Holmes and Others, R v General Medical Council and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 27 April 2001 |
| Neutral Citation | [2001] EWHC 321 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2001 |
| Docket Number | CO/3933/2000 |
[2001] EWHC 321 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London WC2
Mr Justice Ouseley
CO/3933/2000
The Queen on the Application of
MR M HUNT & MR C GEARTY (instructed by Graham John with Berwyn Davies and Co, Ceffyl Gwyn Chambers, 3 Victoria Square, Aberdare, Rhondda Cynon Taff CF44 7LA) appeared on behalf of the claimants
MR M SHAW (instructed by Field Fisher Waterhouse, 35 Vine Street, London, EC3N 2AA) appeared on behalf of the defendant
MISS M O'ROURKE (instructed by Le Brasseur J Tickle, 2nd Floor, Windsor House, Windsor Lane, Cardiff, CF10 3DE) appeared on behalf of the interested parties
The claimants are the common law wife and the parents of Derrick Dean who died aged 34 on 26th July 1995 from a coloid cyst on his brain. On 24th July 1995 Derrick Dean had seen Dr Rahman, one of the interested persons in these judicial review proceedings, in his surgery. The next day he had been seen by Dr Sengupta, the other interested person, at his home in the evening, from where he was taken to hospital and where next day he died.
In August 1995 the first claimant complained to the Family Health Services Authority in respect of Dr Sengupta, alleging that he had breached his terms of service as a general practitioner within the NHS. A complaint was added later against Dr Rahman.
In March 1996 the Medical Services Committee of the FHSA concluded that Dr Rahman had not breached his terms of service but that Dr Sengupta had. In June 1998 the Secretary of State for Wales notified the first claimant that he had allowed an appeal against the decision of the Medical Services Committee in respect of Dr Rahman, concluding that he too had breached his terms of service. The Secretary of State also directed that Dr Rahman's case be referred to the GMC, the defendant in these proceedings.
In March 1998 the first and second claimants commenced county court proceedings under the Fatal Accidents Act against three doctors including the two interested persons, recognising in those proceedings that the treatment of Derrick Dean by the two interested persons was not causative of his death. Those proceedings were compromised in July 1999.
On 30th June 1998 the claimants asked the GMC to consider the conduct of Dr Sengupta as they would also be considering the conduct of Dr Rahman. At some point between January and March of 1999 the complaint referred to the GMC in respect of Dr Rahman was considered by the preliminary process of screening under the GMC's Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988. Three screeners, which included a lay member, decided that that complaint should not proceed to the stage of consideration by the Preliminary Procedure Committee (“PPC”).
On 22nd October 1999 this decision was communicated to the claimants. It was not communicated to Dr Rahman until 29th December 1999. There is no letter in evidence communicating the decision to the complainant Secretary of State for Wales. At some unknown date he was somehow informed of the result.
The complaint by the claimants against Dr Sengupta proceeded a little differently because the lay member of the screening panel did not agree that it should not proceed to the PPC. Accordingly, it was considered by the PPC which, on 9th September 1999, decided that the complaint should not proceed to the Professional Conduct Committee (“PCC”).
On 30th September 1999 letters in different terms were sent to the claimants and Dr Sengupta informing them of that decision. There then followed some attempts by the claimants, through solicitors, by telephone and correspondence to obtain the minutes of the relevant decision making bodies until, on 28th July 2000, with profuse apologies, the GMC wrote saying that the minutes of the PPC were not disclosable.
On 26th October 2000 the claimants lodged judicial review proceedings, challenging, first, the GMC's refusal to give reasons as contained in its letter of 28th July 2000, and, secondly, the decisions of the screeners in respect of Dr Rahman as communicated to the claimants in the letter of 22nd October 1999, and of the PPC in respect of Dr Sengupta communicated to the claimants in the letter of 30th September 1999.
The basis of the challenge was that the refusal to give reasons was procedurally unfair, that the rules relied on contravened the European Convention on Human Rights and that the decisions were, in any event, perverse. No application for any extension of time is included in the relevant box at section 9 of the JR form N461 and the document records that no other applications are being made. Whilst the statement of grounds refers, in paragraphs 7 to 9, to the decisions of September and October 1999 as being part of those challenged, paragraph 16 of the grounds also says that the case is being brought within time and expeditiously.
Grounds of opposition were filed and served by the defendant and interested parties. On 5th December 2000 Rafferty J granted permission to proceed with the claim making no other comment or order than “Permission granted”.
On 21st December 2000 the GMC's solicitor informed the solicitors for the interested parties that it was minded to concede the claim not because of any merits in the claim as formulated, but because of an entirely different point, which would inevitably have been raised at the substantive hearing, concerning the lawfulness of the approach in fact adopted by the screeners and the PPC.
The interested parties objected and themselves sought to obtain further information as to the test which those bodies had actually applied in reaching their decision, but on 25th January 2001 the GMC's solicitors wrote to the claimants' and the interested parties' solicitors saying that they were going to agree to the quashing of the decisions on the basis that the wrong test had been applied. The claimants naturally agreed to that course. The draft consent order was drawn up covering all parties but, consistently with their earlier stance, the interested parties were not prepared to sign.
Accordingly, the proceedings before this court have taken an unusual form. The defendant, through Mr Shaw, has argued that its decision should be quashed, abandoning also its erstwhile delay arguments, and the claimant, through Mr Hunt, has adopted those submissions, though he has responded fully to the arguments on delay and prejudice put forward by the interested parties. Miss O'Rourke, for the interested parties, submitted that the decisions were taken following the correct approach and, in any event, that relief should not be granted because there had been undue delay and prejudice from which the interested parties would suffer. The dispute over the approach was not so much over what the correct approach was, but whether that approach had in fact been followed.
Legislative framework
The Medical Act 1983 section 36(1)(b) provides:
“Where a fully registered person —…
(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not;
the Committee may, if they think fit, direct -
(i) that his name shall be erased from the register;
(ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests.”
Section 42(1) provides that:
“The Preliminary Proceedings Committee shall have the functions assigned to them by this section.”
Section 42(2) provides:
“It shall be the duty of the Committee to decide whether any case referred to them for consideration in which a practitioner is alleged to be liable to have his name erased under section 36 above or his registration suspended or made subject to conditions under section 36 or 37 above ought to be referred for inquiry by the Professional Conduct Committee or the Health Committee.”
The General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 no. 2255 deal with procedures to be adopted in respect of matters such as this. Rule 4 provides that no case shall be considered by the PPC unless it has, in effect, first passed through the screening process; that is to say, consideration by a medical member of the Council appointed under rule 4(1).
Rule 6(1) deals with the registrar and provides that:
“Where a complaint … 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 the President.”
Rule 6(3) provides that:
“Subject to rule 6(4), unless it appears to the President that the matter need not proceed further he shall direct the Registrar to write to the practitioner.
(a) notifying him of the receipt of a complaint or information and stating the matters which appear to raise a question whether the practitioner has committed serious professional misconduct.”
That is the rule that deals with screening. Rule 6(4) provides that:
“Where it appears to the...
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