R v General Medical Council, ex parte Kypros Nicolaides
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TUCKER |
| Judgment Date | 27 July 2001 |
| Neutral Citation | [2001] EWHC 625 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 July 2001 |
| Docket Number | NO: CO/745/2001 |
[2001] EWHC 625 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Sir Richard Tucker
NO: CO/745/2001
The Queen on the Application of
MR ROBERT FRANCIS QC and MARY O'ROURKE (instructed by Winkworth Sherwood) appeared on behalf of the Applicant
MR MARK SHAW (instructed by Field Fisher Waterhouse, 35 Vine Street, London EC3N 2AA) appeared on behalf of the Respondent
The claimant Kypros Nicolaides is a professor and consultant in obstetrics of international repute. Unfortunately, he became the object of two separate complaints of improper physical and verbal behaviour. The first complaint related to the claimant's conduct towards a patient and the woman's friend who accompanied her on 10th September 1996. The second related to the claimant's' conduct towards his secretary and personal assistant during January of 1998. This second complaint which was of sexual harassment was investigated by a panel set up by Kings College London in February 1998, and was dismissed.
The first complaint gave rise to a charge of serious professional misconduct against the claimant, resulting in his appearance before the General Medical Council's Professional Conduct Committee (“the PCC”) on 12th and 13th May 1998. This has been referred to as the first disciplinary hearing. The outcome of it was that this charge too was dismissed.
However, in the course of this hearing the claimant gave oral evidence upon oath. While doing so the claimant was asked questions by his counsel, to which he gave certain answers. A transcript of part of that evidence has been obtained. The claimant does not accept that it is accurate. Nevertheless, it has been regarded as being so by a subsequent committee and for the purposes of the present application I, too, accept it as an accurate account of what was said. The material passages are recorded as follows:
“Q. Have you ever had against you in all your professional life any allegation of sexual familiarity?
A. No, none.
Q. Or any complaint—-
A. No.
Q. ——of a sexual nature whatsoever?
A. No.
Q. And just remind me – you may have said it – how – many patients a year do you treat?
A. About 10,000.
Q. Are they all women?
A. Yes.”
On the face of it, and in the light of what I call the second complaint, these answers were untrue.
The matter was investigated by the GMC and was referred to the Crown Prosecution Service with a view to criminal proceedings being commenced against the claimant for perjury. The CPS took the advice of treasury counsel who was the opinion that there was insufficient evidence for a realistic prospect of conviction.
However, the Preliminary Proceedings Committee of the GMC determined that a charge should be formulated against the claimant. In due course the claimant was notified by the GMC that an inquiry was to be held into a charge that he had been guilty of serious professional misconduct.
Between 29th November and 1st December 2000, the PCC conducted an inquiry into this charge (the second disciplinary hearing). The claimant contested the charge. He contended that he had been asked and only intended his answer to relate to any allegations of sexual familiarity relating to his patients; that his answers were true and accurate-and that he had had no intention to mislead or deceive the PCC at the first disciplinary hearing.
The PCC at the second hearing rejected this defence. The panel found that the claimant had given a patently incorrect answer under oath. They held that his conduct had fallen seriously short of the standard properly demanded of the medical profession. They judged him to have been guilty of serious professional misconduct.
As to penalty, the panel said they did not consider that it would be in the overall public interest to deny access to the claimant's services to patients. But they issued what they described as the severest of reprimands. The panel recognised that this would have profound implications on the claimant on his standing with in the profession and have a devastating effect on him personally. Nevertheless, it is important to note that the claimant's registration, and therefore his right to practise, was not affected.
The claimant considers that he was wrongly convicted and is deeply concerned both by the fact that he has no appeal against the decision and by its effect on his national and international repute within the profession. Let it be said there is no reflection on his professional competence or ability, and that should be noted.
The matter now comes before me on an application for judicial review. The decision under attack is limited to that made on 29th November 2000, that the hearing should proceed despite objection raised on behalf of the claimant of breach of the rules of natural justice and failure to comply with article 6 of the Europe Convention. The challenge is not to the established scheme whereby the PCC was set up, but to the case against the claimant essentially being an abuse of process because of lack of independence and impartiality in the specific circumstances of the case. It is submitted that the circumstances here are exceptional. What was involved was an allegation of conduct committed in the face of the committee conducting the first disciplinary hearing brought by the GMC from which body the members of the committees conducting both hearings were recruited. Moreover, it is contended that evidence was necessarily obtained and given by officials of the GMC and that in effect this was a charge brought before the PCC by its own committee.
Mr Francis QC, on behalf of the claimant, has been at pains to point out both to the second disciplinary hearing and before me, that neither he nor the claimant suggests that any member of that committee had any personal bias against the claimant or had personally behaved in any improper way. It is not actual but apparent bias that is complained of. Mr Francis submits that in the circumstances there is a potential for unconscious pressure. He describes bias as being insidious and unconscious.
It is submitted that I should first look at the decision-making body itself and ask whether there is any reason to doubt its impartiality or independence, and then, second, if there are concerns about that, ask whether they are remitted by an appeal process to a court able to address the issue.
As to the first matter, my attention has been drawn to the provisions of the Medical Act 1983 which provide for continuation of the corporate body known as the GMC and for committees of that council, including the Preliminary Proceedings Committee and the Professional Conduct Committee. Under Schedule 1 of that Act both committees shall be constituted as provided by the General Council by rules under the relevant paragraphs.
The General Medical Council (Constitution of Fitness to Practise Committees) Rules Order of Council 1996 provide by rule 4 that the PCC shall consist of thirty members who shall comprise (a) the President, (b) two members of the Council appointed by the President and (c) twenty-seven other members who shall be elected by the Council so that the total membership comprises sixteen elected members, seven appointed members and seven lay members. The quorum shall be five and include at least one lay member.
The committee which conducted the second disciplinary hearing included three lay members. Mr Francis points out that the president appoints the chairman of the committee, if he does not take a chair himself, that other members are appointed by the committee that they all share membership of the council, and that by standing orders the President's advisory committee includes the chairman of the PCC.
The chairman at the second disciplinary hearing was Professor Richards, from whom I have a witness statement. He says that the GMC did not influence the process by which people came to be members of the PCC, that no member of the second committee had, to their knowledge, ever discussed the claimant's case with any member of the first committee, and that he, as chairman, was not aware of any details of the previous case. He points out that the majority of the second panel consisted of lay persons of whom two were sitting for the first time.
Some criticism is levelled at the administrative staff, namely assistant registrars and the committee manager who are of course employees of the GMC. However there is nothing to suggest that they actively participated in the decision-making process or that they gave wrong advice or that there could be any reasonable perception that they had done so, or any involvement on their part could have given rise to the appearance of bias.
I have been referred to the recent decision of the Privy Council in Preiss v The General Dental Council PC Appeal No. 63 of 2000, in which it was accepted that a decision of a professional tribunal affecting the right to practise the profession is a determination of civil rights and obligations. The position under article 6 is no different from that under the common-law rules under natural justice applicable to proceedings before domestic tribunals. The board commented upon the strictness with which the closely-linked requirement of independence and impartiality are coming to be insisted upon. They noted the tests set out by Lord Phillips MR in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700:
“The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a...
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