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

MR JUSTICE SULLIVAN: This is an application by the GMC for an order under section 41A(6) of the Medical Act 1983 (as amended) extending the suspension of the defendant's registration for a further 12 months.

In brief outline the background is as follows. The defendant is a registered medical practitioner who specialises in paediatrics. His registration with the GMC is currently suspended pursuant to an order imposed by the Interim Orders Committee (“IOC”) of the GMC on 6th March 2003. That decision was challenged by way of judicial review and early review of the matter prior to 30th July 2003 was ordered by Collins J. The IOC reviewed the position in accordance with Collins J's order on 28th July 2003 and concluded that the 18 months suspension should be maintained.

The Act contains provision for review of that decision by the IOC at intervals; initially six months and thereafter three months. The most recent of those reviews took place on 9th June 2004. The defendant did not attend on that day but he was represented by counsel, Mr Hockton, who has appeared on his behalf before me today. Mr Hockton made extensive submissions in respect of the various allegations that had been made against the defendant. The Committee's response included the following:

“The Committee has comprehensively reviewed the order today. In doing so it has considered the information before it previously and the information presented to it today, including the detailed submissions you have made on behalf of Dr Abraham George, and Dr Abraham George's faxed letter addressed to the Chairman of the IOC dated 29th May 2004. The Committee has noted that Dr Abraham George has not attended today's hearing and that no application has been made by you on behalf of Dr Abraham George to adjourn today's hearing due to his absence. It has further noted that Dr Abraham George is waiting to undergo an assessment of his professional performance in accordance with the GMC's performance procedures. In all the circumstances, the Committee remains satisfied that it continues to be necessary for the protection of members of the public, in the public interest and in Dr Abraham George's own interests for his registration to remain suspended.

In reaching its decision, the Committee considers that there is cogent and credible prima facie evidence over a substantial period of time of substandard professional practice, dysfunctional behaviour towards colleagues, patients and their families, lack of insight and a failure to cooperate both with NHS complaints and child protection procedures. There is also cogent and credible prima facie evidence that deficiencies in his professional practice have led to disruption in the care of individual parents and their families, and in his relationships with medical colleagues and wider clinical teams. These allegations, if proven, demonstrate that Dr Abraham George may pose a serious risk to patients if he was to continue in practice and would also undermine the trust the public places in the profession.

The Committee has taken account of the issue of proportionality and has balanced the need to protect members of the public, the public interest and Dr Abraham George's own interests against the consequences for him of the suspension of his registration. Whilst it notes that its order has removed his ability to practise medicine it considers that the allegations against him are so serious and wide-ranging that there are no conditions which would adequately protect members of the public or the public interest. It is therefore satisfied that the order of suspension is a proportionate response.”

Mr Hockton submitted that, in simple terms, the Committee got it wrong in so concluding.

The relevant test for the Committee is set out in Section 41A(1) which states:

“Where the Interim Orders Committee 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 Committee may make such an order . . . ”

The order may be made for a period of up to 18 months, and by subsection (6):

“The General Council may apply to the court for an order made by the Interim Orders Committee under subsection (1) or (3) to be extended, and may apply again for further extensions.”

It is to be noted that subsection (10) enables the court, in the case of an interim suspension order, to terminate the suspension.

I accept that I have a discretion as to whether or not to extend the interim suspension. The nature of the discretion is set out in paragraph 8 of Mr Hockton's skeleton argument, about which there is no significant dispute. The court has a discretion whether or not to grant an extension. It is submitted that in exercising its discretion, the court should consider whether allowing a suspension to continue is fair reasonable and proportionate, balancing any need to protect the public and the public interest on the one hand and the doctor's interest in working and right to a fair trial on the other.

It is significant in the present case that on 21st July 2003, the screener referred this case to another committee, the Assessment Referral Committee (“ARC”) for a hearing. The hearing before the ARC did not take place until 8th December 2003 because there were a number of requests for an adjournment of the meeting by the defendant on the basis of his ill-health. Those requests were granted until the fourth and final request for an adjournment which was refused, and which led to the hearing before the ARC on 8th December 2003.

The ARC concluded that:

“ . . . the standard of the defendant's professional performance may [I underline may] have been seriously deficient in the following areas:

(1)

Relationships with parents of child patients;

(2)

Working effectively with colleagues and within teams;

(3)

Cooperation with complaints and other procedures;

(4)

Respecting and protecting confidential information;

(5)

Clinical knowledge and competence.”

