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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> General Medical Council v Sathananthan [2008] EWHC 872 (Admin) (23 April 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/872.html Cite as: [2008] EWHC 872 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/04/2008

Mr Justice Forbes :

1. Introduction. These two claims are concerned with essentially the same issue, namely whether Dr Kanagaratnam Sathananthan ("Dr Sathananthan"), a registered medical practitioner, should continue to be the subject of an interim order of suspension ("the interim suspension order") imposed on him by the GMC's Interim Orders Panel ("the IOP") on 13^th December 2007, pursuant to section 41A(1) and (3)(c) of the Medical Act 1983 (as amended) ("the 1983 Act"), replacing an order for interim conditional registration originally imposed by the IOP on 18^th August 2006 . In the first claim, CO/656/2008, the GMC seeks an extension of the interim suspension order for a period of 12 months from 18^th February to 17^th February 2009, pursuant to section 41A(6) and (7) of the 1983 Act. In the second claim, CO/676/2008, Dr Sathananthan seeks an order terminating the interim suspension order, pursuant to the terms of section 41A(10) of the 1983 Act. It is therefore apparent that the outcome of the first claim automatically determines the outcome of the second.
2. On 13^th February 2008, having heard the submissions of Ms Plaschkes on behalf of the GMC and Ms Lambert on behalf of Dr Sathananthan, I granted the relief sought in the first claim to the extent that I made an order extending the interim suspension order for a further 6 months. At the time I did so, I indicated that I would give my reasons later. This judgment constitutes my reasons for the order that I made on 13^th February.
3. The Legal Framework. (a) So far as material, section 41A of the 1983 Act provides as follows:

"(1) Where an Interim Orders Panel … (is) satisfied that it is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Panel may make an order –

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

(b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose ("an order for interim conditional registration").

…

(3) Where … an order for interim conditional registration has been made in relation to any person under any provision of this section (including this subsection) an Interim Orders Panel … may …

…

(c) 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 in the interests of the person concerned, replace an order for interim conditional registration with an interim suspension order having effect for the remainder of the term of the former; …

…

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

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

…

(10) Where an order has effect under any provision of this section, the relevant court may –

(a) in the case of an interim suspension order, terminate the suspension;

(b) in the case of an order for interim conditional registration, revoke or vary any condition imposed by the order;

(c) in either case, substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (in the order extending it),

and the decision of the relevant court under any application under this subsection shall be final."

(b) It was common ground that the appropriate principles to be applied to these proceedings are those stated by the Court of Appeal in GMC ~v~ Hiew (2007) EWCA Civ 369 (hereafter "Hiew"): see the judgment of Arden LJ, where she said this (inter alia) at paragraphs 26 to 33:

"26. … Parliament has not provided that the IOP or the Fitness to Practise Panel should in this respect simply operate in the shadow of judicial review, but rather that the courts should have the power and duty to consider whether any extension of time beyond the initial period is appropriate. Under this scheme, the exercise in decision-making is to be performed by the court as the primary decision maker. …

27. Under section 41A(7), the court has power to determine that there should be no extension or the extension sought by the GMC or (as in this case) some lesser extension. In an appropriate case, and having given the parties an opportunity to be heard, the judge also has power under section 41A(10) to terminate the suspension or to shorten the current period of suspension. The powers conferred by section 41A(10) are also original powers and not merely powers of judicial review.

28. Section 41A(7) does not set out the criteria for the exercise by the court of its power under that subsection in any given case. In my judgment, the criteria must be the same as for the original interim order under section 41A(1), namely the protection of the public, the public interest or the practitioner's own interests. This means … that the court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued. The onus of satisfying the court that the criteria are met falls on the GMC as the applicant for the extension under section 41A(7). … the relevant standard is the civil standard, namely on a balance of probabilities. Proceedings for the extension of an interim suspension order are not criminal proceedings.

29. The judge must, however, reach his decision as to whether to grant an extension on the basis of the evidence. He will need to examine that evidence with care. …

…

30. The power to grant an extension contained in section 41A (7) and the power to make the orders set out in section 41A(10) represent the limit of the court's express powers in relation to interim measures under section 41A. It is to be noted that Parliament has not given the court power to determine in the first instance whether an interim suspension order or conditional order should be made. Furthermore, the power to erase the name of a medical practitioner from the register is not conferred on the court. That power, together with the power to impose other disciplinary sanctions, is conferred on the various panels of the GMC … Parliament has clearly taken the view that the organs of the GMC are better placed than the courts to investigate such matters and evaluate them.

31. The statutory scheme thus makes it clear that it is not the function of the judge under section 41A(7) to make the findings of primary fact about the events that have led to the suspension or to consider the merits of the case for suspension. There is, moreover, no express threshold test to be satisfied before the court can exercise its power under section 41A (7) …

32. The evidence on the application will include evidence as to the opinion of the GMC, and the IOP or Fitness to Practise Panel, as to the need for an interim order. It is for the court to decide what weight to give to that opinion. It is certainly not bound to follow that opinion. Nor should it defer to that opinion. All that is required is that the court should give that opinion such weight as in the circumstances of the case it thinks fit. …"

(c) Accordingly, in summary, the appropriate principles applicable to these proceedings are as follows.

(i) The decision-making to be performed by the court is that of a primary decision maker, exercising its original powers under section 41A. However, it is not the function of the court to make findings of primary fact about the events that have led to the suspension. In short "The court has to approach the task by reference to its powers … as a matter of original jurisdiction: per Davis J in R (on the application of Sheikh) ~v~ GDC (2007) EWHC 2972 (hereafter "Sheikh") at paragraph 10.

(ii) The criteria to be applied by the court are the same as for an interim suspension order made under section 41A(1), namely the protection of members of the public, the public interest and the practitioner's own interests.

(iii) The onus of satisfying the court that one or more of the criteria have been met falls upon the GMC.

(iv) The relevant standard of proof is the civil standard, i.e. the balance of probabilities.

(v) The court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if the order is extended.

(vi) The court is not bound to follow the opinion of the GMC or the Interim Orders Panel, but can take it into account and give such weight to it as the court thinks fit.

