Holmes and Others, R v General Medical Council and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE TUCKEY,LORD JUSTICE LAWS,Lord Justice Jonathan Parker,LORD JUSTICE JONATHAN PARKER,LORD JUSTICE KEENE,Lord Justice Keene |
| Judgment Date | 28 October 2002 |
| Neutral Citation | [2002] EWCA Civ 1838,[2001] EWCA Civ 1372 |
| Docket Number | C/2001/1056 C/2001/1056/C,C/2001/1056 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 October 2002 |
[2001] EWCA Civ 1372
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Administrative Court)
The Royal Courts of Justice
The Strand
London WC2A
Lord Justice Simon Brown
Lord Justice Tuckey
C/2001/1056
MISS MARY O'ROURKE (instructed by Le Brasseur J Tickle, 2nd Floor, West Block, Windsor House, Windsor Lane, Cardiff) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
Friday 20 July 2001
This seems to me to be a case in which permission to appeal should be granted. The essential basis upon which I understand the judge below to have quashed the decision of the Preliminary Proceeding Committee ("the PPC") of 9 September 1999 was because of the letter from the General Medical Council ("the GMC") to the claimant's solicitors dated 30 September 1999, the next to last paragraph of which could be thought to suggest that a doctor is not properly to be regarded as guilty of serious professional misconduct unless the conduct complained of would justify the permanent revocation of his licence to practice.
That, of course, is very far from the true position: a finding of serious professional misconduct may attract a variety of lesser penalties, such as temporary suspension or practice subject to fresh conditions of registration, or perhaps merely a reprimand. Is it really to be thought that all, or indeed any significant number, of the seven or so members of the PPC, mostly doctors, who reached this decision, sitting as they were with a well-qualified legal assessor, were labouring under so fundamental and absurd a misappreciation of the true position as the letter from the case-worker might appear to suggest? That forensic rhetorical question may perhaps be thought to embody the strength of the applicant's case.
I note what the judge below says in paragraph 54 of his judgment but, with the best will in the world, it seems to me that the contrary is at least properly, and perhaps strongly, arguable. Nor does paragraph 55 of the judgment appear to me to present a necessarily fatal obstacle to the applicant's success. It may be thought one thing for the GMC to have contemplated that this PPC made the same sort of mistake as to the correct approach to their task as was identified in the cases of Toth [2000] 1 WLR 2209 and Richards [2001] QBD 47 (that, however, is not here contended, or at least was not the basis for the decision below); quite another thing to suppose that the GMC thought that the PPC were in reality adopting the quite remarkable approach apparently suggested by the case-worker's letter.
Of course the appeal may fail. It has, however, in my view, at least a realistic prospect of success and, accordingly, it should be permitted to go ahead.
As footnote I add only that Miss O'Rourke very wisely has abandoned any thought of appealing simply against the order for costs below.
I agree.
ORDER: Application allowed. Costs in the appeal.
(Order not part of approved judgment)
[2002] EWCA Civ 1838
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE OUSELEY)
Lord Justice Laws
Lord Justice Jonathan Parker
Lord Justice Keene
C/2001/1056
C/2001/1056/B
C/2001/1056/C
MISS M O'ROURKE (instructed by Messrs RadcliffesLeBrasseur, Cardiff CF10 3BA) appeared on behalf of the Appellant/Interested Party
MR M SHAW QC (instructed by Messrs Field Fisher Waterhouse, London EC3N 2AA) Appeared on behalf of the First Respondent/GMC
MR M HUNT (instructed by Messrs Berwyn Davies & Co) appeared on behalf of the Second Respondent/Claimant
On this application we need not trouble other counsel. We will refuse the application and give reasons for that refusal in the course of our substantive judgments in due course.
( )
I will ask Lord Justice Jonathan Parker to give the first judgment.
This is an appeal by Dr Sengupta, an interested party in judicial review proceedings, against an order made by Ouseley J on 27 April 2001 quashing a decision of the Preliminary Proceedings Committee of the General Medical Council ("the PPC" and "the GMC" respectively) made on 9 September 1999 and promulgated on 30 September 1999. The PPC's decision was that a complaint by the claimants in the proceedings against Dr Sengupta should not be referred to the GMC's Professional Conduct Committee ("the PCC").
The claimants in the proceedings are Ms Carol Holmes and Mr and Mrs Derrick Revilo Dean, respectively the common law wife and the parents of Mr Derrick Marcus Dean, who died on 26 July 1995, aged 34. I will refer to the deceased as "Mr Dean". The defendant in the proceedings is the GMC. Joined as interested parties are Dr Sengupta and a Dr Rahman, both of whom attended Mr Dean shortly before his death. As I have indicated, only Dr Sengupta appeals.
