CO/17622/2013

Neutral Citation Number: [2014] EWHC 525 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ

Wednesday, 28th January 2014

B e f o r e:

VINCENT FRASER QC

(Sitting as a Deputy Judge of the High Court)

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Between:
GENERAL MEDICAL COUNCIL
Claimant

AGRAWAL
Defendant
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Digital Audio Transcript of

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Mr S Jackson QC appeared on behalf of the Claimant

Mr N Smith appeared on behalf of the Defendant
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JUDGMENT
1. THE DEPUTY JUDGE: This is an application by the claimant, General Medical

Council, for an extension of an interim order of conditions. The matter last came

before this court on 29th October 2013, on an application to extend the interim order of

conditions for 12 months, from 31st October 2013 to 30th October 2014.

2. On that occasion Supperstone J concluded that the order should only be extended for a

period of 3 months. Accordingly the order is due to expire on 30th January 2014. The

claimant seeks a 10-month extension, which would run until the 30th November 2014.

Effectively and quite remarkably it seeks an extension to a period beyond that which it

requested only 3 months ago.

3. The background to this matter is helpfully set out in Supperstone J's judgment and I

read from paragraph 2:

"2. Mr Agrawal is a consultant in hepatobiliary and pancreatic surgery. He

took up his first consultant's position at the East Lancashire Hospitals
NHS Trust in March 2011. On 11th October 2011 he was excluded by the
trust following concerns. On 26th November 2011 the trust produced an
investigation report. There were clinical performance issues arising from
his treatment of five patients and allegations that he had been
unsupportive towards two junior members of staff.

3. The GMC wrote to Mr Agrawal on 2nd April 2012. His case was first
considered by the Interim Orders Panel on 1st May 2012, when it was
determined that it was necessary for the protection of members of the
public and in the public interest to make an order imposing conditions
upon his registration. This order was reviewed and maintained on 5th
October 2012.

4. On 25th March 2013 the conditions were varied. At paragraph 22 of its

decision it is stated that:

'The panel has taken into account the submission that the conditions
imposed by the previous panel were tantamount to a suspension.
However, it is satisfied that workable conditions have been formulated
which will allow you to return to work whilst addressing the concerns
raised.'
 The order was reviewed and maintained on 4th July 2013.

5. On 26th September 2013 the panel considered it was necessary to

maintain the interim order conditions. However, the panel noted that in
relation to the five clinical cases which the GMC is currently
investigating the expert reports contain very little criticism of Mr
Agrawal's clinical competence and much that is supportive. There is some
criticism relating to note keeping, which is said to be below the required
standard. He accepts this criticism. The panel went on to say that, in
making its decision, it had taken into account the additional expert report
dated 27th August 2013 from Mr Peel that his failure to support junior
surgical staff potentially placed patients at risk and fell seriously below
the standard expected of a consultant surgeon with responsibility for
training junior surgeons and staff. After balancing the surgeon's interest
and the interest of the public, the panel decided that an interim order is
still necessary to guard against such a risk. The panel then said this:

'Whilst the panel notes that the order has restricted your ability to practise
medicine, it is satisfied that the order imposed is a proportionate response
in order to ensure that patient safety is protected whilst the issues raised
continue to be investigated by the GMC. However, the panel noted that
the GMC investigation has been going on now for approximately 17
months and it is concerned at the length of time that the GMC is taking to
investigate and resolve these issues.'"

4. It appears from the judgment that essentially two points were taken by the defendant

in opposition to the application in October 2013, namely the very considerable delay on

the part of the claimant in dealing with this matter, and, that given the conditions were

amended so that direct supervision was not required, the conclusion must have been

reached that the defendant was not considered to be a direct risk to the public.

5. Supperstone J makes clear his concern at the delay which has occurred in the

claimant's investigation of these matters. At paragraph 13 he recorded that the claimant

does not suggest that delay has been caused by the need for further investigation into

the clinical cases. The learned judge then concluded at paragraph 14:

"I consider that there has been undue delay in the investigation into the
two cases concerning the lack of support for junior surgical staff in
training. I note, in addition to the documents I referred to, that the letter of
23rd October 2013 from East Lancashire Hospitals NHS Trust that Mr

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 Smith referred to states that the trust has responded to all requests from
the GMC and that the GMC has confirmed that there is nothing
outstanding from the trust."