4. The Factual Background. Dr Sathananthan is now aged 68, having been born on 26^th May 1939. He obtained the MBBS at the University of Ceylon in 1964. His last position was as a Consultant Psychiatrist in Adult and Liaison Psychiatry at Mayday Hospital, Croydon Surrey. Until August 2006, Dr Sathananthan also worked at a private clinic specialising in the treatment of addiction
5. Between the 15^th to 25^th July 1985, Dr Sathananthan appeared before the Professional Conduct Committee ("the Committee") charged with serious professional misconduct for issuing private prescriptions of diamorphine in an irresponsible manner and for abusing his professional position. It is common ground that, although the allegations relating to Dr Sathananthan's prescribing of controlled drugs were found to be proved, the Committee decided that Dr Sathananthan was not guilty of serious professional misconduct. However, the Committee did go on to address Dr Sathananthan in the following terms:

"It is not a function of this Committee to determine whether the regime of treatment instituted by you in the case of Mr M was or was not correct treatment for his addiction. The Committee's concern is that in your prescribing of diamorphine for him there was a lack of care in record keeping and also a lack of supervision involving improper delegation to a person who is not a registered medical practitioner of functions requiring the knowledge and skill of a medical practitioner.

The Committee also consider that you would be well advised to amend your method of charging professional fees, which savours of script selling to an extent which the Committee cannot condone.

The Committee have, however, carefully considered the representations which have been made on your behalf. They are prepared to believe that, as a result of these proceedings, you will carefully review and improve the manner in which you conduct your medical practice in relation to the treatment of patients who are addicted to drugs."

6. On 23^rd February 2006 Dr David Keating, Consultant Psychiatrist of the Option Service ("Options") West Sussex Health and Social Care NHS Trust ("the Trust"), wrote to the GMC outlining his concerns in relation to Dr Sathananthan, which had come to light following recent events involving one of Options' clients, Mr TA and the treatment he had apparently received at Dr Sathananthan's private addiction clinic. The relevant details are set out in paragraphs 2 to 9 of the witness statement of Ms. Lesley Karen Morgan (Solicitor to the GMC), as follows:

"2. TA came to the Trust from a local GP practice and had been with the Options for approximately 2 years. Options had been prescribing him with methadone elixir (1mg/ml) at a dose of about 100mg/day. He also had a chronic benzodiazepine dependency and so Options had established him on a low diazepam detoxification programme over several months. His most recent dose was 12mg/day.

3. On 17^th January 2006, a pharmacy liaison police officer advised the Trust that they had discovered three prescriptions for TA with the same West Sussex address. Apart from the Trust's prescription for methadone elixir 100mg/day and diazepam/12mg/day, he was also getting a prescription from another local GP for dihydrocodeine and more diazepam. The police also notified the Trust that TA was also taking a private script to Boots Pharmacy in Horsham issued by a Dr S(athananthan) at the Mayday hospital. According to the police, the scripts from Dr Sathananthan had been occurring for approximately one year and were for methadone (physeptone) tablets 250mg daily and diazepam 60mg daily. The script was dispensed weekly making a total of 350 x 5mg tabs methadone and 42 x 10mgs tabs diazepam per pick up.

4. After receiving this information, the Trust called TA to clarify things and he admitted that he had been receiving the medication in the totals identified. The conversation was heard and noted by an associate specialist, Dr Harry Waters, and Dr Keating on 31 January 2006. According to TA, in early 2005, he was offered some Physeptone (methadone) and ampoules "from a friend", which he said he injected. He said that his friend then introduced him to Dr Sathananthan who said that he would need a referral. Unknown to the Trust, TA had accessed another GP in West Sussex. He apparently told her that he was not involved with Options and (without liaison to confirm this), she wrote the referral to Dr Sathananthan and also prescribed Dihydrocodeine and Diazepam.

5. TA informed the Options that he had met Dr Sathananthan "in a clinic near the baby unit at the Mayday Hospital". He went on to say "I saw him first time for less than 10 minutes … he asked how much … and then he prescribed what I wanted". TA informed Options that in addition to the weekly scripts of methadone tablets and diazepam he was also getting a script for a month's supply of 10 Temazepam (20mg/day) at a time.

6. Subsequent visits, according to TA, were on "weekly basis and always in the lunch time and never more than 3 minutes long". He then added "it was just £70 and thank you very much". Dr Keating asked him whether there was anything else that happened during these or subsequent visits, such as an assessment of his addiction problem or an examination or test counselling, and he said "never".

7. Dr Keating raised a number of serious concerns that he had about Dr Sathananthan's practice in light of this case:

a. If the patient's account was accurate, the level of assessment and scrutiny of the addictive and clinical issues prior to any prescribing was, by any standard, dangerously inadequate.

b. There was no evidence of proper liaison to clarify other services that might be involved.

c. The important non-prescribing component of treatment was entirely absent.

d. A dose of 250mg methadone was extremely high, would be viewed as exceptional, and was usually in the realm of the addiction specialist.

e. No titration of methadone to safe initial dosage seemed to have taken place.

f. A combination of methadone 250mg + diazepam 60mg + tamazepam 20mg put the patient at a very high risk of overdose and respiratory depression.

g. Diazepam should only be prescribed as part of adducing plan.

h. The prescribing of methadone tablets was not recommended because of their potential for being crushed and injected and their high street value. TA gave no history of any difficulties with liquid methadone.

i. When the Trust contacted his second GP, Dr B(ailey), she informed them that there had been no liaison contact from Dr Sathananthan in order to establish what she was prescribing. Nor did he inform her of what he had begun prescribing.

j. No liaison contacts were made with any of the Trust services in West Sussex and TA had a West Sussex address.

k. The practice would appear to be tak(ing) place entirely in isolation and Dr Keating had concerns for Dr Sathananthan's probity and safety in governance.

8. Dr Keating informed the GMC that he had conducted a serious incident review involving clinical and police colleagues. He stated that the Clinical Director in the Addiction Service, Dr Rob Jackson, was at the meeting and had raised concerns of his own regarding the doctor's prescribing, which affected the Crawley area.

