Das, R (on the application of) v General Medical Council

MR JUSTICE ELIAS: This is an application where the appellant seeks an order under section 41(a) 10 of the Medical Act 1983. He wishes to terminate the suspension of his registration as a medical practitioner. The decision to suspend him was taken by the Interim Orders Committee (IOC) of the GMC on the 14th May 2002. Some five months or so earlier the IOC had in fact imposed certain conditions which he had to comply with in the course of his practice, but as a result of further complaints and communications, they imposed the suspension on the 14th May. I am told that that expires in April of this year, but that before then, in March, there is due to be a hearing before the Committee for Professional Performance, the CPP, which will hear all the arguments and matters which the appellant wishes to address as to the justification or otherwise of disbarring him. The suspension orders are in fact subject to regular reviews at which the appellant can appear. He chose to do so for the hearing in October, but I am told there has recently been a further consideration of his case at some time this month. He did not turn up on that occasion. This action commenced in the High Court, but it was transferred to the Administrative Court by District Judge McGrath sitting at Manchester District Registry. He also ordered that the claimant should serve, by the 22nd October, a statement setting out the grounds of his objection and exhibiting any documentary evidence. That should also have been served on the respondents. I am told that that has not been done.

I have been shown a communication from the Administrative Court Office to the appellant which suggests that he must have sought, by a letter dated the 17th December, an extension of the time for filing bundles and skeleton arguments in this matter. I have a very small document before me with a few letters and such things annexed which is described as a skeletal argument, and I assume that this sets out the basis of the current claim. I say that, because the appellant is not represented and he has not turned up. He has been given notice of this hearing, and there has been no indication from him as to why he is not here today. I assume, therefore, that he is content to let this matter be determined in his absence, and in the event I intend to determine it in that way.

Under the provisions of section 41(A)(10), I have the power to terminate the suspension or to substitute a different period from that specified in the order. The basis on which I can interfere with the decision of the IOC has been considered by the Court of Appeal in the case of X vs GMC [2001], EWHC, Admin 447. Brooke LJ, in that case, emphasised the fact that the court in a case of this kind will naturally give due weight to the knowledge and expertise of the professional body.

I am not going to rehearse the very detailed chronology of this case, which is set out in exemplary fashion in the skeleton argument that has been filed by the defendants. It is plain that there is a very detailed and considered assessment of the performance of a doctor before a decision of suspension is taken, and that has been carried out in this case. The grounds on which it is said that the IOC has erred in law are that there is a breach of Article 3 of the European Convention on Human Rights, and also, as I glean it from the skeletal argument and the original claim, certain other matters; for example, it is effectively said that the IOC has come to the wrong conclusion of fact and has reached views about the performance of the appellant which are not justified. However, it is not said that there was no evidence from which they could reach the conclusions that they did.

It is also said that there are threats to dissolve small practices which are political and not professional. If it is intended to suggest that the IOC, in making its determination, was influenced by wholly improper and irrelevant political considerations, there is simply no basis for that allegation at all. Similarly, it is said that the health authority have not put sufficient resources into the doctor's practice. Again, to the extent that that may have any relevance at all, I have no reason to suppose that it would not have been considered by the committee.

As to article 3, it is quite hopeless. There is no basis at all for saying that the suspension of somebody because of a belief that he is not up to the standard required to practice involves any inhuman or degrading treatment, or anything of that kind which would be caught by Article 3.

I am perfectly satisfied, in other words, that there is no basis at all in the submissions made by the appellant in this case, and accordingly I refuse to exercise any powers conferred on me by section 41(a) 10. I will only add that, as I have already indicated, there is furthermore the full opportunity for the doctor to make full submissions at the hearing in about two months' time, or less than that, to seek to be able to restore his right to practice.

Yes, well thank you very much, Miss Collier, for your skeleton. It was very clear and helpful.

MISS COLLIER: My Lord, I am very grateful. My Lord, I have an application for the cost of this application. My solicitors have done a summary assessment of costs. I should say that was not served on Dr Das 24 hours before this hearing, as the practice direction requires, and so therefore it is really in your Lordship's hands as to whether your Lordship is prepared to assess the costs today. The costs, in my submission, are not unreasonable, but as I said, it is a matter for your Lordship whether you wish to go ahead and assess the costs today or try and simply make an order that we have the costs to be assessed, if not agreed.

