General Medical Council v Sheill

Dr.Michael Shell was suspended from practice on 14 October 2005 by the Interim Orders Panel (“IOP”) of the General Medical Council (“GMC”). That interim suspension expires on 16 December 2006. There are two applications before the court. The GMC apply for an extension of the order for suspension, pursuant to section 41A (6) of the Medical Act 1983, as amended (“The Act”). Dr.Sheill applies for the termination of the suspension under section 41A(10)(a).

Dr.Sheill qualified as a doctor in 1985. The first complaint against him originated in an unannounced visit by the National Care Standards Commission on 3 November 2003. That Commission was replaced from early 2004 by the Healthcare Commission and I shall refer throughout to the Healthcare Commission.

On 17 June 2005 the IOP made an order for interim conditional registration.

The IOP considered the case again on 14 October. The GMC had received information, including material indicating that Dr.Sheill had breached conditions 3 and 6. Dr.Sheill was represented. The IOP replaced the order for conditions with an order for interim suspension.

On 24 November 2005 allegations against Dr.Sheill were referred to the Fitness to Practice Panel (“FPP”).

The suspension was the subject of review hearings on 5 January, 16 June and most recently 15 September 2006. On each occasion Dr.Sheill was heard by the Panel. By 16 June there was a further complaint from Patient PL. By 15 September complaints had been received from Patients SS and ES. On each occasion the order for suspension was left in place. On 15 September the IOP directed the Registrar of the GMC to make the application to the High Court for an extension of the interim order of suspension.

Because the complaint by Patient ES was not included in the evidence and Particulars of Claim filed to this court, I ruled that the GMC should not be permitted to rely on it at this hearing. However, this complaint has been referred to the FPP and will form part of the disciplinary hearing.

The full hearing before the FPP has now been provisionally listed for the period 23 July to 10 August 2007.

Section 41A (1) reads:

Mr.Crystal, counsel for Dr.Sheill, places emphasis on the word “necessary”. It is not enough that an order is desirable.

Section 41A(2) provides for an initial review after not more than 6 months and thereafter reviews after not more than 6 months. The Panel may review an order if new evidence becomes available. The Panel may vary or revoke an order or vary any condition: section 41A(3). Or it may, applying the same criteria as are set out in section 41A(1), replace an order for interim conditional suspension with an interim suspension order for the remainder of the period of the order: section 41A(3)(c). Subsection (9) deals with periods for reviews after any extension.

No order for such replacement may be made unless the person has been afforded an opportunity of appearing and being heard: section 41A(4). He may be represented.

The effect of subsections (6), (7) and (13) (and section 38) is that the GMC may apply to the High Court for an extension and for further extensions. The court may extend (or further extend) an order for up to 12 months.

Section 41A(10) reads:

Section 41A was considered by the Divisional Court in Sudesh Madan v. General Medical Council [2001] EWHC Admin 577. The timetable in that case was this. An interim suspension order had been made in November 2000. That was challenged by way of judicial review and the challenge rejected by Richards J. in April 2001. The order was reviewed and continued in May 2001. A further review was to be heard in July 2001, a week or so after the court hearing. A disciplinary hearing was fixed for October 2001. (To avoid any confusion, I mention that the IOP was at the time called “the Interim Orders Committee” (“IOC”)).

Newman J. regarded it as highly likely that interim suspension hearings engage article 6, although the point had not been fully argued (see paragraph 48). At paragraph 65 he pointed out that the court was considering whether the reasons given after the review were adequate and that at the time of Richards J.’s decision it was not known that the initial order had had serious consequences upon the employment of the doctor. He came to the conclusion (at paragraph 68) that “no sufficient balancing of the public interest and the impact of a suspension order upon Dr.Madan took place”. He said:

He also said:

Brooke LJ did not expressly agree with the views of Newman J. about the engagement of article 6, but his discussion of the topic at paragraph 79 onwards makes it clear that he did. He said:

I accept that Article 6 is engaged.

Dr.Sheill’s application made it clear that he was seeking the termination of the suspension because (i) his registration ought never to have been suspended and (ii) the suspension should never have been continued. Mr.Crystal on his behalf confirmed that he sought to make a root-and-branch attack on the order itself and its continuation at reviews.