6. After reminding himself of the legal principles set out by the Court of Appeal in the

case of GMC v Hiew [2007] 1 WLR 2007 he concluded in paragraph 16:

"I have to conduct a balancing act between the interests of the individual
doctor and the public interest. I have decided, whilst having considerable
sympathy with Mr Agrawal's situation, that the order should be extended.
However, in the light of the length of time that has passed since this
exclusion by the Trust and the delay in the investigation into the
supervision issue that has taken place, that I should only extend the order
for three months. There is a real need for expedition and it will be for the
GMC to justify a further extension in terms of the gravity of the matter if
they decide to do so in due course."

7. The current application is supported by a witness statement made by Stephanie Pollitt.

After setting out the background to the matter coming before the claimant, which I

should interject was unusual in that it was in fact the defendant himself who initially

referred these matters to the claimant, Miss Pollitt explains that the claimant received a

report from consultant surgeon, Mr Peel, in September 2012 and a report completed by

the Royal College of Surgeons in October 2012. Both of these reports contain serious

criticisms of the defendant, with respect to at least one clinical case reported to the

claimant. Mr Peel was of the view that the care provided by the defendant was on at

least one occasion seriously below the standard to be expected of a consultant surgeon.

8. 8.1. Looking at the helpful chronology that has been provided the report from Mr

Peel was in fact received in August 2012. In February 2013 and March 2013 the

defendant provided the claimant with reports prepared by independent consultant

surgeons with considerable expertise and reputation in the relevant field in which the

defendant practised. In effect these reports conclude that the defendant's management

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 in the particular cases was within good clinical practice. There is, accordingly, on the

state of the papers at present, a genuine difference of professional opinion with respect

to this matter.

9. The claimant received a supplementary report from Mr Peel on 10th July 2013 in

which he sought further information, and further clarification from Mr Peel on 2nd

September 2013. Quite remarkably, although the claimant had been in receipt of the

reports from the defendant, it did not seek any view from Mr Peel in respect of those

reports. When I quizzed the claimant about that matter this morning, I was told that

effectively that is something still to be put in hand and the report is expected from Mr

Peel dealing with that matter next month although it has not yet formally been

commissioned.

10. Reverting to Miss Pollitt's witness statement at paragraph 28 she says:

"In October 2013 a member of the Claimant's legal time identified that
nine witness statements are currently required to elaborate on the
evidence held by the Claimant. Contact has been made with all nine
witnesses and two statements have been taken. Three further statements
will be taken before the end of 2013. The Claimant will continue to
gather the remainder of these statements in early January 2014.

29. On 14 November 2013, the Claimant requested further information

from the Trust and on 28 November 2013 the Claimant received on-call
rotas and contact information for witnesses. The Trust did not however
provide other information such as call logs which it described as
'unobtainable'. The Claimant is continuing to engage with the Trust to
obtain the outstanding documents.

30. Once the witness statements from these individuals are completed, the
Claimant will revert to Mr Peel for a further opinion on the Defendant's
actions. The Claimant's planned completion date for gathering all
evidence in this case is the end of [there should be a month inserted here –
please check the relevant date] 2014."

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11. The matter came before the Interim Orders Panel again on 22nd January 2014 and the

Panel concluded that the conditions should remain in the terms in which they had been

set. In particular at paragraph 12 of its reasons the Panel explained:

"In reaching its decision the Panel notes the original concerns that were
referred were wide ranging, involving several serious surgical
complications, your ability to investigate patients, your decision making
and your ability to support and train junior staff. Whilst it notes the
submission that the clinical and supervision concerns appear to have
become less significant, it does not consider that there is sufficient
information to assuage concerns about patient safety and safeguarding the
public interest. The Panel is mindful of your comments as to impact
which the delay in GMC completing its investigation had on your career
and your ability to obtain employment and return to work.

13. In all the circumstances it has determined that based on the

information before it there may be impairment of your fitness to practise
which poses a real risk to members of the public and which may
adversely affect the public interest. After balancing your interests and the
interests of the public the Panel has determined an interim order remains
necessary to guard against the risks identified.

