HHJ Pelling QC:
Introduction
- This is the hearing of an application by the claimant, a registered medical practitioner, made pursuant to section 41A(10) of the Medical Act 1983 for an order revoking or varying an interim conditional registration order made by an Interim Orders Panel of the GMC originally on 9 June 2011, and confirmed following various reviews, most recently on 26 June 2012. The essence of the challenge is a submission by the claimant that the conditions are unduly onerous or unnecessary. The defendant resists the application, contending that the order should be upheld in the terms ordered by the Interim Orders Panel.
Statutory and Legal Framework
- The powers of an Interim Orders Panel of the GMC to make orders either suspending a medical practitioner from practising as such, or imposing conditions pending a hearing before a Fitness to Practise Panel, are contained in section 41A of the Medical Act 1983. Insofar as is material, it provides:
"(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. (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. (b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose (an "order for interim conditional registration").
"(2) Subject to subsection (9) below, where an Interim Orders Panel or a Fitness to Practise Panel have made an order under subsection (1) above, an Interim Orders Panel or a Fitness to Practise Panel -
[...]
(c) may review it where new evidence relevant to the order has become available after the making of the order.
[...]
"10. Where an order has effect under any provision of this section, the relevant court may -
a. (a) in the case of an interim suspension order, terminate the suspension
b. (b) in the case of an order for interim conditional registration, revoke or vary any condition imposed by the order …"
- The claim for an order under section 41A(10) should be made by a Part 8 claim form with a supporting witness statement - see Madan v GMC [2001] Lloyds Reports Medical 539). The claimant sought to issue such a form, as I understand it, in this case, but he says that court officials insisted that he issue an Appellant's Notice. If that is what occurred, plainly it should not have done. As it is, no point is taken as to the form of the proceedings.
- The conduct of applications for interim orders is governed by Part 7 of the GMC Fitness to Practise Rules Order 2004. The phrase "interim order" is defined for the purposes of the rules as being an order made in accordance with section 41A of the 1983 Act. Insofar as is material, Part 7 of the rules provides:
"25. (1) This Part applies where an allegation has been referred to an Interim Orders Panel by the Registrar for consideration as to whether to make or review an interim order.
[…]
"Notice of hearing
26.
(1) Prior to the initial or any review hearing relating to an interim order, the Registrar shall serve on the practitioner-
(a) a notice of hearing;
(b) a copy of any written evidence obtained by the General Council which is relevant to the question of whether or not an interim order should be made or reviewed; and
(c) in relation to a review hearing, a copy of the order to be reviewed,
in such time before the hearing as is reasonable in the circumstances of the case.
(2) The notice of hearing shall-
(a) state the matters set out at rules 15(2)(a) to (c);
(b) inform the practitioner of the power of the Interim Orders Panel to proceed in his absence under rule 31;
(c) set out briefly the reasons why it is necessary to make or review an interim order;
(d) inform the practitioner of the Interim Orders Panel's powers of disposal under section 41A of the Act;
(e) request the practitioner to notify the Registrar as soon as possible whether he intends to attend the hearing; and
(f) invite the practitioner, if he chooses not to attend the hearing, to submit any written representations, within such period as is reasonable in the circumstances and as is specified in the notice, to the Registrar.
"Procedure at an interim orders hearing
27.
[...]
(4) At an interim orders hearing- [...]
(d) the practitioner may present his case and, subject to paragraphs (1) to (3), may adduce evidence in support of it; [...]
the Interim Orders Panel shall announce its decision, and shall give its reasons for that decision ..."
- Rule 15(2)(a) to (c) sets out the duty of the Registrar concerning the contents of a notice convening a Fitness to Practise hearing. The GMC is required to comply with those rules in relation to a hearing before an Interim Orders Panel where an interim order is being sought, as is apparent from 26(2)(a). Rule 15(2)(a) to (c) provide:
"Notice of hearing
15.
[...]
(2) The notice of hearing shall-
(a) particularise the allegation against the practitioner and the facts upon which it is based;
(b) specify the date, time and venue of the hearing;
(c) inform the practitioner of his right to attend the hearing and to be represented at the hearing in accordance with rule 33."
In my judgment, the requirements imposed by these rules are entirely clear. The notice must particularise the allegations made against the practitioner, and this is necessary by operation of rule 15(2)(a), and also because of the effect of rule 25(1). It is obviously necessary, in order that the practitioner can identify clearly the allegations he faces, so that he can prepare evidence for use at the hearing and/or make effective representations at the hearing in accordance with rule 27(4)(d), or by way of written representations submitted in accordance with rule 26(2)(f). It is for that reason a vital procedural safeguard so far as the practitioner is concerned. Compliance with this rule is of importance, too, from the point of view of IOPs, because compliance by the GMC with these rules will enable an agenda to be established that clearly identifies the allegations made, the facts relied upon to support the allegations, and the basis on which it is contended by the GMC that it is necessary or desirable to make or review an interim order. Above all, however, these rules are imposed for the purposes of ensuring procedural fairness, so far as the practitioner is concerned. They are contained in an instrument made pursuant to statute, and are therefore required to be complied with.
- The approach to be adopted in relation to applications for interim orders is that identified by Arden LJ in GMC v Hiew [2007] EWCA Civ 369. In summary, the focus of IOPs and the court when determining an extension application is one that focuses on whether, in the light of the allegations made, an order is necessary for the protection of the public or otherwise desirable and in the public interest, or in the interest of the practitioner concerned with the onus being on the GMC to establish the necessity or desirability and proportionality of making the order sought by the GMC from the Interim Orders Panel. It is not an inquiry which is concerned with the truth and accuracy of the allegations made, which is a matter for a Fitness to Practise Panel in due course,
- The degree to which this approach is to be modified in relation to applications under section 41A(10) was considered by Nichol J in Sandler v GMC [2010] EWHC 1029 (Admin), where at paragraph 12 of his judgment he held this:
"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."
- This point is one of significance here, because a rule 7 letter has been served by the GMC on the claimant dated 24 September 2012. It annexes a list of allegations on which the GMC intends to rely. That list contains allegations relevant to probity that are historic, but have not been placed before an IOP on any previous occasion for the purposes of obtaining an interim order, does not contain any of the patient safety allegations that were put before the IOPs previously, and which therefore no longer are relied upon by the GMC in support of a contention that the claimant is unfit to practise, and repeats some of the probity allegations relied on previously at hearings before Interim Orders Panels.
