General Medical Council v Sondhi

HIS HONOUR JUDGE PELLING: This is an application by the General Medical Council, made by part 8 claim form, for an order pursuant to section 41A(6) and (7) of the Medical Act 1983, for an order extending by 9 months an interim order of suspension first made as long ago as 11th January 2010. If granted, the interim order of suspension will expire in June 2014, in excess of four-and-a-half years after it was first made.

The procedural history of this claim is in a number of respects highly unsatisfactory. Not merely has the period of interim suspension to date been excessive, but a hearing of the General Medical Council's case against the defendant that was listed before a Fitness to Practise Panel, starting on 17th June 2013, with an estimated length of hearing of 30 days or 6 working weeks proved disastrous. Only nine days of evidential hearing took place over that period. I am told an application that one of the Panel recuse himself took no less than four-and-a-half days to resolve, most of which consisting of the Panel attempting to reach a decision following the completion of submissions relating to that point. In the result the hearing before the Fitness to Practise Panel has gone part heard. Because of the obvious difficulty of bringing together all members of the Panel and counsel for the respective parties the result has been that it has been impossible to relist the hearing for completion in one tranche but in various tranches extending into 2014. Hence, the application for a further extension of 9 months.

The delay that occurred prior to the commencement of the hearing before the Fitness to Practise Panel is explained in part but not wholly. The various claims for extensions that have been made to the High Court have, for the most part, been resolved by consent. The last consent order was made on 27th March 2013 and was for a period of five months, to 8th September 2013. I was asked to approve that consent order. When being asked to approve it I observed (a) that I was only prepared to approve it because it was a consent order and (b) the total period of interim suspension at that time was three-and-two-thirds years which was, I said, "much too long".

Against that background I turn to the applicable legal principles. The core statutory framework is contained in section 41A of the Medical Act 1983 which in so far as is material provides as follows:

"(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—

(a)

that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an 'interim suspension order'); or ...

(2)

... where an Interim Orders Panel or a Fitness to Practise Panel have made an order under subsection (1) above, an Interim Orders Panel or a Fitness to Practise Panel—

(a)

shall review it within the period of six months beginning on the date on which the order was made, and shall thereafter, for so long as the order continues in force, further review it—

(i)

before the end of the period of six months beginning on the date of the decision of the immediately preceding review; or ...

(6)The General Council may apply to the relevant court for an order made by an Interim Orders Panel or a Fitness to Practise Panel under subsection (1) or (3) above to be extended, and may apply again for further extensions.

(7)

On such an application the relevant court may extend (or further extend) for up to 12 months the period for which the order has effect."

The "relevant court" in England and Wales is the Administrative Court and thus it is the Administrative Court that applications under sections 41A(6) and (7) are made.

The statutory scheme set out in section 41A is part of a wider scheme that provides for the regulation of medical practitioner's conduct. Section 41A is designed to provide a mechanism by which such practitioners can either be suspended from practice or be required to practice subject to conditions, pending a full hearing before a Fitness to Practise Panel of the General Medical Council, where such an order is necessary for the protection of the public or the practitioner or is otherwise in the public interest. It is not intended to be a substitute for a full hearing before the Fitness to Practise Panel or for one of the orders that such a Panel is empowered to impose. It is the interim nature of this process and the need to bring practitioners before a Fitness to Practise Panel within a reasonable time of an allegation being made that in my judgment led Parliament to impose on the General Medical Council a time limit in relation to interim orders of a maximum of 18 months' duration subject to extension orders made by this court and to limit the power of the court to grant extensions of up to 12 months at any one time. It leads in context to the need for the court to scrutinise with rigor all applications for extensions and to do so ever more rigorously as time passes.

The principles that the court will apply when considering applications to extend are well-known, being those set out in the judgment of Arden LJ in General Medical Council v Hiew [2007] EWCA Civ 369. In broad outline the court is not concerned to decide on the truth and accuracy of the allegations made, but rather is concerned to consider whether in the light of the allegations made an order is necessary for the protection of the public or the practitioner concerned or is otherwise in the public interest.

