General Medical Council v Althaf

Dr Althaf is a registered medical practitioner. He seeks to challenge the decision of the General Medical Council's Interim Orders Panel dated 12 October 2011 to impose conditions on his registration.

The material parts of the Medical Act 1983 provide:

“1(1A) The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.

41A(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 --

On 10 November 2011 Dr Althaf issued an Appellant’s Notice appealing against the decision of the Interim Orders Panel (“the IOP”). At paragraph 1.2 of his grounds of appeal he said that the appeal was brought under Section 41A(10) of the Medical Act 1983 as amended.

Mr Hare, for the GMC, submits that there is no right of appeal against the Panel's decision; the Act draws a distinction between decisions of the Fitness to Practise Panel which are appealable under Section 40 of the Act and decisions of the IOP, which are not. A doctor wishing to challenge the IOP's decision should issue a statutory application under CPR Part 8 (see R (Madan) v GMC [2001] EWHC 322 (Admin)). Mr Hare submits that there is no excuse for Dr Althaf's failure to follow the correct procedure, as he was represented by solicitors before the Panel. This is not, Mr Hare submits, a mere formality: the court's approach to a challenge to the Panel's decision is not the same as in appellate proceedings. For this reason Mr Hare invites the court to reject Dr Althaf's appeal.

Dr Althaf, who appears in person, says that he has not been represented since the hearing before the Panel. He is a litigant in person and should not be penalised for adopting an incorrect procedure.

I propose in the circumstances to treat the Appellant's Notice as if it were an application under CPR Part 8 and to apply the approach to a challenge to the Panel's decision that the court adopts on a statutory application under CPR Part 8.

The court's approach in challenges to order of the Panel is set out in the judgment of Nicol J in Martin Sandler v GMC [2010] EWHC 1029 (Admin) at paragraphs [12] and [13]:

“12.

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. […] My consideration of the application must surely start from the position that the IOP has thought that interim suspension is the right course.

13.

… both parties acknowledged that the opinion of the Panel was entitled to respect. As Davis J said in the Shiekh case [R (Shiek) v General Dental Council [2007] EWHC 2972 (Admin) at [10]]: 'in the ordinary way the court will show respect for the decision of a Panel in this context, given that the Panel is an expert body which is well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and public confidence’.”

The court does not have original jurisdiction; it is not an appeal before this court; but the role of the court is not confined to exercising a judicial review type jurisdiction.

Turning to the substance of Dr Althaf's challenge, the relevant background is that he came to the attention of the GMC as a result of a letter dated 19 November 2010 from Dr Obiako, a lead clinician in emergency medicine at the Prince Charles Hospital in Merthyr Tydfil who was responsible for the clinical management of the department where Dr Althaf worked from May 2010 to 12 November 2010. Dr Obiako reported "significant clinical concerns" about Dr Althaf and gave four examples of patients who had received inappropriate care from Dr Althaf, including one who had died.

The GMC's case examiner deferred making a decision on whether to refer Dr Althaf's case to the Panel pending receipt of further information. Pursuant to its statutory duties under the Act the GMC contacted Dr Althaf's past employers and received a number of responses, some of which reported no concerns about Dr Althaf. However, the GMC did receive letters expressing concern from Frimley Park Hospital, an NHS Foundation Trust.

The GMC also received a copy of the full investigation report from the health board responsible for the Prince Charles Hospital in relation to the incidents which had lead to Dr Obiako's referral to the GMC. In a covering letter dated 20 July 2011 the health board wrote as follows:

On 22 September 2011 the case examiner decided to refer Dr Althaf to the Panel. By letter dated 26 September Dr Althaf was invited to appear before the Panel. The letter explained the procedure before the Panel and that the Panel could suspend his registration or impose conditions upon it.

Dr Althaf appeared before the Panel on 12 October 2011; Mr Choudhary of Medic Law appeared on his behalf.

The hearing before the Panel took the usual form. The Panel considered the documents presented by the GMC and Dr Althaf. The Panel is not a fact-finding tribunal and does not, as a general rule, hear from witnesses. The Panel's decisions are intended to protect the public pending the full investigation of a doctor's fitness to practise. The transcript of the hearing, which is at pages 155-201 of the bundle before this court, shows that Mr Phillips QC for the GMC presented the GMC's case and then Mr Choudhary made his submissions on behalf of Dr Althaf. No witnesses gave evidence.

