R v General Medical Council, ex parte Toth
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LIGHTMAN |
| Judgment Date | 23 June 2000 |
| Judgment citation (vLex) | [2000] EWHC J0623-6 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2226/98 |
| Date | 23 June 2000 |
[2000] EWHC J0623-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lightman
CO/2226/98
Mr Timothy Straker QC & Mr Clive Rawlings (Instructed by Messrs Russell-Cooke Potter & Chapman, 2 Putney Hill, Putney, London SW15 6AB) appeared on behalf of the Applicant.
Mr Mark Shaw (Instructed by Messrs Field Fisher Waterhouse, 35 Vine Street, London EC3N 2AA) appeared on behalf of the Respondent.
Miss Mary O'Rourke (Instructed by the Solicitor of The Medical Defence Union Ltd, 3 Devonshire Place, London W1N 2EA) appeared on behalf of Dr Jarman.
INTRODUCTION
This is an application by the applicant ("Mr Toth") for judicial review of two decisions ("the Decisions") of the respondent ("the GMC"), the first dated the 23rd March 1998 ("the First Decision") and the second dated the 23rd July 1998 ("the Second Decision"). Mr Toth made a complaint ("the Complaint") to the GMC against his general practitioner Dr Jarman. Under the rules governing the conduct of disciplinary proceedings by the GMC, the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order 1988 ("the Rules") made under the Medical Act 1983 ("the Act"), complaints against registered medical practitioners ("practitioners") have to go through and survive two filters or processes of examination before they are heard by the Professional Conduct Committee ("the PCC"). The first is examination by a member of the GMC, (colloquially and hereinafter referred to as a "screener") to decide whether the complaints "need not proceed further". If the screener does not so decide, the Preliminary Proceedings Committee ("the PPC") must then decide whether the complaints "ought to be referred for inquiry" to the PCC. Only if the PPC does so decide do the complaints then proceed before the PCC. By the Decisions the screener decided that the Complaint did not need to be investigated. By this application Mr Toth challenges the legality of the Decisions. Critical for this purpose is the statutory role of the screener. After these proceedings were commenced, the GMC recognised and accepted that the Decisions are bad in law and was agreeable that they should be quashed. But Dr Jarman, who is entitled as an interested party to address the Court on this application, though he accepts that the Decisions are bad in law, submits that the Court in its discretion should not quash the Decisions because to do so would be to inflict an injustice upon him. The first task before me is accordingly to decide whether in my discretion I should quash the Decisions. If I do decide to quash the Decisions, the Complaint must to go back to another screener. There are however continuing disputes between the parties as to the true construction of the Rules in two regards, namely the role of the screener and the power of the GMC to impose obligations of confidentiality on Mr Toth as a condition of supplying him with documents available to the screener. In order to reduce the risk of occurrence of any further error by the GMC in relation to the Complaint if I decide that the Decisions are to be quashed, my second task is to provide some guidance on these two areas of contention.
