Paul William Miller v General Medical Council
| Jurisdiction | England & Wales |
| Judge | HH Judge Pelling |
| Judgment Date | 10 July 2013 |
| Neutral Citation | [2013] EWHC 1934 (Admin) |
| Date | 10 July 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4582/2013 |
[2013] EWHC 1934 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9 DJ
His Honour Judge Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/4582/2013
Ms Fiona Neale (instructed by Carson McDowell LLP) for the Claimant
Ms Eleanor Grey QC (instructed by GMC Legal) for the Defendant
Hearing dates: 2 nd July 2013
HH Judge Pelling QC:
Introduction
This is the hearing of what was to have been an oral renewal of an application to continue judicial review proceedings but which by agreement between the parties has been treated as the substantive hearing of the claim for judicial review. This course was agreed between the parties because all the relevant information was before the court and in the interests of saving time and costs. The willingness of the parties to adopt this course is to be commended. The decision challenged is a decision of a Fitness to Practise Panel ("FTPP") of the Medical Practitioners Tribunal Service (the judicial branch of the Defendant) that the whole of the FTPP hearing concerning the Claimant is to be held in private. The issue that arises is a short one concerning the circumstances in which it is lawful for a FTPP" to direct that a fitness to practise hearing should take place in private.
In the circumstances of this case it was ultimately agreed between the parties and I directed that the hearing before me should take place in private because a public hearing would defeat the purpose of the Defendant's order under challenge in the event that the challenge failed or might do so. It was agreed that a judgment should be delivered in public. I indicated that any material that I considered ought not to be disclosed would be contained in the confidential schedule to the judgment. Following circulation of this judgment in draft a disagreement has arisen concerning whether the material that provisionally I had set out in the Schedule ought to remain there. I have concluded that on balance it should. I have reached that conclusion because I am satisfied that the material in the judgment is sufficient to explain what I have decided and why and because there may be further applications to the FTPP concerning confidentiality that I would not wish to affect one way or the other by publishing information that might prejudice any such application. For the avoidance of doubt the Schedule is confidential to the parties and the court and is not to be published other than following a further order of the court.
It was suggested by Ms Grey after circulation of the judgment in draft that I ought to anonymise the name of the Claimant in these proceedings. This is opposed by the Claimant. In my judgment that is not either necessary or appropriate. It was not sought by the Defendant at any stage in these proceedings prior to the circulation of the draft judgment. It certainly was not the course adopted by the Defendant when publishing the public announcement of the decision (described in Paragraph 4 below) that is challenged in these proceedings.
Background
The Claimant is a consultant psychiatrist who is the subject of disciplinary proceedings which are to be heard before a FTPP in which he faces allegations by the regulatory arm of the Defendant ("GMC") that include allegations of financial impropriety made by a former patient known in these proceedings as "Patient A". No more detail concerning the nature of the allegations has been disclosed in the course of the proceedings before me. Both parties are content that I should resolve the issue that arises on that basis. Patient A is the principal witness against the Claimant. Patient A suffers from a mental health disorder that is currently in remission. The nature of that disorder is set out in the Schedule.
On the 16 th April 2013, the GMC applied for a direction pursuant to either Rule 36(2) or Rule 41(2) of the GMC (Fitness to Practise) Rules 2004 ("the Rules") that the whole of the disciplinary proceedings in relation to the Claimant be conducted in private. The FTPP granted the application under Rule 41(2) but refused the application under Rule 36(2). The only public announcement of that decision by the FTPP was in the following terms:
"The Panel determined that in accordance with Rule 41(2), this hearing will be held in private since the particular circumstances of the case outweigh the public interest in holding the hearing in public."
More details were given in a determination that was delivered in private ("the Private Determination"). The relevant parts of the private determination are set out or summarised in the Schedule to this judgment. In essence, Patient A has asserted that he is not prepared to give evidence unless the whole hearing is conducted in private, and Patient A apparently does not consider a direction that his name be anonymised to Patient A and that he could give evidence from behind a screen would be sufficient protection. None of this has been tested because Patient A did not give evidence at the hearing before the FTPP. There was no evidence before the FTPP that established an objectively reasonable foundation for the stance apparently adopted by Patient A and no such basis for it was asserted by the GMC at the hearing before the FTPP.
The FTPP concluded that the hearing ought to be in private because it considered that to refuse would probably result in Patient A not giving evidence at all and the Claimant's defence would not be prejudiced in any way by the hearing being conducted in private because his counsel could still cross examine and make submissions. Overall, the FTPP's view was that the particular circumstances of this case rendered it necessary to hold the hearing in private to achieve a fair hearing of the allegations, which as they put it in the Private Determination "… outweighs the public interest in holding the hearing in public…". The Claimant challenges that decision as wrong in principle at any rate on the material available to the FTP that decided the issue.
The Issues
In essence the issues that arise are (a) whether it was open to the FTPP to conclude that the GMC had established that Patient A had a sufficiently settled intention not to give evidence unless the whole of the FTP hearing concerning the Claimant was in private; and if it was (b) whether such a settled intention ought to lead to the conclusion that a hearing which would otherwise be in public should be directed to be heard entirely in private.
The Claimant's case is that (a) the GMC had not adduced any evidence proving a sufficiently settled intention; (b) even if that was wrong, the GMC had not adduced any evidence of an objectively reasonable foundation for that intention; and in consequence (c) the decision of the FTPP to direct that the whole of the FTP hearing concerning the Claimant was an impermissible derogation from the Claimant's right under Article 6 to a public hearing. The Defendant's position is that the FTPP was entitled to reach the conclusion it reached for the reasons that it gave because the consequence of not giving such a direction would be to prejudice the interests of justice because without such a direction Patient A would refuse to give evidence.
Legal Framework
Rule 41(1) of the Rules provides that " … hearings before … a FTP Panel shall be held in public …" subject to the discretion conferred by Rule 41(2) that a
"… FTP Panel may determine that the public shall be excluded from the proceedings or any part of the proceedings where they consider that the particular circumstances of the case outweigh the public interest in holding the hearing in public …"
It is common ground between the parties before me as it was before the FTPP that this discretion is to be read subject to ECHR Article 6. Article 6 reflects the general rule also to be found in domestic common law in relation to court hearings that the parties to a relevant proceeding are entitled to " … a public hearing …" The rationale for requiring hearings to be in public is the same whether the position is being considered from a Convention or common law perspective. It is because such a procedure:
"… deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors ort with one or more of the parties witnesses identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked …"
— see R v. Legal Aid Boardex parte Kaim Todner [1998] EWCA Civ 958 [1999] 1 QB 966.
However, neither the Convention nor the common law rule is absolute. Article 6 is subject to the qualification that:
"… the press and the public may be excluded from all or part of the trial in the interests of morals, public order, or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
Even where one of the Article 6 exceptions can in principle be relied on, the derogation from the general principle ought not to be more than is proportionate – that is the minimum derogation from the general principle necessary for the purpose of protecting the interest...
To continue reading
Request your trial