9. A letter to the GMC dated 16 March 2006 from Dr David Keating enclosed further evidence in the form of relevant correspondence, photocopies from the clinical notes regarding the matter and photocopies of prescription records for the period of January 2005 to the present. He emphasised that copies of the original scripts would be with the pharmacist. Dr Sathananthan and Dr Bailey also received a letter, informing them that it had been drawn to their attention that the patient named TA… had been triple scripting for opiates and benzodiazepines. Mr Waters specified that under no circumstances must either doctor prescribe medication that he may misuse including all opiates and benzodiazepines without liaison with Options."

7. On 17^th March 2006 the GMC received another letter concerning Dr Sathananthan. The letter was written by Dr R. Jackson, Consultant Psychiatrist of the Community Substance Misuse Team at the Crawley Hospital, and expressed concerns about the behaviour of Dr Sathananthan in relation to an existing patient (Ms KC) of the Crawley Community Substance Misuse Team. In his letter, Dr Jackson made it clear that this further information was to be treated as supporting evidence regarding the concerns raised by Dr Keating. Details of Dr Jackson's concerns are set out in paragraphs 11 to 15 of Ms. Morgan's witness statement, as follows:

"11. A patient of the Crawley Substance Misuse Services, K… C…, with diagnosis of borderline personality disorder and multiple substance dependence, including in particular cocaine and benzodiazepines as well as opiates, had a markedly pathological relationship with both her parents, especially her mother who often bought her cocaine. This patient posed considerable challenges to the Crawley Substance Misuse Team's ability to encourage her to put limits on her own behaviour. The concerns of the Crawley Substance Misuse Team related to the fact that during a hiatus in KC's engagement with the team, her mother went to Dr Sathananthan to request a prescription for buprenorphine (subutex) as an opiate substitute medication. Dr Andrew Fullerton, the Staff Grade doctor within the Crawley Team, subsequently reassessed her on 6 December 2005 and KC told Dr Fullerton that Dr Sathananthan had issued a week's prescription for subutex and nitrazepam to her mother for her, without seeing the patient.

12. There was clearly no attempt by Dr Sathananthan to assess the patient's level of substance dependence or her mental state. Nor was there any attempt to contact any other treating agency, despite the fact that KC's mother was very likely to have made it clear that the Crawley Team was involved. The patient's mother only asked Dr Sathananthan for the prescription as the Team had temporarily suspended her prescription due to the medication not having been used as directed, poor motivation to change and increasing use of illicit drugs, as well as erratic attendance on the part of the client.

13. Dr Jackson stated that the Crawley Team had no information about the precise dosage of the prescription, as it was apparently held by KC's mother who dispensed it to KC without revealing to her the dosage or total quantities of the supplier. No formal complaint from the patient's mother has been received regarding this matter.

14. Dr Sathananthan was believed to have assessed Ms KC on a previous referral. Unfortunately, the Crawley Team had not been able to obtain any written information about the treatment previously offered. However, Ms KC also told Dr Jackson that Dr Sathananthan had tried hypnotherapy, which only succeeded in aggravating her traumatic childhood memories.

15. Dr Jackson stated that the Crawley Team did realise that the case described was characterised by challenging and limited testing as well as splitting behaviour on the part of the patient. He stated that the information available about this case was very incomplete and not supported by any formal dissatisfaction on the part of the patient or her mother."

8. On 7^th June 2006, the GMC received a letter from the Police giving details of their involvement with Dr Sathananthan. The relevant details are set out in paragraphs 16 to 21 of Ms. Morgan's witness statement, as follows:

"16. On 7 June 2006 the GMC received a letter from PC Steve Goodens (Horsham Police Station), Controlled Drugs Inspector of the North Downs Division of Sussex Police, stating that during one of his routine inspections on 6 January 2006 at Boots the Chemist in Horsham, West Sussex he came across a patient who was in receipt of a private prescription issued by Dr Sathananthan. The prescription was for 350 x 5mg of Physeptone tablets and 40 x 10mg Diazepam tablets per week. Details of the patient, (known as TA), and the prescription were recorded for comparison with other Chemists. On this occasion, comparison of details was carried out on 12 January 2006 and the patient's name was recognised as being in receipt of a methadone prescription issued by Dr Waters of Options.

17. Options was contacted and informed of the situation. They informed the police that they were unaware of the dual prescribing and were taking steps to remedy the situation by meeting with the patient.

18. The police had an informal meeting with Dr Sathananthan on 7 February 2006 at his clinic. This was an informal meeting to establish the circumstances surrounding how the patient was both referred to and taken on by the clinic.

19. During the meeting Dr Sathananthan stated that TA was referred by his GP, Dr Bailey, during March 2005 and was first seen by Dr Sathananthan on 17 March 2005. Dr Bailey was advised by letter that he had been taken on by the clinic a couple of weeks later. After the first visit, TA was deemed to be stable and further appointments were made at four weekly intervals. The police asked Dr Sathananthan whether he had asked the patient whether he was receiving treatment from another source. Dr Sathananthan stated that upon initial appointment, patients were told to seek employment, not to get into trouble with the police, not to double script and advise if they were seeking or obtaining medication from elsewhere. Approximately 3 months after commencing the programme for TA, Dr Sathananthan was informed by another patient that TA was obtaining a script from elsewhere. TA was apparently confronted with this allegation, which he denied. Dr Sathananthan stated he thought there was no foundation to the allegation and it was possibly a malicious rumour between clients. No further action was taken with regard to this and TA's GP was not notified. Dr Sathananthan stated that in his opinion TA was entirely plausible. He state that upon learning from Options of the double scripting, he had ceased prescribing. A message had been left on TA's answer phone to that effect.

20. The police noted that correspondence was available between the clinic and the GP regarding the referral. Dr Sathananthan informed the Police that his secretary would hold all these documents. However, because it was not a formal interview, documents were not viewed or seized. A record of the information discussion was made as a brief note in the policeman's book."

