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Cite as: [2001] EWHC Admin 631

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GUPTA v. GENERAL MEDICAL COUNCIL [2001] EWHC Admin 631 (9th August, 2001)

High Court Judgment Template

Case No: CO/2496/2001
Neutral Citation Number: [2001] EWHC Admin 631
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 09th August 2001

B e f o r e:


LORD JUSTICE BROOKE
and
Mr JUSTICE NEWMAN
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DR PRABHA GUPTA

Applicant


- and -



GENERAL MEDICAL COUNCIL

Defendant


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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Cherie Booth QC (instructed by Edwards Duthie for the Applicant)
Mark Shaw (instructed by Field Fisher Waterhouse for the Defendant)
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Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE NEWMAN:
This is the judgment of the court, which I have prepared.
1. In this matter Dr Prabha Gupta (the applicant) applies to the court pursuant to Section 38(6) of the Medical Act 1983 as amended ("the Act"), seeking termination of the suspension of her registration as a medical practitioner ordered by a Committee of the General Medical Council at the conclusion of a hearing on l June 2001. On 25 July we announced in court that we were granting her application, and that we would give our reasons in writing in due course. These are our reasons.
2. Section 38(1) provides as follows:

"In giving a direction for erasure or a direction for suspension under section 36(1) or (2), 36(A) or 37(1) or (2) above, or under rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act in respect of any person, the Professional Conduct Committee, the Committee on Professional Performance or the Health Committee, if satisfied that to do so is necessary for the protection of members of the public or would be in the best interests of that person, may order that his registration be suspended forthwith in accordance with this section; and in this section the reference to section 36(2) includes a reference to that provision as applied by section 36(5) and the reference to section 37(2) includes a reference to that provision as applied by section 37(5)."

Where the Committee gives a direction but does not order registration to be suspended forthwith, Schedule 4 paragraph l0(1) of the Act provides that in the event an appeal is brought and not withdrawn or dismissed for want of prosecution, the direction shall not take effect until an appeal is dismissed. It follows that unless the Committee exercises the specific power conferred by Section 38(1) to order suspension to take place forthwith, so long as an appeal is issued within the time allowed, a practitioner can continue to practise until the dismissal of the appeal. The statutory scheme demonstrates that it was contemplated that in the normal course practitioners could continue to practise until an appeal had been dismissed, but circumstances might arise in a particular case where immediate suspension was appropriate. The power has a close resemblance to the power conferred upon the Interim Orders Committee pursuant to Section 4lA(1) of the Act. The jurisdictional basis for the exercise of power is in identical terms, namely satisfaction that an order is "necessary for the protection of members of the public or would be in the best interests of that person". In a judgment dated 17 July 2001 in the case of Sudesh Madan v The General Medical Council 2001 EWHC Admin 577, this court had occasion to consider an application under Section 41A(10) of the Act. For reasons special to that case it was not necessary to grant relief, but the court took the opportunity to state the principles which should govern the giving of reasons when an interim suspension order was made and the approach which should be adopted when considering the adequacy of such reasons. The case illustrates the value which the Human Rights Act l998 has had in clarifying the essential content of reasons in connection with decisions which interfere with Convention rights.
3. On 30 May and l June, the Committee had heard and determined certain charges brought against the applicant. The charges were of serious professional misconduct, namely allegations that she had permitted her husband and former medical partner to hold consultations with patients at two surgeries from which she, in company with another, practised as a general practitioner. It was alleged that she well knew that he was holding consultations at the practice surgeries and well knew that his name had been erased from the Register. The charges covered a period of some two years and seven months between May l996 and December l998. The particulars of the charges varied in some respects. Some consultations were alleged to have taken place in company with the applicant, others whilst her husband was on his own, and in some instances the occasions were particularised and the patients involved in the consultations were identified.
4. Rule 28 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules (S.I. l988 No.2255) provides:

"1. Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the Solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.
2. The Chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid."