More particularly, the principles to be derived from the decision in Hiew are as follows:

(a)

the court have the power and duty to decide as a primary decision maker whether any extension of time beyond the initial period is appropriate - see Hiew paragraph 26.

(b)

the court has power to determine that there should be no extension or the extension sought by the General Medical Council or some lesser extension - see Hiew paragraph 27.

(c)

the criteria to be applied by the court in deciding whether or not to grant an extension must be the same as for the original decision under section 41A(1) namely the protection of the public, the public interest and the practitioner's own interest - see Hiew at paragraph 28.

(d)

the court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to the patients, the reason why the case has not been concluded and the prejudice to the practitioner if an interim order is continued - see Hiew at paragraph 28.

(f)

the judge must however reach his or her decision as to whether to grant an extension on the basis of the evidence on the application - see Hiew paragraph 29.

(g)

the statutory scheme makes clear that it is not the function of the judge, under section 41A(7) to make findings of primary fact about the events which led to the suspension or interim conditions order or to consider the merits of the case for suspension or the imposition of a conditions order. It is the function of the court to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension. In general, the court need not look beyond the allegations - see Hiew paragraphs 31 and 33.

(g)

the evidence on the application will include evidence as to the opinion of the General Medical Council, the IOP or Fitness to Practise Panel as to the need for an interim order but it is for the court to decide what weight to give that opinion - see Hiew paragraph 32.

The most recent iteration of the MPTS's guide on imposing interim orders summarises the approach to be adopted in paragraphs 19 and 20 in these terms:

"The IOP must consider in accordance with section 41A whether to impose an interim order. If the IOP is satisfied that-

(a)

in all the circumstances there may be impairment of the doctor's fitness to practise which poses a real risk to members of the public, or may adversely affect the public interest or the interests of the practitioner and

(b)

after balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk the appropriate order should be made."

The risk to be guarded against of course is the risk identified in subparagraph (a), that is to say a real risk to members of the public. The guidance continues at paragraph 20:

"In reaching a decision whether to impose an interim order an IOP should consider the following issues (a) the seriousness of the risk to members of the public if the doctor continues to hold unrestricted registration. In assessing this risk the IOP should consider the seriousness of the allegations, the weight of the information including the information about the likelihood of a further incident or incidents occurring during the relevant period.

(b)

whether the public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period ...

21 In weighing up these factors the IOP must carefully consider the proportionately of their response in dealing with the risk to the public interest; including patient safety and public confidence and the adverse consequences of any action on the doctor's own interests ..."

It was common ground between the parties before me that this guidance was an accurate summary of the effect of the case law decided following Hiew and of Hiew itself.

In relation to the public interest element, the current iteration of the General Medical Council's guidance to IOPs concerning the imposition of interim orders says this at paragraph 35:

"The public has a right to know about a doctor's fitness to practise history to enable them to make an informed choice about where to seek treatment. To balance this with fairness to the doctor, allegations leading to the imposition of interim conditions are not published or disclosed to general practitioners general enquiries. It is therefore the responsibility of the IOP to consider whether if allegations are later proved it will damage public confidence to learn that a doctor had continued working with patients whilst the matter was investigated."

I now turn to the facts of this case and to the application to those facts of the principles to which I have referred. Before turning to the factual material in detail, I need to make this observation. The evidence in support of the application is the witness statement of Miss Pollett, who is Head of National Investigations at the General Medical Council. Her statement rehearses a summary of the proceedings before earlier IOPs. Miss O'Rourke QC, on behalf the defendants, submits that this material is in part at least unfair and misleading because it refers in part to material and allegations that the General Medical Council cannot and have not relied on, either in the formulation of the allegations made by the General Medical Council against the defendant before the Fitness to Practise Panel or as evidence before that Panel.

This case is unusual because it comes at a point in the proceedings when the hearing before the Fitness to Practise Panel has commenced but those proceedings have been adjourned part heard. That said, in my judgment it is incumbent on the General Medical Council either not to refer to at all to allegations or material not relied on before the Fitness to Practise Panel when making an application of this sort or if it is considered necessary to refer to the material at all because, for example, it has played a significant part in the historical progress of the case to date, then it is necessary to explain, on the face of the evidence, that the allegations and material is no longer relied upon.

