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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 Khattab [2013] EWHC 3114 (Admin) (03 September 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/3114.html Cite as: [2013] EWHC 3114 (Admin)

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester Greater Manchester England M60 9DJ
		3rd September 2013

HIS HONOUR JUDGE PELLING QC:

1. This is a claim brought by a Part 8 claim form for a further extension of an interim order of suspension originally made in September 2011 by the General Medical Council's Interim Orders Panel, pursuant to sections 41A(6) and (7) of the Medical Act 1983. The defendant did not appear and is not represented. Simply identifying when the first order was made by the Interim Orders Panel illustrates the amount of delay that has occurred in this case to date.
2. The evidence before the court concerning service in its current state is not satisfactory. However, I am told that the claim form and evidence in support was served by a letter of 6th August 2013, by a next day delivery service operated by the Royal Mail in which the material was sent to the defendant's last known address and tracking information has been produced which tends to support that analysis. However, there is no witness statement which deals with the fact of service, nor has a certificate of service been filed that complies with CPR 6.17. However, sensibly the General Medical Council have offered an undertaking by 4.00 pm today to file a witness statement which confirms service, as it has been described to me and as I have summarised, and to file a certificate of service as well. On that basis I am prepared to proceed, subject to a direction that any order that I make will remain in the court office until such time as the additional documentation to which I have referred has been filed in accordance with the undertaking.
3. The test that has to be applied on an application for an extension is that which had to be applied by the Interim Orders Panel under section 41A of the Medical Act and as analysed definitively by the Court of Appeal in the well-known decision of GMC v Hiew. This focuses attention on the nature of the allegations rather than whether they are true or false and focuses attention on to whether, looking at the allegations, suspension is necessary for the purpose of protecting the public, the practitioner and/or whether such is otherwise necessary in the public interest.
4. The number of allegations made against this defendant are limited in number. However, no less than three expert reports have been commissioned by the General Medical Council for the purpose of demonstrating that in relation to those limited allegations the defendant's treatment of the relevant patients fell seriously below the standard to be expected of a competent consultant general surgeo. The result of two of those reports is that one allegation cannot be maintained. In relation to another the best that could be said from the General Medical Council's perspective is that the defendant's care of the relevant patient was below that expected but not seriously below that standard. Thus, it seems to me the question of whether or not the suspension should be continued must be focused on the allegations made in relation to two patients, patient JK and patient DL. In relation to each of those patients there is unequivocal independent expert evidence available which suggests that the conduct of the defendant was seriously below the expected standard. One relates to an incorrect swab count which in essence focused on an assertion by theatre staff that two swabs used in the course of an otherwise routine abdominal procedure were unaccounted for. Common sense, as well as good medical practice, suggests that what ought then to have happened was that a check be made before the incision was closed to ensure that all relevant swabs had been removed from the patient. Sadly, it is alleged that the defendant chose instead to continue to close the incision made in the patient's abdomen with the result that the presence of the swabs within the patient were identified only after that process was completed by X-ray examination which resulted in the need for a further opening and therefore unnecessary exposure of the patient to the risks inherent in general anaesthesia for longer than was necessary.
5. The other allegation focuses on an insertion of a piece of equipment called a Sengstaken (spelling not checked) tube, which should have been inserted into the patient's stomach but ended up in the patient's airway. That, in combination with the defendant's conduct in the aftermath of the operation, which was attended by a number of complications, was described by the independent expert consulted by the claimant as falling seriously below the standard to be expected of a reasonably competent consultant surgeon. Surgery exposes patients to potentially serious risks and where there are two incidents which are credibly described as ones where the defendant's conduct fell seriously below the standard to be expected of a consultant surgeon then that satisfies me that the public interest requires interim suspension, pending a final determination of the defendant's fitness to practise at a Fitness to Practise Panel. It may be, given the isolated incidents that an alternative view concerning the imposition of conditions might have been appropriate but in this regard the issues are essentially technical and in those circumstances, the IOP conclusions as to what was necessary and proportionate should be accorded very substantial weight. I am satisfied therefore that there should in principle be an extension of the interim suspension. As I have already said however, this is a case which has taken an extremely long time to get to the state that it has got to. A hearing before a Fitness to Practise Panel is due to take place starting on the 10th February and theoretically lasting as long as 7th March 2014.