In this instance, having heard the evidence and submissions upon it, the Committee retired and, in accordance with Rule 28, deliberated and thereafter returned to state which facts they had found proved and which facts they had not found proved. The Committee did not find proved facts alleged in support of allegations she had been present when her husband was giving consultations and she was therefore acquitted on those charges. Nevertheless they did find proved charges to the effect that he had held consultations from the surgeries. It had never been in dispute that the applicant's husband had been erased from the Register and that the applicant knew that. The Committee stated that it would proceed to consider and determine whether they found the applicant guilty of serious professional misconduct in relation to the facts proved against her. Rule 28 was fully complied with and the Committee informed the applicant that it would "proceed to consider whether Dr Gupta has been guilty of serious professional misconduct in respect of those facts which have been found proved against her and if so they would go on to consider and decide whether or not they should make any directions regarding the registration of Dr Gupta".
5. Rule 30 provides the Committee with a choice. It may postpone the determination whether to make a direction (Rule 30(1)), or it may decide that no postponement is necessary and determine that it is sufficient to make no direction (see Rule 30(2)). Rule 31(1) provides that "if the Committee determine neither to postpone their determination under Rule 30(1) nor that it shall be sufficient to conclude the case under Rule 30(2), they shall proceed to make a direction in accordance with the following provisions of this Rule". The "following provisions" of Rule 31 provide for a number of options, including conditions being attached to the registration, suspension of the registration, and if neither suspension nor conditions are appropriate, the power to direct that the name of the practitioner shall be erased from the Register.
6. Rule 32 provides as follows:

"If in any case the Committee determine to suspend registration of a practitioner or to erase his name from the Register, the Committee shall then also consider and determine whether it is necessary for the protection of members of the public or would be in the best interests of the practitioner, to order that his registration shall be suspended forthwith."

It is apparent that whilst the Rules envisage a staged process of consideration by way of gradation from a penalty to a more serious penalty, no specific opportunity is envisaged under the Rules, save that stipulated in Rule 28, for any representations to be received on the appropriate level of penalty. In our judgment no particular concern arises on that score, having regard to the clear terms of Rules 29, 30 and 31, but there is cause for concern in connection with Rule 32 so far as it provides for consideration to be given to whether the suspension of registration should be immediate or not. No notice was given to the applicant that the Committee contemplated making an order for immediate suspension of her registration. Nevertheless what was said complied with the procedure laid down by the Rules. Two questions arise, namely, whether in the circumstances of this case fairness required notice to be given that such an order was under contemplation, and secondly, the broader question, whether to exercise a power to suspend forthwith without giving any notice will invariably give rise to unfairness.
7. As to the particular circumstances of this case, the mitigation advanced by counsel included the following:

"She would like to spend the next five years usefully providing medical services to her patients and to the community. That is what she wants to do. Her husband is erased from the register; her husband is never likely to get back on the register; her husband does not have any more involvement in the surgeries since these events came to light and I say that with some confidence and there is certainly no evidence to gainsay that. It was the case in the earlier proceedings when she was made subject to conditions - and I just make this observation in passing - that there was a feeling in the Committee that Mrs Gupta may have been subjected to some unhelpful influence or unhelpful pressure from her husband and that point is perhaps indicated by the different ways in which they were dealt: he was erased, she stayed on the Register and was made the subject of conditions. Approaching the logic of these findings, if I can in this way, you have not found that she allowed him to take part in consultations with which she was concerned. You have not found that she allowed him to interfere with her day to day medical practice, but what you have found is that she did not put her foot down and stop him doing what he wanted to do regardless of the decisions of this Committee. That you have found was the position up until December l998 and it is now your duty to determine the most appropriate way to deal with that in the light of what has followed, in the light of what you are about to read and in these testimonials."