Whilst these points were explained in the General Medical Council's skeleton and in any event in oral submissions, that is not really the point for present purposes. The role of the material no longer relied upon should have been explained and acknowledged in the evidence in support of the application. I would add this. The evidence placed before the court suffers from most of the deficiencies that were identified by Arden LJ in Hiew, when considering the evidence in that case. The bundles placed before the court consist of two lever arch files containing in excess of 1980 pages of material, which has not been digested into the evidence in support or collated. That is unsatisfactory for the reasons identified by Arden LJ and should not happen. The evidence in support of the application should be a freestanding accurate and objective summary of the material relied upon, and should cross referenced to any exhibits or other documents relied upon for the purposes of enabling the case to be understood by the practitioner concerned and the court to pre-read effectively.

The other general point I should make is this. Counsel for the General Medical Council repeatedly submitted that it was not open to Miss O'Rourke to make submissions before me as to the weight and effect of the evidence that had been heard by the Fitness to Practise Panel because to do so would be an unwarranted interference with the work of the Fitness to Practise Panel. As is explained by Arden LJ in Hiew, Parliament has entrusted the decision-making process in relation to Fitness to Practise decisions to Fitness to Practise Panels subject to the rights of appeal that are set out within the statute. However, Miss O'Rourke did not make the submission that it was suggested that she should not be permitted to make. Her submission was that the evidence given to the Fitness to Practise Panel should be taken at its highest for the purpose of resolving the questions that arise on this application but that no account should be taken either of allegations or evidence not now relied upon by the General Medical Council. I agree with that approach. As was emphasised in Hiew, it is no part of the function of this court, on an application such as this to evaluate evidence but rather to ask whether it is necessary to extend the interim order previously made in the light of the allegations made and the evidence adduced by the General Medical Council in support of that allegation, as at that date. It is clearly not appropriate to invite the court to extend suspension on the basis of allegations and/or evidence that is no longer relied upon by the General Medical Council in the proceedings before the Fitness to Practise Panel.

I now turn, at last, to the facts of this case. The defendant is a graduate of the University of London having trained at St George's Hospital. He has practised medicine principally as a GP but also in that capacity in Accident & Emergency and Minor Injury Units for 29 years. At the date of his suspension the defendant was a general practitioner working in Croydon. He was a principal in the local practice and had been the Chair at the NHS Croydon Professional Executive Committee. He also held posts as the Chair and the operational medical director of Croydoc, an out-of-hours organisation serving Croydon, Sutton and Merton and Kingston Primary Care Trusts. It is his role as a Director of that organisation that gives rise to the primary allegations made in this case.

In his position as a Director of Croydoc, he was responsible at any rate de facto for finance and operations. He was also working as a clinical assistant in gastro entomology at the Mayday Hospital in Croydon and had widespread business interests including I think nursing homes in the United Kingdom and Canada. According to the report prepared for the initial Interim Orders Panel, aside from one complaint which the General Medical Council considered did not require further investigation and a further incident in 2007 which did not result in any action being taken against the defendant, the defendant has an unblemished record of medical practice. He is thus to be regarded as a practitioner who has practised for 29 years without any adverse findings concerning his clinical skills or practice having been made against him.

The main issues that arise concern the defendant's financial and operational management of the out of hours GP service carried on by Croydoc Ltd, a private company limited by guarantee. Its relationship with patients arises or arose from contracts entered into by Croydoc Ltd with each of the Primary Care Trusts to which I have referred. The result of those contracts I was told was that Croydoc Ltd had out of hours responsibility for the care of around a million people. It is important to remember these factors when considering the allegations that are made against the defendant. It is not alleged by the General Medical Council that any of the matters of which complaint is made causally adversely affected any patient at any stage. Any money that was dishonestly or wrongfully obtained by the defendant, was obtained from Croydoc and therefore was money that belonged to that company. It was not in any relevant sense public money. I make this last point because counsel in the course of his submissions on behalf of the General Medical Council suggested that it was a relevant consideration that the public were, as he put it, "fed up" with those in the public eye being seen to take money to which they were not entitled. In my judgment context is all. If and to the extent such a point could properly be made at all, it could only properly be made in relation to those who it was alleged had taken public money.