6. It is very difficult to see how it could possibly be that the determination of these allegations will take that length of time. Counsel at least implicitly accepts that it is likely that the allegations that can properly be made against the defendant ought to be capable of resolution in a rather shorter time than has been allowed. Nonetheless, the point that is made on behalf of the GMC is that it is necessary for practical reasons to list these cases for rather longer than is perhaps strictly necessary for the purpose of ensuring that it is not necessary for hearings to go part heard, given the difficulty of reassembling Panels where the Panel members come from different parts of the country and from different professional backgrounds.
7. Nonetheless, and even taking that at face value, an extension of 9 months is unduly generous in the circumstances. If this case is going to be completed by no later than the 7th March 2014, as it should be, and if a decision is to be promulgated on 7th March, as it will be, because it is not the practice of such Panels to reserve judgments, then it is entirely unclear to me why it is necessary for the interim extension to last beyond the 7th March.
8. In the interests of preserving room for administrative manoeuvre, I am prepared to extend the interim extension for a period slightly beyond 7th March. Two weeks beyond the 7th March takes me to Friday 21st March. In my judgment that is an adequate period of time for the extension sought, having regard to the history of this case and the limited nature of the inquiry that will have to be undertaken by the Fitness to Practise Panel.
9. If for reasons which are currently not foreseeable it is necessary for the hearing starting on 10th February to be vacated, then it will be necessary for the General Medical Council to apply for a further extension of time. Whilst I fully accept that this may involve the General Medical Council in some expense, the court is naturally concerned in relation to the delay that has accumulated in this case and therefore will be concerned to be satisfied as to why it is the hearing was adjourned or vacated and as to what steps have been taken to ensure that any resumed hearing has been fixed for the first available time thereafter. This is best done at a hearing and rather than leaving it simply for the General Medical Council to deal with the matter administratively by granting what in the circumstances would be an over generous extension of 9 months.
10. HIS HONOUR JUDGE PELLING: Costs application. I have it somewhere I do, £1811.90.
11. MR DAVIES: That is right. A draft order, you should have behind tab 7.
12. HIS HONOUR JUDGE PELLING: I will assess costs in the sum claimed. The costs sought are modest in the circumstances. I am satisfied that the time worked is both proportionate and reasonable and counsel's fees are likewise proportionate and reasonable.
13. MR DAVIES: A draft order.
14. HIS HONOUR JUDGE PELLING: Will be extended to expire on - what did I say - 21st March. Costs assessed as asked, subject to the insertion of my name and the alteration of the time. That is fine. It better rehearse the undertakings.
15. MR DAVIES: Yes.
16. HIS HONOUR JUDGE PELLING: So the order ought to rehearse: upon the claimant by counsel undertaking, as I have described, and then I will direct this order remain on the court file to be released to the General Medical Council against the filing of the witness statement and certificate of service. All right?
17. MR DAVIES: Do you wish the claimant to draw the order up?
18. HIS HONOUR JUDGE PELLING: I think that would be sensible given that it will need to insert the undertaking.
19. MR DAVIES: Can I make sure I have the wording correct: the claimant counsel to file the certificate of service.
20. HIS HONOUR JUDGE PELLING: A certificate service and a witness statement.
21. MR DAVIES: Yes.
22. HIS HONOUR JUDGE PELLING: Which confirms the documents, which sets out the documents that were served with the letter of 6th August 2014 and further confirms that the address identified as the last postal address for the defendant known to the claimant and that the letter correctly records that address.
23. MR DAVIES: Yes.
24. HIS HONOUR JUDGE PELLING: The directions given to the Royal Mail, likewise, directly records that address. Then the service issue is tied off. All right?
25. MR DAVIES: Yes.
26. HIS HONOUR JUDGE PELLING: So it can be filed by no later than 4.00 pm. If it can be earlier. This ought to be the work of half-an-hour really. Then file the certificate of service as well, bring it to the Administrative Court Office on level 11 and the order will be sealed and released at that point.
27. MR DAVIES: Thank you very much my Lord.