So the ARC gave directions requiring the defendant to under go a performance assessment within three months, or as soon as possible thereafter, and the defendant was issued a portfolio for completion by 23rd December. He did not return the portfolio by that date, but it was returned by a second deadline of 9th February 2004. The assessment did not then take place because the defendant faxed the GMC on 4th March requesting that the performance assessment be postponed until June or July 2003 on the basis of his ill-health. Subsequently, it seems, in either correspondence or a telephone call in May, he asked for the assessment to take place in May.

The position so far as the assessment is concerned is that on 2nd July 2004 the GMC informed the defendant that the performance assessment dates had been fixed from 6th to 8th September in Doncaster/Stafford, 1st to 22nd September in Guernsey and 18th October at University College London. Those dates had to be altered because the defendant told the GMC that he would be attending an Employment Tribunal from 3rd to 13th September 2004 inclusive. The Doncaster/Stafford date was rescheduled for 31st October to 3rd November. The position is now that the performance assessment is going to take place on various dates between 1st September and 3rd November 2004. It is against that background that I have to consider the GMC's application for an extension of the interim suspension.

Although Mr Hockton submits that the IOC got it wrong on 9th June 2004, it is to be noted that Dr George did not appear at that hearing and thus submissions were made on his behalf. There really is no evidence to support the proposition that the Committee got it wrong. I accept that I am entitled to take a different view from the Committee if I think it right to do so, but really nothing has been provided which would lead me to conclude that the Committee did get it wrong.

Other points were raised, and I accept that a balancing exercise has to be undertaken. It was submitted that a doctor under suspension might be placed in a disadvantageous position in relation to the process of assessment. I can accept such a proposition in principle but in practice, in the present case, since the defendant has been suspended from practice since October 2002 and will be engaged in an Employment Tribunal and thus unable to be assessed until 13th September 2003, the proposition that he will be disadvantaged has very little force. At best even if the interim suspension was lifted, he could practice for a few days before the assessment took place. It is further submitted that if there was an adverse conclusion as a result of the assessment process and the matter was referred to the Performance Committee, then the defendant would be placed in a worse position. That might be the case if the interim suspension was continued with no prospect of any review for some time after the assessment panel had reached its conclusions.

I start from the position that the ARC has concluded that the defendant's professional performance should be assessed. There is no challenge as to the lawfulness of that decision. That being the case, it would be thoroughly irresponsible in the interests both of the public, and indeed of the defendant himself, to permit him to resume practice prior to the outcome of that assessment being known. Once the outcome of the assessment is known then there will be an independent up-to-date medical basis on which any case for a further extension, or for the termination of the interim suspension, can be considered.

What I propose to do is to grant an extension for a sufficient period of time to enable the assessment to be carried out, to enable the assessors to report, and to enable the case coordinator to consider not merely the assessors' report but Dr George's response to that report, and to reach a conclusion as to how matters should proceed thereafter. It will be then be possible to consider whether the interim suspension should be continued in the light of the coordinator's view. Doing the best one can, and upon the basis that Dr George now says that he is fit enough to undertake the assessment process and therefore there will be no further adjournments on the grounds of ill-health, it would seem to me that an extension of six months until 5th March would be appropriate. That will enable the assessments to be undertaken, the assessors to write their reports, Dr George to comment upon them, the coordinator to consider them and decide what should be done. It will then give a little time for the parties to reflect in the light of that decision and to consider whether or not an extension to the interim suspension is justified.

For those reasons, I am satisfied that the order ought to be granted to extend the suspension, but for a period of six rather than 12 months. In making that order, I bear in mind that there will, in any event, have to be an internal review by the Committee as to the appropriateness of continuing the interim suspension after a period of not more than three months. Thus, by the beginning of December the Committee will have revisited this issue. Thank you.

MISS GALLAFENT: My Lord, I do have an application for the GMC's costs in this matter. Might I hand up the schedule of costs for summary assessment? It may be you already have it (Handed).

MR JUSTICE SULLIVAN: I am not sure that I do. Thank you.

MISS GALLAFENT: My Lord, can I make the following very short points. Firstly, although we, of course, accept that it is necessary for the General Medical Council to persuade the court in any event that there should be an extension of the interim suspension order, it clearly could have been done by way of consent and, in any event, much more shortly than it has been done. Dr George was, in fact, asked to consent to the 12 months by correspondence. I have the letters here, I am not sure it is in dispute. There was correspondence on 4th August 2004 by a letter sent to him and to his solicitors inviting him to consent to avoid the need for costs on both sides. My instructions are that there was no response to that letter. Accordingly, we have come before your Lordship this morning. One will see that the summary assessment of the General Medical Council costs I have handed up are not, in my submission, unreasonable or particularly expensive. They are, in fact, less than the costs for the defendant. I am not sure if your Lordship has the summary of costs for the defendant, but the total --

MR JUSTICE SULLIVAN: I do not think I have either of them. If I did, I have lost them and not looked at them.

