Malik, R (on the application of) v Waltham Forest PCT & Anor

Factual and Procedural Background

The Plaintiff, a doctor who operated a National Health practice in East London until his suspension on 21 January 2005, challenged the lawfulness of that suspension. The suspension was imposed by the Defendant Primary Care Trust (PCT) under powers granted by the National Health Service (Performers List) Regulations 2004. The Plaintiff contended that the suspension was unlawful on procedural and substantive grounds. The dispute involved the application of NHS regulations governing inclusion in medical performers lists, suspension powers, and the procedural fairness of hearings conducted by the PCT. The Plaintiff also sought damages related to the suspension, but the court focused on the lawfulness of the suspension itself. The case included judicial review proceedings and consideration of alleged breaches of Articles 6 and 1 of Protocol 1 of the European Convention on Human Rights (ECHR).

Legal Issues Presented

1. Whether the suspension imposed by the PCT on the Plaintiff was lawful under the National Health Service (Performers List) Regulations 2004, specifically Regulation 13.
2. Whether the procedural requirements for suspension and hearings under Regulation 13(11) and related guidance were complied with.
3. Whether the suspension engaged the Plaintiff’s rights under Article 6 (right to a fair trial) of the ECHR.
4. Whether the suspension interfered with the Plaintiff’s possessions under Article 1 of Protocol 1 of the ECHR, namely the right to practise as a general practitioner.
5. The implications of the duration and renewal of suspension periods and whether the PCT lawfully extended the suspension beyond six months.
6. The extent to which judicial review provides adequate protection of the Plaintiff’s rights in the context of interim suspension.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the statutory framework governing NHS performers lists and the suspension powers of Primary Care Trusts under the National Health Service (Performers List) Regulations 2004. It emphasized that suspension under Regulation 13 is an interim measure intended to protect public interests pending further investigation or decision on removal from the list.

The court found that the initial suspension imposed on 21 January 2005 was unlawful because the PCT failed to comply with the procedural safeguards in Regulation 13(11), including failure to notify the Plaintiff of the allegations and to provide an opportunity for a hearing before suspension. The subsequent hearing on 31 January 2005 was also unfair and unlawful, as it proceeded in the Plaintiff’s absence despite his illness and offer of voluntary suspension, and because the PCT did not justify the suspension properly.

The court held that suspensions under Regulation 13(1)(a) cannot lawfully exceed six months without approval by the Family Health Services Appeal Authority (FHSAA). It was unlawful for the PCT to attempt to circumvent this by revoking and reimposing suspensions, and the PCT failed to act expeditiously in conducting investigations and hearings.

Regarding the European Convention on Human Rights, the court analyzed whether Article 6 (right to a fair trial) was engaged. It distinguished between interim suspensions with continued pay and final disciplinary sanctions, concluding that interim suspensions of the kind in question generally do not engage Article 6 procedural rights fully, especially where judicial review is available. The court found no breach of Article 6.

The court also considered Article 1 of Protocol 1 (protection of possessions) and found that inclusion in the performers list constitutes a possession akin to a licence enabling practice. The unlawful suspension interfered with the Plaintiff’s peaceful enjoyment of this possession, and thus the interference was not justified. The Plaintiff might be entitled to damages if loss is proven, although payment during suspension complicates this issue.

The court noted the ongoing GMC proceedings and the importance of the Plaintiff addressing concerns about his professional performance but did not dictate further action.

Holding and Implications

The court held that the suspension imposed on the Plaintiff by the Defendant PCT was unlawful due to procedural unfairness and failure to comply with statutory and regulatory requirements. The court emphasized that suspensions under Regulation 13(1)(a) must not exceed six months without FHSAA approval and that the PCT must act promptly and fairly in exercising suspension powers.

While the court recognized that inclusion in the performers list is a possession protected under Article 1 of Protocol 1 of the ECHR, the unlawful suspension constituted an unjustified interference with that possession. The Plaintiff may be entitled to damages if he can prove loss, although payment during suspension may mitigate that loss.

The court concluded that interim suspension decisions do not generally engage the full procedural protections of Article 6, particularly where judicial review is available as an effective remedy. The decision clarifies the limits on PCT suspension powers, the necessity of procedural fairness, and the interaction between NHS regulations and human rights law. The ruling does not establish new precedent beyond these clarifications but directly affects the parties by invalidating the suspension and allowing for further remedies.