Williams v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Davis |
| Judgment Date | 09 November 2007 |
| Neutral Citation | [2007] EWHC 2603 (Admin) |
| Docket Number | Case No: CO/4595/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 November 2007 |
[2007] EWHC 2603 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Davis
Case No: CO/4595/2005
Mr James Turner QC and Mr Andrew Kennedy (instructed by Radcliffes Le Brasseur ) for the Appellant
Mr Roger Henderson QC, Miss Sarah Vaughan-Jones and Miss Anna Burne (instructed by Field Fisher Waterhouse ) for the Respondent
Hearing dates: 8–12, 15–16 October 2007
Judgement
Mr Justice Davis :
Introduction
Christopher Clark died on 13 December 1996. He was about 12 weeks old. Harry Clark died on 26 January 1998. He was about 8 weeks old. Both babies had appeared to be in good health in the immediate period before they died. Subsequently their mother, Sally Clark, was charged with their murder. On 9 November 1999 after a lengthy trial at the Chester Crown Court she was convicted (by a majority verdict) of their murder. An appeal against conviction was dismissed. Subsequently, in the light of further medical records and details which had been obtained (and which had not been produced at the trial) and in the light of further expert evidence obtained, there was a second appeal on a reference by the Criminal Cases Review Commission. That appeal was allowed by the Court of Appeal on 29 January 2003, with a fully reasoned reserved judgment handed down on 11 April 2003. No retrial was requested or directed. The proceedings were at all stages attended by huge publicity.
Mrs Clark has since, very sadly, died.
In the light of certain criticisms made in the judgment of the Court of Appeal and in the light of complaints raised by the family and supporters of Mrs Clark, the matter was the subject of investigation by the General Medical Council ("the GMC"). Proceedings resulted against two of the experts who had given evidence on behalf of the Crown at the murder trial to the effect that neither death was due to natural causes. One was Professor Sir Roy Meadow, a consultant paediatrician, the complaint being essentially in respect of certain statistical evidence that he had given. In due course, a Fitness to Practise Panel of the GMC found a complaint of serious professional misconduct proved and ordered that his name be erased from the register. However, an appeal to the High Court against the finding of serious professional misconduct (as well as against the sanction) was allowed; and that decision, in so far as it related to the finding of serious professional misconduct, was upheld by majority decision of the Court of Appeal: [2007] QB 462; [2006] EWCA Civ 1390.
A complaint was also pursued (in the name of Mr Martin Bell MP, then the Clarks' constituency MP) against Dr Alan Williams. Dr Williams was the Home Office accredited pathologist who had conducted the (only) post mortem examination for Christopher on 16 December 1996 and the first post mortem examination for Harry on 27 January 1998; he had produced post mortem reports in the usual way at the time and thereafter provided reports for the purposes of, and gave oral evidence at, the criminal trial.
The hearing before the Fitness to Practise Panel of the GMC started on 24 January 2005. The Panel comprised a Consultant Surgeon, a General Practitioner, a retired Professor of Medicine and two lay members (a retired Director of Social Services and a retired University College Principal). All were experienced panellists. Dr Williams was represented by Mr James Turner QC, with Mr Andrew Kennedy. Mr Bell was represented by Mr Roger Henderson QC, with Miss Sarah Vaughan-Jones and Miss Anna Burne.
At the outset, an application was made to the Panel on behalf of Dr Williams that the proceedings be stayed as an abuse of process. That application failed and the hearing continued. It was very hard fought. A great deal of evidence, primarily expert medical evidence, was called. There was extensive and minutely detailed cross-examination. The hearing had not concluded by 25 February 2005 and was adjourned, with most of the evidence by then completed, on 25 February 2005. A second session started on 20 April 2005 and concluded on 26 April 2005. The third, and final, session (preceded by the lodging of some written submissions and a Panel reading day) started on 26 May 2005. On the afternoon of 27 May 2005 the Panel delivered its finding of fact on the individual heads of charge and adjourned the hearing to 31 May 2005. On 31 May and 1 June 2005 further submissions were made, which included a request on behalf of Dr Williams for reasons for the findings of fact to be given. The hearing was then adjourned further for the Panel's ultimate determination. That determination was given on 3 June 2005; and reasons were also given in relation to certain of the findings of fact. The total hearing, in terms of hearing days, had extended over 32 days.
