Christine Woods and The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Burton,MR JUSTICE BURTON |
| Judgment Date | 18 July 2002 |
| Neutral Citation | [2002] EWHC 1484 (Admin) |
| Docket Number | Case No: CO/4080/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 July 2002 |
[2002] EWHC 1484 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Burton
Case No: CO/4080/2001
Mr Richard Gordon QC and Mr S Donovan (instructed by Goodmans) for the Claimant
Miss Dinah Rose (instructed by Field Fisher Waterhouse) for the Defendant
The Claimant, Christine Woods, is the mother of a baby boy, who was born on 30 September 1989 and died the following day. His body was transferred to Alder Hey Children's Hospital on 4 October 1989. A post mortem was performed on 9 October 1989. Ten years later the Claimant was informed, as many other parents similarly learned, that a number of her baby's organs had been removed and retained without her consent. In this application she has been represented by Richard Gordon QC and Scott Donovan.
On 3 December 1999 Lord Hunt, the Parliamentary Under-Secretary of State for Health, established an independent and confidential inquiry under s2 of the National Health Service Act 1977, to investigate the removal, retention and disposal of human organs and tissues following post mortem examinations at the Alder Hey Hospital, operated by the Royal Liverpool Children's NHS Trust.
The terms of reference of the inquiry, which was chaired by Michael Redfern QC, included the following:
• To inquire into the circumstances leading to the removal, retention and disposal of human tissue, including organs of the body, from children at [Alder Hey] who have undergone post mortem.
• To inquire into the extent to which the Human Tissue Act 1961 has been complied with.
• To examine professional practice and management action and systems, including what information, and in what form, was given to the children's parents, or, where relevant, other family members, in respect of the removal, retention and disposal of tissue.
• To examine the role of the NHS and other persons or bodies involved.
The Report was published on 30 January 2001. A copy of it was passed to the General Medical Council ("GMC") on the day it was published, and it was reported at the time that Professor Sir Liam Donaldson, the Government Chief Medical Officer, had referred it to the GMC for consideration of disciplinary proceedings against doctors named in the Report. In any event, the GMC proceeded to consider whether the Report raised any issues of serious professional misconduct about doctors registered with the GMC which required further investigation by the GMC. Specifically the position of thirteen doctors was considered.
The provisions of the GMC for considering issues of serious professional misconduct is laid down both by statute and in rules which are the subject of an Order in Council. They have been the subject of recent judicial consideration in the Administrative Court by Lightman J in R v GMC ex parte Toth [2000] 1 WLR 2209, by Sullivan J in R (on the application of Richards) v GMC (CO/2430/2000 18 December 2000 unreported) and by Ouseley J in R (on the application of Holmes and Others) v GMC (CO/3933/2000 27 April 2001 unreported). In all those three cases the rules under consideration are not in precisely the same form as they are now since an amendment effective August 2000, and that, as will be seen, has some significance.
As will be clear when I set out the Rules as they now stand, there are three 'filtering' mechanisms before a charge of serious professional misconduct is considered by the GMC's Professional Conduct Committee ("PCC").
i) The first is what was described by Lightman J ( Toth at para 11) as the "ministerial role" of the Registrar (Rule 6(1) set out below).
ii) The second involves the role of the screeners, one medical and one lay, pursuant to Rule 6(3)–6(6) below.
iii) The third involves the role of the Preliminary Proceedings Committee ("PPC"), pursuant to s42 of the Medical Act 1983 ("the 1983 Act") and Rules 11–16 below.
Toth was addressed to the position of the screeners (although Lightman J dealt obiter with the position of the PCC); Richards and Holmes addressed the position of both screeners and PPC.
