Malik, R (on the application of) v Waltham Forest PCT & Anor

Things then began to go wrong. On 21 January 2005, following the visit, the medical director of the PCT wrote to the claimant informing him that the visit had demonstrated ‘the serious risk you pose to patients under your care’ and so he had been suspended ‘to protect the interests of patients while a more detailed investigation into the issues of concerns take place’. It was apparent that this was a purported exercise of the power conferred by regulation 13(1)(a). It was unlawful. It breached regulation 13(11) in that the claimant was neither told of the allegations against him nor given any opportunity to deal with them. It was also manifestly unfair. I can only express surprise that a PCT should so blatantly disregard not only the clear terms of the regulations but also the guidance given by the Department and act in such an unfair manner.

The claimant immediately sought assistance from his insurers, the MPS. The letter of 21 January had informed him that he could, if he wished, make representations against the suspension provided he did so by ‘close of play, 24 January 2005’. A hearing was arranged for 31 January. In the meantime the MPS wrote indicating its view that the suspension was unlawful but indicating that the claimant would voluntarily absent himself from practice for 4 weeks to enable him to receive and to be able to deal properly with the matters relied on against him. This offer was not (and it would seem for no good reason) accepted, but on 28 January the PCT sent a letter setting out the matters to be relied on and referring specifically to regulation 13(1)(a). The defects identified were inadequate disease registers and patient records, lack of clinical knowledge in relation to bi-polar disorder, emergency contraception and smoking cessation, inadequate maternity services, lack of proper sterilising equipment and the discovery of a bottle of orange juice in a fridge containing flu vaccine and inadequate arrangements for out of hours cover and opening hours.

Notwithstanding that the claimant was ill - he sent a medical certificate notifying the defendants that he was suffering from flu – and repeated his offer to abstain from practice pending a hearing at a later date, the defendants went ahead with the hearing on 31 January in his absence. Again, they clearly acted in a manner which was unfair since the agreement to maintain a voluntary suspension meant that patients could not have been at risk if the hearing had been delayed. In fact, if they had taken advice, they would have been informed that the whole procedure was unlawful since they should not have suspended the claimant on 21 January and so the hearing could not properly have considered representations against the decision to suspend. Rather, the PCT had to decide whether suspension was required and the burden was on them to justify suspension.

On 3 February 2005 the defendants wrote to the claimant informing him that the suspension was to continue. In yet further breach of the regulations, this time regulation 13(2), the defendants failed to specify the period for which the suspension was to last. They gave as their reason for not accepting the offer of voluntary suspension that that ‘would not prevent you from working as a locum at another practice’. I am singularly unimpressed with that reasoning. The undertaking could easily have been extended to cover that if the defendants had bothered to raise it with the claimant and his advisers.

The claimant instructed solicitors and on 27 February 2005 they wrote to the defendants drawing attention to the unlawfulness of their actions. The defendants sought legal advice and, as a result, on 2 March 2005 their solicitors wrote stating ‘the PCT considers that there were procedural irregularities surrounding decisions taken on the 21 January 2005 and 31 January 2005. Consequently, the PCT considers that those decisions should now be treated as nullities and/or revoked’. This was not a surprising reaction. It indicated that a hearing would be held to decide whether suspension should take place after giving proper notice. The hearing was arranged for 16 March 2005. The notice given set out the same matters as and indeed was virtually identical to that sent before the hearing of 31 January 2005. All the matters arose from and had been identified at the visit of the QOF team on 20 January 2005.

Prior to the hearing, the claimant had asked for access to the patient records which had been inspected at the QOF visit and that Dr Dadabhoy, who had led the team on that visit, should attend in order to be cross examined. It transpired that the records were missing and it was subsequently at least implied that the claimant had been responsible for that. The defendants stated in relation to Dr Dadabhoy;-

“[He] is available to attend the hearing and will do so to confirm the findings of the QOF review visit which are described in the QOF review visit dated 20^th January 2005, a copy of which Dr Malik already has.”

The procedures which should be followed at hearings are set out in the guidance at paragraph 31. The relevant paragraphs are 31.5, 31.6 and 31.7, which read:-

“31.5

Witnesses who have made statements that may be used during the hearing may be asked to attend. However any decision to call witnesses should rest solely with the Chair, and they ought only to be asked when the Chair is satisfied that their attendance will add materially to the decision-making process. Witnesses are not under any legal obligation to attend and, generally speaking, their written statements should be sufficient. If a witness is asked to attend it will be to give direct evidence. They may be questioned by the panel, but not by the Investigating Officer or by the performer. The Chair should have an absolute right of adjudication if there is any question about admissibility. If, exceptionally, a witness wishes to be accompanied, their companion will be unable to play any part in the proceedings.