The allegations made against the defendant by the time the allegations were put before the Fitness to Practise Panel were set out in a formal letter to the defendant dated 8th May 2013, as supplemented by what is called a "Statement of case". It is common ground that the defendant was a statutory Director of Croydoc until 5th January 2010 and de facto he was responsible for the operation of financial affairs of the company and was Chairman of the Board of Directors of that company. It is or should be common ground that he owed fiduciary duties to the company as set out in the relevant sections of the Companies Act 2006.

Against that background I then turn to the allegations as set out in the letter, which in effect constitutes the list of charges that the defendant faces. At paragraph 1 of that the letter was to this effect:

"You failed to act with probity in your financial dealings as a Director of Croydon Doctors On Call, (Croydoc) in that

(a)

Between 2007 and 2009 you procured financial advances from Croydoc to you and your wife without obtaining appropriate prior authorisation from the Croydon Board of Directors and Croydon members

(b)

Your conduct is described in paragraph 1(a) was dishonest

(c)

In around September 2009 you falsely indicated to Croydoc's auditor, that you had informed the Croydon directors of the relevant facts relating to the financial advances that you procured from Croydoc

(d)

Your conduct described in paragraph 1(c) was (i) misleading (ii) dishonest."

It is common ground that the allegation concerning the claimant's wife had been withdrawn by the time that the hearing before the Fitness to Practise Panel commenced. The statement of case says in relation to these allegations as follows:

"It became apparent to the auditors of Croydoc Haines Watts LLP Kent LLP (“HWK”) in their review of the accounts for the year end 2008 that monetary advances had been made out of Croydoc to both Dr Sondhi and his wife during the accounting year. His wife was a doctor who worked at Croydoc. By and large at that point in time the advances were covered by Dr Sondhi's and his wife's prospective monthly earnings. In the auditor's audit for the year-end 2009 it became apparent these advances grew in size, exceeding the monthly earnings due. Excess payments dipped towards the end of March 2009 coinciding with Croydoc's accounting year and climbed back again reaching an aggregate in excess of £100,000. The same pattern was apparent in 2008 with advances exceeding earnings by £50,000 in July 2008.

In August 2009 Anthony Brand of HWK spoke to Dr Sondhi by telephone. Dr Sondhi told him the advances had been made without the knowledge of the Directors and related to his personal circumstances. Brand told Dr Sondhi that he would have to tell the Directors if Dr Sondhi did not do so himself. Brand asked Dr Sondhi for his proposals for the outstanding amount.

5.

The unauthorised advances were breach of the principle of proper governance requiring the authorisation of appropriate use of company funds.

6.

Further they had tax implications for Dr Sondhi and Croydoc....

7.

The General Medical Council will argue that this conduct was misconduct by virtue of Dr Sondhi's omission to obtain appropriate prior authorisation and because it was dishonest."

That summary of course must now be read as modified in the sense of removing from consideration allegations concerning payments made to the claimant's wife.

In relation to the allegations concerning the defendant's interaction with the auditor, the statement of case refers to an e-mail dated 3rd September 2009, sent by the auditor to Chief Executive of Croydoc, enquiring whether the defendant had raised the matter which concerned the auditor with the Directors. It is then alleged that a telephone call was made to Mr Brand by Dr Sondhi in which he said he was going to inform the directors that day. Then at paragraph 9 the statement says this:

"On 11th September 2009 Dr Sondhi telephoned Brand and told him that he had spoken to the Board to tell him of the advances that he would be working out a schedule of repayment of the interest and the Board were happy with the arrangement.

10.

