Mahfouz, R (on the application of) v General Medical Council [2004] EWCA Civ 233

Case No C1/2003/1551

[2004] EWCA Civ 233

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE DAVIS

QUEEN’S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday 5 th March 2004

Strand,

London, WC2A 2LL

Before

LORD JUSTICE WALLER

LORD JUSTICE SEDLEY

LORD JUSTICE CARNWATH

Between

THE QUEEN ON THE APPLICATION OF MAHFOUZAppellant

THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCILRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

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

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

Judgment

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 11th 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?’”

Question 2

[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 Medical Council Privy Council Appeal No 16 of 2002. In doing so, the Committee had regard to all the circumstances of the case, which included the assessment that a fair minded and informed observer would make of the following matters: The aspects of the newspaper articles put before the Committee; The length of time that has elapsed since the previous finding of serious professional misconduct and consequent erasure; The different and unrelated nature of the previous case; Danger of prejudice to the doctor; The experience and training of the Committee for the task in hand; The Committee's ability to distinguish between admissible and inadmissible evidence; The procedures of the hearing and the impact that seeing and hearing the witnesses will have on the Committee; The advice which the Legal Assessor has indicated he will give if the case proceeds. Having considered all these issues at length the Committee concluded that in the circumstances of this case, a fair minded and informed observer would conclude that there was no real possibility that the Committee would be biased. The Committee further decided that it was not necessary to address the second question suggested by the Legal Assessor. The Committee have therefore rejected your application to discharge themselves and for this case to be adjourned.”

The aspects of the newspaper articles put before the Committee; The length of time that has elapsed since the previous finding of serious professional misconduct and consequent erasure; The different and unrelated nature of the previous case; Danger of prejudice to the doctor; The experience and training of the Committee for the task in hand; The Committee's ability to distinguish between admissible and inadmissible evidence; The procedures of the hearing and the impact that seeing and hearing the witnesses will have on the Committee; The advice which the Legal Assessor has indicated he will give if the case proceeds.

[14]Immediately following the ruling, Miss O’Rourke said that it was likely that an application would be made to the High Court to stay the hearing, and that, if so, she would be requesting an adjournment for that purpose. The hearing was adjourned until the next day to enable her to consider the matter with her client. On the Thursday morning, she made an application to adjourn. She explained that, in the first instance, she required an adjournment of no more than 27 hours, to enable her, with her instructing solicitors, to arrange an urgent High Court hearing the following morning and to prepare the papers. Dr Mahfouz was not present, having apparently decided, in the light of the ruling, that he could not get a fair hearing from this Committee.

[15]After further argument, the Committee rejected the application in these terms:

“Having considered all the submissions the Committee have rejected your application. The reason for this decision is that in the interests of justice, which include both the interest of the public and that of the practitioner himself, it would be right to proceed with this inquiry without delay. The Committee were helped by the knowledge that a refusal of this adjournment will not affect Dr Abu-Mahfouz's right to pursue his application for judicial review and, if so directed by the High Court, these proceedings would be halted.”

[16]After that ruling, Miss O'Rourke and her solicitors withdrew, and made arrangements for an application to the High Court the next morning. The hearing continued in the absence of Dr Mahfouz and his representatives. Two further witnesses were called and questioned by the Committee. The evidence of the BBC reporter (Mr Kenyon) was begun and he introduced a video recording. The application for a stay came before Maurice Kay J at an oral hearing on the morning of Friday, 13th June 2003, when an interim order staying the proceedings before the Committee were made, and the application for permission to apply for judicial review was fixed for 27th June. The Committee were immediately informed and the proceedings were suspended.

[17]The matter was heard by Davis J on Friday, 27th June, and was, by consent, treated as a hearing of the substantive application. Dr Mahfouz challenged both the decision of the Committee not to discharge themselves, and their decision to refuse an adjournment for the purposes of the High Court application. Davis J rejected both complaints. Permission to appeal to this court was given by Buxton LJ on 10th September 2003.

The Issues on the Appeal

[18]The first issue concerns the decision of the Committee not to discharge themselves from hearing the case. The submissions on behalf of Dr Mahfouz have been presented at various levels: i) That in the circumstances a fair minded and informed observer would have perceived a real possibility of bias; ii) That, in deciding otherwise, the Committee misdirected themselves by failing to consider unconscious bias; iii) That a fair-minded and informed observer would think there was a real possibility that they failed to consider unconscious bias. The second proposition reflects Miss O’Rourke’s submission, as understood and rejected by the Judge (judgment para 25). The third reflects the submission as understood by Buxton LJ (para 15-16) when giving permission to appeal; the point was not that the Committee had actually ignored unconscious bias, but that they had given the appearance of doing so. Both ways of putting the case relied on the fact that the Committee, contrary to the legal assessor’s formulation of the question, preferred a test which excluded the parenthesis “(consciously or unconsciously)”.