31.6

The panel is also free to consider written and oral submissions from third parties where these appear relevant. The principles in paragraph 31.5 will apply.

31.7

The Investigating Officer will normally put the case for suspension, conditional inclusion, removal or contingent removal. The doctor should then be given the opportunity of making his own representations. A companion of his choice may accompany the doctor (who may be a representative of the LMC or a medical defence organisation). However since these are internal proceedings and not a quasi-judicial hearing, there will be no right to legal representation on the part of either the PCT or the doctor. Some doctors may prefer to have a legally qualified person present to advise them on questions of procedure, on the validity of any allegations or actions proposed during the hearing, or to take notes for the purpose of any right of appeal that is available. However there will be no reason why such a person should be able to question or cross-examine witnesses or address panel members directly.”

In R(SS) v Knowsley PCT [2006] EWHC 26(Admin), Toulson J considered this guidance in connection with hearings which were concerned with removal from the list. He decided that, particularly where the issues were complex or there was a fundamental dispute of fact, fairness might well dictate that there be cross-examination and permission for legal representation. All would depend on the circumstances. I have no reason to doubt or to dissent from that conclusion, but Toulson J was not considering proceedings which concern interim suspension. In such proceedings, findings of fact are generally unnecessary. What matters is whether there is credible evidence that the situation is such that suspension is needed in the interest of patients or the public pending further enquiries. It is of course open to the practitioner to seek to show that there is in truth no such evidence or that the situation does not require suspension and cross examination may be needed. The requirement that questioning of witnesses be channelled through the chair is not improper nor is the general bar on legal representation. But while speed and informality are important there must be fairness to the practitioner. In this context, it is known that suspension will be for a limited period and that the practitioner should not lose out financially while suspended. Accordingly, it seems to me that fairness will only require the more formal trappings of legal representation and cross examination in very exceptional cases. This was not in my view such a case and, subject to the fact that it was agreed that Dr Dababhoy would attend and he did not, there can be no complaints about the refusal to permit legal representation or direct cross examination.

Unfortunately, there were serious flaws at the hearing of 16 March which in my judgment rendered it unfair and so unlawful. The presenting officer was not content to rely on the matters of which notice had been given but proceeded to refer to a number of other matters against the claimant none of which had been put to him. This was a breach of regulation 13(11). The chairman failed to stop him doing this, but contented herself, according to the notes provided subsequently, with instructing her colleagues on the panel after they had retired that ‘a lot of unnecessary information had been presented’ and advising them ‘to confine their discussion to the issues which had been considered by the previous panel and those which Dr Malik had been notified of’. The notes show that this did not happen since during the discussion reference was made to Dr Malik being ‘unclear about the prescribing of colostomy bags and food supplements’. Those related to matters not the subject of prior information. In any event, the matters raised must inevitably have prejudiced the claimant and the failure to exclude them at the hearing was itself unfair. Added to this, there was the failure to have Dr Dabadhoy attend despite the promise that he would and the observations of the presenting officer, compounded by the chairman, that the meeting was to review the decision to suspend the claimant. That has not been pursued by Mr Engelman, but it is symptomatic of the failure by the PCT to follow the proper procedures.

The decision was reached to suspend the claimant for 6 months. That was, quite apart from the unfairness of the hearing, unlawful since he had already been suspended on 21 January 2005 and so could not be suspended beyond 21 July 2005.

Attacks have in addition been made on the lawfulness of the decision on the basis that the matters relied on could not in the light of all the evidence including explanations given by the claimant have justified suspension. I am bound to say that I see the force of them in the light of the guidance and the approach dictated by paragraph 18.1, but I do not in the circumstances need to make a final decision on those arguments.

On 7 December 2004 the parents of a patient of the claimant had made a complaint to the GMC alleging incompetence in relation to his circumcision. The fact that a complaint had been made was notified to the defendants in a letter of 9 March 2005 addressed to the Chief Executive, who subsequently chaired the hearing of 16 March 2005. On 18 March the medical director replied to the GMC indicating that the PCT had ‘serious concerns regarding the practice of this doctor’ and setting out the background, including all the matters raised at the hearing. On 15 April 2005 the Interim Orders Panel of the GMC declined to suspend the claimant. It only considered the complaint in relation to the circumcision, noting that he was suspended by the PCT ‘in relation to other issues relating to your practice’.

