Council for the Regulation of Healthcare Professionals v General Medical Council (Leeper)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] EWHC 1850 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No:CO/1752/2004 |
| Date | 30 July 2004 |
[2004] EWHC 1850 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Hon Mr Justice Collins
Case No:CO/1752/2004
Mr John Howell Q.C. & Mr Tom de la Mare (instructed by Messrs Bevan Ashford, Solicitors) for the Appellant
Mr Roger Henderson Q.C. & Ms Jemima Stratford (instructed by Messrs Field Fisher Waterhouse, Solicitor) for the First Respondent
Mr Philip Gaisford (instructed by Radcliffes le Brasseur) for the Second Respondent
The Council for the Regulation of Healthcare Professionals (CRHP) was established by s.25 of the National Health Service and Health Care Professionals Act 2002 (the 2002 Act). Its general functions include the promotion of the interests of patients and other members of the public in relation to the performance of their functions by the various bodies concerned with regulating the conduct of health care professionals. One such body is the General Medical Council (GMC). CRHP's role includes the promotion of best practices, the formulation of principles relating to good professional self-regulation and the promotion of co-operation between the various bodies. Those bodies must also co-operate with CRHP (s.27(1) of the 2002 Act).
Section 29 of the 2002 Act enables CRHP to refer what are described as relevant decisions to this court if it considers any such decision is unduly favourable to an individual health care professional. This was to meet public concern that in the process of self-regulation sometimes too little regard was paid to the protection of the public and too much to the interests of the profession or its members. S.29 is headed 'Reference of disciplinary cases by Council to court'. S.29(1) lists in paragraphs (a) to (j) what are described as directions, disciplinary orders, steps or corresponding measures of the various different professional bodies to which the 2002 Act applies. The reasons for the differences in terminology lie in the particular provisions of the various enactments which govern the bodies. But in all cases the relevant decision will, unless the disciplinary charges are dismissed, be one which produces for the person affected by it adverse consequences, usually in the form of some sort of penalty, which may range from removal from the register so that practice is prohibited to no more than the recording of an adverse finding. Directions of the Professional Conduct Committee (PCC) of the GMC are covered by s.29(1)(c).
S.29(2) of the Act extends the application of the section to decisions not to take any disciplinary measure (s.29(2)(a) and (b)) and to decisions to restore to the register (s.29(2)(c)). S.29(4), which is the most important provision for cases such as this, reads:-
"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 practice 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 decision falling within subsection (2) should not have been made,
and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court".
The relevant court is this court. S.29(7) provides that if a case is referred it is to be treated as an appeal by the CRHP. S.29(8) provides that on such an appeal the court may –
"(a) dismiss the appeal,
(b) allow the appeal and quash the relevant decision,
(c) substitute for the relevant decision any other decision which could have been made by the Committee or other person concerned, or
(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court,
and may make such order as to costs … as it thinks fit".
These provisions have only recently come into force and the court has had to consider how they should be construed. CRHP has submitted that once it has determined that the conditions set out in s.29(4) are fulfilled, the case can be referred to the court. It is to be treated as an appeal (s.29(7)) and so CPR Part 52 will apply. 52.11(3) provides:-
"The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court".
Accordingly, it is submitted that the unduly lenient test is not applicable and the court must decide whether the decision was wrong. Thus the approach should be the same as that in appeals by practitioners, giving to the disciplinary committee's decision only such deference as is appropriate in all the circumstances.
This submission asserts that the approach set out in my decision in Council for the Regulation of Healthcare Professionals v The Nursing and Midwifery Council [2004] EWHC 585 (Admin) and that of Leveson J in Council for the Regulation of Healthcare Professionals v General Medical Council [2004] EWHC 944 (Admin) is wrong. In each case, it was decided, in relation to an appeal based on s.29(4)(a), that the court had to be persuaded that the relevant decision was unduly lenient if it was to allow the appeal. The test is no different to that applied by the Court of Appeal (Criminal Division) in appeals against unduly lenient sentences and the question to be determined by the court is whether the decision falls within the range of sanctions which the relevant disciplinary body, applying its mind to all the factors relevant to its jurisdiction, could reasonably consider appropriate. It is submitted that this is not warranted by the statutory language and affords too great a deference and respect to the decision of the disciplinary body.
Mr. Howell Q.C. did not argue the point in great detail since he recognised that I was unlikely to be persuaded that the decisions of myself and Leveson J were wrong. In any event, my decision is being taken to the Court of Appeal. He did, however, persuade me to take a fresh look at s.29, particularly as counsel for the respondents in the previous case had not sought to dispute the submissions made by CRHP and so there had not been consideration of the section in the sort of detail that was needed. Leveson J in the GMC case did receive more detailed argument and reached the same conclusion.
The section is not well drafted. The opening words of s.29(4)(a) coupled with the powers of the court in s.29(8) strongly suggest that CRHP and the court are concerned whether the relevant decision, that is to say, the disciplinary measure referred to in s.29(1), was unduly lenient. S.29(8)(b) and (c) gives power to quash or to vary only the relevant decision. So in this case the notice of appeal identifies the decision of the PCC dated 10 February 2004 which determined to impose conditions on Dr. Leeper's registration. However, the following words of s.29(4)(a) seem to suggest that part only of the relevant decision can be the subject of an appeal, since a distinction is drawn between findings and penalty. It is, as a matter of language, difficult to follow how a finding of professional misconduct can be said to have been unduly lenient. Furthermore, the relevant decision will if it is to fall within s.29(4)(a) rather than s.29(4)(b), usually have involved the imposition of some sort of penalty. It is, however, important to bear in mind that the express powers of the PCC of the GMC are limited to directing erasure or suspension or that conditions should be attached to the doctor's registration (Medical Act 1983 s.36(1)). Following a finding of serious professional misconduct, a decision not to direct that any of those penalties should be imposed can be made. In its guidance for the PCC, the GMC has drawn attention to the fact that the Procedure Rules do not require the Committee to impose a sanction in every case where serious professional misconduct is established. The lowest level of sanction is a reprimand, which does not affect the doctor's registration but will be disclosed if any enquiries are made about the history of the doctor's fitness to practice. Whether or not a reprimand is a direction within the meaning of s.29(1)(c), read with s.36(1) of the Medical Act 1983, it is clearly a penalty, whereas the imposition of no disciplinary sanction is not.
If a finding or a lack of a finding which is unduly lenient (perhaps an alternative wording which conveys what is intended might be unduly favourable) results in a decision that the doctor is guilty of serious professional misconduct but that no penalty should be imposed, it is difficult to understand why that should fall within s.29(4)(b) rather than s.29(4)(a). This may even extend to a decision to reprimand if a narrow construction of direction is applied to s.29(1)(c). If s.29(4)(b) applies, there is no need to decide at any stage that the penalty or any finding was unduly lenient. Thus there is a wholly anomalous situation since, if the result is a failure to impose a penalty or perhaps the imposition of the least severe penalty, undue lenience is irrelevant.
The primary purpose behind s.29 is to ensure that health care professionals are properly dealt with if their conduct falls below the standards expected of them so that the public are properly protected. Thus one would expect the powers conferred on CRHP to extend to cases where there has been a decision not to take any proceedings in addition to those...
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