[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 breach of the rules of fairness or natural justice, the court is not confined to reviewing the reasoning of the tribunal on Wednesbury principles. It must make its own independent judgment: “…the question whether we are entitled to intervene at all is not to be answered… by reference to Wednesbury principles… Rather the question has to be decided in accordance with the principles of fair procedure which have been developed over the years, and of which the courts are the author and sole judge….” (R v Panel on Takeovers and Mergers ex p Guinness plc

[1991] QB 146

, 184 per Lloyd LJ). Furthermore, the question whether there has been a breach of those principles is one of law, not fact (see e.g. Rose v Humbles

[1972] 1 WLR 33

[20]Accordingly although I will comment below on the discussion before the Committee, the decision of this court does not principally depend on how the matter was presented to the Tribunal or how they responded. What matters is whether they reached the right result.

[21]The second issue is whether, even assuming the Committee were entitled to continue with the hearing, they should have given an adjournment to allow the application to be made to the High Court. The significance of this is in relation to the evidence which the Committee heard in Dr Mahfouz’s absence on the Thursday. The effect of the stay given in the High Court has meant that the proceedings have been delayed for many months. If and when they are resumed, questions will arise as to the extent to which witnesses already heard will have to be re-called. Generally this will be a matter for the discretion of the reconstituted Committee. However, if the Committee were wrong to refuse an adjournment on the Thursday, then Dr Mahfouz has been wrongly deprived of the opportunity to cross-examine them, and he will have a strong case for insisting on their recall.

Prejudicial publicity

[22]The problem of prejudicial publicity (including reference to previous convictions) is one which may arise in any court or tribunal considering criminal or disciplinary charges, but the law’s response to the problem will vary depending on the nature and experience of the tribunal concerned. There is no absolute rule that knowledge of such material is fatal to the fairness of the proceedings. In Montgomery v H.M. Advocate

[2003] 1 AC 641

, the question was the effect of pre-trial publicity on the minds of a jury dealing with a charge of murder. Lord Hope expressed the common law test as follows: “The common law test, which is applied where pre-trial publicity is relied upon in support of a plea of oppression, is whether the risk of prejudice is so grave that no direction by a trial judge however careful could reasonably be expected to remove it.” ([2003] 1AC at p 667E-F). Later, having reviewed decisions of the European Court of Human Rights, he said: “The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is a discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the one hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict…”. (p 673H – 674A).

[23]The jury is at one end of the spectrum of tribunals, in that the members will generally have no previous experience of court procedures and practices. Further along the line are magistrates’ courts, where the justices although not legally qualified should, by virtue of the training and experience, be better able to “put out of their minds matters that are irrelevant”. (see Johnson v Leicestershire Constabulary Times 7.10.98, per Simon Brown LJ).

[24]The committee members in this case included two professionals and three lay members, selected from a panel of persons chosen as having experience in public life. We were told that the panel includes retired judges, justices of the peace, barristers, solicitors and academics. They can be assumed to understand the proper approach to issues of law and to be aware of the need to disregard irrelevant material.

[25]The special features of the GMC procedure were recognised by the Privy Council in a recent case on facts not dissimilar to the present: Subramanian v General Medical Council

[2003] Lloyd’s Rep Med 69

. In that case the appellant was a locum general practitioner who had been charged with failing to examine a patient adequately and take prompt action to refer her to hospital. At the hearing before the Committee he became aware of newspaper reports of a previous finding against him of serious professional misconduct in 1987, which had led to him being admonished. It further emerged that one member of the Committee had read the article, and had mentioned it to some of the others; and that the GMC Press Office had contributed to the disclosure by wrongly informing the newspaper that it was safe for them to refer to the previous appearance. In that case the hearing had continued, resulting in a finding of serious professional misconduct. The Committee had been advised by the legal assessor that the previous finding had nothing to do with the present charges and should exercise no influence on their decision.

[26]One of the grounds of appeal to the Privy Council was that the proceedings should have been stayed on the basis of the apparent bias. Sir Dennis Henry, giving the judgment of the Privy Council, referred to the special systems established for regulating doctors’ professional conduct. He noted that the GMC had no legal power to prevent publication of such information which was in the public domain (para 12). He said that there was no dispute as to the test of “apparent bias” which he expressed, by reference to Taylor v Lawrence

[2002] 2 All ER 353

, 370, as being whether the circumstances – “would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.” Such an observer would be assumed to have knowledge of the GMC’s - “long and well-established system with statutory backing, operated by those selected and elected to the task, and supported by a comprehensive appeal system…”. (para 13-14) He concluded: “Their Lordships feel they can safely say that there was no danger here of any prejudice to the doctor: this was a well-established quasi-professional tribunal which had been directed in plain terms to pay no attention to the previous conviction because it would give them no assistance, a direction reinforced by the fact that it dealt with events more than 20 years before. The experience their Lordships have of the jury system is that juries are faithful to their oath and abide by the instructions they are given. There are rare circumstances (and this case is not one) where the judge feels that the direction he is considering giving (for example to ignore some exceptionally prejudicial piece of evidence which they knew) might involve the jury in such ‘mental gymnastics’ before they could accept what loyalty to their oath required of them that the risk could not be taken, and the jury would have to be discharged. But here it is difficult to see how the appellant’s conduct of 20 years ago could affect the fundamental point of credibility the committee here had to consider.” (para 21)

[27]Miss O’Rourke seeks to distinguish the present case on the grounds that the previous conduct in that case had not resulted in striking off, that the credibility of the doctor was not so central to the dispute as in the present case, and further that Dr Mahfouz was not attacking the proceedings as a whole, but was simply seeking an adjournment for a few weeks of a case which had only just begun. She also criticises the formulation of the test including the words “a real danger”, a phrase which had been specifically excluded in the test adopted by the Lord Hope in Porter v Magill.