Mr.Colman on behalf of the GMC submitted that it was not permissible under section 41A(10) to attack the original suspension order, although he did concede that it was open to Dr.Sheill to submit that the order made at the latest review was wrong.

There was also disagreement about the nature of the hearing and the material which the court is to consider. I agree with Stanley Burnton J. in R. (on the application of Walker) v. GMC [2003] EWHC 2308 (Admin), where he said at paragraph 2) that section 41A bears some of the hallmarks of rushed draftsmanship.

A hearing involving reconsideration of the original order for suspension would clearly be a more substantial one than a hearing simply to decide whether, now, the suspension order should be terminated or extended. When the hearing began on 15 November, I therefore invited submissions initially about whether the original order for suspension must be assumed to have been correct or whether I could reconsider that. Having heard those submissions, I concluded that the issue was not straightforward. I did not feel able without reserving my decision to give a definitive view and certainly not to rule that Mr.Crystal was shut out from attacking the original order. I should mention that Walker had not at that stage been unearthed by counsel.

As Madan demonstrated, a decision of the IOP can be the subject of judicial review. However, as Richards J.’s reasoning in that case illustrated, success in a judicial review would require a finding that the decision was manifestly wrong or unreasonable, or that a reasons challenge succeeded.

As was pointed out in Madan , the court has power under section 41A(10) to terminate suspension, but not to quash the order made. The court’s order will not affect the period of suspension already passed.

Mr.Colman conceded, correctly in the light of Madan , that under section 41A(10) the decision at the most recent review can be challenged. That concession in fact takes Dr.Sheill some way, in view of Newman J.’ s remarks about the need for the review process to involve a complete reconsideration of the initial order in the light of all the circumstances which are before the Panel at the time of the review. However, those remarks imply that it is fresh circumstances that can lead to a reconsideration of the initial decision. I accept that fresh circumstances will include the fact that time has passed during which the doctor has been unable to practise his profession and earn his living.

Mr.Colman appeared also to be prepared to accept the application to terminate the suspension could be made as soon as the order of suspension was made and that in those circumstances, even if nothing has changed, the court can reconsider the order of suspension.

I observe that there is nothing in section 41A(10) to limit the exercise of the court’s power to terminate a suspension.

In Walker Stanley Burnton J. (at paragraph 3) described the “appeal to the Court” under section 41A(10) as a full appeal, “that is to say, the Court does not interfere on a review ground but itself decides what order is appropriate”. That is what he meant when he referred in paragraph 10 to the hearing as “a rehearing rather than a review”. I agree that in that sense this is a rehearing.

I conclude that in principle a doctor may submit that the original suspension was wrong, even if reviews have taken place. However, I also conclude that the court will not necessarily reconsider the correctness of the original order. The court has a discretion: subsection (1) uses the word “may”. If the application is made after several reviews, for example, there may be little value in such a reconsideration. If the doctor has fully participated in reviews without any application to the court, the court may decline to embark on a lengthy reconsideration. Madan illustrates the court declining to make any order where a further review is imminent. In my view the court might also decline to embark on a lengthy reconsideration of an order that had been repeatedly been reviewed, if the definitive disciplinary hearing was imminent and particularly if such a hearing might be delayed or its preparation interfered with.

Whatever may be the court’s approach in other cases, I have considered whether the original order for interim suspension was correct, in addition to considering the necessity for its continuation and extension.

It is necessary to consider what material the court is entitled to take into account on such applications as this. Mr.Crystal was submitting to me at the adjourned hearing that the court can only act on admissible evidence. I repeatedly pressed him on about what is admissible evidence in the context of such a hearing as this, dealing with an interim order. He eventually made the bold submission that unless the complaints from the Healthcare Commission or the patients are contained in witness statements, they are inadmissible. Since only some of the allegations are supported by signed witness statements at this stage, if his submission is correct, the GMC would be in great difficulty.

I found it surprising that this submission nowhere appears in Mr.Crystal’s skeleton arguments. In his first skeleton argument, it is submitted that the quality of the material is untested and unproven. In his second skeleton he submitted that there is no evidence from the GMC as to why the order is necessary. Neither of these submissions went so far as to suggest that the court has only limited admissible evidence on which it could act.