- It was submitted by Mr Hare on behalf of the GMC that I ought to approach this case simply on the basis of the allegations made by the GMC before the IOP when the order challenged was made, and to ignore subsequent developments. I reject that submission as being contrary to the approach identified by Nichol J in Sandler, with which I am in respectful agreement. It was also submitted that if the claimant wished there to be a review, then it was open to him to apply for a further Interim Orders Panel hearing. If and to the extent it was suggested that this precluded me from considering developments subsequent to the last Interim Orders Panel hearing, I reject that submission for the reasons already given. To the extent it was suggested that the ability of the claimant to apply for a review hearing before an IOP was in some way or form a jurisdictional procedural bar, or a fetter on the discretion which otherwise exists by operation of the statute, I reject that as well. Section 41A(10) does not contain any such qualifications. Nichol J warned of the dangers of departing from the statutory language of the Act elsewhere in his judgment in Sandler. Again, I am in respectful agreement with what he says concerning that issue.
- One issue of law remains, and that concerns the weight, or, as it is sometimes put, the respect, to be given to the decision of the Interim Orders Panel. In my judgment, that issue was resolved for present purposes by Arden LJ in Hiew and was accurately summarised in Sandler by Nichol J at paragraph 13 in these terms:
"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.'"
- Whilst acknowledging the obligation of a court to accord due weight as is appropriate to the decision of the Interim Orders Panel, in my judgment the weight to be given will depend on the context. The importance of the decision of the Interim Orders Panel in a case of this sort depends on the quality of analysis as disclosed by the reasons given for arriving at the conclusion to impose or continue the relevant interim order. To be of value, therefore, the reasons given must adequately meet the substance of the arguments advanced both by the GMC and, critically, the practitioner concerned. Merely summarising the facts relied on, or the submissions made by or on behalf of the respective parties before the IOP, before reciting general formulae or a statutorily-prescribed conclusion described in at least one case where this had occurred as "ritual incantation", does not assist greatly in arriving at a conclusion on an application of the sort I am now considering.
- As I have explained, a case of this sort is not a review, and thus the adequacy of the reasoning of the Interim Orders Panel is not directly relevant to the issues I have to decide. However, the degree of weight to be given to the conclusions of the Interim Orders Panel in a case of this sort is limited if the arguments that were deployed before it have not been addressed, and the reasons for rejecting those arguments, if indeed they have been rejected, not identified. Here, the reasons given in the IOP decisions follow a pattern in which each argument or piece of evidence is identified and summarised, and then the IOP concerned expresses itself satisfied that an order ought to be granted following the statutory wording, and referring to proportionality which is acknowledged as being an important part of the process. No attempt is made to explain why the panels concerned consider one piece of material more relevant than any others or whether particular arguments have been rejected, and if so why. Inevitably, therefore, the weight that can be given in particular to the decisions of those panels which were concerned with the question whether or not the conditions orders should be continued is limited.
- There is, however, some assistance to be obtained from the relevant panel decisions. The original reasoning leading to the imposition of conditions is to an extent ambiguous, but nonetheless it is possible to discern the reasoning which led to the original conclusion that conditions should be imposed. It is possible also to understand why a period of suspension was imposed and then lifted by looking at the decisions of the Interim Orders Panel that first imposed the period of suspension and then lifted the suspension, and it is also possible to discern reasoning as to why what is now condition 6 was lifted and then reimposed. I take full account of this reasoning, and accord it appropriate weight to the extent it is necessary to do so in the current circumstances of this case.
Factual Background
- A significant part of the submissions of Miss Hewson on behalf of the claimant was taken up with an analysis of the allegations made at various times against the claimant. For reasons already explained, the truth and accuracy of the allegations made are either wholly, or to a very large extent, immaterial to the issues that arise in relation to the making variation or discharge of an interim order. For that reason, I do not propose to add to the length of what will inevitably be a lengthy judgment in any event by rehearsing each allegation and the claimant's answers to them. Suffice to say that the allegations made are strenuously challenged, either as a matter of primary fact or by reference to the inferences the GMC seeks to draw from the primary facts.
- According to the claimant's CV, he holds a number of academic qualifications, including a Bachelor of Science degree from De Montford University of Leicester, graduate membership of the Royal Institute of Chemistry, a Master of Science degree in medicinal chemistry from Loughborough, a PhD in Pharmacy and Pharmacology from the University of Bath, as well as a Doctor of Medicine degree awarded by the Medical University of Warsaw in 1999. Prior to taking up various appointments by reason of his qualification as a medical practitioner, he held posts at the University of Liverpool and the University of Manchester in senior post-doctoral research fellowship and tutor positions, specialising in Pharmacology, with particular reference to breast cancer research. In his CV, he identifies a significant amount of post-doctoral research carried out, and he identifies also a number of publications between 1982 and 1992 in various learned journals, including Biochemistry and Molecular Biology, Biochemical Pharmcol, and the Journal of Pharmacy and Pharmacology and the British Journal of Clinical Pharmacology.
- Since qualification as a medical practitioner, the claimant has held posts at Bradford Teaching Hospital NHS Foundation between February 2003 and August 2003, and as a pre-registration House Officer in the same hospital between August 2003 and February 2004. He held a post as a Senior House Officer in an obstetrics and gynaecology in the same hospital between February 2004 and February 2005, and held a post as a Senior House Officer in ENT between February 2005 and August 2005. He was appointed a Senior House Officer in orthopaedics and trauma in the same hospital foundation in August 2005, and held that post until August 2006, before taking up a post as a Senior House Officer in Elderly Medicine at the Leeds Teaching Hospital NHS Trust, a post he held from August 2006 to February 2007. Between February 2007 and July 2007 he held a post as a Senior House Officer in paediatrics again with the Bradford Teaching Hospital's NHS Foundation Trust before being appointed as a Senior House Officer in Accidents and Emergency Medicine at Huddersfield Royal Infirmary, a post he held from August 2007 to February 2008. Between February 2008 and 2011, the claimant held a post as a middle-grade Senior Clinical Fellow Staff Grade Medical Practitioner in Accidents and Emergency Medicine at the De Montford University General Hospital, and Rochdale Infirmary, as well as Harrogate General Hospital.
- The claimant's difficulties arose when he sought admission to, and was placed, for his first GP Registrar's placement at a surgery in Settle under the supervision of a GP trainer who it is unnecessary that I identify by name in this judgment. The relationship between the claimant and that trainer appears to have been a difficult one. The rights and wrongs of the allegations and counter-allegations between the parties is not something that I can or should attempt to resolve in these proceedings. It is sufficient to say that the allegations made against the claimant that led to his initial appearance before the Interim Orders Panel were in part at least generated by his trainer, who the claimant accuses of harassment, bullying and intimidation. These allegations, as far as I am aware, have not been investigated either by the deanery concerned or by the GMC.