In fact at a Board Meeting on the 7th of September 2009 the subject of Dr Sondhi taking advances against his fees was raised by him in passing and in a casual way without revealing large sums involved or the long period over which the advances had been made. Detectors were left with the impression that what was in issue was a single months' advance. It was not until Brand told the Directors at the end of September the Directors became aware of the truth. The General Medical Council will argue that this conduct was misconduct by virtue of false indication and because it was misleading and dishonest." (quote unchecked)

Paragraph 2 of the list of allegations made against the defendant was to this effect:

"You failed to provide good clinical care to patients in Croydoc in-

(a)

in organising the Croydoc rota, on occasions, you failed to ensure an adequate level of doctor cover was available at any one time to perform the services which Croydoc was contracted to provide,

(b)

when on duty on the Croydon rota on occasions you

(i)

were out of the area and unavailable to make home visits to patients or see patients at the Croydoc base

(ii)

were not adequately contactable by Croydoc staff

(iii)

did not start your shifts on time

(iv)

did not give adequate notice when cancelling your shifts

(v)

did not adequately record the outcome of patient calls allocated to you."

This was expanded upon in the statement of case in these terms. First, it was said that Dr Sondhi had overall control of the organisation of the rotas at Croydoc and then at paragraph 13 this is said:

"The Croydoc Board were aware that three doctors were on the overnight rota. However, the Board was not aware that Dr Sondhi had in fact segmented the overnight shift in three separate shifts with only one doctor working in any one segment. Dr Sondhi had given the Board a contrary impression at Board Meetings on 4th February 2008 and 25th May 2009 when he indicated there were three doctors covering the overnight shift, each of whom could be called upon in the event the others were busy.

The General Medical Council will argue this conduct constituted a failure to provide good clinical care to patients or potential patients of Croydoc."

In relation to allegations concerning Dr Sondhi's own work, it was said the General Medical Council would argue that the conduct of the defendant, as set out, constituted a failure to provide good clinical care and in relation to the allegations of being out of area and unavailable to make home visits, it was said although there was a practice at Croydoc of home triaging, there was an expectation that the doctor would be available to perform home visits to the areas covered by the PCTs to which Croydoc provided services. It was alleged that on occasions unspecified Dr Sondhi was either at home in Norfolk or on his way there, when he should have been on duty in Croydon, and he was not always responsive to phone calls even though his Internet facility did not work as it should. There was specific reference made to difficulties in contacting the defendant, which are particularised in paragraphs 18, 19 and 20 of the statement of case. In relation to not starting shifts on time, it is said: "These were common complaints by colleagues".

Perhaps most relevantly for present purposes and under the heading "Not adequately recording the outcome of patient calls allocated to him" the statement of case says this:

"When Dr Sondhi worked from home he was often not logged onto the Croydon system. He would often dictate the results of his consultations or triages of patients to non medical call handlers over the telephone. He should have been logged onto the system and able to enter the information himself. The call handlers were ill equipped to record the medical terms and found it difficult to record accurately what Dr Sondhi had said particularly when he spoke quickly. Dr Sondhi would frequently fail to make or get others to make any record at all of his consultations or triages of patients. This created 'unresulted' calls on the Croydoc computerised system. As a result there was no clinical note of the consultation or triage. Further, in the ordinary way the Croydoc system would deliver the GP details as an outcome of the call by the following morning. This would not occur where the call was unresulted. Where the subsequent treating physician was unaware of the fact or the nature of any treatment provided by Croydoc, there was obvious risk to patient safety created through amongst other things the possible subsequent prescription of contraindicated medication."

In relation to the last point, the risk identified is just that, it not being part of the General Medical Council's case that any patient actually and causatively was in danger as a result of the matters identified.

Allegation 3 made against the defendant was that he failed with probity in his role as a Director of Croydoc by misrepresenting to his fellow directors the level of doctor cover that was provided. This takes matters no further in relation to the matters that I have already referred to.

The fourth and final allegation is an allegation that:

"You failed when working with colleagues at Croydoc to treatment them fairly and with respect in that on occasions-

(a)

you referred to colleagues in instant messages in terms that

(i)

inappropriate and

(ii)

racist

(b)

you behaved towards colleges in a manner that was:

(i)

inappropriate

(ii)

verbally aggressive.

