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

A primary care trust may suspend a doctor from a performers list only where suspension is necessary for public protection or otherwise in the public interest. Suspension is an interim, protective measure, not a disciplinary sanction. The practitioner must receive proper notice and a fair opportunity to respond. The power cannot be used for longer than six months without the required approval, and successive suspensions cannot be used to circumvent that limit.

For an interim suspension during which payments continue, Article 6 of the Convention is generally not engaged. Inclusion on a performers list may nevertheless constitute a possession under Article 1 of the First Protocol. An unlawful suspension may therefore amount to an unjustified interference with that possession.

The claimant was a general practitioner included in a performers list maintained by the defendant primary care trust. He was suspended after a quality assessment identified concerns about his records, clinical knowledge, equipment and practice arrangements.

The initial suspension was imposed without proper notice or an opportunity to respond. Later hearings were held, but the claimant challenged their fairness, the refusal of legal representation and cross-examination, the duration of the suspension, and alleged breaches of Articles 6 and 1 of the First Protocol. The court also considered whether the PCT was exercising a public law function amenable to judicial review.

1. Lawfulness and duration of suspension. Regulation 13 of the National Health Service (Performers List) Regulations 2004 permits suspension only where necessary for public protection or otherwise in the public interest, pending a decision whether to remove or contingently remove the practitioner. The PCT must investigate promptly and use suspension only for as long as necessary. A suspension under regulation 13(1)(a) cannot exceed six months without an order of the Family Health Services Appeal Authority. Revoking and reimposing a suspension cannot restart the six-month period.
2. Procedural fairness. The initial suspension breached regulation 13(11) because the claimant was not told the allegations or given a proper opportunity to answer them. The later hearing was also unlawful. The presenting officer introduced matters of which the claimant had not been notified, the panel failed to exclude them, and a promised witness did not attend. These defects rendered the hearing unfair.
3. Representation and questioning. In interim suspension proceedings, the issue is generally whether credible evidence justifies temporary suspension, rather than whether definitive findings of fact should be made. Questioning through the chair and a general bar on legal representation are permissible. Fairness may require legal representation or cross-examination in exceptional cases, but this was not such a case.
4. Public law function. A PCT is a public body exercising a public law function when protecting the public from inefficient practitioners. The existence of a contractual relationship does not prevent judicial review.
5. Convention rights. The court distinguished final disciplinary suspension from interim suspension. Because interim suspension under this scheme was accompanied by continuing payments, the general rule that interim measures do not determine civil rights prevailed and Article 6 was not engaged. Even if Article 6 applied, judicial review would provide a compliant review of this administrative decision.
6. Inclusion on a performers list was analogous to possession of a licence and constituted a possession under Article 1 of the First Protocol. A lawful suspension would have been proportionate, but the unlawful suspension was not justified. The court reserved the assessment of any recoverable damages and directed that relief be addressed after judgment.