|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Haldar v Medical Practitioners Tribunal Service & Anor  EWHC 2427 (Admin) (09 June 2021)
Cite as:  EWHC 2427 (Admin)
[New search] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dr Malay Haldar
|- and -
|Medical Practitioners Tribunal Service
General Medical Council
The First Respondent did not appear and was not represented
Ms A Hearnden appeared for the Second Respondent
Hearing dates: 9th June 2021
Crown Copyright ©
Preliminary issue and applications
The appropriate respondent to the appeal
a) to protect, promote and maintain the health, safety and well being of the public;
b) to promote and maintain public confidence in the medical profession; and
c) pid:33701to promote and maintain proper professional standards and conduct for members of that profession.
(1) If an allegation is made to the GMC that a registered practitioner's fitness is impaired by reason of misconduct it is pid:33851investigated. The process is governed by Part 2 of the Rules.
(2) The initial stage is consideration by the Registrar, who determines whether the allegation is one of misconduct within the meaning of s 35C(2) of the Act. In order to make that determination, the Rpid:33902egistrar may carry out investigations. If the Registrar considers that the allegation does fall within s 35C(2) then, subject to some exceptions, the allegation must be referred for investigation…
(3) If an allegation is referred, the Registrar must write to the practitioner, giving notice of the allegation, and giving him an opportunity to respond.
(4) The allegation is then considered by the Case Examinerspid:34001. They may refer the case to the GMC's Medical Practitioners Tribunal Service ("MPTS") or to the GMC's Investigation Committee, which may itself refer the allegation to the MPTS. The MPTS then puts the matter before a Tribunal.
(5) The pid:34051procedure before the Tribunal is governed by Part 4 of the Rules. The standard of proof is the ordinary civil standard."
a) Section 40(9) of the Act provides:
"On an appeal under this section from a Medical Practitioners Tribunal, the pid:34151General Council may appear as respondent; and for the purposes of enabling directions to be given as to the costs of any such appeal the Council shall be deemed to be a party thereto, whether they appear on the hearing of the appeal or not".
b) The General Council pid:34201is defined, by section 1(1) of the Act, to mean the GMC, a body corporate having the functions assigned to it under the Act.
c) Paragraph 9 of schedule 1 to the Act provides:
"It shall be within the capacity of the General Council as a corporation to do such things pid:34251and enter into such transactions as are, in their opinion, incidental or conductive to the performance of their functions under this Act, including the borrowing of money".
d) By section 1(3) of the Act, the GMC is obliged to pid:34301have certain specified statutory committees, one of which is the MPTS. Whilst performing an independent adjudication function, the latter has no legal personality separate from the GMC.
e) Paragraphs 19.1(1)(e) and 19.1(4) of Practice Direction 52D provide that it pid:34351is the GMC which is to be made respondent to an appeal under section 40 of the Act.
B. Applications made by Dr and pid:34451Mrs Haldar
a) In the reasons for her order of pid:3450126 February 2021, Lang J stated:
"The Appellant submits that the Respondents have no real prospect of successfully defending his claim, and there is no other compelling reason why the appeal should be disposed of at a trial. He relies in particular upon the fact that the Respondents pid:34551have not filed Respondents' Notices, and that a speedy determination is required.
I do not accept this submission. Following a hearing, which the Appellant did not attend, a panel appointed by the First Respondent made serious findings against the Appellant, in his treatment of patients while practising pid:34601as a locum obstetrician and gynaecologist. It determined that the Appellant should be erased from the medical register and that his registration be suspended with immediate effect, pending any appeal. The exercise of statutory powers of regulation for the medical profession under the Medical Act 1983 is pid:34651a very different matter to a civil claim which may be summarily disposed of under CPR Part 24, where certain criteria are met, as the public interest has to be protected.
The Second Respondent has stated that it intends to contest the appeal and, in my view, it has pid:34701good grounds upon which to do so. It is not required to file a Respondent's Notice and its decision not to do so does not represent any concession. Similarly, the First Respondent is not required to file a Respondent's Notice."
b) At paragraph 1 of the reasons pid:34751for my order of 4 May 2021, I stated:
"1. The Appellant has made a second application for summary judgment; the first having been dismissed by the Lang Order, dated 26 February 2021. The basis of his most recent application is his contention that the Respondents have pid:34801breached 'every single deadline' set by the Lang Order. That is not supported by the Court file, but, in any event, the Appellant has previously been informed (in the reasons provided by Mrs Justice Lang) that the appeal is not suitable for summary judgment, where the Second Respondent has advanced pid:34851good grounds for contesting it and protection of the public interest is in issue."