His submission is based in part on rules 27 and 34 of the General Medical Council (Fitness to Practise) Rules Order in Council 2004. Those rules regulate the kind of evidence that the IOP may receive. His submission is that since those rules do not apply to the court and since nothing is said in section 41A about the nature of evidence on which the court can act, only admissible evidence can be considered. The implication of his submission is that the strict rules of evidence apply to proceedings under section 41A before the court.

In my judgment his submissions overlook the nature of these proceedings. They relate to an interim order. Neither the IOP nor the court is embarking on a fact-finding exercise. In my judgment the strict rules of evidence do not apply in the court hearing. Both the IOP and in turn the court must look at the allegations made against the doctor. The Panel and the court will expect the allegation to have been made or confirmed in writing, whether or not it has yet been reduced to a formal witness statement. The Panel and the court will need to consider the source and the potential seriousness of the complaint. A complaint that is trivial or clearly misconceived on its face will clearly not be given weight. The nature of the allegations will be highly relevant to the issue whether conditions are sufficient.

Provision is made in the rules for evidence from the doctor. It will be relevant to note any concessions by the doctor about the truth of an allegation. However, if an allegation is denied, it is not the function of the Panel or the court to resolve such a dispute. The doctor’s evidence will, however, be of great importance in assessing the effect of an order on the doctor, since it is common ground that the effect on the doctor must be taken into account and a balancing exercise performed.

Any reconsideration by the court will also be limited by other factors. The doctor has the right to be heard before the IOP. Rule 27 permits the hearing of evidence if the IOP considers it desirable. I am told that although evidence is not usually heard by the IOP, since it is not a fact-finding body, it is usual to permit the doctor to give evidence if he wishes. I have not been asked to hear oral evidence and I express no view about whether the court should ever do so. Although Dr.Sheill has submitted a lengthy statement, which I have read, I am in no position to resolve the issues of fact that arise. It seems to me that the statement can do no more than identify common ground.

Mr.Crystal submitted that the court should be “comfortably satisfied” as to the matters required. I see no reason to add to the requirement to be satisfied, particular since the requirement is to be satisfied that an order is necessary.

The matters on which the GMC rely are conveniently set out in the Rule 8 letter dated 24 November 2005 and its Annex. The allegations relating to alleged misleading of the JCPTGP are not pursued. There have been more recent allegations. The history is summarised in the statement dated 12 October 2006 by Toni Smerdon, Principal Legal Advisor to the GMC.

The unannounced visit of the predecessor of the Healthcare Commission on 3 November 2003 led to allegations of unsafe practice: drugs past their expiry dates, vaccines not stored properly, medication with no expiry dates and drugs in syringes not for immediate use. On such examples of bad practice were based criticisms of the system. The Inspectors reported an absence of records relating to controlled drugs. It was said that Dr.Sheill had refused access to certain patient records. Dr.Sheill was unaware of the need to register under the Care Standard Act 2000 and the process of registration was put in hand. He was told to cease patient treatments.

The IOC considered Dr.Sheill’s case on 19 December 2003. Dr.Sheill was present, represented by a solicitor, and gave evidence. The Panel found that the concerns raised were serious and that there was cogent and credible prima facie evidence of poor practice management in relation to the storage of medicines and vaccinations. However, “in the light of the steps taken by you to remedy these deficiencies” the Committee decided that an interim order was not necessary.

Mr.Crystal submitted that the absence of any order at that stage demonstrates that those allegations did not justify any order. I do not accept that submission. The IOC was prepared to accept Dr.Sheill’s assurances about the steps taken.

The next hearing by the IOP was on 17 June 2005. Dr.Sheill was present, represented by counsel (not Mr.Crystal). Dr.Sheill gave evidence.

