Case Update: Bhatnagar v General Medical Council [2014] EWHC 2562 (Admin)

11 August 2014

High Court dismisses application for termination of an interim suspension order, dealing with objections raised on the basis of consideration of new evidence, legitimate expectation and failure to consider a lesser sanction

Judgement date: 24 July 2014


The applicant doctor (Dr Bhatnager) applied for termination of an interim suspension order imposed by the Medical Practitioners Tribunal Service’s (MPTS) Interim Orders Panel (IOP) on 7 April 2014. The application was made on the basis that the decision of the IOP to impose an interim suspension order was ‘unnecessary, disproportionate and wrong in all the circumstances’.

Prior to suspension, Dr Bhatnagar worked as a self-employed Consultant Ophthalmologist.  He was the owner of private hospitals for a number of years. Between April 1999 and October 2009, he was the director an establishment at one time known as Birkdale Clinic (Rotherham) Ltd  (the Clinic). After a period of financial difficulties the hospital entered administration in October 2009.

Dr Bhatnagar's management of the Birkdale Clinic at Daventry, which it was alleged was deficient, was considered by a Fitness to Practise (FTP) Panel between July 2008 and October 2009. The Panel found that Dr Bhatnagar's fitness to practise was impaired by reason of misconduct, but in so doing noted that there was no evidence of actual harm being caused to patients. A six month suspension order was imposed.

In June and October 2009, the Care Quality Commission (CQC) inspected the Clinic and identified concerns which were referred to the GMC in 2011. A hearing to consider these matters was listed for 15 October 2012.

On 16 September 2011, a former employee at one of Dr Bhatnagar's clinics made a complaint to the GMC which also involved a second party whom he identified at Dr Bhatnagar's mistress. The allegations included concerns of dishonesty, amongst other matters.

The GMC wrote to Dr Bhatnagar inviting a response on 24 October 2011. In his response, Dr Bhatnagar stated that the complainant was culpable in relation to a numbers of the concerns he had highlighted, given that he was the registered manager. These matters were then also referred to a FTP Panel.

Having reviewed the case, the GMC notified Dr Bhatnagar, on 3 August 2012, that the referrals were closely linked and as such there was an overwhelming public interest for the matters to be heard jointly. In these circumstances, it intended to vacate the hearing fixed for October 2012.

Dr Bhatnagar was referred to the IOP on 4 January 2013. The hearing took place on 17 January 2013, at which stage Dr Bhatnagar's registration was interim suspended for a period of 12 months.

Dr Bhatnagar appealed this decision, and it was heard by Edwards-Stuart J on 28 June 2013. Prior to the decision being handed down (although it had been communicated that the appeal was dismissed) two differently constituted IOP's had reviewed the interim suspension order and had determined that interim conditions were appropriate. Edwards-Stuart J permitted Dr Bhatnagar leave to introduce evidence of the IOP decisions in July and October.

Edwards-Stuart J formally dismissed Dr Bhatnagar's application on 11 November 2013, despite the change by the IOP.

In dismissing Dr Bhatnagar’s application, Edwards-Stuart J stated that the interim suspension was necessary in the public interest, despite there being no evidence of patient harm, given the allegations of dishonesty. He placed most reliance on the allegation that Dr Bhatnagar had sought to pervert the course of the GMC's investigation. Edwards-Stuart J stated at paragraph 61:   

 'I consider that a reasonable onlooker would be concerned if a doctor who was accused of fabricating or alerting records of one of his clinics in order to avoid suspension was permitted to continue to practise......He or she would be reinforced in his conclusion if he or she knew that at an earlier hearing another FTP Panel had found that Dr Bhatnagar had been guilty of dishonesty...'

In relation to the decision by the IOP to substitute the interim suspension order with conditions, Edwards-Stuart J stated that there was no new information in the case which justified the decision.

A further differently constituted IOP considered the matter on 7 April 2014. This Panel revoked the interim conditions and imposed an interim suspension order. The reasons given by the IOP for varying the interim order were broadly as follows:

(1) There were new allegations which were not before the IOP in 2013; and
(2) A reasonable onlooker would be concerned if the doctor was allowed to practice in the interim given the nature and seriousness of the allegations.

In considering the matter, the court affirmed that it was exercising an original jurisdiction rather than a narrower judicial review jurisdiction.

Citing the decision in Sheikh v GDC [2007] EWHC 2972, the court agreed that cases where an interim suspension order is appropriate on the ground that it is in the public interest will be relatively rare. In citing the decision in Sandler v GMC [2010] EWHC 1029, the court reiterated the importance of the principle of proportionality in deciding whether an interim order should be made, not least because of the potential consequences for the practitioner.

The application

Dr Bhatnagar’s application was pursuant to section 41A(10) of the Medical Act 1983 (the Act) and he  submitted that the IOP's decision was flawed on three counts:

   (1) The IOP had determined that they were considering new rather than reformulated allegations. This approach was incorrect because the focus of the evidence upon which the allegations was based, and the allegations themselves, had not fundamentally changed since the order had been previously reviewed;
(2) He had a legitimate expectation that the order made on three previous occasions would not be altered; and
(3) The IOP had failed to consider and give reasons for why interim   conditions would not appropriately satisfy the public interest.   

The decision

In dismissing the first and second grounds, the Court stated that too much emphasis had been placed on the word new in respect of the allegations. Further, the IOP was entitled to consider any new information before it, and based on the information which the Panel had, its decision was justified.

In rejecting the third ground, the court held that the IOP was not required to consider whether an interim order for conditions was appropriate given that the doctor had not made such an application, and, further, it was clear from their reasoning that neither revocation nor maintenance of the interim conditions order was considered to be appropriate or proportionate.
In short, given the information before it, the IOP was perfectly entitled to make the decision which it did.

An interesting case with regard to ‘game-changing’  which serves to remind practitioners that interim order reviews are not rubber stamping exercises and that undue reliance should not be placed on previous determinations, especially where new evidence is before the Panel.

Further, this judgement suggests, perhaps surprisingly, that a Panel need only make clear the basis upon which it has reached its decision and need not necessarily include in its judgement an analysis of why a lesser sanction is not appropriate.

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