Announcing the determination of the Panel the chairman said that the Panel had carefully considered all the information before it, including the submissions made by Mr Phillips on behalf of the GMC and those made by Mr Choudhary on Dr Althaf's behalf and the documentation provided. The Panel determined that it is necessary for the protection of members of the public and the public interest to make an order imposing conditions on Dr Althaf's registration for a period of 18 months. Nine conditions were imposed; they are recorded in the GMC's letter of 13 October 2011 notifying Dr Althaf in writing of the decision given by the Panel the previous day.

The Panel concluded:

In the introduction to his grounds of appeal Dr Althaf said: "I am lodging this appeal in person to comply with the time requirements and would like opportunity to provide better grounds after seeking legal advice or representation.” The grounds of appeal that he set out in paragraph 3 of that document were that the Panel made observations that are not supported by the evidence; did not fully address the case presented by the appellant; misunderstood some of the evidence; misdirected itself in appearing to seek specific evidence from the appellant which were not essential for addressing concerns raised; failed to observe the requirements of a fair hearing in neglecting to invite submissions from the parties, and in particular, from the appellant as to the practical effect of the proposed conditions before announcing its decision. The grounds state that the opportunity to make submissions at that juncture was necessary in the interests of justice and should have been afforded to the parties applying rule 27(5) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004. Notwithstanding its conclusion that the protection of the public and the public interest was adequately safeguarded by the imposition of conditional registration, the Panel erred in imposing conditions that had the practical effect of debarring the appellant from engaging in medical practise and/or progressing in his carreer.

On 24 January 2012, two days ago, Dr Althaf filed a 108-page skeleton argument for today's hearing. Much of the skeleton argument (pages 34-108) sets out extracts from decided cases.

Dr Althaf submits that the Panel made numerous material errors of fact during the hearing and in their determination. In support of this submission at pages 6-18 of his skeleton argument he sets out his case in relation to the four patients. However, the Panel correctly stated in its determination that it was not its function to make findings of fact, nor decide on the veracity of the allegations. Mr Choudhary has set out at length in his submissions to the Panel Dr Althaf's response to the allegatinos in respect of the four patients. Those submissions Dr Althaf repeated to me orally, identifying in relation to each patient why he said the criticism of him was unfounded. However, the Panel noted the following in relation to the four cases:

Dr Althaf complains that the investigation that was conducted into the four cases was not a full investigation and that he has requested documentation, which he needs to defend himself, which has not been provided. He also notes that at the conclusion of the investigation report it is stated that "as the incidents occurred in the past and there was a time delay in being made aware of these, it was difficult for staff to recall the exact events”. These factors combined, he submits, will make it even more difficult for him to present his case at any Fitness to Practise hearing. I appreciate his concerns. However, despite the delay and the difficulty referred to, the report concluded that "it is clear that these patients should not have been discharged home at the time that they did." This was a view which in my judgment, after consideration of the written evidence and hearing submissions from the parties, the Panel was entitled to accept for the purposes of their determination.

In relation to the criticisms made of him concerning the period he worked at the Frimley Park Hospital between December 2010 and February 2011, the Panel, having considered a document dated 28 February 2011 of notes of a discussion between a consultant, the emergency medicine and clinical director at Frimley Park Hospital and Dr Althaf and a statement from Ms Walsh, accident and emergency sister, dated 17 May 2011, noted in its determination that Dr Althaf's communication was poor between nurses and other doctors about patient care, and there were concerns about him continually falling asleep and failing to document much of the care given to patients in the casualty ward. These concerns led to the consultant body at the hospital agreeing that they should not employ Dr Althaf as a middle grade on night shifts, despite the fact that his patient care is satisfactory and he copes well during day shifts. Again I can discern no material error of fact made by the Panel in relation to these matters.

At the hearing before the Panel Dr Althaf had the opportunity to make submissions with regard to the various allegations that were made against him arising from his employment at the Prince Charles Hospital and at Frimley Park Hospital. It is clear from the transcript of the hearing that Mr Choudhary addressed all these matters on behalf of Dr Althaf. I am not satisfied that the Panel made any material errors of fact in their determination.

Dr Althaf submits that his Article 6 ECHR rights have been infringed, as I understand it, in two respects. First, the Panel was wrong to find that a case had been made out; second, the investigation carried out by the hospital was inadequate, and the hospitals failed to follow proper disciplinary procedures when carrying out their investigations. Further, he complains that he had no access to witnesses and documents he asked for were not disclosed.