The claimant issued proceedings under Part 8 seeking a declaration that the suspensions were unlawful, and that any subsequent hearing must be by a freshly appointed panel ‘which will approach the suspension hearing in a dispassionate and unbiased way free from the trappings of the history between the claimant and the defendant’ and must have a legally qualified chairman. That claim in which Mr Engelman was not involved, was misconceived in the sense that it ought to have been made by judicial review and on 4 May 2005 Roderick Evans J directed that it should proceed as such a claim in the Administrative Court. The defendants have attempted to argue that they were not carrying out public law functions. That argument has not been pursued and rightly so. It is quite clear that the PCT is a public body and that its role in ensuring that the public is protected from inefficient practitioners is one which is subject to control by means of judicial review. The fact that there exists a contract between the practitioner and the PCT is nothing to the point.

On 9 June 2005 the defendants offered a fresh hearing stating that the panel would ‘proceed on the basis that the earlier hearing has been held by the Court to be arguably invalid, and that therefore a full re-hearing is appropriate’. They refused a legally qualified chair or legal representation, but had no objection to the claimant’s adviser appointed by the MPS attending. On 20 June 2005 they said that prior to the hearing (then fixed for 23 June) it would revoke the suspension under regulation 13(10). The hearing was subsequently adjourned to await the hearing of the judicial review claim on 21 July.

On 21 June 2005 a fresh statement of case was served by the defendants setting out the matters to be relied on at the hearing. This covered all matters which had given rise to concern since the summer of 2004, including the circumcision complaint to the GMC. It also relied on a review of a cross section of medical records carried out by two doctors on 30 March 2005. For his part, the claimant produced in due course reports from two further doctors which painted a somewhat different picture. On 25 July McCombe J adjourned the judicial review proceedings pending the fresh hearing which was to take place on 3 August 2005. Permission was also given to amend the claim form to allege breaches of Article 6 of the European Convention on Human Rights and irrationality in the decision of 16 March 2005. Although the defendants had said they would revoke the suspension imposed at the hearing on 16 March, they did not do so. Thus the hearing on 3 August was clearly unlawful since there was already an existing suspension in being (assuming that that imposed on 16 March was lawfully imposed) and further the claimant had already been suspended (whether lawfully or not being irrelevant) for more than six months.

The hearing on 3 August resulted in a suspension for two months. That it was imposed under regulation 13(1)(a) is clear and was confirmed by the defendants in a letter of 29 September 2005 in which they indicated that, as they were awaiting a decision of the GMC as to the claimant’s fitness to practise, they were minded to exercise the power to suspend under regulation 13(1)(b). In the result, that did not happen as the claimant agreed not to practise pending the resolution of these proceedings. The GMC has not acted with the expedition to be expected of them. However, they have now invited the claimant to agree to an assessment of the standard of his professional performance. This is based on the circumcision complaint and the matters referred to them by the PCT.

Since the PCT had no power to hold the hearing of 3 August, it is unnecessary for me to consider the details of it. However, there is a claim for damages which can only succeed if breaches of any article of the European Convention on Human Rights can be established so that ss.7 or 8 of the Human Rights Act 1998 can be relied on to pursue such a claim. Two Articles are said to have been breached. It is first alleged that there has not been the process which Article 6 requires in that there has not been a fair and public hearing by an independent and impartial Tribunal established by law. Secondly, it is alleged that Article 1 of the First Protocol (1PI) has been breached in that the unlawful suspension of the claimant has interfered with the peaceful enjoyment of a possession, namely the right to practise as a GP in the NHS.