By that time there had been several visits by the Healthcare Commission. Dr.Sheill used premises in four towns. There was a continuing argument about what aspects of his practice required registration and about what categories of patient Dr.Sheill had in fact been treating. Registration had not taken place. On 8 July 2004 Dr.Sheill signed an undertaking to cease to provide services requiring registration. Apart from those areas of dispute, allegations were made by the Commission of inadequate and incomplete patient records and of refusal to allow unhindered access to patient records. It was alleged that on a visit in January 2005 Dr.Sheill was verbally aggressive and physically intimidating to an inspector. Concerns were expressed about the storage of medication.

There was also evidence before the IOP from pharmacists, other practitioners, patients and a temporary employee of Dr.Sheill pointing to treatment of kinds that required registration and to inappropriate and unprofessional treatment.

There remain areas of dispute about whether some kinds of treatment in fact required registration. Neither counsel made detailed submissions on those areas of dispute or invited me to resolve the relevant legal issues.

In its decision the IOP took account of Dr.Sheill’s evidence that he accepted certain criticisms and had taken remedial steps, including the cessation of any work in the field of weight loss. The Panel weighed all the information before it, but noted that it was not its purpose to resolve any conflict of evidence. The Panel decided to impose interim conditions for a period of 18 months. Those conditions included the limiting of Dr.Sheill’s medical practice to occupational health medicine and the carrying out of health assessments for the DVLA. They imposed other limitations on what Dr.Sheill could treat. They also included the following conditions:

Mr.Crystal accepts for the purposes of these applications that the imposition of these conditions was justified. In view of that concession it becomes particularly important to consider what occurred between 17 June and 14 October, when the order for suspension was made.

The Healthcare Commission reported on an unannounced visit on 27 July 2005 by two inspectors. I summarise. According to that report, patients were waiting. Dr.Sheill refused to permit the inspectors to look at the appointments book and asked the inspectors to leave. The receptionist then began to shred paper and refused to stop. The police were called. Dr.Sheill admitted to the police that he himself had been shredding information from the appointment book. When the appointment book was seen, no appointments prior to 27 July were seen. There was an argument about the receptionist and then Dr.Sheill removing paperwork from the premises. The police intervened on several occasions to achieve some co-operation. The inspectors reported that throughout the visit Dr.Sheill was obstructive and at times he shouted and was aggressive and intimidating in his manner.

There had been an abortive hearing on 12 September, when there was no quorum in the Panel. At the full hearing on 14 October, Dr.Sheill was not present, but was represented by counsel (again, not Mr.Crystal). The Panel inquired why Dr.Sheill had not attended. His counsel told the Panel that he had exercised his right not to attend and had instructed counsel. I have been given no further reason for his non-attendance.

In its determination the Panel noted the allegations. They considered the whole case afresh. It noted the submission of the GMC that there had been breaches of conditions 3 and 6 and that notwithstanding those conditions there was serious and continuing cause for concern regarding Dr.Sheill’s behaviour, attitude and conduct, in addition to concerns about his prescribing practice and the alleged storing of drugs on his premises. They noted that a “technical breach” of condition 6 was admitted in that certain patient records were not in book form, although they said that they were not assisted by the term “technical”. They determined that Dr.Sheill did not fully comply and co-operate with the Healthcare Commission and “in failing to do so demonstrated by his conduct and attitude that he was ignoring his responsibilities as described in condition three”. They considered conditions, but concluded

The Panel took into account the issue of proportionality and balanced the public interest against the consequences for Dr.Sheill.

I note that Dr.Sheill in subsequent submissions and in his written statement filed in these proceedings gives a very different account of the events of 27 July 2005. I am clearly not in a position to resolve those disputes of fact.

I note that by October 2005 a number of testimonials had been submitted on behalf of Dr.Sheill, many from patients very complimentary about his treatment and manner.

Mr.Crystal submits that conditions 3 and 6 do not address treatment of the public. Clearly that is correct, as far as it goes. However, the Panel had to consider, on the information before it, what confidence it could have in compliance by Dr.Sheill with conditions during the interim period. It was faced not merely with breaches of conditions 3 and 6, but a report from inspectors acting for the Healthcare Commission that described not merely a failure to co-operate, but a wholly obstructive and unprofessional attitude. Dr.Sheill had not attended to give any explanation or assurances. In my judgment the Panel’s decision was entirely correct.

