Phipps v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lady Justice Arden |
| Judgment Date | 12 April 2006 |
| Neutral Citation | [2006] EWCA Civ 397 |
| Docket Number | Case No: C1/2005/1711 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 April 2006 |
[2006] EWCA Civ 397
The President of The Family Division
Lady Justice Arden and
Lord Justice Wall
Case No: C1/2005/1711
IN THE SUPREME COURT OF JUDICAT
COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM QUEEN'S BENCH DIVISION—ADMINISTRATIVE CO
THE HONOURABLE MR JUSTICE NEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Pennock (instructed by Stachiw Bashir Green—Solicitors) for the Appellant
Dinah Rose (instructed by Field Fisher Waterhouse—Solicitors) for the Respondent
Introduction
Mr. Robert Phipps is a surgeon. He qualified as a doctor at the Welsh National School of Medicine in Cardiff in 1978, and in 1983 was elected a Fellow of the Royal College of Surgeons of Edinburgh. In about May 1990 he emigrated to New Zealand, and on 4 October 1990 took up a post as a consultant surgeon at the Dunedin Public Hospital. In 1998, he applied for and obtained a post as a consultant general surgeon with the Bradford Hospitals NHS Trust (the Bradford post) . He took up the Bradford post on 14 September 1998.
On 8 May 2003, the Professional Conduct Committee (PCC) of the General Medical Council (GMC) began a hearing in which Mr. Phipps was charged with serious professional misconduct. The hearing was protracted, and took place over a total of 35 days (albeit that some days were very much shorter than others) . The hearing did not conclude until 28 October 2004. The outcome was that the PCC found Mr. Phipps guilty of serious professional misconduct and suspended him from practice for a period of 12 months.
The essence of the charge which the PCC found established against Mr. Phipps was that he had applied for and obtained retrospective accreditation to enable him to qualify as a consultant surgeon in the National Health Service (NHS) by misrepresenting the length and nature of a number of the posts which he had held, thereby obtaining accreditation by illegitimate means. In particular, the PCC found that he had applied for and obtained the Bradford post in reliance on the illegitimately obtained accreditation. Both the PCC and the judge found that his application form and curriculum vitae (CV) contained a number of misrepresentations and omissions which were unprofessional and in some respects dishonest.
As was his right under section 40 of the Medical Act 1983 (as amended by section 30 of the National Health Service Reform and Health Care Professions Act 2002 and Article 13 of the Medical Act (Amendment) Order 2002 ( SI 2002, No. 3135) ) , Mr. Phipps appealed against the decision of the PCC to the High Court of Justice, where his appeal was heard in the Administrative Court by Newman J. After a hearing lasting a little more than 2 days (20 to 22 June 2005) the judge dismissed Mr. Phipps' appeal in a lengthy reserved judgment handed down on 21 July 2005.
Mr. Phipps now seeks this court's permission to appeal against Newman J's decision. On 5 October 2005, Laws LJ considered the application on paper, and adjourned it to an oral hearing on notice to the GMC with appeal to follow if permission to appeal was granted. The application duly came before this court on that basis on 2 March 2006. Both Mr. Phipps and the GMC were represented by counsel, respectively Mr. Ian Pennock and Miss Dinah Rose, each of whom had appeared before the judge.
It will be immediately apparent that Mr. Phipps' application for permission to appeal relates to a second appeal, and that section 55(1) of the Access to Justice Act 1999 (AJA 1999) applies. That sub-section reads as follows: -
"Where an appeal is made to …. the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that –
(a) the appeal would raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it."
Rule 52.13 of the Civil Procedure Rules 1998 (CPR) , which governs second appeals to this court, follows the statutory language and provides that this court will not give permission for a second appeal unless the application falls within the terms of AJA 1999, section 55(1) .
In my judgment, Mr. Phipps' application passes neither of the tests identified by AJA 1999, section 55(1) , and speaking for myself, I would refuse permission to appeal on that basis. However, I recognise that the success or failure of this application is a matter of considerable moment for Mr. Phipps, and I am equally conscious of the fact that on 2 March 2006, when we heard it, we not only allowed Mr. Pennock to develop all the arguments set out in the appellant's notice and his skeleton argument, but also listened to his very late application to amend the former to add two further grounds of appeal.