a) There has been no breach of my order of 4 May 2021:
i) By email to the Court dated 7 May 2021 (15.pid:3500143), the Senior Legal Adviser for the GMC stated:
"…The court directed the Appellant to provide, by 5pm on Wednesday, a list of documents, not already in the bundles, which are relevant to his appeal. The Appellant, as you will have seen, submitted the attached document, 'Cpid:35051omprehensive List of Statutory Disclosures', which is a request for a number of documents to be included in the bundle. Similar requests for disclosure have been made by the Appellant previously, and the GMC has responded, and, in brief summary, and in general terms, the response has been and pid:35101continues to be that either the GMC does not have the documents in its possession or, where the request is for disclosure of documents on GMC/MPTS letter headed paper, and the documents signed by certain named individuals, that we will not comply with such a request. In pid:35152relation to the latter category, the relevant correspondence already appears in the hearing bundle, albeit not on letter headed paper. The GMC does not propose to create 'new' documents on letter headed paper simply to appease the Appellant. As the attached list does not identify any documents pid:35201from the hearing exhibits (by reference to their hearing exhibit reference number, e.g. C1, D1 etc) or any other documents that are in the GMC's possession already, there are no identifiable additional documents to include in a supplemental bundle.I note that pid:35251subsequent to the Appellant's email on Wednesday, he has sent further correspondence, some with attachments (some of which were copied to me and others which were not, but have been passed on to me by GMC colleagues who were recipients). I have considered whether any of those documents, whilst being pid:35301provided subsequent to the deadline of 5pm on Wednesday, nonetheless ought to be included in a supplemental bundle. The vast majority of those documents are already in the core bundle, or the court prepared Appellant's bundle, and it is not clear to me on what basis these documents pid:35351have been submitted to the court, as they have not been sent to me in accordance with the directions with a request for them to be included. On that basis I do not propose to compile those documents as a supplemental bundle, although it is of course open to the appellant to pid:35401do so should he wish.";
ii) The respondents were not obliged to file and serve a supplementary skeleton argument; if electing to do so, the applicable deadline was 10:00am on 10 May 2021; in any event,
b) Irrespective of whether the pid:35451asserted breaches of my order of 4 May have occurred, it remains the case that the appeal is not suitable for summary judgment, where the second respondent had advanced good grounds for contesting it and protection of the public interest is in issue. It is inappropriate pid:35501for Dr Haldar to make repeated applications for summary judgment, having twice been so informed; and
c) The matters set out in Dr Haldar's witness statement, so far as material to the issues arising in his appeal, would be considered when determining the latter.
The nature of an appeal under section 40 of the Act
"40(1) The following decisions are appealable decisions for the purposes of this section, pid:36101that is to say –
(a) a decision of a Medical Practitioners Tribunal, under section 35D above, giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration; …"
"(1) Every appeal pid:36151will be limited to a review of the decision of the lower court unless —(a) a practice direction makes different provision for a particular category of appeal; or(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearingpid:36201.
(2) Unless it orders otherwise, the appeal court will not receive —(a) oral evidence; or(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was —(a) wrong; or(b) unjust because of pid:36251a serious procedural or other irregularity in the proceedings in the lower court.(4) The appeal court may draw any inference of fact which it considers justified on the evidence.(5) At the hearing of the appeal, a party may not rely on a matter not contained in that party's appeal notice unless the pid:36301court gives permission."
"(1) This paragraph applies to an appeal to the High Court under —
(e) section 40 of the Medical Act 1983;
(2) Every appeal to which this paragraph applies must be pid:36351supported by written evidence, and, if the court so orders, oral evidence, and will be by way of rehearing.
"Derived from Ghosh are the following points as pid:36451to the nature and extent of the section 40 appeal and the approach of the appellate court:
i) an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act;
ii) the jurisdiction of the court is appellate, not supervisory;
iii) the appeal is by way of a pid:36501rehearing in which the court is fully entitled to substitute its own decision for that of the Tribunal;
iv) the appellate court will not defer to the judgment of the Tribunal more than is warranted by the circumstances;
v) the appellate court must decide whether the sanction imposed was pid:36551appropriate and necessary in the public interest or was excessive and disproportionate;
vi) in the latter event, the appellate court should substitute some other penalty or remit the case to the Tribunal for reconsideration."
"33. Practitioners have a statutory right of appeal to the Board under section 40 of the Medical Act 1983, which does not limit or qualify the right of the appeal or the jurisdiction of the Board in any respect. The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes.
34. It is true that the Board's powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past. In Evans v General Medical Council (unreported) 19 November 1984 the Board said:'The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee… The committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.'For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances. The council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration."
"Appeals under section 40 of the Medical Act 1983 are by way of re-hearing (CPR PD52D) so that the court can only allow an appeal where the Panel's decision was wrong or unjust because of a serious procedural or other irregularity in its proceedings: CPR 52.11. The authorities establish the following propositions:
i) The Panel's decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council  EWHC 1996 (Admin), per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department  EWCA Civ 56 at ;
iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not;
iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v. General Medical Council , per Auld LJ;
v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group  1 WLR 577, , per Ward LJ;
vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council  EWCA Civ 407,  per Leveson LJ with whom Waller and Dyson LJJ agreed;
vii) If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, paragraph (iii).
viii) Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v. General Medical Council  EWCA Civ 407, -.