HISTORY
On the 9th October 1993 Wilfred, the five year old son of Mr Toth, who suffered from glycogen storage disease, became hypoglycaemic. Mr Toth called his doctor, Dr Jarman, and he made a home visit. The central complaint of Mr Toth is that he and his partner told Dr Jarman of Wilfred's condition and of his urgent need for intravenous glucose but that Dr Jarman failed promptly to realise (as he should have done) that Wilfred required intravenous glucose and instead treated him with sedative drugs. Dr Jarman denies that he was so informed by Mr Toth or his partner. Mr Toth alleges that his untreated condition led to the death of Wilfred on the 16th October 1993,
In January 1994 Mr Toth complained to the Family Health Services Authority ("FHSA") that by his conduct Dr Jarman had committed a breach of his terms of service as a general practitioner in the care provided to Wilfred. On the 5th March 1994 the FHSA conducted a full oral hearing at which both Mr Toth and Dr Jarman gave evidence. The FHSA found that Dr Jarman was in breach of the terms of service in failing to take account of Mr Toth's knowledge of Wilfred's condition, but no sanction was imposed. In January 1995 Mr Toth's solicitors wrote to Dr Jarman a letter before action threatening legal proceedings in respect of Wilfred's death and on the 8th October 1996 commenced proceedings in the County Court for damages under the Fatal Accidents Acts. (On the 7th January 1998 Dr Jarman paid �10,500 into Court in respect of this claim which Mr Toth accepted on the 27th February 1998). On the 14th October 1996 Mr Toth (in person) issued High Court proceedings against Dr Jarman claiming damages for pathological grief reaction resulting from Wilfred's death. (The High Court struck out this application as an abuse of process on the 14th April 1998). On the 25th July 1997 Mr Toth made the Complaint to the GMC alleging that in the care provided to Wilfred on the 9th October 1993 Dr Jarman had been guilty of serious professional misconduct. The GMC only notified Dr Jarman of the Complaint on the 22nd December 1997. Dr Jarman sent his comments on the Complaint to the GMC on the 27th January 1998. On the 23rd March 1998 the screener made the First Decision not to refer the Complaint to the PPC. He wrote to Mr Toth:
"There is a clear conflict of evidence between your version of events and that of Dr Jarman's on the [matter of disclosure of the need for intravenous glucose]. The standard of proof which the GMC works to, by law, is that of 'beyond reasonable doubt' � Therefore, unless you are able to provide further evidence of a legal standard � the members have concluded that there is no prospect of your allegations being proved to the required standard, and no further action can be taken."
The screener went on to say that Mr Toth could not be provided with copies of Dr Jarman's comments on the Complaint without Dr Jarman's consent, which he would seek. Dr Jarman was informed of the First Decision. On the 25th March 1998 Dr Jarman refused his consent to disclosure of his comments because of the two sets of proceedings commenced by Mr Toth against him. On the 10th June 1998 Mr Toth who was distraught at the Decisions, the attitude taken by the GMC and the pace of the investigation, filed his Notice of Application for permission to apply for judicial review in respect of the First Decision.
On the 23rd July 1998 the same screener, after considering further representations from Mr Toth, made the Second Decision reaffirming the First Decision that no question of serious professional misconduct arose. Again Dr Jarman was notified of this decision. Mr Toth amended his Notice of Application to challenge the Second Decision also. On the 28th August 1998, the President of the GMC wrote to Dr Jarman informing him of the judicial review proceedings and that after taking legal advice he was provisionally of the view that the GMC had not followed the correct procedures in reaching the Decisions and that they were legally flawed. Most particularly in respect of the First Decision it was not the role of the screener to resolve conflicts of evidence; and in respect of the Second Decision the screener had no jurisdiction to reconsider the Complaint after the First Decision had been made. (I may add that, as will be apparent when I turn to the Rules, the screener also had no jurisdiction to make the Second Decision because no lay member concurred in it). He added that he was minded that the GMC should consent to an order being made in the judicial review proceedings quashing the Decisions and directing that the Complaint be considered afresh by a different member (and lay member if necessary), but he invited Dr Jarman's observations before a decision was made.
On the 24th September 1998 Dr Jarman replied that it was not for him to comment on whether the GMC correctly followed its own procedures, but asked to be advised of the outcome of this unfortunate development as soon as possible. On the 19th November 1998 the President confirmed the conclusion provisionally expressed in the letter dated the 28th August 1998. On the 21st December 1998 Collins J on the papers granted permission to apply for judicial review stating: "It is difficult to understand how the assertion that there is a lack of evidence can be justified." The application thereafter proceeded. Dr Jarman intervened and evidence was served on behalf of Mr Toth, the GMC and Dr Jarman. The application was listed for hearing on the 2nd November 1999, but on the initiative of Mr Toth and with the consent of the GMC and Dr Jarman (and no doubt entirely sensibly) the hearing was adjourned to enable negotiations for settlement to take place. The matter was then relisted for hearing on the 14th June 2000. In principle terms have been agreed between Mr Toth and the GMC which include the making of a consent order quashing the Decisions and directing a reconsideration by a different screener, but (as I have indicated) certain questions remain between them relating to the construction of the Rules requiring resolution before the final terms can be formulated. Dr Jarman however, whilst acknowledging that the Decisions were legally flawed, maintains that the Court should not exercise its discretion to make any order because...
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