MR JUSTICE ELIAS: Can I have a look at the document you have?

MISS COLLIER: Of course, my Lord. A copy was sent to Dr Das yesterday.

MR JUSTICE ELIAS: I see. (Pause) Well, I must confess, I feel some unease about imposing an order for sums of this kind without the other party having an opportunity to make representations as to whether they should be imposed and if so, how much. Although I have sympathy with you, I think the fact that you have not served in time is a relevant factor to this extent, that he may say, "Well, if I had known that was going to be an issue, I certainly would have turned up and I would have wanted to argue the point." I have considered whether I would make the order and give him liberty to apply, but I do not think it would be right, given that these are not insignificant sums.

MISS COLLIER: My Lord, in that case, could I ask for an order that we have our costs of the application to be assessed if not agreed. The alternative would be to return for a summary assessment, but the cost of doing that may be greater than the costs of having a detailed assessment. May I just have one moment?

MR JUSTICE ELIAS: Yes.

MISS COLLIER: (Pause) My Lord, could I change my request and ask that we have a summary assessment, which would be a very short hearing to be listed at a later date, so that Dr Das could have an opportunity to attend and make representations?

MR JUSTICE ELIAS: Yes. Right. You are entitled to your costs. It seems to me that this application is quite unrealistic and makes no sensible points as to why this suspension should be lifted, so I will grant you your costs and in the circumstances you can come and have a summary assessment on notice to the applicant. I suppose you ought to come back before me, really.

MISS COLLIER: I was about to ask your Lordship that.

MR JUSTICE ELIAS: It would make sense, but it would have to be next week.

MISS COLLIER: Thank you, my Lord.

MR JUSTICE ELIAS: It should not take long. I will try and fix half an hour some time next week. You had better try and do it through the court offices on full notice as to what is involved.

MISS COLLIER: I am very grateful. Thank you very much.

MR JUSTICE ELIAS: I am sorry. I have just seen a letter here, caught up in these papers. It had not been drawn to my attention, maybe it was put on the desk. It says: "This is to inform you that due to unforeseen circumstances -- accident at home -- I have no other alternative to go to see my disabled and distressed relatives as an emergency. Therefore may I request to adjourn the hearing until my return from abroad".

This was sent to the court by the 20th, but it had not been drawn to my attention.

MISS COLLIER: My Lord, it seems it was not copied to my solicitors. I do not know whether the letter indicates that it was being copied?

MR JUSTICE ELIAS: I had better just add to the judgment the following:

Since giving judgment it has been drawn to my attention that there was a letter apparently lodged with the Administrative Court Office on the 20th January in which the appellant indicated that due to unforeseen circumstances, "accident at home", but no further specification, "I have no other alternative to go to see my disabled and distressed relatives as an emergency."

The appellant then sought an adjourned hearing until he returned from abroad.

Even had I had this letter before me before giving judgment, and considering the submissions made by Miss Collier on behalf of the defendant, I would have refused an adjournment in these circumstances. There has been a failure to comply with relevant court orders in the past, and I am satisfied that the case has no prospect of success. It would simply have added to the overall cost of this litigation, ultimately to the potential prejudice of the appellant, had I granted an adjournment, so I indicate that I would not have done so and that, now having seen this letter, I am still satisfied that it does not cause me in any way to modify the judgment that I have already given.

MISS COLLIER: My Lord, I am grateful. I do not know if that affects the timetable for the summary assessment of costs, however?

MR JUSTICE ELIAS: It may well do. I know I said it has to be this following week. I am in fact in London until the end of March, in other courts and doing other things, so it may be possible to fit in half an hour on some other occasion.

MISS COLLIER: My Lord, thank you. I suppose the best thing would be for my solicitors to try to contact Dr Das to find out whether he is back next week and, if not, when he expects to be so.

MR JUSTICE ELIAS: Yes.

MISS COLLIER: I am very grateful, my Lord.