at two surgeries from which she, in company with another, practised as a general practitioner. It was alleged that she well knew that he was holding consultations at the practice surgeries and well knew that his name had been erased from the Register. The charges covered a period of some two years and seven months between May l996 and December l998. The particulars of the charges varied in some respects. Some consultations were alleged to have taken place in company with the applicant, others whilst her husband was on his own, and in some instances the occasions were particularised and the patients involved in the consultations were identified.
4. Rule 28 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules (S.I. l988 No.2255) provides:

In this instance, having heard the evidence and submissions upon it, the Committee retired and, in accordance with Rule 28, deliberated and thereafter returned to state which facts they had found proved and which facts they had not found proved. The Committee did not find proved facts alleged in support of allegations she had been present when her husband was giving consultations and she was therefore acquitted on those charges. Nevertheless they did find proved charges to the effect that he had held consultations from the surgeries. It had never been in dispute that the applicant's husband had been erased from the Register and that the applicant knew that. The Committee stated that it would proceed to consider and determine whether they found the applicant guilty of serious professional misconduct in relation to the facts proved against her. Rule 28 was fully complied with and the Committee informed the applicant that it would "proceed to consider whether Dr Gupta has been guilty of serious professional misconduct in respect of those facts which have been found proved against her and if so they would go on to consider and decide whether or not they should make any directions regarding the registration of Dr Gupta".
5. Rule 30 provides the Committee with a choice. It may postpone the determination whether to make a direction (Rule 30(1)), or it may decide that no postponement is necessary and determine that it is sufficient to make no direction (see Rule 30(2)). Rule 31(1) provides that "if the Committee determine neither to postpone their determination under Rule 30(1) nor that it shall be sufficient to conclude the case under Rule 30(2), they shall proceed to make a direction in accordance with the following provisions of this Rule". The "following provisions" of Rule 31 provide for a number of options, including conditions being attached to the registration, suspension of the registration, and if neither suspension nor conditions are appropriate, the power to direct that the name of the practitioner shall be erased from the Register.
6. Rule 32 provides as follows:

"If in any case the Committee determine to suspend registration of a practitioner or to erase his name from the Register, the Committee shall then also consider and determine whether it is necessary for the protection of members of the public or would be in the best interests of the practitioner, to order that his registration shall be suspended forthwith."

It is apparent that whilst the Rules envisage a staged process of consideration by way of gradation from a penalty to a more serious penalty, no specific opportunity is envisaged under the Rules, save that stipulated in Rule 28, for any representations to be received on the appropriate level of penalty. In our judgment no particular concern arises on that score, having regard to the clear terms of Rules 29, 30 and 31, but there is cause for concern in connection with Rule 32 so far as it provides for consideration to be given to whether the suspension of registration should be immediate or not. No notice was given to the applicant that the Committee contemplated making an order for immediate suspension of her registration. Nevertheless what was said complied with the procedure laid down by the Rules. Two questions arise, namely, whether in the circumstances of this case fairness required notice to be given that such an order was under contemplation, and secondly, the broader question, whether to exercise a power to suspend forthwith without giving any notice will invariably give rise to unfairness.
7. As to the particular circumstances of this case, the mitigation advanced by counsel included the following:

"She would like to spend the next five years usefully providing medical services to her patients and to the community. That is what she wants to do. Her husband is erased from the register; her husband is never likely to get back on the register; her husband does not have any more involvement in the surgeries since these events came to light and I say that with some confidence and there is certainly no evidence to gainsay that. It was the case in the earlier proceedings when she was made subject to conditions - and I just make this observation in passing - that there was a feeling in the Committee that Mrs Gupta may have been subjected to some unhelpful influence or unhelpful pressure from her husband and that point is perhaps indicated by the different ways in which they were dealt: he was erased, she stayed on the Register and was made the subject of conditions. Approaching the logic of these findings, if I can in this way, you have not found that she allowed him to take part in consultations with which she was concerned. You have not found that she allowed him to interfere with her day to day medical practice, but what you have found is that she did not put her foot down and stop him doing what he wanted to do regardless of the decisions of this Committee. That you have found was the position up until December l998 and it is now your duty to determine the most appropriate way to deal with that in the light of what has followed, in the light of what you are about to read and in these testimonials."

The Committee deliberated and then delivered its determination.:

" .... The facts found proved at this inquiry are very serious. On 29 March 1996, your husband, Dr R P Gupta, was found guilty by the Professional Conduct Committee of serious professional misconduct. A direction was made that has (sic) name be erased from the Register and that his registration should be suspended with immediate effect. Following the lodging and subsequent withdrawal of an appeal, Dr Gupta's erasure took effect on 25 July l996. Since that date, he has not been registered with the GMC and he has not been entitled to practise since 29 March l996.
The Committee have found proved that between about May l996 and about December l998, Dr R P Gupta held consultations with various patients who attended your surgery premises at 8 St Kilda Road, Ealing and 59 Rutland Road, Southall, London, for medical services. The Committee have found proved that in or around mid-1997, Dr Gupta gave an MMR injection to a child and that, in or about July l998, he consulted and wrote a referral letter for a female patient. The Committee are concerned that you were aware of the consultations yet failed to prevent them from taking place and permitted them to continue.
Your evidence to this Committee was inconsistent and by reason of our determination untruthful in many respects.
The Committee take a most serious view of your behaviour. They consider that this behaviour demonstrates a blatant disregard for the system of registration which is designed to safeguard the interests of patients and to maintain high standards within the profession. Good Medical Practice clearly states that you must not enable anyone who is not registered with the GMC to carry out tasks that require the knowledge and skills of a doctor. Accordingly, the Committee have found you to be guilty of serious professional misconduct.
The Committee have carefully considered what action to take in relation to your registration. During consideration of your case, the Committee, as required under the Procedure Rules, have been given an outline of your previous registration history. In March 1996, you appeared before the Professional Conduct Committee and were found guilty of serious professional misconduct. Following that hearing, conditions were imposed on your registration for a period of 12 months and further extended for another period of 12 months. It is of concern to the Committee that you are before a Professional Conduct Committee haring again. The Committee have noted the testimonials submitted on your behalf which indicate that you are well respected both by your professional colleagues and patients. However, given the seriousness of the findings against you, the Committee have concluded that they must take action against your registration. They consider that any action other than erasure would be inappropriate because of your behaviour which demonstrated a serious lack of probity in professional practice. Such behaviour seriously undermines the trust the public places in the profession. Accordingly, the Committee have directed the Registrar to erase your name from the Register.
The effect of the foregoing direction is that unless you exercise your right of appeal, your registration in the Medical Register will be erased 28 days from today.
The Committee have further determined that it would be in your own best interests that your registration in the Register should be suspended with immediate effect and they have accordingly ordered that your registration be suspended forthwith.
The effect of the foregoing direction and order is that your registration will be suspended from today and, unless you exercise your right of appeal, your name will be erased from the Register 28 days from today ...."