The Committee deliberated and then delivered its determination.:

" .... The facts found proved at this inquiry are very serious. On 29 March 1996, your husband, Dr R P Gupta, was found guilty by the Professional Conduct Committee of serious professional misconduct. A direction was made that has (sic) name be erased from the Register and that his registration should be suspended with immediate effect. Following the lodging and subsequent withdrawal of an appeal, Dr Gupta's erasure took effect on 25 July l996. Since that date, he has not been registered with the GMC and he has not been entitled to practise since 29 March l996.
The Committee have found proved that between about May l996 and about December l998, Dr R P Gupta held consultations with various patients who attended your surgery premises at 8 St Kilda Road, Ealing and 59 Rutland Road, Southall, London, for medical services. The Committee have found proved that in or around mid-1997, Dr Gupta gave an MMR injection to a child and that, in or about July l998, he consulted and wrote a referral letter for a female patient. The Committee are concerned that you were aware of the consultations yet failed to prevent them from taking place and permitted them to continue.
Your evidence to this Committee was inconsistent and by reason of our determination untruthful in many respects.
The Committee take a most serious view of your behaviour. They consider that this behaviour demonstrates a blatant disregard for the system of registration which is designed to safeguard the interests of patients and to maintain high standards within the profession. Good Medical Practice clearly states that you must not enable anyone who is not registered with the GMC to carry out tasks that require the knowledge and skills of a doctor. Accordingly, the Committee have found you to be guilty of serious professional misconduct.
The Committee have carefully considered what action to take in relation to your registration. During consideration of your case, the Committee, as required under the Procedure Rules, have been given an outline of your previous registration history. In March 1996, you appeared before the Professional Conduct Committee and were found guilty of serious professional misconduct. Following that hearing, conditions were imposed on your registration for a period of 12 months and further extended for another period of 12 months. It is of concern to the Committee that you are before a Professional Conduct Committee haring again. The Committee have noted the testimonials submitted on your behalf which indicate that you are well respected both by your professional colleagues and patients. However, given the seriousness of the findings against you, the Committee have concluded that they must take action against your registration. They consider that any action other than erasure would be inappropriate because of your behaviour which demonstrated a serious lack of probity in professional practice. Such behaviour seriously undermines the trust the public places in the profession. Accordingly, the Committee have directed the Registrar to erase your name from the Register.
The effect of the foregoing direction is that unless you exercise your right of appeal, your registration in the Medical Register will be erased 28 days from today.
The Committee have further determined that it would be in your own best interests that your registration in the Register should be suspended with immediate effect and they have accordingly ordered that your registration be suspended forthwith.
The effect of the foregoing direction and order is that your registration will be suspended from today and, unless you exercise your right of appeal, your name will be erased from the Register 28 days from today ...."

