Council for the Regulation of Healthcare Professionals v General Medical Council and another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE JACKSON
Judgment Date26 January 2006
Neutral Citation[2006] EWHC 464 (Admin)
Docket NumberCO/5834/05
Date26 January 2006

[2006] EWHC 464 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand London WC2

Before:

Mr Justice Jackson

CO/5834/05

Council For The Regulation Of Health Care Professionals
(Claimant)
and
The General Medical Council
(Defendant)
Dr Tarun Kumar Biswas

MR R JAY QC & MISS K STERN (instructed by BEVAN BRITTAN) appeared on behalf of the CLAIMANT

MISS E GREY (instructed by FIELD FISHER WATERHOUSE) appeared on behalf of the DEFENDANT

MISS M O'ROUKE (instructed by the GENERAL MEDICAL COUNCIL) appeared on behalf of the SECOND DEFENDANT

MR JUSTICE JACKSON
1

This judgment is in six parts, namely: part 1, introduction; part 2, the facts; part 3, the present proceedings; part 4, the alleged misdirection; part 5, the other grounds of appeal; part 6, conclusion.

Part I: Introduction

2

This is an appeal against a decision of the Fitness to Practice Panel of the General Medical Council. The appellant is the Council for the Regulation of Health Care Professionals, now known as the Council for Health Care Regulatory Excellence. I shall refer to this body as "the CRHP".

3

The first respondent is the General Medical Council, to which I shall refer as "the GMC." The second respondent is Dr Tarun Kumar Biswas, to whom I shall refer as "Dr Biswas."

4

The decision which is under appeal is a decision that Dr Biswas is not guilty of serious professional misconduct. That decision was made by the Fitness to Practise Panel to which I shall refer as "the Panel."

5

It may be helpful if I begin by setting out the statutory framework. Section 36(1) of the Medical Act 1983, provides:

"Where a fully registered person …

(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not;

the Committee may, if they think fit, direct-

(i) that his name shall be erased from the register; (ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or

(iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests."

6

The General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules, Order of Council 1988 has an appendix which sets out procedural rules. I shall refer to the rules in this appendix as "the Procedure Rules." Rule 27 of the Procedure Rules provides:

"(1) In cases relating to conduct, the following order of proceedings shall be observed as respects proof of the facts alleged in the charge or charges:-

(a) The Chairman shall ask the practitioner whether he admits any or all of the facts alleged in the charge or charges and, in respect of any facts so admitted by the practitioner, the Committee shall record a finding that such facts have been proved and the Chairman shall so announce …

(b) Where none, or some only, of the facts are admitted the Solicitor, or the complainant, if any, shall open the case against the practitioner and present the facts alleged on which the charge or charges is or are based,

(c) the Solicitor, or the complainant, as the case may be, may adduce evidence of the facts alleged which have not been admitted by the practitioner; (d) If as respects any charge no evidence is so adduced, the Committee shall record and the Chairman shall announce a finding that the practitioner is not guilty of serious professional misconduct in respect of the matter to which that charge relates …

(g) The practitioner may then address the Committee concerning any charge which remains outstanding and may adduce evidence, oral or documentary, including his own, in his defence;

(h) At the close of the evidence for the practitioner, the Solicitor or the complainant, as the case may be, may, with the leave of the Committee, adduce evidence to rebut any evidence adduced by the practitioner.

(i) The Solicitor, or the complainant, as the case may be, may then address the Committee.

(j) The practitioner may then address the Committee.

(2) On the conclusion of proceedings under paragraph (1) the Committee shall consider and determine:

(i) which, if any, of the remaining facts alleged in the charge and not admitted by the practitioner have been proved to their satisfaction, and

(ii) whether such facts as have been so found proved or admitted would be insufficient to support a finding of serious professional misconduct, and shall record their finding.

(3) The Chairman shall announce that finding and, if as respects any charge the Committee have found that none of the facts alleged in the charge have been proved to their satisfaction, or that such facts as have been so proved would be insufficient to support a finding of serious professional misconduct, the Committee shall record and the Chairman shall announce a finding that the practitioner is not guilty of serious professional misconduct in respect of the matters to which that charge relates."

Rule 28 of the Procedure Rules provides:

"(1) Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the Solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.

2. The Chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid."

Rule 29 of the Procedure Rules provides:

"(1) The Committee shall then consider and determine whether, in relation to the facts proved in proceedings under rule 27, and having regard to any evidence adduced and arguments or pleas addressed to them under rule 28, they find the practitioner to have been guilty of serious professional misconduct. They shall record, and the chairman shall announce, their finding.

(2) If the Committee determine that the practitioner has not been guilty of such misconduct, they shall record, and the Chairman shall announce, a finding to that effect."

7

It can be seen from the Procedure Rules that disciplinary proceedings before the Professional Conduct Committee have two distinct stages. First, the Committee determines which specific charges have been proved. After that, the hearing moves onto a second stage, in which the Committee determines whether or not the doctor was guilty of serious professional misconduct.

8

In 2002 Parliament enacted the National Health Service Reform and Health Care Professions Act 2002. I shall refer to this statute as "the 2002 Act." Section 25 of the 2002 Act provided for the establishment of the CRHP. The CRHP is referred to in that Act as "the Council."

Section 29(1) of the 2002 Act, in its original form, provided as follows:

"This section applies to …

[(c) a direction by the professional conduct committee of the General Medical Council under section 36 of the Medical Act 1983 (Professional Misconduct and related offences) …"

With effect from 1st November 2004 the Professional Conduct Committee of the GMC was replaced by the Fitness to Practice Panel. Accordingly section 29(1) of the 2002 Act was amended as from 1st November 2004, so that it now reads as follows:

"1 This section applies to …

(c) a direction by a Fitness to Practice Panel of the General Medical Council under section 35D of the Medical Act 1983 (c 54) that the fitness to practice of a medical practitioner was impaired otherwise than by reason of his physical or mental health…"

9

The various transitional provisions which deal with these matters are not light reading. During the first day of the hearing a problem arose as to precisely how those provisions impacted upon the present case. That has now been resolved by agreement between the parties and the position is as follows: the decision in the present case was properly taken by the Fitness to Practice Panel, and not by the Professional Conduct Committee. The Panel was operating in accordance with the Procedure Rules previously mentioned and not in accordance with certain rules which were introduced later. The disciplinary proceedings against Dr Biswas fell under section 36 of the Medical Act 1983, not under section 35D. Those disciplinary proceeding also fell within section 29 of the 2002 Act.

10

After that digression, let me now read out the other relevant parts of section 29 of the 2002 Act. Section 29 provides:

"(2) This section also applies to-

(a) a final decision of the relevant committee not to take disciplinary measures under the provision referred to in whichever paragraphs (a) to (h) of subsection (1) applies …

(3) The things to which this section applies are referred to be below as 'relevant decisions'

(4) If the Council considers that-

(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or

(b) a relevant...

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