- In March 2010 the claimant's father died. It would appear that this caused the claimant to suffer clinically diagnosable ill health for much of the period concerned with the complaints to which I refer hereafter. In summary, by September 2010 those responsible for the claimant's training as a GP were concerned about the claimant's level of educational progress, and what were described by Dr David Rose, the Deputy Director of GP Education for North and East Yorkshire, as "quite low-level probity issues". This led to a "code of conduct" meeting, which took place and is recorded in a minute which is in evidence before me. Insofar as is material, that minute provides as follows. It records that the meeting took place on 21 September 2010, and then says, insofar as is material for present purposes, the following:
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"Multi-source feedback.
Dr Hussain acknowledged that he had not read guidance on how to obtain MSF feedback, nor had he asked for clarification from his trainers or training program directors.
He did not undertake the MSF correctly. Rather than make a request by email, he asked a colleague in person to give feedback. Furthermore, this colleague was a health care assistant, who is not an appropriate person to give feedback to the MSF. He logged onto the computer for her, and asked her to type her comments, which was not appropriate because any comments should be made in a non-identifiable way. She was busy and was under pressure, and so he completed the entry for her, writing himself what he thought what she would have written.
All this was admitted by Dr Hussain.
Dr Hussain later phoned the health care assistant during the evening on her mobile phone and put pressure on her to collude in his behaviour. He confirmed the phonecall, but denied putting pressure on her, although the panel found that on the balance of probabilities this was the case. He stated in mitigation that he was under strain at the time because of his father's death.
Material for a COT analysis.
Dr Hussain acknowledged that on two occasions he had rerecorded consultations with patients. He was informed by his trainer that he should not do this, as it was inappropriate and confusing for patients.
He subsequently submitted a video for COT analysis which had been rerecorded. He did not admit this, but the panel found on the balance of probabilities that his was the case.
Reflective learning log.
Dr Hussain made a lengthy reflective entry in his e-portfolio on the AJ Cronin novel 'The Citadel'. He admitted to the panel that this was not his own work, but that the reflection had been cut and pasted from the Internet, and this was not referenced.
In mitigation, he said that this was because he was under pressure following his father's death, and the above issue was inappropriate NSF collection. He made this entry because he wanted 'everything to be nice' and he stated that others' work described his own feelings better than he could do himself.
The panel was concerned that Dr Hussain could not describe the contents of The Citadel in any detail, despite stating that he had read it, all but the last few pages. Furthermore, he did not appear to understand the concept of reflective practice.
Case-based discussion.
Although not specifically asked to address this issue, the panel also noted that Dr Hussain had submitted for CBD a case that had already been debriefed without stating that this was the case to the trainer who was assessing the CBD.
Health.
Dr Hussain was understandably very upset by his father's death in March 2010 and told the panel that his bereavement was still adversely affecting his performance at work in July 2010. He told the panel that he did recognise that he was unwell, but did take time off work because he was worried that to do so would have an adverse affect on his GP training. He now recognises that he should have sought time off work.
He had been advised on several occasions by his trainer to seek help from his own GP, but had not done so. He did not admit this, but the panel found on the balance of probabilities that this was the case.
Conclusions.
The panel concluded that there had been misconduct in Dr Hussain producing and submitting material for assessment on the e-portfolio. This was not an isolated incident, but occurred on more than one occasion.
In mitigation, it is clear that Dr Hussain had been badly affected by his bereavement and did not have insight into the fact that he was unwell and should have had time off sick.
Dr Hussain has largely admitted his mistakes.
The panel agreed to warn Dr Hussain that his conduct in producing material for assessment had been inappropriate and must not be repeated.
The panel agreed to seek GMC guidance as to whether a referral to them would be appropriate at this stage."
- Following what is described by the Deanery as "the exiting" of the claimant from the GP training course on 1 February 2011, Dr Rose wrote to the GMC on 19 May 2011 in these terms, and insofar as is relevant:
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"The ARCP panel gave an ARCP outcome 4 on 1 February 2011:
'We note the concerns raised by the ARC panel held in July 2010. An intensive programme of support and supervision was required.
The recent CSRs state that he is only able to function at a basic level and a low challenge consultations.
There are ongoing concerns regarding patient safety (see in particular 2 November 2010 – prescribing).
Whilst recognising there has been some progress, a high level of supervision is still being required, principally because of concerns over patient safety.
There are also concerns over his ability to learn from teaching feedback received.'
Dr Hussain appealed against this decision, but both step 1 and step 2 appeal panels upheld the decision of the original ARC panel.
The step 2 appeal panel noted the lack of educational progress in developing the required consultation skills, and also deficiencies in the competency of maintaining performance, learning and teaching. We also found this doctor deficient in fitness to practise on the grounds of several probity issues. I attach the notes from the code of conduct panel which was held to investigate some of these issues. After the code of conduct panel, Dr Molton contacted a GMC screener and was told to make a referral after we completed our panel processes. Dr Hussain has told me that Dr Molton told him that there was no further action over the misconduct in workplace-based assessments of the MRCGP. This is not true.
Whilst preparing for the step 2 panel, I also found the following.
Another two entries where Dr Hussain had cut and pasted paragraphs from external documents when the entries in the e-portfolio should be his own work. However, in these cases the extent of this was small, and was within the context of an entry that was mainly his own work. There were no other episodes of complete plagiarism as occurred with the entry regarding the review of 'The Citadel'. It is possible that Dr Hussain was not aware that it is wrong to cut and paste from other documents without documentation of source to add to your own reflections.
I found an educator note within the portfolio from his clinical supervisor asking Dr Hussain to declare in the e-portfolio and reflect upon two patient complaints that he had received. In spite of there being a form for trainees to declare any complaints in the e-portfolio, Dr Hussain did not declare these complaints or reflect upon them as a significant event. Later, after the step 2 panel, Dr Hussain emailed me to say that his clinical supervisor had never asked him to declare these complaints. I pointed out that the evidence is there in the e-portfolio.
Also within the e-portfolio there is an email from another clinical supervisor asking him to refrain from working sessions in Accident and Emergency outside his training programme. Dr Hussain replied in a statement within the e-portfolio that 'You mentioned in CSR report that it is in contract that I should not be working in A&E. I have read the contract and cannot find this statement anywhere'. In fact, the GP Registrar contract makes clear that this outside work can only take place with the agreement of clinical and educational supervisors and should not interfere with vocational training
...
When I asked Dr Hussain about this in the tape-recorded step 2 appeal panel, he admitted that he had not read his contract.
