Regina (Malik) v Waltham Forest Primary Care Trust: [2006] EWHC 487 (Admin)

QBD (Admin): Collins J: 17 March 2006

On 21 January 2005 the defendant primary care trust notified the claimant, an NHS general practitioner, that it had concerns about his general practice and was exercising its power under regulation 13(1)(a) of the National Health Service (Performers Lists) Regulations 2004 to suspended him, with pay, from its performers list, to protect the interests of patients, while a more detailed investigation took place. In breach of regulation 13(11), the claimant was neither told of the allegations against him nor given any opportunity to put his case. The trust later held a meeting, which the claimant was unable to attend due to ill-health, following which it notified the claimant that it had decided to continue the suspension but, in breach of regulation 13(2), failed to specify the period for which the suspension was to last. The trust conceded that there had been procedural irregularities and, after annulling its decisions to suspend, arranged a further meeting to decide whether suspension should take place. At that meeting, on 16 March 2005, the claimant was not allowed legal representation or to cross-examine witnesses, reference was made to matters of which he had had no notice and the presenting officer stated that the meeting was to review the decision to suspend. The decision was taken to suspend the claimant for a period of six months. Following the commencement of proceedings by the claimant, the trust offered him a further hearing. On 3 August 2005 the hearing took place, though the claimant's suspension had not been revoked, and the decision was made to suspend him, under regulation 13(1)(a), for a further two months pending inquiries being made by the General Medical Council concerning his fitness to practice.

The claimant sought judicial review of the decisions of March and August 2005 and claimed that there had been denial of his right to a fair hearing, under article 6 of the European Convention on Human Rights, and interference with the peaceful enjoyment of his right to practise, contrary to article 1 of the First Protocol.

Collins J held:
(1) No suspension under regulation 13(1)(a) of the National Health Service (Performers Lists) Regulations 2004 could last for more than six months, unless regulation 13(4) applied, and it would be unlawful to try to avoid that limit by revoking a suspension and then seeking to reimpose it. Once suspension had been imposed pursuant to regulation 13(1), whether or not lawfully, the period of six months provided by regulation 13(2) began to run, and it would not be right, or consistent with the purpose behind regulation 13, to allow a further period of six months to begin to run if the original suspension was unlawful. Accordingly, the decision in March 2005 to suspend the claimant for six months was unlawful since he had already been suspended on 21 January 2005 and so could not be suspended beyond 21 July 2005; and that the hearing on 3 August 2005 was unlawful since there was already an existing suspension in being and the claimant had already been suspended, whether lawfully or not, for more than six months.

(2) On a hearing pursuant to regulation 13(11), where a primary care trust was considering interim suspension, fairness would only require the more formal trappings of legal representation and cross-examination in very exceptional cases, and the present was not such a case, but there were serious flaws at the hearing of 16 March 2005 that rendered it unfair and so unlawful, namely the reference to, and failure to exclude, matters of which the claimant had no prior notice, a failure to have in attendance a promised witness and the observation made by the presenting officer.

(3) While the imposition of a suspension could engage article 6 of the European Convention on Human Rights, in general interim measures did not engage article 6, since they were not determinative of civil rights, and where the suspension was an interim measure and involved no financial penalty, as in the present case where the trust continued to pay the claimant, the general rule should apply, so that it fell outside article 6. In any event, the interim suspension procedure, which taken as a whole included the right to claim judicial review, was compliant with article 6.

(4) Inclusion in the performers list was akin to the possession of a licence and had an intrinsic value in that it enabled the doctor to practise and suspension might well affect patient numbers and thereby the economic value of his practice. Therefore, inclusion in the list amounted to a possession for the purposes of article 1 of the First Protocol to the Convention, and, since suspension had not been lawfully imposed on the claimant, there had been an unjustified interference with his right to practise entitling him to recompense for any loss suffered.

Judicial review granted.

Appearances: Philip Engelman (Edwards Duthie) for the claimant; Jeremy Hyam (Capsticks) for the defendant; Jason Coppel (Solicitor, Department of Health) for the Secretary of State for Health, as an interested party.}