14. Whilst the Panel notes the order has restricted your ability to practice
medicine, it is satisfied the order imposes a proportionate response. The
concerns about your performance are wide ranging, as indicated in the
General Medical Council expert reports and RSC report commissioned by
the Trust, which identified serious clinical issues and poor insight. It is
also borne in mind that you had only worked for 1 year in consultant post
when the several concerns were raised which are still being investigated
and that you have not worked since 2011. The Panel also notes your
submission that the conditions preclude you from obtaining employment.
On balance the Panel considers that the existing conditions requiring
supervision of your practice are workable and remain necessary to
safeguard patients and the public interest whilst matters are fully
investigated by the General Medical Council."

12. With respect to the background of this matter I did press the claimant today to explain

what was the time scale for ongoing matters. Quite remarkably, amongst other things,

that revealed that even though Mr Peel, in his first report, in August 2012 had advised

at the end of paragraph 6.3.5 that a statement from Mr Chang was mandatory, no step

had been taken to obtain such a statement at the time of the last court hearing, some 14

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 months after receipt of that report from Mr Peel. I am told that such a report is now in

the process of being obtained from Mr Chang. I mention that as simply one other

example of many of the completely unsatisfactory approach that has been taken by the

claimant to the investigation of this matter.

13. The defendant understandably complains that in practical terms the effect of these

conditions is that he is unemployable because the moment he alerts any potential

employer to these conditions, as he is required to do, they effectively lose any interest

in him. He also indicated, when I asked what prejudice might be sustained if the

conditions were maintained for a comparatively short period of time, that there were

potential opportunities coming forward in the near future which effectively might be

lost to him, if the conditions were maintained. He mentioned in particular opportunities

in North Manchester and in Plymouth.

14. I bear in mind the complaint could be made that though the Interim Orders Panel were

attempting to devise conditions which were workable and allowed Mr Agrawal to work,

in practice the effect of those conditions is that they have prevented him from working,

but it does seem to me that arguments as to reasonableness which could come before

the court on a different form of action are not matters that are currently before me. I

bear in mind that on applications of this nature the court is the primary decision maker

and that whilst the opinion of the Interim Orders Panel is an important consideration I

am not bound by that opinion nor am I required to defer to it.

15. However, I also have to keep in mind that it is not for me to make findings of primary

fact about the events that have resulted in the interim order and my function is to

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 ascertain whether the allegations made against the medical practitioner rather than their

truth or falsity justify the prolongation of the order of conditions in this case.

16. Mr Jackson on behalf of the claimant confirms that the claimant's position remains as

is recorded in paragraph 28 of Hiew, namely that relevant matters for the court to take

into account include the gravity of the allegations, the nature of the evidence, the

seriousness of the risk of harm to patients, the reasons why the case has not been

concluded and the prejudice to the practitioner if an interim order is continued.

17. Looking at those various factors identified by the claimant as material ones for me to

take into count, it is clear that the allegations in this case are serious allegations. With

respect to the nature of the evidence they are supported by a report prepared by a

consultant surgeon and also by a report from the Royal College of Surgeons. However,

it is quite plain that they are very firmly contested by other eminent consultant surgeons

in the field and, as I have already noted, it is quite remarkable that in the 12 months

almost that the claimant has had those reports it has not done anything to try to resolve

the dispute between the various surgeons or form any view on it whatsoever. Indeed it

has not even gone back to its own consultant surgeon and invited him to comment on

those reports.

18. The third factor is the seriousness of the risk of harm to patients. That is a particularly

difficult matter on which I can form any view, bearing in mind that it is not for me to

adjudicate between the dispute between the consultants but it does seem to me that I

must take into account that whilst there is one body of opinion which raises serious

concerns about the defendant's conduct and judgment there is another body of opinion

which suggests that there is little if anything wrong with what was done by the

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 defendant and it seems to me that those are factors that I must properly take into

account in forming a view as to the seriousness of the risk of harm to patients.

19. Turning to the question of why the case has not been concluded, it is quite plain that

the fault lies entirely and exclusively at the door of the claimant, who has dealt with this

matter with a considerable absence of any proper expedition. It has been subject to

criticism on at least two previous occasions about the dilatory nature of its conduct and

I endorse those criticisms in the strongest possible terms. It is quite plain, given that

the General Medical Council itself identifies that as a factor to take into account, that it

must be a factor that I can take into account in, so to speak, favour of the defendant.

20. Finally, I turn to the question of the prejudice to the practitioner. Again I am quite

satisfied that there is very significant prejudice being caused to the defendant in this

case by the manner in which the claimant has chosen to deal with these proceedings.