I just worry about these quite low-level probity issues, when taken with the probity issues covered by the code of conduct panel, add up to a pattern of repeated lapses of probity and would appreciate your opinion.
I have told Dr Hussain that I am going to refer him to the GMC and would be happy for you to let him see this email. ."
- On 1 June 2011 the case examiner employed by the GMC decided to refer the claimant to an Interim Orders Panel. The process by which this reference was commenced was by a letter to the claimant dated 1 June 2011. Insofar as is material, this letter said as follows:
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"Dear Dr Hussain,
I am writing to let you know that the case examiner appointed by the Registrar has considered information received by the GMC from Dr David Rose about you that suggests your fitness to practise may be impaired.
A copy of the information received is attached.
The case examiner under rule 8(6) of the General Medical Council Fitness to Practise Rules 2004 considers that you should be invited to appear before the Interim Orders Panel. The IOP will consider whether it is necessary for the protection of members of the public, or as otherwise in the public interest or in your own interest that an interim order should be made suspending your registration or imposing conditions upon your registration for a period not exceeding 18 months. If the IOP decides to suspend your registration, your licence to practice will be withdrawn for as long as the suspension continues. If the panel imposes conditions you will continue to be entitled to hold a licence to practise, however you will need to comply with the conditions on you (sic) registration.
The case examiner has reached this decision after considering the information about your alleged conduct makes a referral necessary in order to protect patient safety.
You are invited to appear before an IOP at 10.30am on 9 June at the Council's offices at St James's Building...If you wish to address the IOP on whether such an order should be made in your case..."
- I place to one side the technical point that rule 25(1) provides for a reference by a Registrar rather than a case examiner because that point was not taken by or on behalf of the claimant. The more pertinent point, in my judgment, is that this letter does not comply with the notice requirements set out in rules 15(2)(a), (b) and (c) or 26(2)(c). It could not seriously be concluded that a letter of this sort could satisfy the requirements of rule 15 in relation to a Fitness to Practise hearing. This much is apparent from a comparison of this letter with that of 24 September 2012 and annex A thereto. Had this been a case where the challenge had been to an initial interim order made at an IOP hearing convened in accordance with this letter, I would have had to consider whether the failure to comply with rule 15(2), other than by incorporating by reference the letter from Dr Rose which I have set out above and the earlier minutes which I have also set out above, and the failure to comply with rule 26(2)(c) at all, should of itself result in the discharge of the order made.
- However, on the facts of this case that is not the position. In any event, the point was not taken by or on behalf of the claimant at the hearing before me, or, as far as I can see, at any of the hearings before Interim Orders Panels, and thus I leave the question of whether a letter in terms such as that sent to the claimant is in sufficient compliance with the rules, and whether non-compliance with the rules ought to lead to a discharge of an order for determination in a case where the issue directly arises.
- However, the point is not merely technical. Interim orders deprive medical practitioners of their livelihoods, or severely restrict their ability to earn their living from their profession. These rules have been formulated in order to ensure that the interim orders system is fair, and practitioners are given a full and fair opportunity to respond to the application which is made by the GMC. They are contained in secondary legislation. That being so, the protection afforded by the rules ought not be ignored or departed from.
- I mention this point at all in this case only because the secondary purpose of the rules is to enable panels to understand clearly the allegations that have been made and the reasons why interim relief is being sought. Framing allegations by reference to letters which seek guidance rather than make formal complaints, and which are discursive in style, and which themselves incorporate other documents by reference, is likely to maximise the risk of confusion and error. An example of the confusion that can and did occur at the initial hearing in this case concerned an allegation relating to patient safety derived from prescribing. In the transcript of that hearing the following exchange is recorded as having taken place. The individuals concerned are Mr Breed, who was a lay member of the panel, and Mr Pitter, who was counsel appearing for the GMC before the panel. The relevant extract is to the following effect:
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"Chairman: Thank you very much. I will just see if there any questions.
Mr Breed: On the front page of the reasons for referral to the TOP suggests possible patient safety, yet only reference I can see to that is in the email on page 1 which says 'There are ongoing concerns regarding patient safety: see in particular 2 November 2010, prescribing'. I see nothing which relates to this whatsoever. If that is the initial reason for referring, it does seem a little thin in respect of the concerns in relation to that, when we have no information whatsoever in determining that, unless you have anything else to add to that.
Mr Pitter: Sir, you are not being invited to determine that. In the usual way, you are not being invited to reach a determination on these matters. That is the referral. That was the reason given, and it is based entirely on the email of Dr David Rose. There is no further information that the GMC has about that, and those are the matters that are referred to in the email.
Mr Breed: Perhaps you would accept that one of this panel's principal objectives and reasons for being is patient safety in respect of an interim order. It does seem extremely unusual, if not bizarre, that we have no information whatsoever in respect of patient safety, which is a principal fact of this panel sitting.
Mr Pitter: Sir, I am not entire sure whether you want me to respond, or making the observation?
Chairman: I think you should respond to that question from Mr Breed.
Mr Pitter: Sir, I thought I had, in the sense that there is not more information. It is accepted, of course, that that is one of the considerations, patient safety. I am not seeking to be difficult, but I have provided or presented the information I have, sir.
Mr Breed: So the particulars of 2 November 2010 prescribing, as described in the email on page 1, is not available in any way, shape or form?
Mr Pitter: That is correct, it is not available.
Chairman: I do understand the line that Mr Breed is taking, Mr Pitter, about the panel being asked to look at the issue of patient safety. It has been referred to, and what are the issues that in fact are making the GMC raise that issue? There is reference to two patient complaints, but no details about them at all, and any conclusions to them.
Mr Pitter: Sir, all I can do is acknowledge and recognise your observations. There is not more evidence I can present. I accept that you may well feel that this is not satisfactory in reaching a determination, but without seeking to be obstructive, that is the entirety of the material I have to present."
In fact, as counsel was able to demonstrate in the course of the hearing before me, the material was available, albeit buried away in one of the many hundreds of pages of material relied upon by the GMC. It is errors of this sort which result from the failure to address applications for interim orders as prescribed by the rules. The situation that I have described arose as a direct result of the failure to comply with the rules, in my judgment.