a) Patient A (who had undergone a vaginal hysterectomy, with anterior and posterior vaginal wall repair, on pid:25121 November 2016): Dr Haldar had failed to carry out an adequate pre-operative clinical assessment and had carried out a perineal reconstruction, despite explicit refusal of that procedure by Patient A. Additional failings were found to have occurred in relation to communication; consent; pid:301poor decision-making and performance during the procedure; inadequate record-keeping, and inappropriate comments;
b) Patient C (who had undergone a laparoscopic ovarian cystectomy, on 19 December 2016, during which Dr Haldar had mistakenly removed part of her ureter):pid:351 Dr Haldar had conducted an inadequate pre-operative consultation; failed to plan the surgery; carried out surgery without seeking appropriate assistance; demonstrated poor decision-making as to how to manage the bleed which had occurred during the procedure; and failed to keep adequate records, including as to blood loss;
c) Patient E (whose baby Dr Haldar had delivered on 8 February 2018): Dr Haldar had failed to obtain appropriate consent during the procedure for a vaginal examination; instrumental delivery; and the insertion of pid:451a rectal repository. He had undertaken a manual rotation of the presenting part of the baby without explanation; and conducted delivery of the baby without taking adequate precautions. Further failures in the care and treatment of Patient E were found, being those to obtain an adequate history; to pid:501provide adequate pain relief; and to maintain an adequate clinical record; and
d) Patient G (who had suffered a third degree tear following a forceps delivery, after an unsuccessful ventouse procedure, on 22 February 2018): Dr Haldar had failed to obtain appropriate consent for pid:551a vaginal examination and sequential instrumental deliveries; to take an adequate history; and to carry out an episiotomy in a timely manner. He had also failed to recognise a post-partum haemorrhage and the third degree tear; pid:601had placed a suture in Patient G's rectum; and had failed to call for appropriate assistance and to escalate her care elsewhere. He had made inappropriate comments to Patient G.
"The tribunal was assisted by Dr Haldar attending and cross-examining for part of the GMC's case. He did not attend the hearing for the evidence of Patient A, Patient C, Patient G, Dr D, Dr I, Dr J, Drpid:901 H, Ms F (save when she was recalled) nor for that part of the evidence of Dr Rao which included Tribunal questions and re-examination. He did not attend the hearing to make final submissions on facts."
a) failed to keep proper records of consultations with six separate patients prior to surgery;
b) breached an pid:1251undertaking not to perform a Tension Vaginal Tape procedure, and
c) performed a vaginal hysterectomy, pelvic floor repair, and labiaplasty procedures, the latter without fully informing the relevant patient of the nature of the operation and its consequences.
"3. In providing care you must:…f. keep clear, accurate and legible records, reporting the relevant clinical findings, the decisions made, the pid:1401information given to patients and any drugs prescribed or other investigation or treatment;g. make records at the same time as the events you are recorded, or as soon as possible afterwards
36. You must be satisfied that you have consent or other valid authority pid:1451before you undertake any examination or investigation, provide treatment or involve patients in teaching or research. Usually this will involve providing information to patients in a way they can understand before asking for their consent. You must follow the guidance in seeking patients' consent: The ethical considerations, which pid:1502includes advice on children and patients who are not able to give consent.
57. You must make sure that your conduct at all times justifies your patients' trust in you and the public's trust in the profession".
"20. As mentioned, Dr Haldar did not attend to make submissions in relation to misconduct. Nor did he make such submissions in the numerous emails which he has sent to the Tribunal. The Tribunal was therefore concerned to analyse whether there may be any facts relating to the matters which it has found proved which represent an explanation or an amelioration of his behaviour. At all times it bore in mind that he was a Consultant in Obstetrics and Gynaecology, albeit a locum. So far as Patient A is concerned, the Tribunal took into account that the information which Dr Haldar had in respect of the prolapse surgery and vaginal hysterectomy operation was very limited and broadly unhelpful. It did not appear that Patient A had been consented for the operation by the referring consultant before the surgery. So far as Patient C is concerned, the Tribunal accepted that the clinical notes did not clearly set out that she had the condition of endometriosis, though that condition could easily be identified on a thorough reading of the notes. So far as Patients E and G are concerned, there was a significant element of urgency. In respect of Patients C, E and G it appeared that Dr Haldar did not enjoy the confidence of those with whom he was working.
21. The Tribunal accepted [the GMC's] submissions as to the effect Dr Haldar's conduct had on each of the patients, the subject of the factual determination.
22. The Tribunal accepted the evidence set out by Dr Rao in his reports that the factual findings identified by [the GMC] amounted to conduct seriously below the standard expected of a Consultant in Obstetrics and Gynaecology. The relevant paragraphs were as follows:…
23. Further, it accepted [the GMC's] representations that Dr Haldar breached a significant number of paragraphs of [Good Medical Practice], namely, 1, 2, 15a, 16d and e, 17, 18, 21a-d, 22a and b, 31, 32, 35, 36, 44a, 46, 47, 49a and 73, as set out below ..."pid:1702
"25. Having found that the facts found proved amounted to misconduct, the Tribunal went on to consider whether, as a result of that misconduct, Dr Haldar's fitness to practise is currently impaired.
26. The Tribunal noted that Dr Haldar did not admit a single allegation. When he was present at the hearing, he challenged the evidence of all the GMC witnesses who gave evidence. In the challenges which he made to their evidence, he did not appear to accept that his own behaviour was in any way at fault. There were a significant number of witnesses, including three of the patients involved, called by the GMC whom he did not challenge because he deliberately did not attend the hearing when they were called. The explanation which he gave for his absence appeared to relate to his inability to countenance those witnesses in his presence. In short, during the factual enquiry, Dr Haldar maintained his position of not accepting any part of the GMC case at all.
27. As mentioned in several of the annex determinations, Dr Haldar has written numerous emails to the MPTS and the GMC during the course of the hearing. In none of those emails has he expressed any remorse or contrition for his conduct, nor any understanding that his conduct may have been properly called into question.