(iii)

intimidating.

(iv)

abusive."

This was expanded upon in the statement of case in these terms:

"Examples of instant messages typed by Dr Sondhi to call handlers when he was on duty had been obtained ... The messages are insulting, racist, intimidating and unprofessional. The contents are in contravention of the General Medical Council's guidance about relations with colleague and the duties of doctors in leadership and management roles. The fact that in some instances the messages may have been intended by Dr Sondhi as inoffensive banter does not change their objective character. Persons in positions of managerial responsibility should be aware that others particularly those beneath them in the hierarchy are likely to find it difficult effectively to confront such conduct. That difficulty is likely to be enhanced where the conduct is presented as inoffensive banter. Their acquiescence or participation in such conduct does not necessarily mean they find it inoffensive. In any event it does not stop the conduct being offensive and unprofessional."

Allegation 4B relates to an allegation concerning an overnight call handler called Angela Kelly and there is further unparticularised allegation in relation to the service manager, Caroline Bampton. As to the first of these allegations I was told by Miss O'Rourke that this was withdrawn by Miss Kelly in the course of her evidence to the Fitness to Practise Panel. That is obviously a material consideration on an application of this sort. Council for the General Medical Council was content to I think, in the end, to accept that this proposition was correct although I note that counsel for the General Medical Council is not counsel appearing before the General Medical Council before the Fitness to Practise Panel.

Where the circumstances are such as they are in this case, and I accept that of course it is likely that a case such as this will be very unusual, it would be desirable to ensure that counsel for the General Medical Council appearing before the Administrative Court is fully and comprehensively informed as to what if any concessions have been made in the course of a part heard hearing so that there are no doubts or difficulties created as a result. It will be preferable if the evidence in support of the application dealt fairly and comprehensively with such issues, identifying by reference to the allegations relied upon , the extent to which, if at all, those allegations had been abandoned or modified.

In support of the application the General Medical Council submit that the extension of the interim suspension is warranted because the allegations made raise issues concerning the defendant's integrity and probity and also involve risks to the public. With the exception of one category of allegations, none of the allegations relate to treatment provided by the defendant to patients. The allegations which raise probity issues all concern his control of and conduct in relation to a private company; it does not relate at all to the treatment of patients. Dishonesty is denied. The sums involved, whilst significant, are not large. The net sum allegedly removed from the company by the defendant varied over time between a high point of £100,000, to a low point of £38,000, though in various periods in between the sums owed dipped lower than that.

So far as risks to patients are concerned, the allegations focus on-

(a)

the management arrangements made by the defendant concerning the availability of doctors during the out-of-hours periods covered by Croydoc

(b)

an allegation that he failed to maintain proper notes and

(c)

that he was late attending for some of his shifts.

None of these situations are alleged in fact to have put any patient at risk. When I asked to be shown an example of the failure to keep notes that were considered inadequate, I was shown what appears to be a fairly laconic description of the support provided on that occasion by telephone. However, when it is compared with others, generated by other medical practitioners within the same organisation, it does not appear to be materially different but in any event records the symptoms and the advice apparently given. There is no evidence that the advice given was wrong or inappropriate.

In relation to the allegation that the defendant failed to complete records of attendance at all on occasion, there is no allegation of his failing to maintain a proper record of this sort other than in the context of an out-of-hours service. Given that the Defendant is no longer on a Performers List and could not be added to one until after completion of the Fitness to Practise Panel hearing, there is no realistic risk of this recurring if he was not suspended because he would not be able to work other than as a locum in an Accident & Emergency or Minor Injuries Unit, where the same issue would not arise. There is, as I say, no suggestion that the defendant failed to keep proper records when practising in any context other that of an out-of-hours service.