9. Dr Sathananthan was first advised by the GMC of the complaints by Dr Keating and Dr Jackson on 7^th July 2006, when he was also informed that his case would be considered by the IOP on 21^st July 2006. However, that particular hearing was adjourned at Dr Sathananthan's request and the substantive hearing before the IOP was re-convened on 18^th August 2006.
10. At the IOP hearing on 18^th August 2006 the GMC sought an interim suspension order of Dr Sathananthan's registration, based on the evidence relating to the complaints made by Dr Keating and Dr Jackson coupled with the further information provided by the Police. Dr Sathananthan was present and represented. The Panel was advised by Dr Sathananthan's solicitor, Mr Samuel Flew of RadcliffesLeBrasseur, that Dr Sathananthan's private clinic had been "wound down", that he no longer intended to practise in the field of addiction medicine, but that he wished to focus solely on his NHS practise in general adult psychiatry, which did not involve the treatment of drug addiction. A number of testimonials were also presented on Dr Sathananthan's behalf.
11. In the event the IOP determined that it was necessary for the protection of the public, in the public interest and in Dr Sathananthan's own interests that his registration should be the subject of an interim conditional order for a period of 18 months. When giving the IOP's determination on 18^th August, its Chairman said this (inter alia):

"The Panel first considered whether an interim order is necessary. In the light of the information from Options Drug and Alcohol Service and Horsham Police regarding your prescribing of controlled drugs to Mr A without assessing or monitoring him adequately and the information from the Crawley Substance Misuse Team concerning your prescribing for Miss C without seeing her in person, the Panel is satisfied that an interim order is necessary.

The Panel has noted the favourable testimonials relating to your NHS work. It notes that you were appraised satisfactorily in March 2006 in relation to your post as an NHS Consultant Psychiatrist. The Panel is concerned, however, that your private practice was not included in any appraisal. The Panel notes that you no longer intend to work in your private clinic.

The Panel is concerned to note that, although there was no finding of serious professional misconduct in July 1985, the GMC's Professional Conduct Committee voiced their concern about your lack of care in record keeping and lack of supervision in relation to your treatment of a drug addict. These are similar matters to those being investigated by the GMC at present.

In accordance with section 41A of the Medical Act 1983, as amended, the Panel has determined that it is necessary for the protection of members of the public, in the public interest and in your own interests to make an order imposing conditions on your registration for a period of 18 months. The conditions are as follows:

1. You must not treat or prescribe for drug addiction.

2. You must confine your medical practice to posts within the National Health Service and not undertake any private practice.

3. …"

12. Subsequent to the hearing of 18^th August, the GMC received a complaint from a Mr SF, who had been a patient of Dr Sathananthan for the previous 5 years for the purposes of securing a prescription for his addiction to opiate drugs. SF alleged that he had recently told Dr Sathananthan that his liver function was back to normal, to which Dr Sathananthan replied "I have told you before, I am not interested. If you pay me, then I am prepared to give the drugs to you." SF also alleged that there had been gossip that Dr Sathananthan might close his clinic, but Dr Sathananthan assured his patients, including SF, that they would be given plenty of notice if this was the case. Dr Sathananthan did not mention his appearance before the IOP and it was subsequent to this that SF learnt that Dr Sathananthan was no longer prescribing medication. SF complained that he was given no warning that this was going to happen and, in fact, had been assured by Dr Sathananthan as little as 3-4 weeks before that he would continue prescribing the medication. SF therefore alleged that Dr Sathananthan had lied to him.
13. The interim conditional order imposed in August 2006 was reviewed by the IOP on 8^th February and 27^th July 2007. The GMC did not seek any variation of the order on either occasion. On both occasions the IOP expressed itself satisfied that it continued to be necessary for the protection of the public, in the public interest and in Dr Sathananthan's own interests for his registration to remain subject to conditions.
14. The interim order was next reviewed on 13^th December 2007. Since the previous review in July, the GMC had received a series of letters from Dr Ben Essex, a general practitioner working as Assistant Medical Director for the Croydon NHS Primary Care Trust ("the PCT"). The substance of Dr Essex's concerns is encapsulated in his final letter dated 1^st December 2007, which is in the following terms:

" Re. Dr Sathananthan

The PCT is most concerned about its failure to ensure the safety of patients given controlled drugs by Dr Sathananthan. The issues are known to the GMC but are briefly summarized below. We understand that the panel will shortly be making decisions about this case and it is important that the PCT outline its concerns at this time.

Croydon Controlled Drug Prescribing

During the PCT's routine monitoring of controlled drugs (CD) prescribing, we identified serious concerns about Dr Sathananthan's CD prescribing during July - Oct 06. The CD prescribing is summarized in the following table.

Total Croydon clinic CDs Jul - Oct 06 (Restrictions imposed 18 Aug)

Diamorph HCL (S) ? powder Heroin 87 (? Units)

Diamorphine 100mg ampoules 28

Diamorphine 10mg tablets 1792

Morphine sulphate 100mg tablets 84

Methadone ampoules 1498

Methadone tablets 5628 (one ppn was for 1176 tablets)

Methadone mixture ml 8760

The PCT is very concerned about this prescribing for the following reasons.

Methadone tablets are inappropriate as they can be crushed and injected. Tablets are not part of a methadone maintenance regime.

One prescription was written for 1176 methadone tablets. This quantity is likely to find its way onto the street and injection of crushed tablets does put lives at risk.

Methadone ampoules are not part of a normal methadone maintenance regime.

Diamorphine (Heroin) powder is not prescribed for patients with addiction problems.

Previous DoH advice is that injectable heroin or morphine is rarely appropriate and should only be prescribed by a consultant in substance misuse.

The strength of the diamorphine ampoules (100mgs) is enormous.

The quantities of these drugs seem excessive in relation to the number of patients.

The diazepam and temazepam prescriptions were not reviewed but if combined with methadone, heroin or morphine, it could be lethal.

In Jan 06 Dr Sathananthan was prescribing potentially lethal quantities of methadone, diazepam and temazepam to a patient who subsequently took an overdose.

(see original complaint and summary of clinical concerns below).

Possible Breach

Four prescriptions (that we know about) were written the day before the GMC restrictions were imposed when he would have suspected that this would happen.