- As Mr Hare acknowledged in the course of his submissions, while it is possible proportionately to address patient safety concerns with conditions, the issue in relation to probity is likely to be capable of being addressed by suspension only, if any order at all is required in the circumstances. In the result, the defendant IOP imposed conditions in essentially the form that currently applies. The reasoning that was adopted largely consists of the recital of the positions of the parties, as I have mentioned already. The heart of the reasoning of the panel is to be found at pages 25C to E of the transcript of the hearing on 9 June 2011 and is in these terms:
(Checked to audio – bundle unavailable)
"The panel is satisfied that there may be impairment of your fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest and your interests, and, after balancing your interests and the interests of the public, an interim order is necessary to guard against such risk. The panel has carefully considered what order to impose and was of the view that the issues of probity were of a relatively low level, occurred whilst you were in GP training, a career choice that you are no longer pursuing, and occurred during a short period of time when you were experiencing considerable stress following the unexpected death of your father. The risk to patient safety can be addressed by the conditions imposed."
This suggests that the panel considered conditions were justified only by the allegations referable to patient safety, rather than the probity issues. The difficulty is that the panel did not identify which allegations they considered fell within the patient's safety category, and further confusion results from the paragraph of the panel's reasoning that follows, which is to the following effect:
(Checked to audio – bundle unavailable)
"The panel has taken into account the principle of proportionality and has balanced the need to protect members of the public, the public interest, and your own interests, against the consequences for you of the imposition of conditions on your registration. Whilst it notes that the above conditions restrict your ability to practise medicine, the panel considers that in the light of the concerns raised regarding your performance and probity, the conditions are necessary to protect members of the public for the public interest while these matters are resolved. It is therefore satisfied the imposition of the above conditions on your registration is a proportionate response to the risks posed by your remaining in unrestricted practice."
- There is thus an inconsistency between what is said in the first paragraph of the reasons I have quoted and the second. On balance, however, I consider the general thrust of what was being said by the panel to be that they were influenced to impose conditions which relate to how the claimant was to practise medicine going forward by reference to the patient safety issues identified in the email from Dr Rose, rather than by reference to the probity issues, which were described as low level and having occurred whilst the claimant was undergoing GP training, which he was no longer pursuing, and during a short period of time when the claimant was experiencing stress following the unexpected death of his father.
- The conditions then imposed were renewed and continued at an IOP hearing on 6 October 2011. The Interim Orders Panel next considered the matter on 17 January 2012. By then there was an allegation that, while working in A&E as a locum, the claimant had failed properly to inform the hospital Trust concerned of the conditions that had been imposed, or work under the supervision of a consultant to obtain reports from that consultant. It was alleged that this was a breach of condition. Potentially, these allegations are and were serious. It is noteworthy that the letter concerning the hearing at which these issues were considered, and an interim suspension order imposed, did not set out any particulars at all of this allegation - see the bundle at page 838.
- The conditions that were allegedly breached were those to be found in what by then was paragraphs 5(a) and (b) and 6(c) of the order. Those provided, insofar as is material, as follows:
(Checked to audio – bundle unavailable)
"5(a) You must confine your medical practice to NHS middle-grade post in accidents and emergency medicine, where your work will be supervised by a named consultant.
(b) you must seek a report from your supervisor for consideration by this panel prior to any review hearing of this panel.
6. You must inform the following parties that your registration is subject to conditions listed in paragraphs 1 to 5 above...
(c) In the case of local appointments, your immediate line manager at your place of work at least 24 hours before starting work."
The conclusion that was reached by the IOP on that occasion was that the conditions order should be changed to an interim suspension order, specifically because of the breach of condition.
- The IOP next reviewed the claimant's case on 11 April 2012. The interim suspension previously imposed was lifted, and the conditions that previously applied were reapplied. The reasoning of the panel for this decision was to the following effect:
(Checked to audio – bundle unavailable)
"The panel is satisfied that it is necessary for the protection of members of the public and the public interest for your registration to remain subject to an order. However, the panel has noted that you have clarified your understanding of your original obligations regarding disclosure of your conditions and that you have identified steps that you can take to prevent similar oversights occurring in the future. The panel has, therefore, directed that for the remainder of the duration of the order your registration should be subject to the following conditions..."
What had been Condition 6, which had originally been imposed but then removed, and which was to the effect that "you must not undertake any locum post of less than one month", was reinstated. The reasoning, oddly, was apparently to address a difficulty in getting workplace reports on short-term locum placements. In effect, this problem was addressed by the panel seeking to remove the possibility of short-term placements from the claimant.
- The IOP reviewed the position most recently on 26 June 2012. Again, the conditions were continued. No reasoning was set out that explained why the conditions were thought necessary. The conditions imposed, by reference to which this claim has been brought, were to the following effect:
(Checked to audio – bundle unavailable)
"(1) You must notify the GMC promptly of any professional appointment you would accept for which registration with the GMC is required, and provide the contact details of your employer.
(2) You must allow the GMC to exchange information with your employer, or any contracting body for which you provide medical services.
(3) You must inform the GMC of any formal disciplinary proceedings taken against you from the date of this determination.
(4) You must inform the GMC if you apply for medical employment outside the UK.
(5)(a) You must confine your medical practice to NHS middle-grade posts in accident and emergency medicine, where your work will be supervised by a named consultant.
(b) You must seek a report from your supervisor for consideration by this panel prior to any review hearing of this panel.
(6) You must not undertake any locum posts of less than one month's duration.
(7) You must inform the following parties that your registration is subject to the conditions listed in (1) to (6) above: (a) any organisation or person employing or contracting with you to undertake medical work; (b) any locum agency or out-of-hours service you are registered with, or apply to be registered with, at the time of the application; (c) in the case of locum appointments, your immediate line manager at your place of work at least 24 hours before starting work; (d) any prospective employer or contracting body at the time of application; (e) your regional director of public health, England and Northern Ireland, health board director of public health, Scotland, national director of national public health service, Wales."
Events since the last hearing before the IOP
- As explained already, by a letter of 24 September 2012 the GMC has written to the claimant in accordance with rule 7 identifying at annex A the matters that the GMC say "appear to raise a question of...impairment". The allegations contained in Annex A are to the following effect:
(Checked to audio – bundle unavailable)
"That being registered under the Medical Act 1983 as amended:
(1) Between 2010 and 2011 you worked as a trainee under the Yorkshire and Humber postgraduate Deanery.
(2) In your CV submitted to the Townhead surgery between February and March 2010 you falsely stated that you had completed (a) an MSc in Pharmacy and Pharmacology at the Loughborough University of Technology, (b) a BSc Honours in Pharmacy and Pharmacology at the University of Leicester.
(3) During a tutorial in February 2010 you falsely told Dr William Hall that you had commenced study in medicine at the University of Liverpool prior to study at Warsaw, or words to that effect.
(4) In respect of a multi-source feedback form, the form dated 2 June 2010, and timed at approximately 09.31a.m.