For some 18 months before his death, Mr Dean had been suffering from very severe headaches, and had been prescribed medication for what was diagnosed as migraine. On 10 July 1995 he attended at his local hospital, where he underwent a series of tests. The hospital advised him to consult his general practitioner as soon as possible. On 24 July 1995 Mr Dean was seen by his general practitioner, Dr Rahman, at his surgery. Dr Rahman diagnosed migraine and prescribed different medication. The following day, 25 July 1995, Mr Dean's condition deteriorated. In the evening of that day Dr Sengupta was called to his home. Dr Sengupta also diagnosed Mr Dean as suffering from migraine, and asked him to attend his surgery the following morning. After Dr Sengupta had left, however, Mr Dean's condition deteriorated still further, and his sister drove him to the local hospital. Later that night he was transferred to the University Hospital of Wales in Cardiff, but he died during the journey. It is common ground that he died from a colloid cyst on the brain. The Death Certificate gave the cause of death as brain swelling due to obstruction, hydrocephalus, and cyst in the third ventricle.
In August 1995 Ms Holmes complained to the Mid Glamorgan Family Health Services Authority ("the FSA"), alleging that Dr Sengupta had breached his terms of service as a general practitioner. She later added a similar complaint against Dr Rahman.
In March 1996 the Medical Committee of the FSA concluded that Dr Sengupta had, but that Dr Rahman had not, breached his terms of service. Ms Holmes appealed against the Committee's decision in respect of Dr Rahman to the Secretary of State for Wales, who allowed the appeal and directed that the complaint against Dr Rahman be referred to the GMC.
In March 1998 Ms Holmes and Mr Dean's father started civil proceedings against Dr Rahman, Dr Sengupta and a third medical practitioner, claiming damages under the Fatal Accidents Act in respect of Mr Dean's death. These proceedings were eventually compromised in July 1999.
In the meantime, on 30 July 1998 the claimants requested the GMC to consider the complaint against Dr Sengupta, in addition to the complaint against Dr Rahman.
By letter dated 22 October 1999 addressed to the claimants' solicitors, Messrs Graeme John Solicitors, the GMC notified the claimants that it did not intend to take any action against Dr Rahman. The letter informed the claimants that a medical and a lay (i.e. non-medical) member of the GMC had considered the case against Dr Rahman and were satisfied that his actions were reasonable in the circumstances, and that they "did not feel that the errors made on this occasion constituted serious professional misconduct".
The complaint against Dr Sengupta was not treated in the same way as the complaint against Dr Rahman, since in Dr Sengupta's case the lay member of the GMC who initially considered the complaint took the view that it should be referred to the PPC (that being the next stage of the Council's investigative procedure in relation to complaints of serious professional misconduct, as I shall explain in a moment).
The PPC considered the complaint against Dr Sengupta at a meeting on 9 September 1999. The PPC consisted, on that occasion, of seven members of the GMC. Its Chairman was Dr Robin Steel. The Minute recording the PPC's decision in relation to Dr Sengupta reads as follows:
"W/L [i.e. a warning letter] on the basis that this is a single case, patient had been seen very recently in hospital, doctor offered review in 12 hours and condition difficult for GP to diagnose. But Ctte did not accept he'd carried out an adequate examination and also were critical of the fact that his assessment was not documented. Letter should also say Ctte reinforced decision of MSC [i.e. the Medical Services Committee of the FSA]."
On 30 September 1999 the GMC wrote to the claimants' solicitors and to Dr Sengupta notifying them of the PPC's decision. Both letters were signed by a careworker, Ms Samantha Anthony, of the Fitness to Practise Directorate of the GMC. I...
To continue reading
Request your trial
-
R H. v The GENERAL MEDICAL COUNCIL and INTERESTED PARTIES
... ... also seemingly approved by Jonathan Parker LJ, with whom Laws and Keene LJJ agreed, in R (Holmes) v GMC [2002] All ER (D) 412 , CA, at para 74 ... 32 Where the PPC decide not to refer ... Professor Hull also had the advantage of access to documents not seen by others, which caused him not to share those others' misgivings, as he put it." ... ...
-
Dr Ann David and The General Medical Council
...[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 Rich......
-
CIS 1599 2007
...unreliable, would not without more found a sustainable objection.” 13. In R (on the application of Holmes) v General Medical Council [2002] EWCA Civ 1838, [2002] 2 All ER 412, the Court of Appeal held, applying the Porter test, that the fact that a Lord Justice of Appeal had refused leave t......