General Medical Council v R (Zia)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Tomlinson |
| Judgment Date | 18 May 2011 |
| Neutral Citation | [2011] EWCA Civ 743 |
| Docket Number | Case No: C1/2010/2915 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 2011 |
[2011] EWCA Civ 743
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE GILBART QC
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lord Justice Jackson
and
Lord Justice Tomlinson
Case No: C1/2010/2915
Ms Catherine Callaghan (instructed by Messrs Laurence Lupin) appeared on behalf of the Appellant.
The Respondent appears in person.
This judgment is in four parts, namely:
Part 1 Introduction,
Part 2 The Facts,
Part 3 The Present Proceedings,
Part 4 The Appeal to the Court of Appeal.
This is an appeal by the General Medical Council against an order of the High Court quashing a direction made by the Fitness to Practice Panel of the General Medical Council. The respondent to this appeal is Dr Said Ahmed Zia.
In this judgment I shall refer to the appellant as "GMC". I shall refer to the respondent as "Dr Zia". I shall refer to the Medical Act 1983 as "the 1983 Act". I shall refer to the rules set out in the schedule to the General Medical Council (Fitness to Practice) Rules Order of Council 2004 as "the 2004 Rules" or "the Rules". I shall refer to the Fitness to Practice Panel as "the panel". I shall refer to the Interim Orders Panel of the GMC as "the IOP". The Investigation Committee of the GMC is referred to in the 1983 Act as "the Investigation Committee"; it is referred to in the 2004 Rules as "the Committee". To avoid confusion I shall refer to this body as "the investigation Committee".
I must next set out the relevant statutory provisions. Section 1 of the 1983 Act provides for the continuation of the existence of the General Medical Council. Section 1(1A) provides:
"The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public"
Section 1(3) of the 1983 Act provides that the GMC shall have a number of committees, including one or more IOPs, the Investigation Committee and one or more panels.
Section 35C of the 1983 Act provides:
"(1) This section applies where an allegation is made to the General Council against —
(a) a fully registered person; or
(b) a person who is provisionally registered,
that his fitness to practise is impaired.
(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of —
(a) misconduct;
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.
(3) This section is not prevented from applying because the allegation is based on a matter alleged to have occurred —
(a) outside the United Kingdom, or
(b) at a time when the person was not registered;
(4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel.
(5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel —
(a) they shall give a direction to that effect to the Registrar;
(b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and
(c) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any).
(6) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, they may give a warning to the person who is the subject of the allegation regarding his future conduct or performance.
(7) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, but that no warning should be given under subsection (6) above —
(a) they shall give a direction to that effect to the Registrar; and
(b) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any).
(8) If the Investigation Committee are of the opinion that an Interim Orders Panel or a Fitness to Practise Panel should consider making an order for interim suspension or interim conditional registration under section 41A below in relation to the person who is the subject of the allegation —
(a) they shall give a direction to that effect to the Registrar;
(b) the Registrar shall refer the matter to an Interim Orders Panel or a Fitness to Practise Panel for the Panel to decide whether to make such an order; and
(c) the Registrar shall serve notification of the decision on the person who is the subject of the allegation and the person making the allegation (if any)."
Section 35CC of the 1983 Act provides:
"(1) Rules under paragraph 1 of Schedule 4 to this Act may make provision for —
(a) the Registrar; or
(b) any other officer of the General Council,
to exercise the functions of the Investigation Committee under section 35C above, whether generally or in relation to such classes of case as may be specified in the rules.
(2) Where, by virtue of subsection (1) above, rules provide for the Registrar to exercise the functions of the Investigation Committee under subsections (5), (7) and (8) of section 35C above, those subsections shall apply in relation to him as if paragraph (a) in each of them were omitted."
Section 40 of the 1983 Act provides that appeals against the panel's decision lie to the High Court.
The 2004 Rules regulate the procedure for the investigation and resolution of allegations against medical practitioners. Rule 3 of the 2004 Rules provides:
"(1) The Registrar may appoint —
(a) a panel of medical and lay performance assessors for the purposes of carrying out performance assessments in accordance with Schedule 1; and
(b) a panel of medical examiners for the purposes of carrying out health assessments in accordance with Schedule 2.
(2) The Registrar may appoint —
(a) a panel of specialist health advisers for the purposes of advising a FTP Panel in relation to medical issues regarding a practitioner's health which may arise at a hearing before the FTP Panel; and
(b) a panel of specialist performance advisers for the purposes of advising a FTP Panel in relation to medical issues regarding a practitioner's performance which may arise at a hearing before the FTP Panel."
Rule 4 of the 2004 Rules provides:
"(1) An allegation shall initially be considered by the Registrar.
(2) Subject to paragraph (5) and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.
(3) Where —
(a) the Registrar considers that an allegation does not fall within section 35C(2) of the Act; or
(b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed, or
(c) the Registrar considers that an allegation should not proceed on grounds that it is vexatious,
he shall notify the practitioner and the maker of the allegation (if any) accordingly.
(4) The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of —
(a) whether or not the allegation falls within section 35C(2) of the Act;
(b) the practitioner's fitness to practise; or
(c) the matters outlined within paragraph (5) below.
(5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed."
Rule 6 of the 2004 Rules provides:
"If, at any stage, the Registrar is of the opinion that an Interim Orders Panel should consider making an interim order in relation to a practitioner, he shall refer the allegation to an Interim Orders Panel accordingly."
Rule 7 of the 2004 Rules provides:
"(1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner—
(a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired;
(b) providing him with copies of any documents received by the General Council in support of the allegation;
(c) inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and
(d) informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment.
(2) The Registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8.
(3) The Registrar may direct that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2...
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