8. It is obvious that the only reason given by the Committee for the immediate suspension of registration was that it would be in the applicant's "best interests".
9. In a skeleton argument prepared by Miss Booth QC, on behalf of the applicant, without the advantage of any knowledge of the decision in the case of Madan, it was submitted that the suspension should be terminated because (i) there were real prospects of a successful appeal to the Privy Council, (ii) no reasons were given disclosing the basis for the order save one, which it was submitted made no sense; and (iii) the order was unduly harsh and inappropriate in the circumstances. After both Miss Booth and Mr Shaw, who as he had in the case of Madan appeared in this case for the General Medical Council, had been given an opportunity to read the transcript of the judgment in the case of Madan, the argument narrowed. Miss Booth submitted that following Madan, there had been unfairness in that no notice had been given, the reason advanced was inadequate and no regard had been paid to the applicant's civil right to practise the profession which the order impaired.
10. Mr Shaw submitted, correctly, that the Rules do not require a specific opportunity to be given to make representations against an immediate order of suspension of registration. Further, he submitted that the power to order immediate suspension was simply an example of the Committee "holding the ring" between the hearing and the appeal. We are unable to see how an order which deprives the applicant of a right to practise her profession, which right she would have enjoyed had a particular power not been exercised, can be characterised as "holding the ring" pending appeal. In our judgment it conclusively determines the position pending appeal, just as an interim suspension order under Section 41(A) determines the position pending the hearing of reviews, in a manner which prejudges the outcome of the future hearing. Immediate suspension has a character of finality which the review procedure in connection with interim orders mitigates. The period pending appeal to the Privy Council can be significant. The financial consequences of being unable to practise are highly likely to be serious, invariably the professional consequences will be very serious. Where a body exercising penal powers is contemplating imposing a penalty which is more severe than that which might normally be expected to flow from a finding of guilt, in our judgment, common principles of fairness require that the person who will be affected should have an opportunity of making representations against the making of such a special order.
11. Mr Shaw suggested that it was reasonably clear from the transcript and the matters which had been canvassed between counsel and the Committee, that there was likely to be an issue as to whether or not the registration of the applicant should be immediately suspended. We cannot agree. But more than that, he submitted, even if the reason given amounted to little more than a recital of the words in the section of the Act, it was reasonably clear from what had transpired that it would not be in the claimant's best interests for the registration to be suspended pending an appeal, because of the history, to which her counsel had referred, of "unhelpful influence or unhelpful pressure" from her husband. We are wholly unpersuaded by these arguments. If the Committee were of the view that the influence and pressure from her husband could give rise to further misconduct pending appeal, they should have said so. The matters raised in mitigation, upon which Mr Shaw relied, do not provide reasonable grounds for such a belief. The "influence and unhelpful pressure" to which counsel had referred had been present in the circumstances giving rise to the misconduct covered by l996 proceedings. The observations were not made in connection with the existing state of affairs.
12. An examination of the mitigation, rather than supporting a finding that he still had a prevailing influence, was to the opposite effect: "... her husband does not have any more involvement in the surgeries since these events came to light and we say that with some confidence and there is certainly no evidence to gainsay that." If the underlying basis for the conclusion was that there was a need to protect the applicant from herself, nothing was said when counsel submitted his interpretation of the Committee's decision: "what you have found is that she did not put her foot down and stop him ...." There is nothing we have seen in the material to suggest she could not put her foot down pending appeal.
Conclusions
13. We have no doubt that the circumstances of this case called for the Committee to give notice of its intention to consider immediate suspension and to give the applicant an opportunity to make representations on the issue. Further, we have no doubt that it should be regarded as being a requirement in all cases where the Committee contemplate making such an order, for such notice to be given.
Adequacy of the Reason
14. The reason given by the Committee followed the words of the statute. In the statute the particular words serve to lay down the factual conclusion to which the Committee must come before it can make an order. Mr Shaw submitted that by reciting these words the Committee expressed a reason and not a conclusion. That cannot be right. Since the Committee cannot make an order without reaching a conclusion either that the public interest and or the interests of the applicant required it, the Committee is merely stating its conclusion on the fact or facts upon which its jurisdiction is founded. It is the underlying basis for that conclusion of fact which matters, and it is that conclusion for which adequate reasons must be given. To inform the applicant that the Committee had reached a conclusion that it had jurisdiction to make an order, is not to the point. The reasons may, of course, be briefly expressed.
15. The Committee had to make a choice between making a direction for erasure and making an order for immediate suspension and in that regard had to consider whether the public interest or the applicant's interests required it. Since it has to be assumed no question of protecting the public arose, the Committee was required to balance the need it had concluded existed to protect the applicant by making an order, against the other consequences which the order would have upon the applicant, and to consider whether the consequences of making the order were proportionate to the need to make it (see Madan paragraph 50). There is nothing to suggest that this received consideration and it has not been suggested that it did. In this case the applicant's interests were pivotal to the exercise of discretion, but with a marked tension between the principle of protecting her from her own weakness and the recognition to be accorded to her right to practise her profession. We are satisfied these important considerations received no adequate attention.
16. In the light of our conclusions on the absence of due notice and the inadequacy of the reason given, we did not regard it as necessary to hear argument on the merits of the impending appeal. Had it been necessary to do so, we accept the submission of Mr Shaw that it would not have been appropriate to engage in a form of reduced appeal hearing. In a formulation, which echoed Lord Diplock in American Cyanamid Co v Ethicon Ltd
[1975] AC 396, 408-9, he submitted that a favourable view on the prospects of success on appeal could be put in the balance to see whether it assisted resolution on the other grounds raised by the application. We accept the formulation as appropriate.
17. For the above reasons we concluded that the suspension of registration should be terminated. We have already made an order dispositive of the costs of the application.

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MR JUSTICE NEWMAN: At the conclusion of the hearing, the court announced that the order for the immediate suspension of Dr Gupta should be quashed. In a judgment which I have prepared, which is the judgment of the court, the reasons for that order are set out. That is handed down.


© 2001 Crown Copyright


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