(a) you pressured nurse Leslie Wilson to complete the form;
(b) you imported all the contents on behalf of nurse Leslie Wilson;
(c) the view and/or knowledge of nurse Leslie Wilson that you imported was, in part, false;
(d) you pressured nurse Leslie Wilson not raise an issue in respect of your completion of the form.
(5) On or around 19 March 2010, during the course of your training, in your reflective learning log you plagiarised
(a) the NHS education for Scotland website and
(b) the University of Southampton NHS Trust website.
(6) On or about 11 May 2010, during the course of your training, in your e-portfolio you plagiarised a publication of the 'California Chlamydia Action Coalition'.
(7) On or around 9 July 2010, during the course of your training, in your reflective learning log you plagiarised
(a) reviews of the novel 'The Citadel' from the Amazon website,
(b) a review of the novel 'The Citadel' from the 'E-notes.com' website.
(8) During or around the time of your step to appeal, on 6 July 2011 you falsely told Dr David Rose that Dr Liz Moulton had informed you that there would be no further action following the Code of Conduct panel meeting on 21 September 2010.
(9) The conduct referred to in paragraphs 2 to 8 inclusive was dishonest,
And that in relation to the above facts your fitness to practise is impaired by reason of your misconduct."
Discussion
- On behalf of the claimant it was submitted that the interim order currently in place ought to be discharged, or alternatively the conditions relaxed. It was submitted that the claimant had been the subject of interim sanctions for a period of about 17 months without any meaningful progress having been made. I do not regard this point as of itself one of significance on the facts of this case. I have in the past been critical of the GMC for the slow progress that has been made in cases where there have been multiple applications to court for extensions of interim orders. This criticism has no place in this case. The statutory scheme contemplated that the GMC could reasonably seek interim orders for a period of 18 months in order to cover the period down to the completion of the Fitness to Practise Panel hearing. Whilst it is likely that this will not happen in this case, because the period of 18 months is shortly to expire with no hearing before a Fitness to Practise Panel having been fixed, the current position is that the GMC has not exceeded the primary period which Parliament has considered is a reasonable period for the GMC to be allowed to complete its investigative processes. There may come a time when the length of time since conditions were imposed, in combination with other factors, would render it inappropriate for an interim order to be continued. That point has not yet been reached in this case.
- The more difficult issue is whether it is appropriate for the conditions to continue at all. That involves taking account of a number of issues. First, it is necessary to recognise that the conditions were imposed by an IOP and continued by four other panels, in terms that I have described in detail earlier in this judgment. It is also necessary to recognise that the IOP concluded initially that the imposition of conditions, rather than the imposition of an interim suspension order was what was justified. These decisions are entitled to be given appropriate weight. The weight to be given to them is however limited by the factors that I have identified earlier in this judgment.
- At the initial hearing before the Interim Orders Panel, the panel appears to have recognised that a distinction had to be drawn between the probity issues, which that panel described as relatively low level, as having occurred in the context of a training programme that the claimant was no longer pursuing, and at a period when the claimant was suffering a temporary diagnosable mental health condition brought about as the result of the sudden and unexpected death of his father, and patient safety issues.
- I agree with the submission made by Mr Hare that where the issue is one concerning probity, if it merits interim relief at all, it is difficult to see how anything other than interim suspension would be appropriate, since conditions are unlikely to enable such an issue to be addressed properly. This would appear to have been the view of the IOP hearing the initial application, given the distinction drawn by that panel between the probity issues on the one hand and the patient safety issues on the other. The panel did not identify the probity issues as requiring an interim order. It would appear that it was specifically the patient safety issues that the panel considered should be addressed by the imposition of conditions.
- If that was the approach that was adopted by the panel, and on balance I consider it was, then I agree with this analysis, particularly having regard to the contextual issues that surround the low-level probity points which the IOP making the initial determination drew attention to. I consider that point also to be supported by the conclusion of the Code of Conduct Panel that met on 21 September 2010. Whilst I accept of course that that panel was looking at different issues from those that the IOP was required to consider, nonetheless that was the body primarily concerned with these allegations and it considered they were appropriately addressed by a warning. It is also worthy of note that the three members of the panel were apparently medically qualified and were practitioners, and did not themselves consider the matter was obviously something that ought to be reported immediately to the GMC, but on the contrary thought it was merely something that merited obtaining guidance from the GMC about.
- I am also encouraged in this view by the email from Dr David Rose. The further matters that were regarded by Dr Rose as being 'quite low-level probity issues' are identified in his letter, and his concern appears to have been the cumulative effect of these various incidents. However, they do not appear to have troubled him sufficiently to consider them obviously worthy of notification to the GMC, in the sense that his letter is expressed in terms which seek the opinion of the GMC. I have already recorded the views of the interim panel, whose decision was arrived at after reviewing Dr Rose's material and the minutes of the Code of Conduct Panel hearing.
- All that being so, I infer that the IOP, considering the matter initially, took the view that conditions were called for by reference to the patient safety issues alone. The point about this issue, however, is that the GMC has now decided that those issues are not worthy of even an allegation of unfitness to practice, because they do not feature in the Rule 7 letter at all. Thus, currently the only issues that feature in the Rule 7 letter are the probity issues which were apparently not considered appropriate for interim relief by the initial IOP panel, together with some further probity issues that were in existence from the outset, are historical in nature, and have not at any stage been put before an Interim Orders Panel as justifying any form of interim relief either of themselves or in combination with the other matters that were placed before the Interim Orders Panel.
- The question that has to be considered is whether, in the aggregate, these low-grade probity issues justify the imposition of any of the conditions that have currently been imposed. It is relevant to take account of the fact that the claimant has worked for most of his medical career in accidents and emergency medicine. I do not intend to burden this already lengthy judgment with extensive extracts from the various letters included within the bundle which describe his performance in that role. Suffice it to say that the material available suggests that he is a highly valued practitioner in that specialism and at that grade. There is no material available to me that suggests that this claimant had any patient safety issues in relation to his work in A&E, and it is difficult to see how the low-level probity issues to which reference is made could, of themselves, impact indirectly on current patient safety issues.
- It is, of course, relevant to have regard to the fact that the conditions previously imposed were breached; that resulted in a short period of interim suspension. However, a subsequent IOP panel did not regard that issue as requiring the continuation of the interim suspension order and it is difficult to see how the conditions imposed were ones that were in reality designed to address any residual concerns the panel might have had arising out of that breach of condition. It is noteworthy, too, that no allegation of lack of probity has been advanced by the GMC in its Rule 7 letter by reference to these breaches of conditions.
