Dr Ann David and The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 21 December 2004 |
| Neutral Citation | [2004] EWHC 2977 (Admin) |
| Date | 21 December 2004 |
| Docket Number | Case No: CO/2742/2004 |
| Court | Queen's Bench Division (Administrative Court) |
[2004] EWHC 2977 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stanley Burnton
Case No: CO/2742/2004
John Hendy QC and Louise Chudleigh (instructed by RadcliffesLeBrasseur) for the Claimant
Mark Shaw QC and Tom Weisselberg (instructed by the solicitor to the GMC) for the Defendant
Introduction
In these proceedings the Claimant seeks an order quashing the decision of the Preliminary Proceedings Committee ("the PPC") of the General Medical Council ("the GMC") of 18 March 2004 to refer for public inquiry by the Professional Conduct Committee ("the PCC") the question whether or not she committed serious professional misconduct in February 1999 in relation to the treatment of Mr Robert Symons, a patient at Basildon Hospital in Essex.
The legislative framework
Unusually, it is more convenient to summarise the applicable legislative provisions before summarising the facts.
The GMC is a body corporate. The Medical Act 1983 confers on it extensive powers in relation to the qualification and disqualification and discipline of medical practitioners. Both the PPC and the PCC are committees of the GMC, concerned with the regulation of the profession, that it is required to establish by the Act. Section 42 imposes on the PPC the duty "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 Professional Conduct Committee or the Health Committee". Schedule 4 applies to the PPC and the PCC.
The procedures of the PPC and the PCC are the subject of the Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 ("the Procedure Rules"). Part 1 of the Procedure Rules contains preliminary provisions, in particular as to their interpretation; Part 2 contains the rules relating to initial consideration of cases, in particular, by a medical screener; Part 3 concerns the procedure of the PPC; Part 4 deals with certain intermediates procedures; and Part 5 deals with the procedure of the PCC at the original hearing of a case.
Charges of serious professional misconduct are heard and determined by the PCC. However, with a view to excluding vexatious or frivolous allegations, such charges are subjected to a filtering process, involving a medical screener and then the PPC. Rule 6 provides that:
Where a complaint in writing or information 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.
The function of the Registrar is essentially administrative. It is not for him to decide whether a complaint is frivolous or provable: that decision is for the screener and the PPC.
The medical screener is a registered medical practitioner appointed by the GMC. Rule 6(3) requires him to refer to the PPC a case submitted to him by the Registrar "if he is satisfied from the material available in relation to the case that it is properly arguable that the practitioner's conduct constitutes serious professional misconduct". When he does so, he must give notice to the practitioner in question of the complaint or information and identify the matters which appear to raise a question of serious professional misconduct; and the practitioner is invited to submit any explanation which he may have to offer. Any such explanation is submitted to the PPC together with the complaint, information and other evidence.
Rule 11, so far as relevant, is as follows:
(1) The (Preliminary Proceedings) Committee shall consider any case referred to them under Part 2 of these Rules … and, subject to those rules, determine:
(a) that the case shall be referred to the Professional Conduct Committee for inquiry, or
(b) that the case shall be referred to the Health Committee for inquiry, or
(c) that the case shall not be referred to either Committee.
(2) When referring a case to the Professional Conduct Committee the Committee shall indicate the convictions, or the matters which in their opinion appear to raise a question whether the practitioner has committed serious professional misconduct, to be so referred and to form the basis of the charge or charges:
….
Rule 14 is headed "Fresh allegation as to conviction or conduct":
(1) This rule applies where:
(a) in any case relating to conviction the (Preliminary Proceedings) Committee determine that no inquiry shall be held; or
(b) in any case relating to conduct
(i) under rule 6(3) the medical screener decides that no reference to the Committee is to be made; or
(ii) the Committee determine that no reference for inquiry shall be made,
and the Registrar, at any time within the two years following that determination or decision, receives information that the practitioner has been convicted in the British Isles of a criminal offence or has been convicted of an offence elsewhere which, if committed in England or Wales, would constitute an offence or receives information or a complaint as to the practitioner's conduct,
(2) Where this rule applies, the medical screener may direct that the original conviction or complaint be referred, or referred again, to the Committee, as well as the later conviction, information or complaint.
