CO/17327/2013 
Neutral Citation Number: [2014] EWHC 201 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Manchester Civil Justice Centre 
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ 

Friday, 3rd January 2013
 
B e f o r e: 

HIS HONOUR JUDGE PELLING QC 
(Sitting as a Judge of the High Court)
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Between: 
GENERAL MEDICAL COUNCIL 
Claimant

v 

PATERSON 
Defendant 
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Mr Phillips QC (instructed by General Medical Council) appeared on behalf of the Claimant
The Defendant did not appear and was not represented
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J U D G M E N T
1.	HIS HONOUR JUDGE PELLING:  This is an application by the General Medical Council, made pursuant to section 41A of the Medical Act, for an order extending an interim order of suspension for a period of 12 months from 4th January 2014 to 3rd January 2015.  
2.	The complicating factor in this case is that by a letter of 10th December 2013 the solicitors who act for the defendant, Ryans, informed those who act for the General Medical Council and the court that they did not consider that the defendant had capacity to give instructions in relation to the hearing that is now taking place, nor in relation to the completion of an acknowledgement of service and that in consequence, by a letter of 16th December 2013, they informed the court and the General Medical Council that they would not be in attendance.
3.	That correspondence suggests that there is a degree of difficulty being experienced in finding the appropriate Litigation Friend to act for the defendant and that Ryans are in communication with the Official Solicitor.  No medical evidence has been filed or served by Ryans which demonstrates the nature of the incapacity or enables any independent judgment to be reached, but I am happy to accept at face value the assertion of a firm of solicitors that there is a capacity issue which precludes them from continuing without the intervention of Next Friend.  That is significant only in relation to the terms of the order if otherwise an order is appropriate.
4.	The allegations which are made against the defendant are serious, involving, as they do, a very significant number of patients and in summary come to this.  The defendant undertook a number of operative procedures in relation to female patients concerning breast cancer.  Two particular techniques were undertaken and it is alleged, and the allegation is supported by extensive expert evidence that the techniques adopted fell seriously below the standards to be expected of a consultant surgeon operating in this field.  The two techniques are described respectively as "cleavage sparage mastectomy" and "wide local excision" cases.
5.	In relation to the first category of case, the essential point made is that residual breast tissue was left in place as a result of the operations, contrary to the recommendations which were made by a relevant specialist associations and, more particularly, contrary to, the consents which had been obtained prior to the operations concerned by the defendant, which was for a total mastectomy to be carried out.
6.	In consequence, the patients concerned were exposed to the risk of the need for further operative intervention, with all the associated risks that go with it, and to the risk of developing secondary cancer as a result.
7.	So far as the wide local excision cases is concerned, the allegations made against the defendant are that in embarking on that course, he failed to follow standard diagnostic guidelines, failed to perform assessments as required and generally fell seriously below the standards to be expected of a reasonably competent consultant surgeon.
8.	There are other allegations aside from these which have to be considered. There is a recurring theme of a failure to maintain records to an appropriate standard in relation to some of the cases.  There is an allegation that following the giving of undertakings in relation to the performance of certain types of surgery, those undertakings were breached.  There is also a serious allegation that in at least one case, that concerning patient CC, there were undertaken operations which were not medically necessary and which resulted in fraudulent acts being proposed in relation to her insurers.  All of this has led the various Interim Orders Panels before whom this case has come, first, to impose conditions and later to substitute a period of interim suspension.
9.	I am entirely satisfied, applying the statutory test and approaching the case as required by the Court of Appeal's decision in Hiew, that it is appropriate to grant an extension. Notwithstanding that the effect of the extension sought will be that the defendant has been under, first, an interim order of conditions and then an interim order for suspension which in totality will be about three‑and‑a‑half years by the time the order sought has expired, I am also satisfied that it is appropriate to make the order for the period sought.  This is, on any view, a highly complex case, involving a very large number of patients, in circumstances where the process of patient review is revealing additional cases as the review process is undertaken. A further complicating factor is that in relation to at least some cases there is a concurrent police investigation being undertaken.  Not unnaturally the solicitors acting for the defendants consider they are unable to engage with the General Medical Council in relation to allegations that are subject of the police investigation, and although the material before me suggests that the police have proceeded reasonably expeditiously in the conduct of their investigations, it is clear that the first interview of the defendant by the police will not take place until either late January or February 2014.  It is possible that the capacity issues which preclude the defendant from giving instructions to his solicitors will also preclude him participating, or participating at all effectively in such an interview process.  All of this leads to the conclusion that although the period of interim order intervention by the time the order I make expires will be substantial, that nonetheless it is appropriate to make the order for the length of time sought by the GMC.  