The next review took place on 5 January 2006. The transcript is erroneously headed “Fitness to Practise Panel”. Mr.Crystal suggested that this pointed to a confusion about functions. Reading the transcript, I am quite satisfied that the Panel knew it was the IOP and what the purpose of the hearing was; the heading was clearly a slip.

Dr.Sheill attended, with solicitors (including Mr.Ridout) from DLA Piper Rudnick Gary, who had instructed counsel for the previous hearing. A legal difficulty emerged. Mr.Ridout had made a written statement previously, at a time when other solicitors represented Dr.Sheill. Rule 33 of the 2004 Rules stated that “a person who gives evidence at a hearing” shall not be entitled to represent or accompany the practitioner at that hearing. After hearing submissions, the Panel ruled that since the statement had been relied on previously and taken into account by the Panel prior to the hearing, Mr.Ridout could not remain, despite the offer not to rely on the statement. Mr.Crystal has not invited me to reconsider the correctness of the ruling, but I agree that it had the unfortunate consequence that Dr.Sheill was unrepresented, although Mr.Ridout’s assistant remained to assist Dr.Sheill with the paperwork. However, at Dr.Sheill’s request, counsel for the GMC opened his case fully.

Dr.Sheill gave evidence. In relation to the events of 27 July he admitted not providing patients’ records, because he did not wish to breach the privacy of patients and the confidentiality of the notes. He produced letters from the patients who had been present on 27 July which were very critical of the attitude of the inspectors. The Panel stated that it had considered the matter afresh and it continued the interim suspension.

The next review took place on 16 June 2006. Dr.Sheill was present, but not represented. He gave evidence and he was permitted to call a witness. He said that he had wished to attend the hearing on 14 October but had been advised not to by his solicitor. The Panel considered all the material again, including a new allegation based on a statement by patient PL. Again it continued the interim suspension.

The most recent review was on 15 September 2006. Dr.Sheill was present and was represented by Mr.Crystal. No evidence was given. Mr.Crystal made submissions. He pointed out that no criticism was made of Dr.Sheill before 1999, when the premises were acquired by Dr.Buckland. He pointed out that Dr.Buckland had written to the predecessor of the Healthcare Commission in October 2003 and that the visit of 3 November occurred shortly after that. However, counsel for the GMC stated at the hearing on 14 October 2005 that no reliance was being placed on Dr.Buckland’s evidence.

The Panel carefully noted such new material as it had. It reached the decision that the suspension must remain in place. Because the suspension expires on 16 December, the Panel directed the Registrar of the GMC to apply to the court under section 41A(6).

Mr.Crystal contended that the GMC were asserting that the mere existence of the Rule 8 letter and the mere fact of a reference to the FPP were sufficient to justify an interim order. I did not understand them to be asserting that and Mr.Colman disclaimed such submissions.

Mr.Crystal was instructed to submit that the Healthcare had no power to refer any matters to the GMC. He did not reinforce this assertion with any detailed reference to the powers of the Commission and appeared to concede that he faced the difficulty that the GMC, once matters were referred, may have been obliged to consider them.

I have been provided with a bundle that includes transcripts of the various hearings, together with, I understand, the material placed before the Panel at each stage. My reading includes the witness statements of Toni Smerdon (on behalf of the GMC) and of Dr.Sheill.

Leaving out of account those allegations that are no longer relied on or that I have excluded from my consideration, I consider that the interim suspension order was necessary when it was made and continues to be necessary. I take into account the effect on Dr.Sheill. Although, as Mr.Colman points out, Dr.Sheill has asserted that he can continue certain activities that are not strictly medical, I have no details of how much he can earn from that source. In substance he is unable to practise and to earn his living. He is also of course, while unable to practise his profession, not able to hone and develop his medical skills. However, assuming an early resolution of the disciplinary matters against him, I am satisfied that the suspension must remain in place. It should not be terminated and in principle should be extended. I have considered whether a return to conditions would suffice, but I am satisfied that it would not, since the concerns that led to the substitution of suspension have not been allayed.

I refer to the assumption of an early hearing, because Mr.Crystal raises the issue of delay, to which I turn.

