Dr Simon Kimmance v General Medical Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Kerr
Judgment Date11 May 2016
Neutral Citation[2016] EWHC 1808 (Admin)
Docket NumberClaim No: CO/70/2016

[2016] EWHC 1808 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

ADMINISTRATIVE COURT

Manchester Civil Justice Centre

1 Bridge Street West

Manchester

Before:

The Hon Mr Justice Kerr

Claim No: CO/70/2016

Dr Simon Kimmance
Appellant
and
General Medical Council
Respondent

Ms Gemma Hobcraft appeared on behalf of the appellant

Mr Paul Ozin QC appeared on behalf of the respondent

APPROVED JUDGMENT

Wednesday, 11 th May 2016

Mr Justice Kerr
1

This is a troubling case. The appellant is a doctor. He graduated from Liverpool University in 1991. The background to the subsequent disciplinary proceedings against him arose from a family dispute which, unfortunately, led to him becoming separated from his daughter following the break-down of a relationship, a matter which has caused him intense pain and anguish.

2

Unfortunately, this led to certain court proceedings, including injunctions issued from the county court, of which the appellant was said to be in breach; and breaches of those injunctions were found to have been committed by him. The appellant became the author of many very intemperately worded communications from around 2012 to 2014. Those led to the bringing of ten charges against him by the General Medical Council (GMC).

3

The charges were to the following effect: that he had sent substantial amounts of correspondence to Durham County Council, Durham Constabulary and local authority schools; and that this had led to a warning in the form of a "police information notice" issued in November 2012 under the Protection from Harassment Act 1997.

4

Arising from that correspondence, it was further alleged that an injunction issued by the Durham County Court on 20 November 2013, restraining such communications, was not heeded in that a further intemperate email was sent on 16 August 2014, addressed to a number of social workers, who were addressed as "child abusers"; and that this was a breach of the injunction.

5

It was also alleged that the appellant sent a substantial amount of similar correspondence to public bodies in West Berkshire District Council, certain schools and the Children and Family Court Advisory and Support Service (CAFCASS) leading to a further injunction in September 2014 issued from the Reading County Court, restraining such further communications.

6

This, it was alleged, was breached by further correspondence in September and October 2014, containing material that was offensive and threatening, and constituted harassing behaviour.

7

Those matters were said to be misconduct which had impaired the appellant's fitness to practise. But those allegations, it will be noted, did not include any suggestion that the appellant had behaved dishonestly, in any normal sense of that word.

8

The GMC convened a hearing of its Fitness to Practise Panel (the panel). Before the hearing, there was a written application from the appellant for the panel to recuse itself on the ground that there was a "conflict of interest" in the case of two of the panel's members: the chair, Ms Mullen, a professional in the field of children's services, and one of the other members, Mr Elliott, a barrister practising criminal law.

9

The basis of the objection was that those two panel members (and I quote from the email objecting to them of 23 November 2015): "are from professions which run the family justice system — social workers and lawyers."

10

The panel held a hearing in the usual way, which, unfortunately, the appellant did not attend. He was then unrepresented. No live evidence was heard. The matters which formed the subject of the charges consisted of documents; and the sending of those documents was not, and could not be, disputed. Their content spoke for itself.

11

At the hearing not attended by the appellant (from 7 to 9 December 2015) the GMC's counsel, Ms Duckworth, made various submissions, which I will not go through at this stage. I will return to some of them. There was, in the usual way, a legal assessor, a Ms Oakwood, who gave certain advice, as was her role. In the usual way, the panel comprised three members, one of whom under the rules must be a medical member.

12

The panel, proceeding on the basis of the documents, found all the charges proved. I should mention that the documents in the bundle, which formed the evidential basis of the charges, included a number of references to a passionate belief on the part of the appellant that the family justice system has treated and continues to treat him less favourably because of his gender, i.e. because he is a man, than it would do, or have done, if he had been a woman and thus the mother and not the father of the daughter from whom he is separated.

13

That explains his concern at the inclusion on the panel of professionals concerned in the administration of the family justice system. The panel rejected the request to recuse itself, saying that no relevant conflict of interests could be shown. It decided in the exercise of its discretion, as it was entitled to do, to proceed in the absence of the appellant.

14

Having found the factual charges proved and considered the evidence supporting those charges, the panel proceeded to find the appellant's fitness to practice to be impaired, noting that although there was no clinical concern about his treatment of patients, there was no evidence of any insight into his misconduct, and the lack of such insight was further demonstrated by the sending of inappropriate correspondence to GMC and members of its staff in the run-up to the hearing, including bitter complaints about the way the family justice system treats fathers, and an allegation that the GMP had "fabricated" the allegations against him.

15

The panel went on to consider, in the usual way in accordance with the relevant sanctions guidance, the available sanctions in ascending order of gravity. It found that there were "no mitigating factors in this case" and, having considered lesser penalties including suspension, which it ruled out, it proceeded to decide that the only appropriate sanction was that of erasure. The relevant part of the determination in paragraphs 36 and 37, said this:

"The panel found that, in light of its findings, Dr Kimmance's actions undermined the public's trust in the medical profession. It also found that Dr Kimmance displays a profound and persistent lack of insight into the seriousness of his actions and the consequences, particularly in respect of the alarm and distress the correspondence he sends causes the recipients.

In all these circumstances, the panel determined to erase Dr Kimmance's name from the medical register in order to maintain public confidence in the profession, and to declare and uphold proper standards of conduct and behaviour. The panel accepts that this sanction has the potential to impact on Dr Kimmance both professionally and financially, however the public interest outweighs his own interests in the specific circumstances of this case."

16

Finally, the panel proceeded to impose an interim suspension order during the 28 day period until the erasure would take effect unless an appeal be lodged in the interim, as it has been. So those were the proceedings and that was the decision of the panel in this case, and it is against that decision that the appellant now appeals, through Ms Hobcraft.

17

The grounds of appeal were, with respect, not clearly separated out from each other in writing, but I think I understood correctly what they were, and I will take them in a slightly different order from that in which they were advanced and will deal, first, with the bias point. That arose from a late amendment to the grounds of appeal, which the GMC did not oppose.

18

In Ms Hobcraft's argument, she developed that ground in the following way: She made it clear that there was no suggestion that the two panel members had any personal animus against the appellant or any personal involvement with any of the factual matters forming the subject of the charges.

19

The appellant's concern in relation to Ms Mullen, the chair, was that the appellant (I quote from her skeleton argument):

"was in conflict with local authorities, and the Chair of the panel's background was in local authority managements/senior roles – a similar background to the witnesses in the case. The Appellant's concern in relation to Mr Elliott (a barrister) was that the Appellant is sympathetic to the fathers' rights movement and therefore critical of the justice system."

That, she submitted, was sufficient to raise a real possibility of bias in the classic sense articulated by Lord Hope at paragraph 103 of his speech in Porter v Magill [2002] 2 AC 357.

20

There is, with respect, nothing whatever in this point. It amounts to no more than a generic grievance against persons involved in professions, other members of which the appellant had railed against in the controversial correspondence which led to the charges against him. That comes nowhere near even raising an arguable case fulfilling the test for an appearance of bias.

21

As Mr Ozin QC for the GMC reminded me, there is a very helpful passage in the joint judgment of Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C in Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451 at paragraph 25, which...

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    ...now so well known that the field has been overburdened with citation of authorities. I made similar observations in Kimmance v GMC [2016] EWHC 1808 (Admin). This case was no exception. That said, hidden among the many unnecessary authorities were a small number that I found useful. The prop......

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