General Medical Council v British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH |
| Judgment Date | 10 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0610-9 |
| Docket Number | QBENF 98/0648 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 June 1998 |
[1998] EWCA Civ J0610-9
Lord Justice Stuart-Smith
Lord Justice Aldous
Lord Justice Robert Walker
QBENF 98/0648
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (MR JUSTICE PENRY-DAVEY)
Royal Courts of Justice
Strand
London W2A 21L
MR ROGER HENDERSON QC and MISS ROSALIND FOSTER (instructed by Messrs Field Fisher Waterhouse, London EC3N 2AA) appeared on behalf of the Appellant (Plaintiff).
MR MANUEL BARCA (instructed by The Legal Department, British Broadcasting Corporation) appeared on behalf of the Respondent (Defendant).
This is the judgment of the court prepared by Robert Walker LJ on an appeal by the General Medical Council (the GMC) from an order of Penry-Davey J. dismissing the GMC's application for an injunction against the British Broadcasting Corporation (the BBC) and also dismissing the GMC's application for a declaration that its Professional Conduct Committee (the PCC) is a court within the meaning of the Contempt of Court Act 1981 (the 1981 Act). The Judge began to hear these applications on Friday 22 May and in view of their urgency he gave judgment on Saturday 23 May. Although he dismissed both applications he gave leave to appeal.
The GMC sought an injunction to postpone (not, it must be noted, to prohibit indefinitely) the transmission on BBC television's current affairs programme, Panorama, of film expected to contain controversial interviews and comment. The film relates to disciplinary proceedings in which the PCC is hearing complaints against three doctors. One is the former chief executive of the United Bristol Healthcare NHS Trust (the UBHT) and the other two were surgeons working at the Bristol Royal Infirmary in the field of paediatric cardiac surgery. The complaints against the doctors are based on what are said to be exceptionally poor rates of mortality and morbidity (including brain damage) among babies and young children undergoing cardiac surgery at the Bristol Royal Infirmary.
In an affidavit in support of the GMC's applications Mr Tom Rider, a partner in the solicitors acting for the GMC, has deposed in relation to the disciplinary inquiry that it
"has already been, by a very long way, the most lengthy, complex and taxing ever conducted by the PCC. It has also inflamed passions like no other inquiry. Tension has been running high outside and inside the inquiry".
Mr Rider then referred to various incidents which appear to bear out his general comments.
Mr Rider also referred to the proposed Panorama transmission and deposed to his belief
"that the programme will focus at least on the allegation that the scope of the inquiry has been too narrowly drawn. It will, therefore, be critical of the inquiry and will go beyond a factual report of what has happened in the inquiry so far. It is reasonable to assume that it will deal with matters which have been deliberately excluded from the inquiry. This runs a real risk of prejudicing the integrity of the inquiry".
The BBC has not sought to put in any affidavit evidence disputing this prediction as to the programme's content. The BBC has in recent correspondence been chary of giving any definite indication of when the programme is scheduled for transmission, but in the course of the hearing in this court its counsel, Mr Manuel Barca, invited the court to assume that it would probably be transmitted on Monday 1 June.
It will be convenient, before any more detailed description of the course of the hearing before the PCC, to outline the statutory framework of primary and secondary legislation within which the GMC, and in particular its PCC, operate. The body now known as the General Medical Council was first established (under a longer name) by the Medical Act 1858. It is now established as a body corporate by s.1 of the Medical Act 1983 (the 1983 Act). S.1(3) of the 1983 Act provides for the establishment of various statutory committees including the Preliminary Proceedings Committee (the PPC) and the PCC. The PPC acts (under s.42 of the 1983 Act) as a screen or filter deciding what complaints should go forward to a full hearing before the PCC, and how charges should be framed; it also has powers of interim suspension from registration, and of interim directions for conditional registration.
The main disciplinary tribunal is the PCC, which has power (under s.36 of the 1983 Act) to erase the registration of a fully-registered medical practitioner, or to suspend a practitioner's registration, or to make registration subject to conditions. These powers may be exercised only if the practitioner has been convicted in the British Isles of a criminal offence, or is judged by the PCC to have been guilty of serious professional misconduct. The three doctors concerned in this case are charged with serious professional misconduct.
A decision of the PCC under s.36 adverse to the practitioner may by s.40 be made the subject of an appeal to the Privy Council. This appeal is not limited to questions of law and is by s.40(6) to be the subject to the Judicial Committee Act 1833 as it applies in relation to any court from which an appeal lies to Her Majesty in Council. Schedule 1 to the 1983 Act provides for the constitution of the GMC and its statutory committees. Schedule 4 provides for the procedure to be followed by the committees, supplemented by the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 (the 1988 Rules) and the General Medical Council (Legal Assessors) Rules 1980. Mr Roger Henderson Q.C. (appearing with Miss Rosalind Foster for the GMC) took the court through these procedural requirements in some detail and made good his general submission that they mirror many of the procedural requirements of the High Court and other courts. The PCC (consisting of a president who is a doctor, four other doctors and two laypersons appointed by the Privy Counci1) have the assistance of a legally qualified assessor to advise them on questions of law. The PCC normally sits in public (Mr Henderson emphasised that exceptions to its sitting in public are in practice very rare). The parties are entitled to be heard and to be represented by solicitors and counsel. Evidence is given on oath. Witnesses can be summoned and documents called for. The PCC cannot award costs and is not under a duty to give reasons.
Mr Henderson called particular attention to Rules 27 and 28 of the 1988 Rules and explained how the procedure which they prescribe has been followed in this case. Rule 27(1) lays down in some detail the procedure to be followed down to the stage at which the PCC goes into private session in order to consider and determine (in the words of Rule 27(2)),
"(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 conduct, and shall record their findings".
The procedure detailed in Rule 27(1) is comparable to that in a criminal trial in that it provides for the practitioner to be asked whether he admits any of the facts alleged in the charges; the case against the practitioner is opened and evidence is called in support of it; the practitioner may submit that there is no case to answer; subject to any submission the proceedings continue with the practitioner's evidence, evidence in rebuttal (if permitted), and closing speeches.
In the present proceedings the procedure under Rule 27(1) has occupied 64 days, with 38 witnesses called by the GMC. The defence evidence has occupied 27 days. The closing speeches were concluded on Friday 22 May and on the same day the legal assessor advised the PCC on points of law which had arisen. The PCC then went into private session to deliberate as required by Rule 27(2). Unless all three doctors are at that stage acquitted on all charges, the procedure prescribed by Rule 28 will then have to be followed. Rule 28 provides as follows,
"(1) Where, in proceedings under Rule 27, the [PCC] 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 [PCC] 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 [PCC] by way of mitigation and to adduce evidence as aforesaid."
After the completion of that stage the PCC may then record and announce a finding of serious professional misconduct (Rule 30) and in that event the PCC may either postpone or proceed at once to a determination (Rules 31 to 33). These rules refer expressly both to the protection of members of the public and to what is in the interests of the practitioner. Even without those express references, it would be clear that the protection of the public is of central importance to the functions of the PCC.
The legal representatives acting for the three doctors have indicated that all of them may wish to call further evidence if the matter proceeds to the Rule 28 stage. One at...
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