28. So far as the attachments to the email dated 27 October 2020 are concerned, the Tribunal has already set out the difficulty which it has in comprehending them. In the absence of explanations from Dr Haldar, it does not consider that they amount to any evidence that he has sought to address any of his failings or remediate them in any way. In consequence, the Tribunal concluded that he has not demonstrated any insight into his behaviour.
29. The Tribunal commenced its consideration on whether Dr Haldar's fitness to practice is impaired by considering the principles to which Dame Janet Smith in the Fifth Shipman Report referred. It has reached the conclusion that Dr Haldar has, by his actions which have been found proved, caused the patients in this case to be at risk of harm. He has failed to comply with numerous paragraphs of GMP. It is therefore proper to conclude that he has breached fundamental tenets of the profession. The Tribunal considered that he has brought the profession into disrepute by his conduct.
30. The Tribunal considered that the failings of Dr Haldar which it has identified, could be capable of remediation. However, Dr Haldar has not shown any insight nor appetite to address them. Moreover, the evidence before the Tribunal does not suggest that he has begun to appreciate the nature and extent of his misconduct. Dr Haldar does not appear to have heeded the advice which he received from the Case Examiners of the GMC in 2012. That is a conclusion which is fortified by the fact that the matters which have been found proved in relation to his conduct in respect of Patients A and C in 2016, and Patients E and G in 2018, appear in no small measure to replicate his behaviour in 2007 and 2008, which caused him to be referred to the HCCC in NSW. Dr Haldar therefore has not remediated his conduct.
31. In these circumstances, the Tribunal has concluded that Dr Haldar's fitness to practice is impaired on public protection grounds. A finding of impairment is necessary to protect, promote and maintain the health, safety and wellbeing of the public.
32. Further, the Tribunal has considered whether a finding of impairment is appropriate on broader public interest grounds, namely, the promotion and maintenance of public confidence in the medical profession and proper professional standards and conduct for members of that profession. It has taken into account both the nature and extent of the misconduct which it has found and the attitude which Dr Haldar has demonstrated towards the case brought by the GMC and his failure to address his shortcomings and to engage with the MPTS in a meaningful and constructive way. On both these grounds, the Tribunal has concluded that a finding of impairment of Dr Haldar's fitness to practice is also appropriate in the public interest."
• As set out in its determination at Stage 2, the Tribunal considered that there may have been some systemic issues at both Princess Alexandra Hospital in Harlow in Essex and at Birmingham Women's Hospital which may have contributed to but did not excuse Dr Haldar's behaviour which the Tribunal has found proved;
• The Tribunal acknowledged that, in respect of Patients C, E and G, it appeared that Dr Haldar did not enjoy the confidence of those with whom he was working;
• The medical staff, including Dr Haldar, were obliged to communicate with Patient E through Patient E's husband as she was non-English speaking. This may have caused delay and confusion;
• There may have been personal and professional matters, such as work-related stress.
• Lack of remorse and contrition;
• A complete lack of insight;
• No evidence of any remediation;
• The finding in 2011 against Dr Haldar by the Health Care Complaints Commission of New South Wales, Australia, in respect of similar matters;
• No evidence of any reflection;
• Dr Haldar has demonstrated that he is capable of an apology as he has previously apologised to Ms F, in relation to the way he spoke to her regarding his behaviour in the case of Patient E. However, once these proceedings started, Dr Haldar did not offer any apology to any of the patients, indeed he did not attend the hearing whilst they were giving evidence, nor show any signs of contrition. The only consistent behaviour which he did demonstrate was outrage that the case was brought against him by the GMC;
• Dr Haldar did not demonstrate any signs of learning from these matters;
• Failure to work collaboratively with colleagues to maintain or improve patient care. This includes doctors and the nursing staff;
• Dr Haldar abused his position of trust. In respect of Patient A, he carried out a perineal reconstruction contrary to Patient A's explicit refusal. He disregarded Patient A's wishes, thinking he knew better;
• Dr Haldar caused physical harm as follows:
— In relation the Patient A, in consequence of the perineal reconstruction, he narrowed the introitus to her vagina and this has left her with a difficulty in passing urine normally;
— In relation to Patient G, following Dr Haldar's failure to carry out an episiotomy, which caused a third-degree perineal tear, she has the very embarrassing problems of leaking faeces and loss of bowel control.
• The Tribunal determined that all four patients suffered trauma and/or psychological harm."
"28. The Tribunal went on to consider paragraphs 109a, b, c, d, e, j and 130 of the [Sanction Guidance (November 2019): "SG"], which state:'109 Any of the following factors being present may indicate erasure is appropriate…a. A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor.b. A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety.c. Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients ……d. Abuse of position/trust (see Good medical practice, paragraph 65: 'You must make sure that your conduct justifies your patients' trust in you and the public's trust in the profession').e. Violation of a patient's rights……j. Persistent lack of insight into the seriousness of their actions or the consequences.…130. A particularly important consideration in these cases is whether a doctor has developed, or has the potential to develop, insight into these failures. Where insight is not evident, it is likely that conditions on registration or suspension may not be appropriate or sufficient.'
29. The Tribunal considered these paragraphs of the SG to be engaged in this case. It remained mindful of its previous determinations, and of the mitigating and aggravating factors of this case. It considered that Dr Haldar deliberately disregarded the principles of GMP, and that his misconduct was a serious departure from proper professional standards of conduct. It also determined that Dr Haldar had shown no evidence of acceptance or insight into his actions.