For some time it was expected that the Fitness to Practise Panel would hear the matter in February 2007. That was still expected at the time of the hearing on 15 September. By the date of Toni Smerdon’s statement on 12 October, it was stated that the hearing is provisionally listed to commence on 23 July.

In his statement dated 8 November 2006, Dr.Sheill pointed out that almost four years will have elapsed since the first allegation emerged. The same point is made in Mr.Crystal’s first skeleton. In his second skeleton, before the adjourned hearing, Mr.Crystal complained of the lack of explanation for the failure to arrange a hearing before July 2007. He emphasised that complaint in his submissions on the morning of 21 November.

The GMC had not previously sought to explain why there could not be an earlier hearing. However, nor had Mr.Crystal sought to explore the possibility of an earlier date. Over the midday adjournment on 21 November Mr.Colman showed Mr.Crystal and later handed in a note of a “Stage 2 Telephone Conference” on 18 September 2006.

The note records a telephone discussion between GMC representatives, particularly Miss Fiona McQueen, Adjudication Manager, and Dr.Sheill. The principal discussion is recorded as having been about whether the hearing date should be 27 February 2007 in Manchester or 23 July 2007 in London. Miss McQueen is recorded as having dialled into the conference to help with the listing issues. Dr.Sheill is recorded as having insisted on the July alternative, because it would be difficult to get his witnesses to Manchester and because his barrister was not available in February. He is recorded as saying that he would not attend in February.

Mr.Crystal objected to reliance on the note. I expressed concern that if the note was accurate, the July date had been arranged in the light of Dr.Sheill’s wishes and that I should have been made aware of that when submissions about delay were being made. Mr.Crystal told me, and I accept, that he had not been aware of the telephone conference. Mr.Crystal questioned why Dr.Sheill’s solicitors were not involved and why no formal notification of the July date was sent to his present solicitors. I was told that Dr.Sheill did not accept the accuracy of the note. Mr.Colman was not in a position to answer those questions with certainty, but pointed out that Dr.Sheill could have asked that his solicitors be involved.

In those circumstances I gave permission for either party to file any witness statement they wished on this issue by 10 a.m. on 27 November, for my attention before I finalised my reserved judgment.

Dr.Sheill has made a statement dated 24 November. He states that his solicitors (I infer, his present solicitors) received no notice of the telephone conversation and that they and his counsel were unaware of it until the midday adjournment on 21 November. He states that his recollection of the conversation related solely to whether the hearing should be in London or Manchester and he made clear that he wanted London. He states that he never wanted the July date. He does not deal with the issue of his counsel’s availability. He suggests that if a Panel is available for February, the GMC could book other premises in London.

The note is clearly a standard GMC progress and listing document. I can see no reason to suppose that it was not prepared in good faith and as accurately as possible for listing purposes. I can see no conceivable reason for reaching any other conclusion. I treat it as accurate.

I had written this judgment (apart from this paragraph) and reached the conclusions already set out after receiving Dr.Sheill’s further statement, but before receiving, just before the deadline of 10 a.m. on 27 November, statements from the GMC dealing with the listing issue. I have read those statements. There is nothing in them that assists Dr.Sheill. However, since Dr.Sheill may well disagree with parts of the contents and has not had an opportunity to answer them, in fairness to him I have not taken them into account. I have reached my conclusions in the way I have described.

However, although I conclude that Dr.Sheill’s representations indicated that he was prepared for a postponement until July, it is still necessary to stand back and look at the overall lapse of time. I do not regard the period from November 2005, when the matter was sent to the FPP, until July 2007 as unusually long. There is substantial detail in the case. I am aware from other cases, and from applications in other cases about counsel’s unavailability because of GMC hearings, that the arranging of substantive GMC hearings causes difficulty. It is not simply a matter of finding premises, which of course must be suitable and (for example) have recording facilities, but particularly of finding a Panel available for the necessary length of time. There is in my view no breach of the reasonable time element in article 6.

I do not regard it as appropriate or practicable to require the GMC to arrange a hearing by a particular date, although I agree that there would be grave concern if the timetable slipped.

I do not think it necessary to extend the suspension for 12 months. I extend it until 30 September 2007, which makes a modest allowance for the matter not being concluded by 10 August.