Mr Hare submits that Article 6 is not engaged in the present case. He accepts, as is clear from the authorities, that suspension is a determination for the purposes of Article 6. However, if, as in the present case, the conditions that were imposed permit Dr Althaf to practise his profession then Article 6 is not engaged. If he is wrong about that and Article 6 does apply then Dr Althaf is entitled to a hearing within a reasonable time before an independent and impartial tribunal. This court is such a tribunal and he has been able to appeal the decision of the Panel on this statutory application where the jurisdiction is not confined to a judicial review type jurisdiction. In my view, for the reasons submitted by Mr Hare, Article 6 is not engaged; if it is then there has been compliance with Article 6. Further, in my view the hearing before the Panel did not infringe Dr Althaf's Article 6 rights. The transcript of the hearing shows that the Panel carefully considered the allegations made against Dr Althaf, what Dr Althaf had to say about them, and made a determination that a prima facie case was made out as they were entitled to on the evidence presented to them.

Similarly, I reject Dr Althaf's submission that his Article 8 ECHR rights have been infringed by the Panel's determination. His registration has not been suspended and he is still able to practise his profession. He complains that his reputation has been adversely affected by the decision of the Panel. The conditions that have been imposed have been imposed on an interim basis. I do not accept that there has been interference with his civil rights. If I am wrong about that, as Mr Hare submits, Article 8 is a qualified right and I am satisfied that the Panel had properly engaged in a balancing exercise and any interference with his right is justified.

Dr Althaf raised the question of the standard by which he should be judged. In my view this issue does not arise; the application of Section 41A(1) does not depend on the doctor having fallen below a particular standard. The Panel reached its decision on the basis of the evidence presented before it, that there may be a risk to patients, having taken into account relevant matters and conducted the balancing exercise that had to be done. Dr Althaf submits that the Panel was wrong to express a concern that he had not received any formal appraisal and that there was no evidence of his continued professional development. I reject that submission. The Panel properly considered these matters in the context of considering the testimonials put forward by Dr Althaf. The Panel state that they took account of the positive testimonials from Dr Althaf's professional colleagues and there is no reason to doubt that they did so. Dr Althaf submits that the conditions that were imposed, in particular condition 5a and condition 8 (but also conditions 6 and 7), mean that he is effectively debarred from medical practise. I do not accept this submission. Dr Althaf seeks to put in evidence a letter dated 10 November 2011 from Dr Ironside at the College of Emergency Medicine who answers specific queries raised by Dr Althaf on points 5a and 8 of the conditions.

Mr Hare objects to the admission of this evidence on two grounds. First, this court is reviewing the decision of the Panel and therefore the court is principally concerned with the material before the Panel (see Sandler at paragraph 2); second, section 41A(2)(b) strongly suggests that new evidence should be considered at a review of the decision by the Panel; that review can be brought forward for example in the circumstances where there is new evidence. In my view that is the appropriate forum for the consideration of this evidence from Dr Ironside and also the further email evidence referred to by Dr Althaf concerning the post he applied for in intensive care with Dr Steele's Trust.

I am not satisfied on the evidence before me that the conditions imposed amount to a suspension as Dr Althaf submits. The conditions are each drawn from the GMC bank of standard conditions. Having reached the decision which I have with regard to the conditions, it is not necessary for me to deal with the evidence of Dr Ironside and Dr Steele in any detail; it suffices to say that Dr Ironside puts forward two alternative interpretations of condition 5(a), the first of which Mr Hare submits is correct and which would enable Dr Althaf to work. Dr Ironside in any event advises Dr Althaf to seek clarification from the interim orders Panel on the correct interpretation of the conditions.

At the review hearing before the Panel Dr Althaf will have an opportunity to apply for a variation of his conditions if he is able to establish that they are causing particular hardship. He will be able to put forward the evidence on which he relies in a proper form and the GMC will have an opportunity to respond and adduce evidence on which they wish to rely. The Panel, as a specialist Panel, will then make a decision as to whether the conditions are workable or not.

There is no requirement for the Panel to invite submissions on the order it proposes to make. The power to suspend his registration or to impose conditions was clearly set out in the letter inviting Dr Althaf to the hearing. In Russell v GMC [2008] EWHC 2546 (Admin) at paragraph 32 Dyson LJ, as he then was, said:

Finally, in his skeleton argument Dr Althaf complains about the Panel's decision to reject his application for a postponement of the hearing which he made on receipt of the notice of hearing. No application for an adjournment was made at the hearing. I reject this ground of challenge. In my judgment Dr Althaf has failed to make good any of his grounds of challenge to the decision of the Panel of 12 October 2011 imposing conditions on his registration. Accordingly, this application is dismissed.