R (Mahfouz) v General Medical Council

JurisdictionEngland & Wales
JudgeLord Justice Carnwath,Lord Justice Sedley,Lord Justice Waller
Judgment Date05 March 2004
Neutral Citation[2004] EWCA Civ 233
Docket NumberCase No: C1/2003/1551
CourtCourt of Appeal (Civil Division)
Date05 March 2004
Between
The Queen on the Application of Mahfouz
Appellant
and
The Professional Conduct Committee of the General Medical Council
Respondent

[2004] EWCA Civ 233

Before :

Lord Justice Waller

Lord Justice Sedley

Lord Justice Carnwath

Case No: C1/2003/1551

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE DAVIS

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand,

London, WC2A 2LL

Miss M O'Rourke (instructed by Mayer Brown Rowe & Maw) for the Appellant

Mr R Englehart, QC and Mr G Clarke (instructed by The General Medical Council) for the Respondent

Lord Justice Carnwath

Introduction

1

The appellant, Dr Fayez Mahfouz, is challenging a ruling of the Professional Conduct Committee ("the Committee") of the General Medical Council made at a hearing in June 2003 of charges against him. His complaint arises from the fact that four members of the PCC had seen, in newspapers published after the first day of the hearing, prejudicial material which would not otherwise have been in evidence before them. He submits that their failure to discharge themselves from further hearing the case meant that a fair hearing was no longer possible.

2

Dr Mahfouz practises in London as a cosmetic surgeon specialising in laser surgery. The charges against him relate to advice and treatment given by him in 2000 and 2001 to various patients. Typical is the following:

"That being registered under the Medical Act,

1. On a number of occasions between 6 June 2000 and 17 October 2001, [Mr R] consulted you about the removal of his tattoo.

a. You failed to make an adequate assessment of his condition,

b. You made inappropriate and inaccurate claims about the likely efficacy of the treatment,

c. You failed to provide him with sufficient pre-operative information to enable him to give properly informed consent,

d. You provided inadequate and inappropriate treatment,

e. You failed to provide adequate and/or appropriate post-operative care,

f. You failed to keep adequate records;"

There were similar charges relating to three other patients, arising from advice given in respect of cosmetic surgery in early 2000. A further head of charge arose out of advice given in December 2000 to a BBC reporter, Mr Kenyon, who for the purposes of an investigation pretended to be interested in receiving treatment, and made a video recording.

3

The charges were and are strongly denied by Dr Mahfouz. He accepts, of course, that it is in his own interests, and the interests of his patients, actual and potential, that the charges are resolved as soon as possible, subject to his right to a fair hearing.

4

Procedure before the Committee is governed by rules: the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 ("the Procedure rules"). There are also rules governing the functions of legal assessors: the General Medical Council (Legal Assessors) Rules 1980 ("the Legal Assessors rules").

5

In this case, the Committee comprised five members: two professionally qualified surgeons or doctors, and three lay members. It was advised by a legal assessor, an experienced QC. The General Medical Council was represented by Miss Plaschkes, and Dr Mahfouz by Miss O'Rourke, both of counsel. The hearing started on Monday, 9th June 2003, and was expected to take eight days. The first day proceeded normally. Two witnesses were called by the Council and cross-examined on behalf of Dr Mahfouz. A third had given evidence-in-chief, but had not been cross-examined.

The newspaper articles

6

The first article appeared on the evening of Monday, 9th June, in the Evening Standard (circulating in London). It had a prominent headline, and included a photograph of Dr Mahfouz. The headline read: "Harley Street surgeon's 'botched operations left women in agony'". There was an account of the first day's hearing and of the charges, to which no objection is taken. It also included the following statement:

"(Dr Mahfouz)… who has already been struck off once, is facing claims that he sweet-talked patients into signing up for expensive treatment which left their faces covered in burning sores."

The article concluded:

"Dr Mahfouz was struck off in 1987 when working as a GP's assistant and failed to refer a patient he knew to be in a critical condition to hospital. The hearing continues."

