GMC v E [2014] EWHC 1620, Stuart-Smith JGMC v Agrawal [2014] EWHC 1669, HHJ Raynor QCIn these cases, the High Court refused to extend interim orders where it considered that the GMC failed to produce
GMC v E [2014] EWHC 1620, Stuart-Smith J
GMC v Agrawal [2014] EWHC 1669, HHJ Raynor QC
In these cases, the High Court refused to extend interim orders where it considered that the GMC failed to produce evidence necessary to satisfy it that interim orders should be extended; the judgment is a salutary reminder that the High Court will not routinely rubber-stamp extension applications, that the Court will, where necessary, scrutinise the merits of a case and the need to investigate and prosecute cases with all due haste.
E faced a number of allegations that were sexual in nature, including that he had raped a vulnerable patient and conducted an inappropriate relationship with her over a number of years. An interim order was imposed with highly restrictive conditions on his practice while the allegations were investigated. The High Court extended the order for 6 months in October 2013. At that hearing, the judge refused a request for an extension of 12 months due to the GMC's 'inactivity… for prolonged periods'. In November 2013 the complainant stopped co-operating with the GMC. The GMC did not send E draft allegations until March 2014, in spite of having indicated at the October 2013 extension hearing that it would do so in November 2013. The most serious allegations had by this point been dropped.
In refusing an application for a further extension, the court held that the GMC had failed to address satisfactorily any of the factors set out by Arden LJ in Hiew, namely: (1) the seriousness of the remaining allegations, (2) the nature of the evidence available (given that the complainant was no longer cooperating), (3) the risk of harm to patients (particularly in light of the seriousness of the remaining allegations), (4) the reasons why the case had not concluded (particularly why the rule 7 letter had not been sent out until March 2014), (5) the potential prejudice to E, and (6) why an extension would be in the public interest.
In Agrawal, the failures were, if anything, even more serious. An expert report prepared in August 2012 was ambivalent as to whether A's conducted amounted to misconduct and advised the GMC to obtain further evidence in order for him to be able to reach a conclusion. No such evidence had been obtained by January 2014 In the meantime, A produced reports from three eminent experts which exonerated his conduct in relation to all allegations. None of these reports were provided to the GMC's own expert for comment. As far back as August 2013 an interim orders panel noted that the GMC's expert's report contained very little criticism of A's clinical performance and much that was supportive; moreover, further reports by the GMC's expert were not provided to the panel most recently considering the case. The High Court had previously considered the case and criticised the GMC for failing to conduct its investigation with sufficient urgency.
In refusing the application, the judge cited the dicta of Arden LJ in Hiew, highlighting that the court is able to take into account whether or not a case has 'little merit'. The judge considered all of the draft allegations against A and the GMC's comments on them and concluded 'based on the evidence of [the GMC's expert], which, as I stress, the Interim orders Panel did not have the benefit of seeing, I consider the case against the defendant to be weak.' The judge was critical of the failures of the GMC to obtain further evidence more quickly and for the delays in prosecuting the matter generally. On the basis of the Hiew criteria, and with particular regard to the weakness of the case against the registrant on the basis of the GMC's own evidence, the judge refused to extend the order.
GMC v Agrawal [2014] EWHC 1669, HHJ Raynor QC
In these cases, the High Court refused to extend interim orders where it considered that the GMC failed to produce evidence necessary to satisfy it that interim orders should be extended; the judgment is a salutary reminder that the High Court will not routinely rubber-stamp extension applications, that the Court will, where necessary, scrutinise the merits of a case and the need to investigate and prosecute cases with all due haste.
E faced a number of allegations that were sexual in nature, including that he had raped a vulnerable patient and conducted an inappropriate relationship with her over a number of years. An interim order was imposed with highly restrictive conditions on his practice while the allegations were investigated. The High Court extended the order for 6 months in October 2013. At that hearing, the judge refused a request for an extension of 12 months due to the GMC's 'inactivity… for prolonged periods'. In November 2013 the complainant stopped co-operating with the GMC. The GMC did not send E draft allegations until March 2014, in spite of having indicated at the October 2013 extension hearing that it would do so in November 2013. The most serious allegations had by this point been dropped.
In refusing an application for a further extension, the court held that the GMC had failed to address satisfactorily any of the factors set out by Arden LJ in Hiew, namely: (1) the seriousness of the remaining allegations, (2) the nature of the evidence available (given that the complainant was no longer cooperating), (3) the risk of harm to patients (particularly in light of the seriousness of the remaining allegations), (4) the reasons why the case had not concluded (particularly why the rule 7 letter had not been sent out until March 2014), (5) the potential prejudice to E, and (6) why an extension would be in the public interest.
In Agrawal, the failures were, if anything, even more serious. An expert report prepared in August 2012 was ambivalent as to whether A's conducted amounted to misconduct and advised the GMC to obtain further evidence in order for him to be able to reach a conclusion. No such evidence had been obtained by January 2014 In the meantime, A produced reports from three eminent experts which exonerated his conduct in relation to all allegations. None of these reports were provided to the GMC's own expert for comment. As far back as August 2013 an interim orders panel noted that the GMC's expert's report contained very little criticism of A's clinical performance and much that was supportive; moreover, further reports by the GMC's expert were not provided to the panel most recently considering the case. The High Court had previously considered the case and criticised the GMC for failing to conduct its investigation with sufficient urgency.
In refusing the application, the judge cited the dicta of Arden LJ in Hiew, highlighting that the court is able to take into account whether or not a case has 'little merit'. The judge considered all of the draft allegations against A and the GMC's comments on them and concluded 'based on the evidence of [the GMC's expert], which, as I stress, the Interim orders Panel did not have the benefit of seeing, I consider the case against the defendant to be weak.' The judge was critical of the failures of the GMC to obtain further evidence more quickly and for the delays in prosecuting the matter generally. On the basis of the Hiew criteria, and with particular regard to the weakness of the case against the registrant on the basis of the GMC's own evidence, the judge refused to extend the order.