MISS GALLAFENT: Their summary comes to £5,700, the GMC's comes to £3,886. My Lord, we make the following points. Firstly, this is a matter in which the defendant is supported by the Medical Defence Union, and secondly, a matter in which it was hoped that common sense could prevail. It was clear from the position adopted by the defendant that he was not amenable to agreeing any form of suspension, let alone discussing how long it should be for. In those circumstances I submit it was necessary for us, firstly, to attend and secondly, to argue at some length whether there should or should not be an extension of the suspension order. For those reasons I do seek the General Medical Council's costs.

MR HOCKTON: My Lord, I would invite your Lordship to make no order for costs. Primarily because the application before your Lordship is one which the Council was statutorily bound to make under Section 41A(6). It is a matter entirely for the court's discretion as to whether or not to grant an extension for the suspension.

MR JUSTICE SULLIVAN: On the other hand, if a consent order is agreed, subject of course to the court's approval, I can see no objection to that course. If you have a consent order it usually makes it somewhat easier. That might argue for a certain deduction, would the costs have been incurred in preparing a consent order application which would be a few hundred rather than thousands.

MR HOCKTON: The material before your Lordship would, I presume, have to be before the court because looking at the statutory framework, the court has to exercise its discretion under the provisions. The court has to be satisfied that it is necessary for the protection of members of the public for an suspension to be extended. It is most unlikely the doctor would accept that leave and Dr George's stance, in my submission, is entirely reasonable. It would be wholly inconsistent with the approach adopted to the performance case.

The other point is, of course, that the Council has not got the relief sought which was 12 months. If your Lordship took the view that the fact that an application would have been needed, in any event should halve the costs. In my submission, the fact they only got half the relief should account for the rest of them. My Lord, those are my submissions.

MR JUSTICE SULLIVAN: Do you want to say anything else on that?

MISS GALLAFENT: My Lord, very shortly. I accept, of course, it would have been necessary for some costs if this matter had been done by way of consent order, and certain documents would have had to be put before the court. I do not accept that halves the costs. One only has to look at the schedule. The total costs for those instructing me in relation to attendance and work on other documents is £1,356. The greater part of the costs were incurred in relation to my fees and preparing the skeleton argument, so I certainly do not accept one should take the approach there is a 50 per cent reduction to be made in any event.

I secondly do not accept that thereafter we got half the relief sought which accounts for the other half. Mathematically we should get a quarter. In my submission, it is inappropriate to make any further reductions because of the position adopted by Dr George that there should have been no extension of the interim suspension order in any event. Accordingly, it matters not, for the purpose of assessing costs, whether the General Medical Council has granted an extension of 12 or six months given that the objection raised by Dr George was against any extension at all.

MR JUSTICE SULLIVAN: I am satisfied that the defendant should pay the GMC's costs, and I am satisfied that those costs should be summarily assessed. I do not accept the submission that there should be no order as to costs because the GMC is required by statute to make an application. Though whether or not to grant the application is very much in the discretion of the court, that discretion decision is much eased and costs are much reduced if the parties are able to agree a sensible consent order subject to the court's view. Thus, at best, the fact that the GMC would have had to apply for an order would suggest a modest reduction from the overall bill rather than no order as to costs. Nor to I accept the proposition that the costs awarded to the GMC should be half because they had an extension of six months rather than 12 months.

I would have been favourably disposed to a suggestion that there should be no order for costs had Dr George adopted a reasonable stance to the GMC's application and engaged constructively with the GMC in trying to work out what a suitable timescale would be to enable the performance assessment to be completed. I do not accept the approach has been reasonable. It seems to me to be entirely unreasonable to expect the suspension to be lifted prior to a performance assessment which is imminently expected over the next couple of months or so. The GMC therefore had to obtain an extension to enable that to be done in a contested hearing, and they ought therefore to be awarded the bulk of their costs.

Doing the best I can, and taking account of the fact that the order is for six months rather than 12, and in fact there would have had to be an application in any event, it seems to me the sensible course is to summarily assess the GMC's costs in the round figure of £3,000. The defendant will pay the claimant's costs summarily assessed in that sum. Thank you both.