The determination of the Panel was that it found Dr Williams guilty of serious professional misconduct, although it expressly absolved him of any bad faith. The sanction imposed by the Panel, while leaving Dr Williams free to continue with his principal area of practice as a consultant histopathologist, subjected the registration of Dr Williams for a period of three years to a condition that he should not undertake any Home Office pathology or Coroners' cases.
Dr Williams appealed against that decision under the provisions of section 40 of the Medical Act 1983 as amended. The appeal has been the subject of considerable delay and three scheduled hearing dates in the High Court were vacated. Initially the (principal) reason for delay was the non-availability of counsel; latterly, it was because it was thought desirable to wait upon the delivery of the Court of Appeal decision in the Meadow case. Ordinarily, the bringing of an appeal would have the result that the sanction imposed by the Panel would not take effect in the interim. In the present case, however, Dr Williams gave an undertaking to the Court on 17 February 2006, to last until the conclusion of the appeal or further order, in terms corresponding to the condition on registration imposed by the Panel.
At the hearing of the appeal before me the legal representation was the same as below: the GMC, however, now (and without objection) standing in the shoes of Mr Bell, the original complainant. The estimated length of hearing (excluding pre-reading) was seven days and the actual hearing before me lasted the full length of the estimate.
The overall position of Mr Turner on behalf of Dr Williams – and putting it for the moment very broadly – is that Dr Williams has been made a scape goat. If it be the case that Sally Clark did not receive a fair trial, then that was not attributable to him alone, but involved the failings of many others and also involved failings within the system. If it is the case that Dr Williams may have made errors, then that has been shown only with the benefit of hindsight; but at the time, and by reference to then prevailing standards and practices, such errors were understandable both in professional and in human terms.
The actual arguments raised, before me, were (as refined in the course of argument) in summary these:—
11.1 The Panel should have stayed the proceedings at the outset of the hearing.
11.2 The procedure thereafter adopted by the Panel with regard to the conduct of the proceedings was unfair and improperly prejudicial to Dr Williams.
11.3 The advice given to the Panel by the Legal Assessor was wrong in various respects so as to render unsafe the eventual decision of the Panel.
11.4 The findings of fact made by the Panel (save for those which were expressly admitted at the time) were in some respects perverse and/or unsupported by any evidence; in other respects were not justified and/or against the evidence; and in all respects were wrong.
11.5 If the findings of fact were justified, then the finding of serious professional misconduct was not justified and was wrong.
11.6 Finally, the sanction imposed was unjustified and wrong.
I do not think it much of an exaggeration, if any exaggeration at all, to say that the arguments advanced on behalf of Dr Williams more or less came down to saying that the Panel got it wrong in almost every conceivable respect.
Approach of Appellate Court
It was common ground before me that the appeal should be allowed if the Panel's decision was (a) wrong or (b) unjust because of a serious procedural or other irregularity: see CPR 52.11(3). An appeal to the High Court under section 40 of the Medical Act 1983 as amended is by way of rehearing: para 22.3(2) of the Practice Direction ( 52PD.116).
The appellant rightly did not seek a total rehearing (in the form of all the evidence being taken afresh, etc.). I was shown a number of authorities on the Court's approach in a context such as the present, but it is not necessary to refer to them all expressly in this judgment. It is common ground that a degree of flexibility is available to the court in this context. On any view, it is clear, and as is confirmed by authority, that a degree of respect should be shown to a specialist panel such as the present as being representative of the profession and as being there to uphold medical standards: particularly where an evaluative finding of serious professional misconduct is made or a particular sanction imposed.
Nevertheless, I agree with Mr Turner that the degree of respect or deference to be shown may vary, depending on the context of the particular matter under...
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Table of Cases
...151 Dr. Alan Williams v. General Medical Council, [2007] EWHC 2603 (Admin)............................................................18, 44, 250–51, 287, 289 Dyers v. he Queen (2002), 210 C.L.R. 285 .................................................................. 152 Eastman v. Director ......
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Expert Evidence Reliability; Time to Grasp the Nettle
...8 of Law Com. Report No. 325 explores a small selection.13 The series of cases (Meadow v GMC [2006] EWCA Civ 1390; Williams v GMC [2007]EWHC 2603 (Admin) and Southall, GMC, PCC, 2004 Decision) gives examples ofthe difficulties experienced by disciplinary tribunals in this regard.14 See als......