21. This is a difficult balancing exercise, as indeed I am sure it was found to be by the

court on the previous occasion. I have given very careful thought to how that balance

should be drawn. I have taken into account that if the claimant is correct as to how it

intends to proceed with matters going forward, in one sense the end should be in sight.

It has been explained to me that although Mr Peel has not been formally instructed to

date, he has assured the claimant that his report would be available by the 21st

February. I am told that the claimant's case examiners would then require 14 days to

decide how to deal with the matter and to provide any rule 7 statement for the

defendant. That would take us to 7th March. The defendant would then have 28 days

in which to respond to any such statement and I am then told that the case examiners

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 would require another 2 to 3 weeks in order to be able to determine how, if at all, the

matter should proceed. Effectively that would be approximately a 3-month period.

22. I have therefore very carefully considered whether in the circumstances and on

balance it is appropriate to extend the order of conditions and, if so, for what period of

time. I am very firmly of the view that the period of time sought by the claimant is

totally inappropriate in the circumstances of this case.

23. On balance and with some hesitation, I have concluded it would be appropriate to

extend the order, taking into account the stage that the investigations have reached. I

am on that basis prepared to extend the order for a period of 3 months. I do that

because I share the concerns of the learned judge on the previous occasion and at the

earlier hearing of the Interim Orders Panel about the delay in this case which is plainly

unacceptable. Given the evidence that the claimant has presented to me and the

assurances it has given, 3 months is more than adequate time in order for it to put its

house in order and be able to deal with this matter finally. I obviously will not be

commenting upon any further application that might be made in the future but

doubtless, if any further application is made in the future, it will be considered in the

light of the circumstance that apply at that time.

24. Accordingly, in the circumstances I am going to order that the order is to be extended

for a further period of 3 months.

25. MR JACKSON: My Lord, can I hand that document?

26. THE DEPUTY JUDGE: I have seen the costs application.

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27. MR JACKSON: There is draft one which obviously needs to be amended and those

instructing me --

28. THE DEPUTY JUDGE: It is the principle of first of all whether you should get cost

which you need to address me on.

29. MR JACKSON: I was dealing with the period.

30. THE DEPUTY JUDGE: I am sorry.

31. MR JACKSON: I am sorry.

32. THE DEPUTY JUDGE: I have not anything else, I thought it was the statement of

costs.

33. MR JACKSON: The draft order obviously needs amending.

34. THE DEPUTY JUDGE: I am not sure I have a draft order actually.

35. MR JACKSON: Has your Lordship seen a statement of costs?

36. THE DEPUTY JUDGE: I have. Thank you.

37. MR JACKSON: Mr Smith, I will take it you have no comments to make on the draft

order?

38. MR SMITH: My Lord, no.

39. THE DEPUTY JUDGE: In the light of the judgment I have given both parties I think

are happy with that order which I will sign for you.

40. MR JACKSON: Thank you my Lord.

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41. So far as costs are concerned, your Lordship has a statement. On the basis that whilst

of course the court has been critical and there is a discretion we would submit, in short,

we have been successful and these are reasonable and we would seek an order for costs

in those terms.

42. THE DEPUTY JUDGE: Thank you Mr Jackson. Mr Smith?

43. MR SMITH: I am afraid that I would submit, as I did on the last occasion, there is a

significant reduction in the amount of time that has been afforded by the court.

44. THE DEPUTY JUDGE: They have not been successful in what they have asked for,

have they, and they brought these proceedings entirely upon their own head effectively?

45. MR SMITH: I agree.

46. THE DEPUTY JUDGE: Thank you Mr Smith.

47. I have given very careful thought to the question of costs but it seems to me,

particularly in the light of the order that was made on the previous occasion, that the

claimant really must have appreciated when it made the application in the first place,

first of all an application for a period of 10 months which will take it beyond the time

previously rejected by the earlier judge was inappropriate; indeed the very need to

come back here on a contested order I am quite satisfied has arisen as a result of both

the delays in the claimant's conduct of these investigations and also its request for what

was an unrealistic time period in the application it made to this court.

48. In those circumstances and bearing in mind that I have not acceded to the request for

that time period I am going to refuse your costs.

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49. MR JACKSON: Thank you my Lord.

50. THE DEPUTY JUDGE: Thank you both for your assistance.

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