30. The Tribunal has concluded that, in all the circumstances of this case, Dr Haldar's conduct and behaviour is fundamentally incompatible with that of a registered medical practitioner and that erasure is the only appropriate sanction.
31. The Tribunal determined that, having found Dr Haldar to have breached fundamental tenets of the medical profession and undermined the public confidence in the profession, erasing Dr Haldar's name from the medical register was the only appropriate sanction in this case. It determined that this sanction would protect patients, maintain standards and uphold confidence in the medical profession."pid:1901pid:1951
The grounds of appeal
"The Appellant has sent a significant volume of correspondence and attachments to the Court. It is not appropriate for an appeal to be conducted in this way. If and to the extent that the matters which he has raised in correspondence are considered to be material to his grounds of appeal, those matters should be set out in a supplementary skeleton pid:2101argument, which must be carefully focused on the grounds of his appeal".
In so doing, Dr Haldar has variously accused court staff of misconduct, including fraud and race discrimination. Those allegations have included assertions that the orders which I made on 4 pid:2151May 2021, together with the matters which were communicated to him at my direction on 7 May 2021, had not in fact originated from me. Such allegations were both unfounded and inappropriate. The orders and directions which were sent to him pid:2201were those which I had made. I refer to such matters here because they are indicative of the way in which Dr Haldar has chosen to conduct his appeal. I am satisfied that he has at all times understood the nature of the hearing, but, rather than pid:2251focus his written and oral submissions on the substantive matters with which it ought to be concerned, has decided to engage in protracted and tendentious correspondence. As noted earlier in this judgment, he has made three applications for summary judgment. At the eleventh hour, he pid:2301applied for an adjournment of the hearing of his appeal (originally listed to take place on 11 May), without disclosing any grounds for such an application; an application which I, therefore, refused on 7 May. I granted a subsequent application, made on the morning of pid:235111 May, on medical grounds, re-listing the appeal to be heard today. Contrary to the order which I made on that date, Dr Haldar has not filed or served a copy of the discharge summary in the form provided by the hospital which he attended to his GP, whilst pid:2402acknowledging that his GP received such a document on or around 15 or 16 June 2021, and that he (Haldar) was informed that it was available to be collected from the surgery, located 1.2 miles from his home.
a) (ground 1) a challenge to some of the Tribunal's findings of fact;
b) (ground pid:25512) complaint of various alleged procedural irregularities, said to comprise:i) the content and format of the Tribunal hearing bundle;ii) inadequate disclosure by the GMC;iii) the non-receipt by the Tribunal of a letter under rule 8 of the 2004 Rules;iv) the Tribunal's non-compliance with rules pid:260117 and 31 of the 2004 Rules;v) the Tribunal's failure to issue an 'IMI' (Internal Market Information) alert, relating to restrictions and prohibitions on a doctor's practice; andvi) the need for the Tribunal to remove its decision from the public domain, pid:2651said to derive from the Human Rights Act 1998 and/or the Equality Act 2010;
c) (ground 3) an unparticularised challenge to the Tribunal's findings as to impairment; and
d) (ground 4) a challenge to the Tribunal's approach to sanction.
Ground 1: findings of fact
a) The first is paragraph 1 of the stage one decision, under the heading 'Background', in which the Tribunal stated:"Dr Haldar was working as a locum pid:2851Consultant Obstetrician and Gynaecologist at the time of the events under consideration by this Tribunal. The Allegation that has led to Dr Haldar's hearing can be broadly summarised as alleged deficiencies in his practice in his treatment of four patients: Patients A and C at the Princess Alexandra Hospital in Harlow pid:2901in Essex ('PAH') in November and December 2016 respectively, and Patients E and G at Birmingham Women's Hospital in February of 2018, (BWM).";
b) The second is paragraph 27 of the stage one decision, in which the Tribunal pid:2951set out the allegations made against Dr Haldar in connection with each patient. It is said that such 'determination' ran contrary to paragraph 73 of Domain 4 of Good Medical Practice, which provides, "You must cooperate with formal inquiries and complaints procedures, and must offer all relevant information pid:3001while following the guidance in Confidentiality." It is further said that the paragraph is "factually incorrect and both defamatory and falsely confirmed my breach of probity";
c) The third is the Tribunal's finding that there had been no evidence of any remediation. pid:3051Whilst the paragraph reference for this finding is given as 132, in fact it was identified at paragraph 30 of the stage two decision, which addressed impairment, and as an aggravating factor, at paragraph 21 of the stage three decision (see above). Dr Haldar asserts pid:3101that he had outlined a number of remedial steps which he had taken since the alleged events, although he does not identify what those were said to be, whether in his original skeleton argument or in his supplementary skeleton argument, dated 7 May 2021pid:3151.
a) Paragraph 1 of the Tribunal's decision is simply a broad and fair summary of the allegations giving rise to the hearing. There is no error identified or apparent.
b) Paragraph 27 simply contains a list of each allegation faced by pid:3201Dr Haldar. There is no inaccuracy demonstrated or apparent, nor is the relevance of paragraph 73 of Domain 4 of Good Medical Practice explained or apparent.
c) As noted above, the evidence of remediation on which it is pid:3251said that Dr Haldar sought to rely, has not been identified, and, as the Tribunal recorded, he did not give oral evidence or make submissions on impairment or sanction. In such circumstances, it is unsurprising that the Tribunal reached the conclusions as to remediation which pid:3301it did.
