R H. v The GENERAL MEDICAL COUNCIL and INTERESTED PARTIES

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE AULD
Judgment Date31 January 2006
Neutral Citation[2005] EWCA Civ 1520,[2006] EWCA Civ 364
Docket NumberC1/2004/2706,Case No: C1/2004/2706

COURT OF APPEAL

Before Lord Justice Auld, Lord Justice Sedley and Lord Justice Jonathan Parker

Henshall
and
General Medical Council
Medical complainants should not be denied sight of documents

THE RULES of General Medical Council's preliminary proceedings committee, set up to screen complaints before they reached the professional conduct committee, should not be interpreted so as to enable a medical practitioner to put in potentially contentious material in response to a complaint and deny sight of it to the complainant, since to do so could prevent a complainant whose claim was rejected without due process from finding that out.

The Court of Appeal so held allowing an appeal by Deborah Henshall from the dismissal by Mr Justice Pitchford of her claim for judicial review of a PPC decision on March 12, 2004, not to refer her complaints against Professor David Southall, Dr Martin Samuels and Dr Andrew Spencer to the PCC.

Rule 16 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules (SI 1988 No 2255) provides:

"Where the committee have decided not to refer a case for inquiry, no complainant, informant or practitioner shall have any right of access to any documents relating to the case submitted to the council by any other person, nor shall the committee be required by a complainant, informant or practitioner to state reasons for their decision."

Mr Philip Havers, QC, and Mr Ian Wise for Ms Henshall; Mr Mark Shaw, QC, for the General Medical Council; Mr Andrew Kennedy for Professor Southall, interested party; Miss Mary O'Rourke for Dr Samuels and Dr Spencer, interested parties.

LORD JUSTICE SEDLEY said the doctors had been involved in a clinical trial of continuous negative extrathoracic pressure ventilation for premature babies with breathing difficulties. Although the applicant had undertaken to keep his responses confidential, Professor Southall had refused to let her see them.

Rule 16 was most peculiar: one of its principal effects was to ensure that the author of a complaint which had been rejected without due process had no way of finding that out unless it appeared on the face of the decision letter.

Whoever drafted the rule appeared to have been unaware that the common law had always refused to countenance any such policy unless it was unequivocally mandated by Parliament.

His Lordship said not every document which came to the preliminary proceedings committee required disclosure. But that committee had wrongly derived from the wording of rule 16 a general inhibition which, by enabling a practitioner to put in potentially contentious material in response to a complaint and to deny sight of it to the complainant, was capable of stifling the individual's right to bring a tenable complaint to the attention of the professional conduct committee.

Somehow the preliminary proceedings committee had to operate rule 16 fairly.

Professor Southall's concerns about the complainant and her husband were capable of being met by undertakings. The committee should be reconstituted to consider the complaints afresh.

Lord Justice Jonathan Parker agreed and Lord Justice Auld gave a dissenting judgment.

[2005] EWCA Civ 1520

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE HONOURABLE MR JUSTICE PITCHFORD

Before

The Right Honourable Lord Justice Auld

The Right Honourable Lord Justice Sedley and

The Right Honourable Lord Justice Jonathan Parker

Case No: C1/2004/2706

CO/2856/2004

Between
Deborah Henshall
Appellant
and
The General Medical Council
Respondent
Professor David Southall
Interested Parties
Dr Andrew Spencer
Dr Martin Samuels

Mr Philip Havers QC and Mr Ian Wise (instructed by Irwin Mitchell) for the Appellant

Mr Mark Shaw QC (instructed by Field Fisher Waterhouse) for the Respondent

Mr Andrew Kennedy (instructed by Hempsons) for the 1 st Interested Party

Miss Mary O'Rourke (instructed by Radcliffes Le Brasseur & Co.) for the 2 nd and 3 rd Interested Parties

Lord Justice Auld

Lord Justice Auld

Introduction

1

This is an appeal and substantive hearing of an application by permission of Laws LJ of the appeal of Deborah Henshall against the refusal on 15 th December 2004 by Pitchford J. of her application to claim judicial review.