- I remind myself at this stage that (a) the test in relation to an interim order sought for the protection of patients is one fairly and squarely of necessity; (b) that if an order is to be imposed either because it is required otherwise than for the protection of patients in the public interest, or in the interest of the registered person, then it must be shown to be at least desirable that such an order be imposed (see Sandler); and (c) in any event it is necessary to consider with great care whether the imposition of conditions is proportionate in the particular circumstances, a fact-sensitive exercise which requires the significance of any harm to the public interest likely to result from not imposing conditions to be balanced against the damage caused to the practitioner by limiting his ability to practice medicine by the imposition of the conditions that have been imposed.
- I turn first to the protection of the public. In my judgment, it is now manifest that it is not alleged by the GMC that the claimant is unfit to practise by reference to any patient safety issues. None of the probity issues impact directly on patient safety, at any rate currently, and they are described collectively both by the reporting physician and by the IOP panel that heard the application for interim relief previously as "quite low level". That tribunal also acknowledged that most of the events relied on occurred at a time when the claimant was suffering from stress-related illness. It is not suggested that that the claimant any longer suffers from such a condition; indeed, this claimant has been examined at the request of the GMC and by independent and highly qualified medical practitioners who have certified him medically fit to practise. Whilst it is not entirely clear, on balance it would appear that the IOP panel that heard the initial application did not consider the probity issues justified interim action at all, but that the patient safety issues were those which, in the end, caused them to make the order that was made. As I have said, those issues are now no longer relied upon by the GMC.
- The only other issue to which attention needs to be drawn is the failure of the claimant to comply with three of the conditions previously imposed. As to that, first it was addressed by the imposition of an interim suspension order that was subsequently brought to an end, in essence because the panel considered that it was no longer necessary, and the conditions now in place are in substance those that had been put in place originally to address patient safety. Thus, it does not appear that the GMC Interim Orders Panels had any continuing concern about the breaches of the conditions previously imposed. Thus, I can safely leave that issue to one side, particularly, as I have said, since the GMC do not rely in its Rule 7 letter upon the breach in support of the probity allegations that are made.
- It is next necessary to consider whether the interim conditions are at least desirable in the public interest or in the interests of the claimant, notwithstanding they are not necessary for the protection of the public. Had the GMC continued to rely on patient safety issues, or if the probity issues were anything other than the low-level allegations that are in fact made in this case, or if the probity issues had a direct relevance to patient safety currently, then it would have been arguable that at least some conditions would have been necessary. However, that is not the position. The probity issues do not impact on patient safety. They are, and have been, held by both an IOP panel to be of low level, and to have occurred at a time when it would appear to be common ground that the claimant was suffering from stress-related illness.
- I do not see that there is any realistic risk demonstrated that the profession would suffer reputational damage as a result of a failure to continue these conditions, and I see no discernible benefit either to the public or to the claimant in continuing them, either. As I have explained already, the conditions appear to have been imposed originally to address patient safety issues, and it is difficult to see how the imposition of those conditions could address the probity issues that were alleged or relied upon by the GMC at the relevant IOP hearings.
- In any event, taking on the one hand the allegations that have been made against the adverse effect on this claimant of the conditions that have been imposed, it seems to me barely arguable that the continued imposition of these conditions can fulfil the requirement of proportionality. It has not been suggested at any stage that the probity issues previously considered merited suspension. It has not been shown how the conditions imposed represent a focussed, much less a proportionate, response to the probity issues that have been identified. It is not suggested that the further probity issues, not previously considered by the IOP but which appear in the rule 7 letter, merit suspension either of themselves or in combination with other allegations. It has not been shown that these conditions represent a focused or proportionate response to those further allegations. There is no doubt in my mind that the conditions currently in place represent a significant fetter on the ability of the claimant to practice medicine in an area where the material demonstrates that he is regarded as a competent and effective practitioner and where no allegations of any sort relevant to patient safety have ever been made. Thus, in my judgment, the desirability of imposing the conditions currently in place in the public interest and/or in the interest of the claimant have not been demonstrated.
- I take into account each of the matters that I have referred to in detail above in this judgment. I take into account to the extent appropriate the IOP panel's views, but, exercising my own judgment, I conclude that I should direct the revocation of the order made against the claimant of the interim condition of registration.
Order: Application granted.
Post Judgment Discussion
HHJ Pelling QC: Miss Hewson?
Miss Hewson: My Lord, we are very grateful for your Lordship's judgment, and the time and care that your Lordship has taken in this case. My Lord, there are two matters I would like to address briefly, if I may. One is, my Lord, the issue of whether it would be possible to bespeak a transcript of your Lordship's judgment, and whether that needs to be done at public expense or whether you would expect the parties to pay for it, simply because since this case is continuing both sides would be assisted in having an early transcript of that judgment.
HHJ Pelling QC: The practice of the Administrative Court is that all judgments are transcribed, I think I am right in saying, and therefore I do not think any issue arises concerning funding or anything of that nature. What you might want to do is by agreement request expedition.
Miss Hewson: Indeed. I am sure that can be done.
HHJ Pelling QC: Right, next?
Miss Hewson: My Lord, the other matter is costs.
HHJ Pelling QC: Yes.
Miss Hewson: Dr Hussain has instructed me on a Direct Access basis.
HHJ Pelling QC: Yes.
Miss Hewson: His two disbursements, therefore, are the court fee.
HHJ Pelling QC: Yes.
Miss Hewson: I have a receipt which I can show my friend, which is £235, which I understand is the standard fee. And then, my Lord, there is also the question of my own fees. I have a receipted fee note for the sum of £3,000 plus VAT.
HHJ Pelling QC: Is this opposed?
Mr Hare: The quantum is, yes.
HHJ Pelling QC: Oh, right, okay.
Mr Hare: Do you want to hear from me on that?
HHJ Pelling QC: No, you just check that. Have you seen this document before?
Mr Hare: No, I have not seen it.
HHJ Pelling QC: Do you want me to rise for five minutes, so you can consider this material?
Mr Hare: Yes, please.
HHJ Pelling QC: Very well.
Miss Hewson: I am grateful.
(a short adjournment)
HHJ Pelling QC: Right, so no agreement reached on this?
Miss Hewson: No.
HHJ Pelling QC: Very good. So your submission is what?
Miss Hewson: My submission is that my client has been successful in his application. He has got the relief that he wanted, and the normal principle, in my respectful submission, is that we should be entitled to the reasonable costs of his application, which as I say simply amounts to two things, my fee of £3,000 plus VAT, plus the court issue fee. My Lord, we did have a schedule served on us by the GMC of their costs, which are a grand total of £11,044.50, which include a sum of £4,950 for counsel's fees. So my Lord, I say on any view Dr Hussain's costs are extremely modest, given the outlay of a party who had had a solicitor.