Although the facts of the 1987 "erasure" are not disputed, it is common ground that information about that event would not have been regarded as relevant or admissible at the PCC hearing, and would not otherwise have been referred to in evidence.

7

Similar statements appeared in two newspapers the following morning. The Metro newspaper, which is available free in the London area, also summarised the hearings. It made a reference to Dr Mahfouz having been "struck off once before", and contained the following statement:

"(Dr Mahfouz), who claimed to be the only man in Europe able to turn a black person white, was exposed by BBC investigative reporter Paul Kenyon, the General Medical Council was told."

Dr Mahfouz strongly denies having made any such claim, and that allegation did not form any part of the GMC case against him (although, as I have said, other aspects of the Kenyon investigation were the subject of the charges). Again, it would not otherwise have come to the attention of the Committee.

8

The other article appeared in the national Independent newspaper. It referred to the hearing, but added the following:

"Dr Abu Mahfouz was struck off the register in 1987 when he was working as a GP's assistant and failed to refer a patient he knew to be in a critical condition to hospital. The GMC accused him of a 'lamentable standard of professional care and attention'. He was reinstated 1992."

Again, the facts of the striking off and subsequent reinstatement are not in dispute, but they would not have been referred to at the hearing.

The application to discharge

9

When these articles came to the attention of Dr Mahfouz and his advisers, they made inquiries of the Committee through the legal assessor. They were informed that four members of the Committee had seen the Evening Standard article; one of those four had also seen the Independent article and another had seen the Metro article. They objected to the Committee continuing to hear the case. They indicated that they wished to apply for the Committee to discharge itself, so that a new Committee could be constituted, which it was anticipated would enable the hearing to be reopened in 3–4 months' time. This was resisted by the GMC. The hearing was adjourned until the following day (Wednesday 11 th June) to allow the parties time to prepare their submissions.

10

On that morning substantial written and oral arguments, supported by authorities, were presented to the Committee and the legal assessor. It seems to have been common ground that the most up-to-date authoritative guidance on the appropriate test was that of Lord Hope in Porter v Magill [2002] 2 AC 357 para 103:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased."

Following the oral argument, the legal assessor formulated two questions for the Committee, which were disclosed to the parties:

"Question 1

'In the circumstances of this case, would those circumstances lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased (consciously or unconsciously)?'

'Real' means 'not without substance'

Question 2

'Is there in fact a real possibility that the matters relied upon by the practitioner in his application could have a prejudicial effect on the minds of the Committee unconsciously and thus insidiously?'"

11

It seems that, in the course of their deliberations, the Committee raised a query about the meaning of the word "unconsciously" in the first question. The parties were recalled so that the legal assessor could explain his proposed advice, which was:

'…by the word 'unconsciously' in question one means 'prejudice having some play without the member or members concerned being aware of it.'"

12

Unfortunately this response led to further argument between counsel. Counsel for the GMC took the view that the words "consciously or unconsciously" should be deleted altogether; because they were not part of the test as laid down in the leading case of Porter v Magill, and would impose on the members "an impossible task… to try and work out if they are unconsciously aware of some bias…". However, the legal assessor confirmed his advice, but indicated that it would be open to the Committee to reject it, subject to giving reasons.

13

After further deliberation, the Committee recalled the parties again (at 5.17pm) to give their ruling and reasons, in the following terms:

"The Committee's first task was to decide the appropriate test or tests which should be applied in relation to the application. The Committee carefully considered the advice provided by the Legal Assessor and the submissions made by both Counsel. The Committee determined that the correct test to be applied is whether or not 'in the circumstances of this case, would those circumstances lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased?' The Committee felt that this test, as so formulated, should not be re-expressed or glossed in any way. In deciding on the appropriate test the Committee paid particular regard to the House of Lords case in Porter v Magill [2002] 2 AC 357 and Subramanian v The General...

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    ...that the FTPP might reasonably have considered it to be fair. This was not in dispute. This is made clear in the GMC context in Mahfouz, above, by Carnwath LJ: ‘19. In my view, however, the only question for the court is the first. Where it is alleged that a lower tribunal has acted in brea......
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