In these circumstances, and whilst remaining of the view that the application fails to satisfy either of the two limbs contained in AJA 1999 section 55(1) (a) or (b) , I have come to the conclusion that it is, nonetheless, appropriate also to examine Mr. Phipps' application on its merits, and to take the opportunity to comment, in particular, on the arguments advanced by Mr. Pennock in relation to the alleged failure of the GMC to give adequate reasons for its decision. Before doing so, however, I will set out, quite shortly, my reasons for concluding that this court should apply CPR r. 52.13 and refuse permission to appeal pursuant to that rule.
The case under AJA 1999 section 55(1) and CPR Rule 52.13
I have already set out the terms of the Statute and summarised CPR rule 52.13. For a decision on this part of the case, the relevant facts can be stated quite shortly, although I will need to revisit some of them in greater detail when considering the merits of the application.
In order to become a consultant surgeon in the NHS, a doctor has to obtain what is known as a Certificate of Higher Surgical Training (CHST) . That certificate is usually obtained by the doctor in question obtaining what is known as a career register (CR) number and completing five years' accredited training under a suitably qualified consultant or consultants. In the overwhelming majority of cases, the doctor's entitlement to the CHST is not in doubt. He or she, in accredited posts, will have done the requisite training over the requisite period with the appropriately qualified consultant or consultants in one or more NHS hospitals. It must, I think, be borne in mind throughout, that the need to obtain proper accreditation is an important matter, given the seniority of the posts to which it is the portal, and the need for the authorities regulating the medical profession to ensure that the public is protected by only properly qualified doctors attaining consultant status.
The unusual feature of Mr. Phipps' case is that he took an appointment as a consultant in New Zealand (where the rules were different) before he had obtained his CHST. It was thus in November 1992, whilst he was still in New Zealand, that he contacted the Chairman of the Joint Committee on Higher Surgical Training (JCHST) and asked if he could apply for retrospective accreditation.
As the judge explained, the detailed provisions relating to accreditation have, from time to time, been laid down by the JCHST, and have appeared, periodically, in reports made by the JCHST. The report governing the content and requirements of the scheme relevant to this application is the Fourth Report of the JCHST dated 1 January 1987. As the judge also explained, implementation of the scheme (and in particular the power to recommend accreditation in individual cases) depended significantly on related committees known as Specialist Advisory Committees (SACs) which, amongst other foundations advised the JCHST in relation to procedures for Higher Surgical Training.
From November 1992, there was correspondence between Mr. Phipps and the JCHST (to which I will refer in greater detail when dealing with the merits of the application) about the information which would be required from him in order to achieve retrospective accreditation. In due course, Mr. Phipps provided information on a record card, which listed the training posts he asserted he had held both as a Registrar and as a Senior Registrar. On the basis of this information, the SAC on 28 September 1993 recommended his accreditation to the JCHST, which accepted the recommendation, and shortly afterwards Mr. Phipps was accredited as a specialist with consultant status in the NHS by the Royal College of Surgeons in Edinburgh (RCSE) .
As I have already related, Mr Phipps applied for the Bradford post in April 1998 and took it up in September of the same year. However, in 2001, the RCSE withdrew his accreditation. That led to Mr. Phipps instituting proceedings for judicial review before the outer house of the Court of Session in Edinburgh, which in turn resulted in two opinions dated respectively 30 March 2005 and 17 June 2005 by Lord Drummond Young, both of which were placed before Newman J. As will be apparent, the issue for the court in what I will call the "Scottish" proceedings was whether the RCSE had acted reasonably in revoking Mr. Phipps' accreditation. On this question, Lord Drummond Young found for Mr. Phipps.
In the meantime, as I have already related, proceedings had been commenced against Mr. Phipps in England by the GMC. It will be immediately apparent from the date of the PCC's adjudication (28 October 2004) that its proceedings were concluded long before the...
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