2

The application concerns complaints made by Mrs Henshall and her husband to the General Medical Council ("the GMC") against three doctors in 1997 alleging serious professional misconduct by them in 1992. At all material times the disciplinary procedures governing such complaints were contained in a statutory scheme prescribed by the Medical Act 1983 ("the 1983 Act") and the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 ("the 1988 Rules"). Under that scheme, there were two preliminary stages to the consideration of a complaint, an initial check by a GMC "screener", largely as to formalities, and a second, somewhat more rigorous check, by the Preliminary Proceedings Committee ("the PPC"), as to whether they ought to refer the complaint referred to them by the screener to the Professional Conduct Committee ("the PCC"), for determination of the complaint. In November 2004 that three tier scheme was replaced by a two tier scheme by the General Medical Council (Fitness to Practise) Rules Order of Council 2004 ("the 2004 Order"). Since the decision under challenge in this case was made in February 2004, the old, not the new, scheme, governs it.

3

Mrs Henshall challenges a decision of the PPC of 26 th February 2004, communicated to her and her husband by letter of 12 th March 2004, not to refer her complaints against three registered medical practitioners, Professor David Southall, Dr Martin Samuels and Dr Andrew Spencer to the PCC. If successful in that challenge she seeks referral of the matter straight to the PCC or remittal to the PPC or its nearest successor under the GMC's new statutory scheme.

4

In the early 1990s those doctors had been involved in a clinical trial of a treatment for premature babies with breathing difficulties at the North Staffordshire Maternity Hospital in Stoke ("the Hospital"). The treatment was known as Continuous Negative Extrathorasic Pressure Ventilation or 'CNEP'. Mrs Henshall had two premature babies both of whom were included in the CNEP trial. The first, Stacey, died 60 hours after her birth and the second, Sofie, was subsequently found to have cerebral palsy.

5

Mrs Henshall complains about the integrity of the CNEP trial, which was designed and established by Professor Southall and Dr Martin Samuels, and about the supervision and conduct of it at the hospital, for which Dr Spencer was responsible. She and her husband first complained in 1997, but the PPC did not make its decision until, as I have said, early 2004. In summary, the PPC concluded: 1) that the majority of the complaints were unsupported by any evidence; 2) that the remainder had some evidential support, but insufficient to indicate a real prospect of establishing them factually or of the emergence of further sufficient evidence to do so; and/or 3) that, such allegations that might be provable by existing or further evidence had no real prospect of amounting to serious professional misconduct.

The issues

6

The application raises the following issues:

i) whether the PPC identified and applied the correct legal test in deciding not to refer Mr and Mrs Henshall's complaints to the PCC;

ii) whether the PPC wrongly declined to disclose to Mr and Mrs Henshall written responses to their complaints of Professor Southall communicated to the PPC; and

iii) whether the PPC wrongly relied in reaching its decision on an article in the British Medical Journal ("BMJ") by Dr Edmund Hey and Sir Iain Chalmers (" the Hey & Chalmers Article"), highly critical of a report commissioned by the NHS Executive by a panel headed by Professor Rob Griffiths ("the Griffiths Report").

The facts

7

In 1992 Mrs Henshall gave birth to her two daughters, Stacey and Sofie, at the North Staffordshire Royal Infirmary, Stacy on 12 th February 1992, and Sofie, on 14 th December 1992.

8

Both babies were born prematurely and received CNEP treatment as part of the clinical trial designed and overseen by Professor Southall, a consultant paediatrician. Dr Samuels, also a consultant paediatrician, had worked with Professor Southall on a protocol for the trial. Dr Spencer was the consultant paediatricial/neonatologist with clinical responsibility for children recruited to the CNEP trial in North Staffordshire and was also lead researcher at the North Staffordshire Maternity Hospital. The trial had been put before and approved by the local ethics committee.

9

Mr and Mrs Henshall claimed not to have known that their daughters had been given CNEP treatment until told a long time afterwards, in December 1996. As a result of that information, in May 1997 they complained to the GMC about the three doctors' involvement in and/or conduct of the trial treatment, alleging, in each case, serious professional misconduct. They maintained that the doctors should not have undertaken it, that they and other parents whose babies had been similarly treated had not had an opportunity to make an informed choice about it, in particular, they had not been told of the risks associated with it.

10

Mr and Mrs Henshall's complaints, which have been helpfully summarised by Mr Mark Shaw QC, counsel for the GMC, and Mr Andrew Kennedy, for Professor Southall, consisted of the following:

1) deception of the local ethics...

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