Ground 2: procedural irregularities
"Consideration by Case Examiners
8. — (1) An allegation referred by the Registrar under rule 4(2) or 5(2) shall be considered by the Case Examiners.
(2) Upon consideration of an allegation, the Case Examiners may unanimously decide —
(a) that the allegation should not proceed further;
(b) to issue a warning to the practitioner in accordance with rule 11(2);
(c) to refer the allegation to the Committee under rule 11(3) for determination under rule 11(6); or
(d) to refer the allegation for determination by a FTP Panel.
(3) The Case Examiners may unanimously decide to recommend that the practitioner be invited to comply with undertakings in accordance with rule 10(2) and, where they do so and the practitioner confirms he is prepared to comply with such undertakings in accordance with rule 10(3), they shall make no decision under paragraph (2) accordingly.
(4) As soon as reasonably practicable, the Case Examiners shall inform the Registrar of their decision, together with the reasons for that decision, and the Registrar shall notify the practitioner and the maker of the allegation (if any), in writing, accordingly.
(5) If the Case Examiners fail to agree as to the disposal of an allegation under paragraph (2), or whether to recommend that the practitioner be invited to comply with undertakings under paragraph (3), they shall notify the Registrar accordingly, and the Registrar shall refer the allegation for consideration by the Committee under rule 9.
(6) If, at any stage, one of the Case Examiners is of the opinion that an Interim Orders Panel should consider making an interim order in relation to a practitioner, he shall direct the Registrar accordingly."
"Procedure before a FTP Panel
17. — (1) A FTP Panel shall consider any allegations referred to it in accordance with these Rules, and shall dispose of the case in pid:4201accordance with sections 35D, 38 and 41A of the Act."
"Absence of the practitioner
31. Where the practitioner is neither present nor represented at a hearing, the Committee pid:4351or Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules."
a) Annex B — 11 December 2019: on day three of the hearing, the Tribunal noted that Dr Haldar had not attended and, instead, had informed the GMC and the MPTS that he had returned to London and was not intending to return to the hearing until pid:4601such time as the documents which he had requested had been disclosed to him. Only then, he had stated, could he instruct an expert witness to assist him. Additionally, Dr Haldar sought an adjournment in order that he might be represented for the balance of the hearing. The Tribunal pid:4651noted that it had already reached a decision on Dr Haldar's preliminary submissions as to documentation, set out at Annex A, which it could not go behind. It further noted that Dr Haldar had previously been represented by solicitors and counsel and that he had not suggested pid:4701that he was actively seeking legal representation (rather than expecting the MPTS or the Tribunal to provide it). He had been given proper notice of proceedings and had attended the first two days of the hearing; made no suggestion that he would attend at a later date, pid:4751were proceedings to be deferred; and given no medical reason for his absence. The Tribunal concluded:"4. … The reason for his absence appears to be his disappointment with the ruling made by the Tribunal considering his preliminary points. The Tribunal therefore comprehends his absence as being voluntary. Dr Haldar has an obligation as a professional to engage with his regulator. So long as he remains voluntarily absent, he is not discharging that obligation. The Tribunal of course has a duty to act in the interests of justice in relation to the very serious decision as to whether it should proceed in the doctor's absence. Fortunately, in this case Dr Haldar has submitted statements and other material which set out his version concerning the various incidents which the Tribunal has seen.5. The Tribunal must not only have regard to Dr Haldar's interests but also to those of the GMC who bring this case on behalf of the general public, including the patients who have allegedly been the subject of a lack of professional behaviour by Dr Haldar. Three of the patients to whom this allegation relates are witnesses and in addition there are a number of other witnesses all of whom are scheduled to give evidence. In these circumstances the Tribunal considers that it is appropriate and in the interests of justice to proceed in the absence of Dr Haldar. Of course, the Tribunal very much hopes that he will return to the hearing as it unfolds in succeeding weeks so that he may play a full part in it."