These prescriptions contained several other postdated prescriptions enabling future prescriptions for CDs to be dispensed weeks after the restrictions were imposed. (see appendix)

He did not subsequently inform the pharmacist of the restrictions. He therefore ensured these predated prescriptions would continue to be dispensed for weeks after the restrictions were imposed.

He did not inform the pharmacists of the restrictions. Had he done so, the prescriptions dated for the future weeks would not have been dispensed. This appears to be a breach of these restrictions. Does the GMC consider this to be the case?

Local investigation

When the above concerns were sent to the GMC a formal request was made for the PCT to undertake a local investigation of these concerns. This has been impossible as Dr Sathananthan has refused to be investigated in relation to these concerns. (see letter).

Previous Clinical failures

In Jan 06, the consultant in substance misuse identified the following:

Dangerous lack of assessment of substance dependence.

No assessment of co-existing mental health problems or mental state.

Failure to identify or liaise with other services involved.

Undermining long term strategies of other substance misuse services.

Important non-prescribing component of treatment entirely absent.

Lethal daily doses of methadone.

No titration of methadone to safe initial dosage.

Dangerous drug combinations very high risk of overdose and respiratory depression. (250mgs methadone daily, diazepam 60mg daily and temazepam 20mg daily is evidence of potentially lethal prescribing. In fact this patient had taken an overdose.

Diazepam should have only been prescribed as part of a reducing plan.

Prescribing methadone tablets inappropriate (risk of injecting if crushed).

Did not inform patient's GP what he was prescribing.

Use of IV diamorphine and IV morphine inappropriate (only in exceptional circumstances and only prescribed by consultant in substance misuse.)

Dangerous quantities of drugs e.g. one ppn for 1176 tablets of methadone.

Failure to examine, do tests, counsel patients, keep adequate records.

All these are outlined in the complaint sent to the GMC Jan 06 which formed the basis of the decision to restrict his prescribing. Further serious concerns about Dr Sathananthan's clinical performance were identified by Dr Rob Jackson (Addictions Service Clinical Director) and referred to the GMC in March 06. These also identified the following failures.

No assessment of level of substance dependence

No assessment of mental state.

No attempt to contact other agencies

Unable to obtain any written information from Dr S about her treatment when requested by NHS specialist in substance misuse treating the same patient.

GMC response

These serious clinical performance deficiencies are the same as those identified in the GMC professional conduct hearing in 1985. This concluded that

"Dr Sathananthan abused his professional position by issuing in return for fees and in an irresponsible manner, prescriptions for diamorphine. There was lack of care in record keeping, lack of supervision, and improper delegation to a patient of tasks requiring the knowledge and skill of a medical practitioner."

His clinical practices endanger lives but the GMC restrictions do not deal with these serious clinical performance failures. This case has been considered to relate to conduct and not Fitness to practice. The underlying clinical failures identified in 1985 and again in 2006 have not been dealt with. Ultimately the restrictions on his CD prescribing will have to be lifted without dealing with the serious clinical failures that relate to his Fitness to Practice.

Patient safety

It is being argued that as Dr Sathananthan is no longer prescribing CDs, patients are not at risk. This shows a failure to understand the patient safety issues. Patients for whom these drugs were prescribed are at high risk and need to be urgently reviewed. They were given very large quantities of inappropriate drugs in dangerous combinations and quantities that put them at risk. One prescription alone for 1176 tablets of methadone could put many lives at risk if distributed for injection purposes. All the patients seen by Dr Sathananthan need urgent review because the above clinical deficiencies would have occurred in relation to their care. We need to interview Dr Sathananthan to identify the risks and ensure they receive safe medical care. The local investigation will have the following tasks.

To identify how many patients have been given CDs by Dr Sathananthan in Croydon.

To review the medical records to see what assessments if any had been made.

To identify the combination of drugs prescribed and over what period of time.

To find out what has happened to these patients?

To identify how many patients may have taken overdoses

To identify if there have been deaths from CD drugs in this group of patients.

To identify if they were also under the care of local NHS substance misuse teams and if so, ensure they know what Dr Sathananthan has been prescribing.

To identify if any of these patients have died from CD overdoses.

These patients will need to be offered reviews by specialists in substance misuse to assess needs, and identify co-existing mental and social problems.

Professional misconduct

By refusing to co-operate with this critical investigation, Dr Sathananthan is obstructing measures needed to ensure the safety of a very vulnerable group of patients. The PCT is therefore asking the GMC to

Ensure this investigation is undertaken as a matter of great urgency.

To consider whether Dr Sathananthan's behaviour represents professional misconduct.

The PCT would like the panel to consider its concerns prior to making further decisions about this Dr."

15. During the course of the hearing before the IOP on 13^th December 2007 Counsel for the GMC, Mr Brassington, opened his submissions by saying that the situation had changed in relation to Dr Sathananthan's case and that, in consequence, the GMC would be submitting that the order of conditions should be replaced by an order of suspension. Mr Brassington then set out the background of the complaints against Dr Sathananthan. In relation to the further and recent documentation from Dr Essex, Mr Brassington noted that it provided further detail as to Dr Sathananthan's historical practice in prescribing for addiction and that the documentation raised two new concerns, namely: (i) that Dr Sathananthan was refusing to co-operate with a local investigation by Dr Essex into his practice; and (ii) that by writing post-dated prescriptions prior to the hearing in August 2006, Dr Sathananthan had effectively breached the conditions that were imposed on 18^th August 2006.
16. On behalf of Dr Sathananthan, Mr Flew put a further written testimonial before the IOP and made the following point with regard to Dr Sathananthan's current position:

"Dr Sathananthan is not undertaking any private work at the moment, in accordance with conditions. His clinic for drug addiction is no longer operating, has not been for some time since the conditions were imposed. The only work he is doing is his NHS work and that is what he wishes to continue to do after today. He has no interest in returning to the treatment of drug addiction in any shape or form".