The jurisprudence of the EctHR and the Commission establishes that in general interim measures do not engage Article 6 since they are not determinative of civil rights. An example is to be found in a relatively recent decision, Carreira v Portugal (Appl: No 41237/98) decided on 6 July 2000 where we find this said:

“The Court notes that the Convention institutions have consistently taken the view that Article 6.1 does not apply to proceedings for interim relief. The purpose of such proceedings is to deal with a temporary state of affairs pending the outcome of the main proceedings; consequently they do not result in a determination of civil rights and obligations (see X v U.K. No.7990/77 and APIS v Slovakia ”

It is equally clear that suspension can engage Article 6. In Le Compte v Belgium (1981) 4 EHRR 1 the Court was concerned with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months. In Paragraph 49 on p.18 the majority of the Court said this:

“Unlike certain other disciplinary sanctions that might have been imposed on the applicants (warning, censure and reprimand …), the suspension of which they complained undoubtedly constituted a direct and material interference with the right to continue to exercise the medical profession. The fact that suspension was temporary did not prevent its impairing that right; in the ‘contestations’ (disputes) contemplated by Article 6.1 the actual existence of a ‘civil’ right may, of course, be at stake but so may the scope of such a right or the manner in which the beneficiary may avail himself thereof.”

That provides some apparent support for Mr Engelman’s submission. However, it is necessary in my judgment to consider the nature of the proceedings which led to the suspension. If the suspension was a final order, it is apparent that Article 6 may be engaged in accordance with the principle set out in Le Compte v Belgium. But if the suspension is an interim measure and there is no financial penalty involved in that payment continues, in my judgment the decisions which regard interim measures to be outside Article 6 should prevail.

Mr Engelman relies on two English cases. The first is Madan v GMC [2001] Lloyds Med. R. 539. That case concerned an interim suspension by the Interim Orders Committee of the GMC. The jurisprudence of the EctHR relating to interim orders generally was not before the Divisional Court since counsel for the GMC conceded the application of Article 6. At paragraph 48, Newman J said:

“For myself, I regard it as highly likely that the interim suspension hearings engage Article 6. I regard the fact that it has not been argued fully as no impediment in the way in which we must proceed in this application and whilst I do not have any deep reservations as to the applicability of the Article I would have preferred full argument being to see the exact working out of the Strasbourg jurisprudence and to identify the precise point at which, and the precise reasons why, Article 6 is engaged.”

Whether or not Madan is correct in relation to decisions of the IOC of the GMC, there is a crucial distinction between those decisions and those of the PCT to suspend as an interim measure. That distinction lies in the maintenance of pay during suspension. As I have already indicated, this in my judgment means that the general rule that interim measures do not engage Article 6 should prevail. Mr Engelman relied on Markass Car Hire v Cyprus (App. No. 51591/99). The complaint in that case concerned the length of the proceedings to set aside an ex parte interim order. The order was obtained on 31 March 1998 and under it the applicant was required to hand over to the plaintiff cars worth over £Cyprus 500,000. It was not until May 2000 that the Court eventually set aside the interim order. In the meantime, the applicant’s business had been all but destroyed. The case did not concern the application of Article 6 to the grant of an interim order but to proceedings to set it aside where it was having an disastrous effect upon the applicant’s business. It is to be noted that the Court did not refer to the interim orders jurisprudence. I do not think the case assists Mr Engelman.

I should add that even if I were persuaded that Article 6 was engaged, when one considers the procedure as a whole, including the right to claim judicial review, it is Article 6 compliant. The interim suspension is akin to an administrative act which is designed to hold matters pending the final determination. This must be dealt with speedily. Here again the defendants have failed to act as they should since they did very little to prepare for a hearing to consider removal. However, be that as it may, it is clear from the recent decision of the House of Lords in Begum v Tower Hamlets LBC [2003] 2 AC 430 that judicial review may suffice to make the procedure compliant with Article 6. This is particularly so in a case such as this where there is no requirement to find facts but only to be satisfied that there is credible material which will justify the interim suspension. The reviewing court will interfere if the PCT could not properly have decided as it did and there is no need for an independent factual decision. Thus the observations of Lord Hoffmann at paragraph 56 are directly in point:

“The key phrases in the judgments of the Strasbourg court which describe the cases in which a limited review of the facts is sufficient are ‘specialised areas of the law’ (Byran case 21 EHRR 342, 361, Paragraph 47) and ‘classic exercise of administrative discretion’ (Kingsley’s case 33 EHRR 288, 302, Paragraph 53). What kind of decisions are these phrases referring to? I think that one has to take them together. The notion of a specialised area of the law should not be taken too literally. After all, I suppose carriage of goods by sea could be said to be a specialised area of the law, but no one would suggest that shipping disputes should be decided otherwise than by normal judicial methods. It seems to me that what the court had in mind was those areas of the law such as regulatory and welfare schemes in which decision-making is customarily entrusted to administrators. And when the court in Kingsley spoke of the classic exercise of administrative discretion, it was referring to the ultimate decision as to whether Kingsley was a fit and proper person and not to the particular findings of fact which had to be made on the way to arriving at that decision. In the same way, the decision as to whether the accommodation was suitable for Runa Begum was a classic exercise of administrative discretion, even though it involved preliminary findings of fact.”

