Nicol J considered the court’s jurisdiction under section 41A(10) and said: ‘Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr Sandler’s suspension (or to substitute a different period) is not dependent on showing some error of law on the part of the IOP. That is the point that I understand the Court of Appeal to have made in GMC v Hiew [2007] 1 WLR 2007 where . . Arden LJ said ‘the powers conferred by s.41A(10) are also original powers and not merely powers of judicial review.’ In that case, the Court was directly concerned with an application to extend a doctor’s suspension. The maximum period for which an IOP can suspend a doctor is 18 months. Any longer extension can only be granted by the Court under s.41A(7). In such a situation, the only order or orders by the IOP will have expired (or be about to expire). If nothing further is done the suspension will come to an end. It is unsurprising in these circumstances that the Court of Appeal characterised the Court’s jurisdiction as ‘original’. The position with an application under s.41A(10) is different. The IOP has suspended Dr Sandler. His application is for that suspension to be terminated. My consideration of the application must surely start from the position that the IOP has thought that interim suspension is the right course. I also note that s.41A(10) applies ‘where an order has effect under any provision of this section’. One of the previous subsections is s.41A(7). Thus, it is open to a doctor whose order for suspension has been extended by the Court under that provision to apply for the suspension to be terminated under s.41A(10). There, too, the Court would surely have to start from the position that a suspension was currently in place before deciding whether that position ought to be altered. In R (Stephen James Walker) v GMC [2003] EWHC 2308 (Admin) Stanley Burnton J. (as he then was) was also considering an application to terminate a suspension under s.41A(10). He said at [3] ‘The terms of subsection 10 indicate that the appeal to the Court is a full appeal, that is to say, the Court does not interfere on a review ground but itself decides what order is appropriate.’ To describe the process as an ‘appeal’ may not do full justice to the power of the Court. It would seem to me that the Court does have power to consider subsequent developments and (where appropriate) fresh evidence. However, in my judgment the term does correctly acknowledge that in this context, unlike an application under s.41A(7), the Court is faced with an extant order of the IOP which it would only terminate if it thought that order was wrong.’
Nicol J
[2010] EWHC 1029 (Admin), (2010) 114 BMLR 141
Bailii
Medical Act 1983 41A
England and Wales
Citing:
Cited – General Medical Council (GMC) v Hiew CA 30-Apr-2007
The doctor sought to challenge the extension of his suspension from practice.
Held: It was inappropriate in such an application to challenge the findings of fact which had led to the initial suspension. If he wished to do that, he should seek . .
Cited – Walker, Regina (on the Application of) v General Medical Council Admn 15-Aug-2003
Where a doctor sought to have lifted an extension to his suspension, the court should start from the position that the suspension was currently in place before deciding whether it needed altering. However, ‘The terms of subsection 10 indicate that . .
Cited by:
Approved – Bradshaw v General Medical Council Admn 4-Jun-2010
The doctor sought to end an order temporarily suspending his registration. He had been accused of dishonesty in his practice records, and of making false allegations against a fellow doctor. The suspension was pending the hearing. He was undergoing . .
These lists may be incomplete.
Updated: 20 June 2021; Ref: scu.414965