17. Mr Flew then submitted that the post dated prescriptions that Dr Sathananthan had issued on 17^th August 2006 had been for longstanding patients and had been written in order to ensure that there was no interruption in their regular medication. Mr Flew made it clear that Dr Sathananthan had not written any prescriptions for drug addiction since writing those prescriptions and that Dr Sathananthan had not written any since the conditions on his registration were imposed. It was therefore Mr Flew's submission that Dr Sathananthan had not acted in breach of the conditions imposed on his registration. Mr Flew went on to say that problems of patient confidentiality made it difficult for Dr Sathananthan to provide Dr Essex with the sort of information that he required for his review of Dr Sathananthan's practice. However, although Dr Sathananthan was, for that reason, reluctant to deal with Dr Essex's concerns, he was prepared to cooperate fully with the GMC investigation.
18. Mr Flew then concluded his submissions as follows:

"The concerns in this case relate to Dr Sathananthan's prescribing for drug addiction and the conditions deal with those concerns. There are no concerns, as far as I can see from the paperwork, that suggest that Dr Sathananthan's NHS work is problematic or is unsafe and, indeed, the letters that I submitted last year from Dr Holloway and others … supported by Dr Holloway's recent email, suggests that Dr Sathananthan's work at the NHS is well regarded and on that basis there is … a public interest in allowing Dr Sathananthan to continue with that work so that he can see patients within that speciality. Doing that work will not involve any contact with patients requiring treatment for drug addiction and … Dr Sathananthan has no interest in pursuing that specialisation any further.

In my submission, that is all that is necessary here. Conditions should continue and it would be disproportionate to suspend Dr Sathananthan today. If you are concerned and wish to take further action, you could consider making the conditions more restrictive …"

19. Having considered all the information that had been placed before it and the submissions made on behalf of the GMC and Dr Sathananthan, the IOP decided to replace the order for interim conditional registration with an interim order of suspension. The Panel stated its reasons for doing so in the following terms.

"DETERMINATION

THE CHAIRMAN: Dr Sathananthan: When the Interim Orders Panel considered your case on 16 August 2006, it determined that it was necessary for the protection of members of the public, in the public interest and in your own interests to make an order imposing conditions upon your registration. The order was reviewed on 8 February 2007 and 27 July 2007 when the Panel directed that the order should remain in place.

The Panel has comprehensively reviewed the order today. In so doing it has considered the information before it previously, the transcripts of the previous hearings and the further information received today, including Mr Brassington's submissions on behalf of the GMC and Mr Flew's submissions on your behalf and the email from Dr Holloway dated 11 December 2007. Mr Brassington has submitted that the order of conditions should be replaced with an order of suspension while Mr Flew has submitted that the order of conditions should remain in place.

The Panel is satisfied that it continues to be necessary for the protection of members of the public, in the public interest and your own interests for your registration to remain subject to an order. However, it has determined that the order of conditions should be replaced with an order suspending your registration.

In reaching this decision, it had taken account of the information detailing your prescribing of drugs for a patient, Tim A, without adequate assessment and monitoring and without appropriate liaison with any other services involved in the treatment and care of Tim A. It also noted the concerns raised regarding the combination and dosage of drugs that had been prescribed.

The Panel also took account of a concern regarding a patient of Crawley Substance Misuse Services. It is alleged that you issued a week's prescription of Subutex and Nitrazepam without seeing the patient and at the request of her mother. There was also no liaison between yourself and Crawley Substance Misuse Services regarding treatment.

The Panel has further noted the complaint received from Mr SF, which detailed inadequate consultations, rude and abrupt behaviour, and an unsympathetic approach when discussing a bereavement. He also advised that you had not provided his current GP with his medical records despite them being requested many times.

In determining to suspend your registration today, the Panel took account of the report dated 1 December 2007 from Dr Essex, Assistant Medical Director of Croydon NHS Primary Care. The Panel notes Mr Brassington's acceptance that this report does not raise any allegations that have not previously been considered by the Panel. However, it notes the additional detailed information provided in relation to medications, in particular, that between July and October 2006 you prescribed Diamorphine HCL powder (heroin), 87 units; Diamorphine 100mg ampoules, 28 units; Diamorphine 10mg tablets, 1192 units; Morphine sulphate 100mg tablets, 84 units; Methadone ampoules, 1498 units; Methadone tablets, 5628 (one was for 1176 tablets for a patient); Methadone mixture ml, 8760. The Panel notes the PCT's view that the quantity of 1176 methadone tablets is likely to find its way onto the market and that the injection of crushed tablets does put lives at risk.

The Panel notes the additional information provided regarding your issuing of four prescriptions for methadone on 17 August 2006, post-dated to be dispensed on further dates between mid-September 2006. This was the day before a condition was imposed on your registration preventing you from prescribing or treating for drug addiction. Mr Brassington has submitted to the Panel that you by issuing these prescriptions and failing to take steps to stop these post-dated prescriptions being issued subsequent to the imposition of the order, you have breached this condition. Mr Flew has told the Panel that you tried to ensure that treatment of the patients involved was referred on appropriately, that you have not prescribed for drug addiction since the imposition of the conditions and have therefore not breached the condition.

The Panel accepts the argument made on your behalf that you have not breached the conditions imposed. However, it considers that in the circumstances in which the order was made, you should have attempted to ensure that the prescriptions issued the day before the order came into effect were not issued.

The Panel also notes that in Dr Essex's report dated 1 December 2007 he states that a formal request was made for the PCT to undertake a local investigation of their concerns. However, this has been impossible as you had refused to be investigated in this regard. Dr Essex states that you have thereby obstructed measures needed to ensure the safety of vulnerable patients.

The Panel is satisfied that these are serious matters which demonstrate that your fitness to practise may be impaired and that you could pose a real risk to members of the public and that your remaining in unrestricted practice would seriously undermine the public trust in the profession.

The Panel has also considered the implications for your practice as a whole of the allegation of your prescription of extremely large quantities of controlled drugs for patients. Having reviewed all the circumstances of your case, including the new information considered today, the Panel considers it is necessary for the protection of members of the public and in your own interests to suspend your registration. It also considers the suspension of your registration necessary in order to safeguard the trust that members of the public are entitled to place in the medical profession and its practitioners.

The Panel has also taken account of the issue of proportionality, and has balanced the need to protect members of the public, the public interest and your own interests against the consequences for you of the suspension of your registration. Whilst it notes that its order has removed your ability to practise medicine, the Panel is satisfied that the order is a proportionate response.