b) Annex C — 13 December 2019: following a further application for an pid:4801adjournment, made on day four, on the basis that legal representation by leading counsel might be forthcoming, the Tribunal delayed until the afternoon and then decided to proceed when no representation (or further information) was forthcoming. It stated:"4. In the light of the history concerning representation recited herein and in its determination concerning Dr Haldar's first application for an adjournment, and in the context of the Tribunal receiving no confirmation or indication that a lawyer had been instructed to represent Dr Haldar, the Tribunal did not accept the premise of the application for this second application for an adjournment. It was not impressed by Dr Haldar's stance that he would or might instruct a lawyer if and when he had achieved the objective for which he argued as a preliminary issue. There was always much more to the case than the preliminary issue; it therefore behoved Dr Haldar to achieve a state of readiness for the case in the event that he did not succeed on the issues which he raised. Moreover, it might be said that, if he was willing to instruct a lawyer, that should have been done so that he would have been able to articulate his case on the preliminary issue.5. Dr Haldar could attend the hearing himself, supported by his wife if he wished. He has chosen not to do so.6. The Tribunal must approach an application for an adjournment by reference to the interests of justice. It has the power to adjourn if it considers that justice lies in the granting of the adjournment. It must take into account both the interests of Dr Haldar and those of the GMC who effectively represent the general public and it should have regard to the overarching objectives.7. The Tribunal has reached the conclusion that it should reject Dr Haldar's second application for an adjournment. It does not have confidence that he will obtain representation. It does not consider that it would be exercising its duty to be fair to both parties.";
c) pid:4852Annex E — 18 December 2019 (day eight): this was Dr Haldar's third application for an adjournment, in order to seek further witness evidence and transcripts of the evidence given on days three to six, over which he had voluntarily absented himself from the hearing. By pid:4901this stage, the GMC had been about to present the expert evidence of Dr Rao. The application was rejected on the bases, variously, that the evidence which Dr Haldar sought time to produce was irrelevant; unnecessary; a matter for submissions; and that, in any event, at such time as it was pid:4951produced, the Tribunal had the power to recall Dr Rao. Regarding Dr Haldar's asserted need for transcripts, the Tribunal held:"8. … Apart from the fact that Dr Haldar was responsible for not attending the hearing when evidence from several of GMC's witnesses was given, the Tribunal considers that the important pid:5001point is that Dr Haldar is aware of the case which he is advancing. The hearing has not reached the stage when the Tribunal would be deciding the facts. It has only reached the stage of the GMC completing its evidence by calling Dr Rao.";
d) Annex pid:5051H — 7 September 2020: a fourth application to adjourn was made on day 16 of the hearing. The Tribunal recorded Dr Haldar's submission that he had not received formal notification of the resumed hearing; had not received confirmation that documents which he had requested were not in pid:5101existence, alternatively could be disclosed; and had not obtained legal representation. It stated:"3. The Tribunal treated the application for an adjournment and the issue of proceeding in absence at one and the same time. It applied the principle of the interests of justice to both issues. It bore in mind that the General Medical Council had an interest in completing the hearing and that it had a witness, namely Dr Rao, in attendance for Tribunal questions. The Tribunal also recognised that Dr Haldar had been absent for a period of time at the beginning of the hearing but had re-attended and been able to cross examine GMC witnesses.4. The Tribunal has determined to reject Dr Haldar's application and has decided to proceed in his absence. Dr Haldar has, in truth, not advanced any compelling reason to adjourn. He has not stated that he had problems with his health or that attending in the context of the pandemic is posing a problem to him. In view of the fact that he has had the transcripts, he should have been in a position to understand the stage that the hearing has reached. The Tribunal is not impressed with the point that the Notice of Hearing was not singed in ink. Although it was sent by post, it was electronically signed…" (sic);
e) Annex K — 27 October 2020: on pid:5152day 29 of the hearing, the Tribunal decided to proceed in Dr Haldar's absence, following the handing down of its determination of the facts, at a time when it was sitting in open session, with a view to hearing submissions and/or evidence in respect of impairment. It held:"3. The Tribunal has carefully considered the submissions advanced by Mr Moran. It has borne in mind that it should be guided by the main statutory objective of the GMC, namely, the protection, promotion and maintenance of the health and safety of the public; further, that fair economical, expeditious and efficient disposal of the allegations made against a registrant is of very real importance; third that fairness includes fairness both to the practitioner and to the regulator which represents the public interest.4. Over the course of the last seven days, the Tribunal has either seen or received at least 21 emails from Dr Haldar. In those emails which, in this sequence, commence on 23 September 2020, he has continued to make a number of points which include complaints about the decisions made by the Tribunal concerning disclosure of documentation, the proposition that the hearing should be cancelled, the assertion that he will attend the hearing with a lawyer and an expert once the documentation which he requests is obtained. He has advised that he is aware that the hearing is going ahead and has argued that it should not go ahead until the disclosure of the documentation. He is aware that he can attend the hearing virtually and indeed that the Tribunal has given him permission to do so and indicated that it would welcome his attendance. In the course of these emails he has continued to make allegations against GMC staff, in particular the legal adviser, and against MPTS staff, in particular a Case Manager and he has threatened to take action and refer this matter to the police, alternatively the High Court.5. The Tribunal does not underestimate the difficulties and stresses which a practitioner may endure in experiencing an inquiry into his fitness to practise at the MPTS. This Tribunal is well aware of the difficulties and upset which Dr Haldar clearly was undergoing at times when he attended the hearing. The Tribunal endeavoured to accommodate Dr Haldar as best it could in this inquiry into his fitness to practice. At all times, the Tribunal has been at pains to explain to Dr Haldar how a hearing unfolds, the participation which he could have in the hearing and its wish that he would indeed participate.6. When this Tribunal sat on Dr Haldar's case in September, Dr Haldar chose not to attend. In consequence he did not give evidence on his own behalf and did not address the Tribunal on the factual issues it had to determine. When it went into camera, having received Mr Moran's submissions on facts, the Tribunal was simply continuing the process of reaching a determination in relation to facts. That process has now come to an end. It hoped that Dr Haldar would once again participate in the hearing.7. The Tribunal has carefully considered Mr Moran's submissions. It accepts all of them. By his emails, Dr Haldar has demonstrated no intention to return to the hearing. The Tribunal cannot repose any confidence in his ever doing so, although of course it hopes that he will change his mind and assist the Tribunal in reaching its conclusions in relation to the matters it still has to determine.8. The Tribunal has therefore determined to proceed in Dr Haldar's absence. It directs that this determination be served on Dr Haldar at the same time as it is handed down in open session to Mr Moran."