I must now consider Article 1PI. Mr Engelman relies on Van Marle v Netherlands (1986) 8 EHHR 483. The applicants were accountants who had practised as such for some years when a new statute came into force which required then to register. Their applications were refused. The Court decided that Article 1PI was engaged. In paragraphs 41 and 42 the Court said this:

“The Court agrees with the Commission that the right relied upon by the applicants may be likened to the right of property embodied in Article 1: by dint of their own work, the applicants had built up a clientele: this had in many respects the nature of a private right and constituted an asset and, hence, a possession within the meaning of the first sentence of Article 1. This provision was accordingly applicable in the present case.

The refusal to register the applicants as certified accountants radically affected the conditions of their professional activities and the scope of those activities was reduced. Their income fell, as did the value of their clientele and, more generally, their business. Consequently, there was interference with their right to the peaceful enjoyment of their possessions.”

Both Mr Hyam and Mr Coppel have submitted that the recent decision of the Divisional Court in The Countryside Alliance v Attorney General [2005] EWHC 1677 shows that a person’s livelihood which gives him the right to future income cannot amount to a possession within the meaning of Article 1PI. Consideration of a number of cases, including Van Marle v The Netherlands, Karni v Sweden and Tre Traktorer Aktiebolag v Sweden (1991) 13 EHRR 309 (which concerned a liquor licence for a restaurant), led the Court to say in Paragraph 174:

“… Mr Gordon had no persuasive answer to Mr Sales’ analysis that there is no middle position occupied by the livelihood of a self employed person, between marketable goodwill and future income. In so far as the Scottish courts may [see Adams] have decided otherwise, we respectfully disagree. Whether individual claimants in the present proceedings who are self employed have marketable goodwill is beyond our present competence to decide. It is, we think, essentially a side issue in the present proceedings.”

That there can be no marketable goodwill in the claimant’s practice is, it is said, apparent from Regulation 3 of the Primary Medical Services (Sale of Goodwill and Restrictions on Sub-Contracting) Regulations 2004 (SI2004 No.906) which, so far as material, provides:

“The following performers or providers of medical services –

(a)

a GMS contractor

may not sell the goodwill of their medical practices in any circumstances (and no other person may sell that goodwill in their stead).”

In Crompton v Department of Transport [2003] EWCA Civ 64, the Court of Appeal was concerned with the revocation of a licence which enabled the appellant to operate heavy goods vehicles. At paragraph 19, Kennedy LJ, who gave the only reasoned judgment, said:

“An operator’s licence is a possession for the purposes of Article 1PI.”

In this case, inclusion in the list is akin to the possession of a licence. While the goodwill of the practice is not marketable, the inclusion has an intrinsic value in that it enables the doctor to practise. Since the amount of his remuneration will be affected by his patient numbers, suspension may well affect the economic value to him of his practice. Thus inclusion in the list has a present value apart from the right to future income and, as it seems to me, the decision in Van Marle v The Netherlands supports the view that it can and does amount to a possession. The Countryside Alliance case is distinguishable since it was concerned with a self-employed person’s livelihood and not with his possession of a licence or its equivalent which enabled him to work. I think the approach of the Court of Appeal in the Crompton case was correct.

I am therefore persuaded that inclusion in the list is a possession within Article 1PI. If the suspension had been properly and lawfully imposed, I have no doubt that the interference in the right of peaceful enjoyment would have been proportionate and so justified. But the suspension was unlawful for the reasons I have given and so the interference was not justified. Thus if the claimant can establish that he has suffered recoverable damage he may be entitled to some sums to recompense him for such loss. Since he should have been receiving payment which should have maintained his income, he may have difficulty in establishing any loss. However, I am not in a position to decide that issue.

There is now the added factor of the GMC proceedings. That there are some legitimate concerns about the claimants’ efficiency is apparent and he has now been out of practice for over a year. He would, I think, be sensible to undertake whatever programme the GMC requires and as soon as may be. It will also be open to the PCT to consider suspension under regulation 13(1)(b). However, I cannot dictate what now happens.

I shall hear counsel on the appropriate relief in the light of this judgment.