More generally, in relation to the cover provided, there is no expert evidence that shows that the cover provided was objectively inadequate nor is it alleged that it breached any contract between the company or the Primary Care Trust concerned or any performance protocol for the performance of out-of-hours service. There is no evidence provided on behalf of the Primary Care Trusts that suggests, in support of the allegations made, it is not suggested that any contract between Croydoc and any PCT was terminated for failure to provide care in accordance with the levels of service required by the contracts concerned.

In my judgment suspension is not necessary either for the protection of patients or for the protection of the defendant himself. The only suggestion of risk to patients derives from allegations as to the manner in which the defendant maintained patient records in some cases (as to which see above) and arranged cover on behalf of the company and failed on occasions to attend the start of his shift. As to these last two points, there is no question of the defendant performing the sort of management or financial roles that would enable him to make such arrangements again until after completion of the Fitness to Practise Panel hearings. He is not on a Performers List, as I have said, and thus can obtain employment only as a locum in A & E departments and minor injury centres. It has not been alleged by the General Medical Council that the defendant has become so deskilled by reason of interim suspension to date that he is unable to undertake work within this area of activity.

It is in my judgment inconceivable that the note taking allegation would have itself resulted in an interim suspension, particularly given that it was alleged to have occurred on isolated occasions when on duty in an out-of-hours service environment. If such an allegation resulting in interim action at all, proportionality would or ought to have led to the conclusion that at most the imposition of conditions concerning working for out-of-hours services would have been the proportionate response.

Indeed, save for the probity issues that arise in this case and to which I come in a moment, all the other allegations are ones which could and should have resulted at most in the imposition of conditions pending determination by the Fitness to Practise Panel.

The real issue is whether suspension ought to be continued in the public interest in light of the allegations of financial impropriety that have been made for the purpose of protecting the reputation of the medical profession generally. This issue is concerned with whether public confidence in the profession would be damaged if the public were to learn, following a hypothetical finding in favour of the General Medical Council by the Fitness to Practise Panel that the defendant had been working with patients while matters were being investigated and determined. In my judgment, simply taking the allegations made against the defendant at face value, it is highly unlikely that reasonable people could regard the allegations made, even if subsequently established, as impacting on the defendant's clinical competence in a way that endangered the health of patients. Even if this is wrong, the next question that would arise is whether suspension was a proportionate response in the circumstances. Proportionality means in this context the minimum interference with the right of a doctor to practise medicine necessary to achieve the desired outcome, namely the protection of public confidence in the medical professional.

In the circumstances of this case, I accept the submission made by Miss O'Rourke that the imposition of conditions that precluded the defendant from working in a financial management or administrative role would have provided proportionate protection. The allegations of dishonesty that are made against the defendant are serious but to suspend by reference to those allegations is not necessary, in my judgment, for the protection of the public and is unnecessary and disproportionate. It takes no or no sufficient account of the fact that the defendant that alleged dishonesty does not relate to the treatment of patients and it ignores the point the defendant has practised as a medical practitioner for 29 years without any complaint against him being upheld.

I am required to balance the interests of the defendant against the public interest. For the reasons that I have given the obvious adverse effects on the doctor of suspension are not outweighed in the particular circumstances of this case, in my judgment, by the countervailing circumstances. It is said that if I refuse to extend the interim suspension, I will be failing to give appropriate weight to the previous decisions of the Interim Orders Panel. It is to be borne in mind that the allegations and evidence that can properly be relied upon by the General Medical Council in part at least is different from what was deployed before the Interim Orders Panel's in the past. Aside from that point, however, as emphasised by the Court of Appeal in Hiew, the decision that has to be taken is one for the court and the court is bound to examine with care the basis on which it is contended that a practitioner should be suspended and thus the ability to earn his living and remain skilled in his profession should be taken away from him.

In the circumstances of this case, I do not consider it necessary for the suspension to be continued. I reach that conclusion in summary -

(a)

because of the nature of the allegations made

(b)

having regard to the fact that the defendant has practised medicine for 29 years without any complaint being sustained or any allegation of dishonesty made against him in the context of the practice of medicine with patients

(c)

because the allegations of dishonesty relate to his management of a private company and do not relate in any sense to the public money and are denied

(d)

because no allegations are made that patients have in fact suffered harm as a result of anything the defendant has done and no risk of such conduct arises for the future because there is no possibility of his undertaking any managerial financial or administrative role until after final determination of the Fitness to Practise Panel hearings.