10.	In those circumstances I propose to make the order sought but with one minor alteration.  As I have indicated already, the defendant suffers apparently from a lack of capacity which precludes him from participating effectively in these proceedings.  It is clear from the correspondence from the defendant's solicitors that there is an ongoing discussion with the Official Solicitor as to whether or not the Official Solicitor is prepared to act as the Litigation Friend of the defendant.
11.	The issue arises therefore as to whether, and if so what, provision ought to be made in the order to take account of the capacity issue that I have mentioned.  It occurred to me on the reading of these papers than an appropriate way forward might be to make provision within the order enabling the defendant to apply to vary or set aside this order once the capacity issue has become clearer.  The submission was made on behalf of the General Medical Council that this was strictly not necessary given there are statutory mechanisms by which interim orders made can be challenged or varied at any rate where additional evidence is available.  In my judgment that does not quite meet the problem which is that if someone lacks capacity and an interim order is made against them, then there ought to be provision within the order which enables such a person, once properly represented, to apply to vary or set aside the order.
12.	I take the point made on behalf of the General Medical Council that as of today's date there is no objective evidence concerning capacity before the court but, as I have said, due regard must be had when a solicitor of experience informs the court that that in his or her view the party concerned lacks the relevant capacity.
13.	However, in order to guard against the possibility that applications might be made using any residual power that I include in the order, in a way which was not contemplated by me, I propose to direct broadly that the order that I make should be subject to a power enabling the defendant, by his Litigation Friend, if so appointed, to apply to vary or set aside the order providing such application is made within 10 days after service of the order or the appointment of a Litigation Friend, whichever is later.
14.	HIS HONOUR JUDGE PELLING:  I understand that the General Medical Council recognise that this would not be an appropriate case to apply for costs I think.
15.	MR PHILLIPS:  My Lord, yes, that is the case.
16.	HIS HONOUR JUDGE PELLING:  Very sensible if I may say so.
17.	MR PHILLIPS:  I am grateful. We have taken the liberty of preparing a draft order.
18.	HIS HONOUR JUDGE PELLING:  Does it include the bit I have just added? 
19.	MR PHILLIPS:  No, we are not as prescient as that.  I do not know whether your Lordship would wish me to... 
20.	HIS HONOUR JUDGE PELLING:  If you let me have a revised version which inserts that provision.  That draft is fine subject to the insertion of that provision.
21.	MR PHILLIPS:  Yes.  We will ensure that is...
22.	HIS HONOUR JUDGE PELLING:  If your solicitors are able to get that to the court today, then it can be processed today.
23.	MR PHILLIPS:  We will do that.  It can be e‑mailed or delivered to the court.
24.	HIS HONOUR JUDGE PELLING:  You can e‑mail it to my professional address if that makes life easier.  Then I will forward it on.  Very good.  
25.	Quite an impressive bundle of documents which have been lodged.  I am very anxious that the parties should not be put to the cost of having to reproduce yet again those documents.  Is it appropriate for the court to retain them and you update if there is any need for any further applications or should we simply give them back? 
26.	MR PHILLIPS:  I suspect the latter but may I take instructions (Pause)?  I am grateful.  As ever I stand corrected. If the court is prepared to store those documents then those instructing me would be grateful.
27.	HIS HONOUR JUDGE PELLING:  I would not normally ask the court to do it because space is restricted here for document storage but given the volume and given the cost of reproducing these documents, I will direct they be retained by the court and any further application simply be dealt by way of an updating bundle.
28.	MR PHILLIPS:  Yes, consistent with that, it will be appropriate for those instructing me to inform our solicitors that is the situation and therefore they will be reassured and more importantly Mr Paterson and the Litigation Friend, if appointed, will be assured that any application to vary today's order could be dealt with expeditiously.
29.	HIS HONOUR JUDGE PELLING:  Indeed.  You might, with that in mind, put a recital in the order that I have directed the papers be retained accordingly.  All right.  Any other business? 
30.	MR PHILLIPS:  Thank you. No my Lord.