The Panel notes that the order imposed on your registration expires on 17 February 2008 and has therefore determined under rule 27(6) of the General Medical Council (Fitness to Practise) Rules, to notify the Registrar of the General Medical Council that it is necessary to make an application, under Section 41A(6) of the Medical Act, as amended, to the appropriate Court for an extension of the interim order.

Should the court extend the interim order, the Panel will again review the order at a further meeting to be held within three months of today unless matters before the GMC have been concluded before that date.

Notification of this decision will be served upon you in accordance with the Medical Act 1983, as amended."

20. The Parties' Submissions. On behalf of Dr Sathananthan, Ms Lambert submitted that an interim suspension order was not justified on the basis of public safety because, on proper analysis: (i) the clinical complaints made against Dr Sathananthan related solely to his practice in the field of drug addiction and there were no complaints in respect of his work as a general psychiatrist; (ii) although there had been a "hangover" of repeat prescribing for a short period after the IOP hearing in August 2006, Dr Sathananthan had not engaged in the field of drug addiction medicine since August 2006: his drug addiction clinic had been wound down prior to August 2006 and no new patients had been accepted after December 2005: by August 2006, only a small number of patients were being treated at the clinic and these patients were then dispersed by referrals elsewhere; and (iii) Dr Essex's investigation into Dr Sathananthan's historical practice in the field of addiction medicine had not involved any specific request to provide patient details and therefore must have been concerned with matters other than patient safety.
21. Ms Lambert accepted that the statutory function of the GMC is the safeguarding of the public interest and that this embraces not only public safety but the maintenance of public confidence in the profession and the declaration and upholding of professional standards. Ms Lambert also properly accepted that the GMC's statutory function will inform the operation of the interim orders jurisdiction.
22. However, Ms Lambert stressed that the statutory test for the imposition of an interim order under section 41A(1) of the 1983 Act is that the IOP (or the court) must be satisfied that it is necessary for protection of members of the public or otherwise in the public interest to confine or restrict the doctor's registration in some way. Ms Lambert submitted that the bar is thus set high. It was her submission that, in circumstances in which it is not seriously contended that Dr Sathananthan represents a risk (direct or otherwise) to public safety, the court should be slow to impose an interim order that represents a substantial and serious interference with the practitioner's ability to work at all when the sole purpose of the interim order is to maintain public confidence in the profession and/or for the purpose of declaring or upholding professional standards.
23. Ms Lambert contended that, in the vast majority of cases, the fact that professional disciplinary proceedings are afoot (as in the present case), will be sufficient to signal to the public and to the profession that the GMC is discharging its statutory function. She submitted that the imposition of a period of interim suspension on the ground that it is in the public interest is a "drastic step" and one of last resort, to be applied in a "relatively rare case": see the judgment of Davis J in Sheikh at paragraph 16.
24. Ms Lambert pointed out that Dr Sathananthan is 68 years of age. His work is now solely in the field of general psychiatry in which he acts as both a community psychiatrist and a liaison psychiatrist. He plans to retire from full-time general psychiatry at the age of 70 and then to work on a part-time basis. Ms Lambert submitted that the effect of the interim suspension order will be to "catapult" Dr Sathananthan into retirement earlier than planned and to thwart any ambition he may have to continue on a part-time basis. Ms Lambert therefore maintained that the interim suspension order will be final in its impact on Dr Sathananthan's ability to practice medicine and thus will effectively bring his medical career to an end.
25. Accordingly, Ms Lambert submitted that, in all the circumstances, an interim order of suspension was wrong in principal and/or disproportionate. She submitted that the order made by the IOP on 13^th December 2007 should be terminated and not extended. She contended that all the GMC's current concerns could be properly addressed by suitable undertakings given by Dr Sathananthan in terms equivalent to the conditions originally imposed by the IOP, pending the final determination of the GMC's investigation and any resulting disciplinary proceedings against Dr Sathananthan.
26. For her part, Ms Plaschkes submitted that it was necessary for there to be an interim suspension order in respect of Dr Sathananthan's registration in order to protect members of the public. She emphatically rejected Ms Lambert's submission that the IOP and/or the court was, in effect, only concerned with the imposition of an interim order of suspension on the ground of public interest. Ms Plaschkes submitted that Dr Sathananthan's history of prescribing demonstrates that he represents a serious risk to his immediate patients in terms of the excessive quantities of controlled drugs prescribed, the combination of drugs, the lack of assessment, the lack of any management plan and the absence of liaison with other medical colleagues. However, it was her submission that the significance of these serious shortcomings was not simply confined to their immediate effect on Dr Sathananthan's various dependency patients – but that they had serious implications in terms of wider patient and public safety, both then and now. For reasons that will be apparent from the succeeding paragraphs of this judgment, I agree with that submission.
27. Ms Plaschkes acknowledged that it appears that Dr Sathananthan's addiction clinic had been "run down" from December 2005 onwards. However, she stressed that Dr Sathananthan had prescribed very large quantities of controlled drugs (some of them very strong) during the period December 2005 to August 2006, particularly during July to August 2006 (including the "post-dated" prescriptions): for details, see Dr Essex's letter of 1^st December 2007 quoted above. Ms Plaschkes submitted (correctly, in my view) that Dr Sathananthan's excessive prescribing plainly presented a serious risk to his patients and to the wider public. As Ms Plaschkes observed, the quantities of drugs and the way Dr Sathananthan prescribed them meant that there was a high risk of diversion to the illicit market. For example, in the words of Dr Essex: "One prescription alone for 1172 tablets of methadone could put many lives at risk if distributed for injection purposes."
28. Ms Plaschkes submitted that the evidence also revealed a number of wide-ranging concerns about Dr Sathananthan's care of his patients that were not simply confined to his treatment of "addiction" or dependency patients in his addiction clinic but were matters of general application that gave rise to significant concerns with regard to general patient and public safety both then and now. Ms Plaschkes summarised these concerns as follows:

(i) Dr Sathananthan's inadequate clinical assessment of the patient and his/her condition, including a willingness to prescribe for a patient he had not seen (Ms KC);

(ii) his failure to liaise appropriately with other health professionals, in particular (and significantly) with the patient's GP or any of the relevant health services in West Sussex;

(iii) his failure to consider or provide any "non-prescribed" form of treatment, e.g. counselling or other forms of non-drug therapy;

(iv) Dr Sathananthan's failure to follow GMC/Ministry of Health guidelines in relation to the prescribing of controlled drugs, demonstrating a lack of willingness to follow or an ignorance of proper medical practice and/or procedures;

(v) his irresponsible prescribing of high quantities of addictive drugs, demonstrating a general lack of proper standards in his approach to medical care and a complete disregard or lack of awareness of his responsibilities to the wider public; and

(vi) Dr Sathananthan's failure to provide any form of follow-up care.