In those circumstances, I do not consider that a reasonable member of the public, when properly informed as to the nature of the allegations and the evidence in support of it would object to the defendant being permitted to practise medicine until final resolution of these complaints.

I have not so far referred to the length of time that has elapsed since the defendant was suspended in relation to the question of further extending an interim suspension. In my judgment, that is a factor that is material when balancing the interests of the practitioner against those of the public. The adverse effect on a practitioner of suspension is the loss of his ability to earn a living in combination with the risk of progressive deskilling. Clearly the longer that interim suspension continues the more significant will become each of those effects. It is no doubt for this reason that Arden LJ concluded that the reasons why an investigation had not been completed was a relevant factor to be considered by the court. It is also why Parliament fixed a limited term of 18 months for interim suspension in the absence of court order, and further why Parliament limited the length of extension a court is permitted to grant to 12 months at any one time. The delay that has occurred here is not fully explained, as I have said, and in any event is plainly unacceptable when viewed in the aggregate. Indeed, various Interim Orders Panels have expressed concern about the delay that has occurred in this case when reviewing the suspension. The length of suspension is plainly a factor that is material to the balance exercise in those circumstances.

All of that said, had I concluded that suspension was necessary for the protection of the public or otherwise in the public interest, I would have extended the suspension notwithstanding the unconscionable delay that has occurred in this case, taking the view that where it can be shown that suspension is proportionately necessary for the protection of the public, it would be an extreme period of delay that would be necessary before delay of itself justified refusing an extension.

On the facts of this case, I judge an extension of suspension not to be necessary either to protect patients or in the public interest and accordingly I refuse this application.

The assistant solicitor concerned is charged out at £115 an hour. He is less than 2 years' qualified. A consequence of that will be, I think, that it is to be expected that although the rate will be lower for such a professional, he will take a little longer than perhaps a more experienced but more expensive practitioner would take. I bear that in mind when considering the submissions that are made. I also bear in mind that much of the attendance on others was attendance on counsel in order to obtain guidance and advice concerning the preparation of evidence and other incidental matters.

All of that said, 13.9 hours' work on documents is an excessively high figure having regard to the very close involvement of counsel in the process. The application was an application made by the General Medical Council. The General Medical Council filed all the material that was filed. The material was material that those advising the defendant ought to have been familiar with by reason of the previous IOP proceedings and the on-going FTPP proceedings.

In my judgment, work on documents including preparation of a draft witness statement with guidance from counsel ought reasonably and proportionately to have been accommodated with a period of 8 hours. Accordingly I allow work on documents at 8 hours at the rate claimed but no more.

So far as the 5.6 hours of attendance on others is concerned, I am told that much of that would have been advice in relation to the preparation of the witness statement and another guidance provided by counsel but nonetheless 5.6 hours is a substantial amount of time for what is a relatively straightforward application and a witness statement which although as described by counsel for the General Medical Council is a considered document it is nonetheless one which involves a rehearsal of material which would have been familiar to counsel and solicitors instructed. I will allow attendance on others for 4 hours.

So far as counsel's fees are concerned of £3,650 I am told by counsel that that is £150 in excess of the standard fee allowed by the MDU for applications of this sort. Clearly counsel has had a serious amount of involvement in the preparation of documents and giving advice. There was one day in court and whilst the skeleton was short its preparation will no doubt have occupied counsel for a significant period of time. In those circumstances, it seems to me to appropriate that counsel should recover substantial fee for the work that has been done, but nonetheless I am not able to see why in the circumstances it should be in excess of the standard fee, therefore I allow counsel's fees at £3,500.

Right. Any other business?

MISS O'ROURKE: No thank you my Lord.

MR ATHERTON: No thank you my Lord.

HIS HONOUR JUDGE PELLING: Can I thank you both for your help.