I shall set out the material parts of the relevant provisions. Most such matters are brought to the attention of the GMC by virtue of complaints from individuals, but there is provision for matters to be referred, as they were in this case, by a "person acting in a public capacity" (see Rule 6(2)). The relevant rules are the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 as amended ("the Rules"). I deal with each of the three filtering mechanisms:
i) Registrar
Rule 6(1): Where a complaint in writing or information in writing is received by the Registrar and it appears to him that a question arises whether conduct of a practitioner constitutes serious professional misconduct the Registrar shall submit the matter to a medical screener.
ii)
Screeners
Rule 6(3): The medical screener shall refer to the [PPC] every case submitted to him under this Rule unless –
a) He decides that a question as to whether the practitioner's conduct constitutes serious professional misconduct does not arise and a lay member appointed under Rule 4(5) agrees …
Rule 6(4): Where the medical screener refers a case to the [PPC] under this rule he shall direct the Registrar to give written notice to the practitioner –
(a) notifying him of the receipt of a complaint or information and stating the matters which appear to raise a question as to whether the conduct of the practitioner constitutes serious professional misconduct …
(c) Inviting the practitioner to submit any explanation which he may have to offer.
Rule 6(6): In any case where the medical screener decides not to refer a case to the [PPC] the practitioner and the person from whom the complaint or information was received shall be informed but shall have no right of access to any document relating to the case submitted to the Council by any other person.
iii) PPC
Section 42 (of the Act): …
(2) It shall be the duty of the [PPC] to decide whether any case referred to them for consideration in which a practitioner is alleged to be liable to have his name erased … or his registration suspended or made subject to conditions … ought to be referred for inquiry by the [PCC] …
Rule 11(1): The [PPC] shall consider any case referred to them … and … determine
(a) that the case shall be referred to the [PCC] for inquiry, or …
that the case shall not be referred …
Rule 13(1): Before coming to a determination under Rule 11(1) the [PPC] may if they think fit cause to be made such further investigations, or obtain such advice or assistance from the Solicitor as they may consider requisite.
Rule 15: The [PPC] shall meet in private [contrast Rule 48 which provides that, with certain exceptions, all proceedings before the PCC shall be held in public]
Rule 16: Where the [PPC] has decided not to refer a case for inquiry no complainant, informant or practitioner shall have any right of access to any document relating to the case submitted to the Council by any other person, nor shall the Committee be required by a complainant, informant or practitioner to state reasons for their decision.
The principles which underline these provisions have been explained (by reference to the pre-August 2000 Rules) in the three cases to which I have referred and can be summarised as follows:
i) They constitute a fine balance between three competing desirables:
a) The protection of the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practice, and the maintenance of standards.
b) The maintenance of the reputation of, and public confidence in, the medical profession, and the legitimate expectation of the public, and of complainants in particular, that complaints of serious professional misconduct will be fully and fairly investigated.
c) The need for legitimate safeguards for the practitioner, who as a professional person may be considered particularly vulnerable to, and damaged by, unwarranted charges against him.
These are articulated in particular by Lightman J in paragraphs 10 and 14 of his judgment in Toth.
ii) The filtering exercise is especially required in pursuit of the last of these three principles. It is necessary in order to ensure, given the sensitive and high profile role of doctors and the ease of, and the understandable but often misguided resort to, making complaints against them, with all the time-consuming and damaging consequences for the doctor of such an investigation, that only those cases are taken forward in which there is a real prospect of the complaint succeeding. On the other hand, because of the importance of the other two principles, it is necessary for these filtering exercises not to be ratcheted to too high a level, and that caution should be exercised before filtering out a complaint, so that if there is doubt it must be resolved in favour of referring the matter on for investigation.
iii) When the rules were considered by Lightman J, there was no provision for the involvement of a complainant in the filtering process. A statement was made by the GMC to the court, which is incorporated in his judgment (para 15), whereby after 1 July 2000 any material submitted by the doctor to the screener, before the screener made his final decision, would be copied to the complainant, unless the screener considered there were exceptional circumstances (largely by reference to confidentiality) which ought properly to preclude this. Although it was originally argued by Mr Gordon QC, he did...
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