"61 … An adjournment was highly disruptive: the members of the Panel, the legal assessor, the staff and the accommodation had been set up… Organising another hearing would have been both disruptive and inconvenient. No regulatory system can operate on the basis that failure to attend should lead to an adjournment on the basis that the practitioner might not know of the date of the hearing (rather than having disengaged from the process or even adopted an 'ostrich like attitude'): any culture of adjournment is to be deprecated…
63. … the system simply could not operate efficiently or effectively and although attendance by the practitioner is of prime importance, it cannot be determinative."
"As a pid:5751result of the Brexit implementation period coming to an end on 31 December 2020, the UK no longer has access to IMI, and to the best of my knowledge all previous IMI alerts for GMC registered doctors have been deactivated. As such pid:5801I am not able to access IMI, and even if I was, I would not be able to provide you with a copy of the alert, as it is my understanding that it no longer exists."
Breach of The Human Rights Act 1998 and The Equality Act 2010
"Ahead of considering my appeal for a decision, as a matter of priority; I trust the High Court will immediately order withdrawal of Public Order of Hearing from the MPTS Public Domain to address Claimant's dignity, respect and potential breaches of pid:5951Human Rights (1998) and Equality Act (2010) pending completed with factual details and only disclosures of a case concluded public record as mandate in law."
"35B(4) Subject to subsection (5), the General Council shall publish in such manner as they pid:6101see fit —
(a) decisions of a Medical Practitioners Tribunal that relate to a finding that a person's fitness to practise is impaired (including decisions in respect of a direction relating to such a finding that follow a review of an earlier direction relating to such a finding);
(b) pid:6151decisions of a Medical Practitioners Tribunal to make an order under section 38(1) or (2) below;
(5) The General Council may withhold from publication under subsection (4) above information concerning the physical or mental health pid:6201of a person which the General Council consider to be confidential.
38 Power to order immediate suspension etc
(1) On giving a direction for erasure or a direction for suspension under section 35D(2), (10) or (pid:625112) above …, in respect of any person the Medical Practitioners Tribunal, if satisfied that to do so is necessary for the protection of members of the public or is otherwise in the public interest, or is pid:6301in the best interests of that person, may order that his registration in the register shall be suspended forthwith in accordance with this section.
Ground 3: impairment
Ground 4: sanction
"35D Functions of a Medical Practitioners Tribunal
(1) pid:6601Where an allegation against a person is referred under section 35C(5)(b) above to the MPTS —
(a) the MPTS must arrange for the allegation to be considered by a Medical Practitioners Tribunal, and
(b) pid:6651subsections (2) and (3) below shall apply.
(2) Where the Medical Practitioners Tribunal find that the person's fitness to practise is impaired they may, if they think fit —
(a) except in a health case or language case, direct that the person's name shall be erased from the register;
(b) pid:6702direct that his registration in the register shall be suspended (that is to say shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(c) direct that his registration shall be conditional on his compliance, during such period not pid:6751exceeding three years as may be specified in the direction, with such requirements so specified as the Tribunal think fit to impose for the protection of members of public or in his interests.
"(2) The order of proceedings at the hearing shall be as follows —
(n) the FTP Panel shall consider and announce its decision as to the sanction or warning, if any, to be imposed or undertakings to be taken pid:6901into account and shall give its reasons for that decision;
(o) where the FTP Panel considers that an order for immediate suspension or immediate conditions should be imposed on the practitioner's registration, it shall invite representations from the parties before considering and announcing whether it shall impose such order, together with pid:6951its reasons for that decision.
"5. The Tribunal determined that due to the seriousness of its findings, and the reasons for its substantive decision to erase Dr Haldar's name from the Medical pid:7301Register, an immediate order of suspension is necessary to meet the overarching objective in this case, specifically on public protection grounds and in the public interest".
No error or irregularity is demonstrated in its approach; this ground of appeal is dismissed.
Matters outwith the scope of the appeal
a) alleged breaches by the GMC of data protection principles: those are not properly the subject of this statutory appeal;
b) earlier interim orders made by the Interim Orders Tribunal, or a Medical Practitioners Tribunal, under section 41A of the Act: those orders ought to have been challenged, if at all, by a CPR Part 8 claim, under section 41A(10), the decision of the court on such an pid:7601application being final. In this case, interim conditions were imposed on Dr Haldar on 14 September 2017 and 29 March 2018. Upon review, they were varied on 26 June 2018 and maintained on 17 January 2019. The interim order was expid:7651tended by the court on 29 March 2019; varied, upon review, on 16 April 2019; maintained on 27 September 2019; extended by the court on 17 December 2019; maintained, upon review, on 30 January 2020 and on 3 June 2020; extended pid:7701by the court on 24 June 2020; maintained, upon review, on 4 September 2020; and revoked by the Tribunal once its immediate suspension order had taken effect (see its stage three decision, under the heading 'Determination on immediate order', at paragraph 7). In such circumstances, pid:7751any such claim would now be otiose;
'Outstanding judicial review': CO/1945/2020
c) The court's and the GMC's approach to the above application, to which he refers as an outstanding judicial review: in fact, it was the GMC's application for an extension of an pid:7801interim order, as to which see the analysis at sub-paragraph (b), above. Alleged breaches, advanced under this heading, of rules 4 (initial consideration and referral); 7 (investigation of allegations); and/or 8 (consideration by case examiners) of the 2004 Rules, face pid:7852the additional difficulty identified at paragraph 39, above.
Note 1 Ghosh v General Medical Council  1 WLR 1915, PC [Back]
Note 1 Ghosh v General Medical Council  1 WLR 1915, PC [Back]