29. Ms Plaschkes stressed that this was not a case of an isolated lapse on Dr Sathananthan's part. I agree. Dr Sathananthan's prescribing history is rightly described as one of irresponsible prescribing to a number of patients over a significant period of time whilst in a position of trust.
30. I also agree with Ms Plaschkes that the matters summarised in paragraph 28 above are all wide-ranging and important patient safety issues that can affect not just patients with a dependency problem, but all types of patient. Furthermore, some of these matters (in particular (iv) and (v) above) have self-evident and significant safety issues for the wider public. I accept Ms Plaschkes' submission that it would be wholly unrealistic and naïve to proceed on the basis that these important concerns are and were only of significance in Dr Sathananthan's treatment of his dependency patients and that, since he no longer treats such patients, there is no cause for further concern.
31. Accordingly, for those reasons, I accept Ms Plaschkes' submission that it was necessary for Dr Sathananthan's registration to be suspended to protect members of the public. Having regard to the wide-ranging and serious nature of the relevant concerns, I am satisfied that such an order was proportionate in all the circumstances of this case and I reject Ms. Lambert's submissions to the contrary effect.
32. I also agree with Ms Plaschkes' further submission that, in any event, it was necessary to suspend Dr Sathananthan's registration in the public interest. Irresponsible prescribing of controlled drugs is a serious abuse of a doctor's professional position and one that can lead to the misuse of such drugs by not only the patient but by others via the illicit market. The misuse and/or abuse of controlled drugs are understandably a matter of significant public concern. The irresponsible prescribing of such drugs, particularly in large amounts (as in this case), is plainly liable to bring the profession into disrepute. I accept that if the allegations are proved, there is a realistic prospect of the Fitness to Practise Panel directing the erasure of Dr Sathananthan's name from the Medical Register. In my view, in view of the prescribing history in this case, this is one of the "relatively rare" cases envisaged by Davis J in Sheikh where an interim suspension order is appropriate.
33. Accordingly, I am satisfied that the IOP was right to replace the original order of interim conditional registration with an interim suspension order, as it did on 13^th December 2007. In my view, for the reasons given above, such an order was necessary for the protection of the public or otherwise in the public interest and was, in all the circumstances, proportionate. The second claim therefore fails and is dismissed. However, I now turn to consider whether I should grant an extension of the interim suspension order as sought by the GMC in the first claim.
34. Ms Lambert submitted that the interim suspension order should not be extended. She pointed out that the GMC has been concerned with this matter since February 2006 and that, despite the 2 years which have elapsed since then, the case has still not reached the Case Examiners. She submitted that the need for a further 12 months in addition to the 24 that have already elapsed requires explanation. On this aspect of the matter, Ms Lambert described Ms Morgan's witness statement on behalf of the GMC as "exiguous in the extreme" and one that merely indicates that the GMC investigations "are not yet complete".
35. Ms Lambert pointed out that Ms Morgan's witness statement does not: (i) state what steps have been taken between February 2006 and February 2008 to investigate the complaints; (ii) offer any explanation why the investigations are not complete; or (iii) explain why a further period of 12 months is required. She submitted that the supply of a "perfunctory" witness statement (such as Ms Morgan's) in support of the application for an extension was precisely the sort of unsatisfactory approach to seeking an extension that has been deprecated in Hiew (see paragraph 29 of the judgment).
36. For her part, Ms Plaschkes acknowledged that Ms Morgan's witness statement was lacking in necessary detail with regard to the reasons why further time was required. However, she submitted that, in the light of the most recent information provided and concerns expressed by Dr Essex, a further period of 12 months was still required for the GMC to complete its further investigations and have the case against Dr Sathananthan heard. Ms Plaschkes pointed out that these further investigations would self-evidently include such matters as (i) securing and considering patients' medical records; (ii) obtaining further witness statements; (iv) securing copies of all relevant prescriptions; and (iv) obtaining appropriate expert evidence.
37. Having regard to the information that I have and the various important and wide-ranging concerns identified in the preceding paragraphs, I am entirely satisfied that it is necessary for the protection of the public and otherwise in the public interest that there should be an extension of the interim suspension order in this case. However, in the light of the amount of time that the GMC has already had and the lack of proper information as to why a period as long as 12 months is still required, I am not persuaded that I should grant the extension for as long a period as that. While, of course, the protection of the public is vitally important, equally one to balance against that the needs of the doctor and the recognition that his livelihood together with the final stages of his medical career are at stake. As Collins J observed in GMC ~v~ Uruakpa (2007) EWHC 1454 (Admin) at paragraph 41: "… it is in general necessary for these matters to be dealt with as speedily as is reasonably possible. Interim orders mean what they say, they are interim and must be approached on that basis."
38. I therefore propose to grant an extension of 6 months which, doing the best I can, I consider should be sufficient to enable the GMC to complete its investigation and bring its case against Dr Sathananthan. If, in the event, 6 months proves to be insufficient, it would be open to the GMC to apply to the court for a further extension. However, in those circumstances, I would expect the GMC to provide careful, detailed and cogent evidence as to why any further time is required. In the absence of such evidence, I think that any such application is unlikely to receive a sympathetic hearing.
39. Conclusion. For the foregoing reasons I have come to the firm conclusion that the interim suspension order imposed by the IOP on 13^th December 2007 should be extended from 17^th February 2008 for a further 6 months. To that extent the first claim succeeds. The second claim is accordingly dismissed.