(3) In any case where the decision under paragraph (1)(b)(i) was made before 3 rd August 2000, the reference there to the medical screener shall be read as a reference to the President.
Part 4 of the Procedure Rules concerns "Intermediate Procedures where a case is referred" to the PCC. The PPC retains power to prevent the inquiry by the PCC from taking place. Rule 19, so far as is relevant, is as follows:
"(1) Where, after the Preliminary Proceedings Committee has referred a complaint or information or a conviction to the Committee for inquiry, it appears to the Chairman of the Preliminary Proceedings Committee (having taken into account any observations of any complainant obtained pursuant to paragraph (1A)) that the inquiry should not be held, he may, after consulting a quorum of the Committee, and if they agree, direct that the inquiry shall not be held; and if at the time the direction is given no Notice of inquiry has been sent, rule 17 shall not have effect:
(1A) In any case where there is a complainant the Register shall, before the Preliminary Proceedings Committee considers the case under paragraph (1), communicate or endeavour to communicate with the complainant with a view to obtaining the observations of the complainant as to whether the inquiry should be held."
As mentioned above, Part 5 concerns proceedings before the PCC. Rule 24 provides:
"(1) The inquiry shall open by the reading of the charge or charges to the Committee.
(2) After the reading of the charge or charges the practitioner may submit any objection on grounds of law to any change or part of a charge and any other party may reply to such an objection.
(3) If any objection raised under paragraph (2) is upheld no further proceedings shall be taken with regard to the charge or part of a charge to which that objection relates."
Judicial authority
There has been a number of judgments on challenges to decisions of the screener not to refer a complaint to the PPC or of the PPC not to refer a case to the PCC, namely those of Lightman J in R v GMC, ex parte Toth [2000] 1 WLR 2209, of Sullivan J in R (Richards) v GMC [2001] Lloyd's Law Reports (Medical). of Ouseley J in R (Holmes) v GMC [2001] EWHC Admin 321, of the Court of Appeal in that case [2001] EWCA Civ 1372, and of Burton J in R (Woods) v GMC [2002] EWHC 1484 Admin. In Holmes the Court of Appeal endorsed what had been said in Toth and in Richards as to the need for the PPC to exercise caution in deciding not to refer a complaint to the PPC. Jonathan Parker LJ, with whom the other members of the Court agreed, referred to those decisions in the following passage of his judgment.
36. In Toth, Lightman J analysed the different stages of the investigative process under the 1988 Rules. In paragraph 14 of his judgment he identified the general principles underlying the process as being:
"(a) the public have an interest in the maintenance of standards and the investigation of complaints of serious professional misconduct against practitioners; (b) public confidence in the GMC and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special and sufficient reason) will be publicly investigated by the [PCC]; and (c) justice should in such cases be seen to be done. This must be most particularly the case where the practitioner continues to be registered and to practise."
Lightman J went on to describe the role and function of the PPC as follows:
"The PPC may examine whether the complaint has any real prospect of being established, and may themselves conduct an investigation into its prospects, and may refuse to refer if satisfied that the real prospect is not present, but they must do so with the utmost caution bearing in mind the one-sided nature of their procedures under the [1988 Rules], which provide that, whilst the practitioner is afforded access to the complaint and [is] able to respond to it, the complainant has no right of access to or to make an informed reply to that response, and the limited material likely to be available before the...
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Dr Jayaprakash Gosalakkal v General Medical Council
...rule, it may be difficult to see the conduct consistent with one view could be serious professional misconduct" ( David v. GMC [2004] EWHC 2977 (Admin) [59]). 52 Mr. Mustakim also relies on the comment by Collins J in Nandi v. GMC [2004] EWHC 2317 (Admin) that: "conduct which does not amo......
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Andrew John Dowson v The General Medical Council
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R (Singapore Medical Council) v General Medical Council
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