HHJ Pelling QC: So you ask for an order for costs and for a summary assessment?
Miss Hewson: Yes.
HHJ Pelling QC: Could I have a look at those?
Miss Hewson: These are their costs, my Lord.
HHJ Pelling QC: Yes, what about yours?
Miss Hewson: These are our costs, my Lord.
HHJ Pelling QC: Mm-hmm. Yes?
Mr Hare: My Lord, we accept that in principle my learned friend is entitled to costs. We do not oppose the idea that your Lordship should summarily assess them, since the only reason it has gone beyond a day is for the delivery of judgment.
HHJ Pelling QC: Yes.
Mr Hare: But we do wish to make the following points. First, of course, there has been no costs schedule served on us in accordance with the CPR as a procedural matter. We do not claim that we have suffered any particular prejudice as a result, because your Lordship rose and allowed me to consider it with my instructing solicitor. But the points of substance are as follows. First, my learned friend advance essentially four grounds of challenge to the conditions, one of which was that the General Medical Council had unduly delayed, and your Lordship has rejected that submission; and another of which was that the conditions were taken from a bank of standard conditions, rather than being specifically fitted to this doctor. Neither of those claims has succeeded. She did succeed arguably on two of her others, but really most of the material in the skeleton argument did not deal with the matters upon which she succeeded. As your Lordship said, the very lengthy parts of Miss Hewson's submissions, which concerned the nature of the initial allegations and the relationship between the doctor and Dr Hall, were in your Lordship's words "largely immaterial" to the matters that this court had to decide.
HHJ Pelling QC: Because they are factual disputes.
Mr Hare: Because they are factual disputes. So in those circumstances, we would say there ought to be a significant reduction in the award, and we would say given that two of the arguments were not accepted out of four, that 50 per cent of my learned friend's costs would be the appropriate figure. We accept that the court fee is properly payable as a cost in the total.
HHJ Pelling QC: Yes.
Mr Hare: Those are my submissions.
HHJ Pelling QC: Thank you very much. Yes, any reply?
Miss Hewson: My Lord, we say we won, and that an award should apply.
Costs Judgment
HHJ Pelling QC: Thank you.
- This is an application by the successful claimant of an order for the costs of and occasioned by the hearing that I have just given judgment in, together with an order that those costs be summarily assessed and for summary assessment accordingly.
- The principle of costs is not opposed, but it is submitted on behalf of the defendants, first, that there was a procedural error because no costs schedule had been serve. There is nothing in that point, because no solicitor's fees have been claimed, and the costs that have been claimed are limited to the brief fee payable to Miss Hewson, who undertook representation of the claimant under the Bar's Direct Access scheme, and the recovery of a court fee. Thus, irrespective of the merits of a requirement for a schedule, and as realistically accepted by Mr Hare, the absence of a schedule has caused no actual prejudice particularly as an adjournment was granted in order for him to consider the limited material available, and in those circumstances no point is sensibly to be made in relation to the absence of a schedule. I should make clear that both parties have invited me to proceed on a summary assessment basis; thus, the alternative that normally applies, where there has been a deficiency in complying with the rules relating to summary assessment, namely ordering a detailed assessment with an interim payment on account, does not arise.
- The points of substance made on behalf of the defendant are these. There were four grounds, it is said, that were relied upon by the claimant in seeking the revocation of the conditions ordered, one of which I expressly rejected; that is to say, the period of delay that had taken place between the initiation of proceedings against the claimant and now. Secondly, reliance was placed upon the fact that the issue concerning whether the conditions were extracted from a bank rather than being bespoke was not one which, in the end, I needed to deal with. It is submitted that in those circumstances, there should be a reduction of the fees that are otherwise payable in respect of this claim. A third point which is made is that a considerable part of the hearing was taken up in an analysis of the factual allegations which were made, and the basis upon which they were opposed. It was submitted that the consequence of this was that the hearing was longer and/or and the skeleton argument that was filed was longer than was otherwise necessary.
- In relation to this last point, I do not criticise Miss Hewson unduly for the approach that she adopted, nor do I consider that point to be relevant to the question of costs. These applications are extremely difficult, because the court is required to proceed on the basis of the gravity of the allegations made, and that is what I have done. But professionals against whom allegations of professional impropriety have been made not unreasonably wish to make clear to all tribunals on all occasions what it is they say about the factual allegations made, and it will often be extremely difficult to expect that where a medical practitioner has been accused of professional impropriety, there will not be at least some reference to what the answer to the allegations is. It then becomes a question of judgment as to the degree to which it is necessary to look at the minutiae of the factual allegations made. Different advocates on different days will approach it in different ways, but I consider the way Miss Hewson dealt with it was well within the scope of acceptability, and therefore I do not criticise her for that at all.
- The next issue which arises is whether or not the costs should be reduced because Ms Hewson was unsuccessful on one issue. So far as the issue that she was expressly unsuccessful on, it took up, I think from memory, about eight lines of manuscript in my judgment notes; it took up a relatively small amount of time of the argument at the hearing, and a relatively small amount of time in the skeleton. Reducing the costs by a material amount to reflect that issue would be disproportionate in my judgment.
- In any event, the starting point when an order for costs is sought is that the successful party should recover his costs. It is only really appropriate to depart from that where an issue-based approach is necessary in order that justice can be achieved. Here, although there were arguments that failed, the essential issue was whether or not the order should continue or should be discharged, or if it was not to be discharged, whether the conditions should be varied. In relation to that the claimant has succeeded, and in my judgment it would be wrong in principle then to deprive the claimant of costs by reference to the fact that one of the arguments failed and one of the arguments was one that it was not necessary for me to consider in the circumstances.
- As to assessment, this has to be approached by reference to the decision of the Court of Appeal in Lownds v The Home Office [2002] EWCA Civ 365, and that requires me to ask at the first stage of the inquiry whether the sum claimed in the aggregate is disproportionate or excessive. Plainly, it is not. The majority of the sum which is claimed is in respect of counsel's fees; counsel's fees are significantly less than the defendant's counsel's fees, and in any event represent in my judgment a proper fee for this responsible and difficult work. In those circumstances, I direct that the claimant should recover his costs of and occasioned by these proceedings, which I assess in the sum of £3,895.
Any other business? Thank you very much, and can I conclude by thanking both of you. This case could have lasted a great deal longer than in fact it did without the very high quality professional support you provided your respective clients, and I am very grateful.