[28]It is a curiosity that, even though the Subramanian case was considered as one of “apparent bias”, Porter v Magill, which had been decided a year before, was not cited (particularly as Lord Hobhouse was a party to both decisions). However, the “real danger” formula was discarded by Lord Hope, not because it made any practical difference, but because it served no purpose. More importantly, of course, I accept that no two cases are precisely the same on the facts. The relevance of Subramanian to my mind is in the emphasis it lays on the particular features of the GMC procedures, and also as an illustration of the kind of factors which will be relevant in considering whether PCC proceedings are irretrievably poisoned by disclosure of previous decisions. Of particular importance are the experience of the Committee, and the availability of independent legal advice to ensure that irrelevant matters do not play any part in their deliberations. Other factors of importance, to which the Committee expressly referred, were the length of time that had elapsed since the previous finding of serious professional misconduct, the different nature of the previous case, and the impact of seeing and hearing the witnesses in relation to the present charges. When these points are taken together I see no grounds for questioning the Committee’s ability to decide the case fairly on the evidence before it.

[29]These matters had to be looked at by the Committee, not just subjectively, but also putting themselves in the shoes of the hypothetical “fair-minded observer”. However, in a case such as the present, where the fairness and impartiality of the Committee were not in question, it is difficult to see much practical difference between the two approaches. The factors, which would lead reasonable Committee members to satisfy themselves that subjectively they would be able to try the case fairly, would generally be the same as those which would lead a fair-minded observer to the same conclusion. On this issue I have no doubt that the Committee came to the right conclusion, for the reasons they gave.

[30]That is enough to dispose of the appeal on the first ground. However before turning to the second issue I would make some brief comments on the discussion which took place before the Committee, and the role of the legal assessor.

[31]The course of the discussion before the Committee illustrates the risk of over-complicating what is in substance a simple issue. The basic principle is that the proceedings should be not only fair, but seen to be fair. That requires the issue to be looked at objectively as well as subjectively, and account to be taken of the possibility of subconscious bias. But there is no need to make a mystery of the mental processes involved. In many cases, where the impartiality of the tribunal itself is not in doubt, there is no practical distinction between the different ways of looking at the matter.

[32]For my part, I would prefer to avoid the use of the terms “bias” or “apparent bias” (with their overtones of possible impropriety) in a case like this. Such expressions are best reserved for cases where the impartiality or apparent impartiality of the tribunal has been put in question, whether by its own conduct or by the disclosure of a possible apparent connection with one of the parties. In such cases, it is obvious that little weight can be attached to the subjective view of the very tribunal whose impartiality has been put in doubt. Porter v Magill and Lawal v Northern Spirit Ltd

[2003] UKHL 35

were examples of such cases. In the former the complaint related to the conduct of the auditor, who had announced his provisional findings in a highly-publicised press statement; in the latter, it related to a connection between one of the members of the Employment Appeal Tribunal and the Queen’s Counsel appearing for one of the parties (through having previously sat together on a tribunal). (See also the previous leading case, R v Gough

[1993] AC 646

, where the issue of bias arose because of a possible connection between a juror and the appellant’s brother.) In such cases, however strong the decision-maker’s own confidence in his ability to decide the case impartially, the decisive issue must be the impression made on the fair-minded observer.

[33]In a case such as the present, as I have indicated, I find the analysis in Montgomery a more helpful starting point, than authorities on apparent bias. With respect to the Privy Council in Subramaniam, the issue is not bias in the normal sense, but the prejudicial effect of inadmissible material on an otherwise impartial tribunal. It is perhaps significant that in Porter v Magill Lord Hope’s leading judgment made no reference to his own leading judgment in Montgomery, which in turn made no reference to the previous leading House of Lords case on bias (R v Gough). At the end of the day, of course, the underlying question is the same: whether the proceedings were fair and seen to be fair. But there is an important difference. Bias or apparent bias on the part of the tribunal cannot be corrected. On the other hand, as was emphasised in Montgomery,knowledge of prejudicial material need not be fatal; its effects must be considered in the context of the proceedings as a whole, including the likely impact of the oral evidence and the legal advice available.

The legal assessor’s role

[34]Under rule 2 of the Legal Assessors rules, it is the duty of the legal assessor to be present at all proceedings before the Committee and to advise “on any questions of law arising which may be referred to him by the Committee”. More specifically, by rule 3:

“It shall be the duty of the legal assessor to inform the Committee forthwith of any irregularity in the conduct of proceedings before that Committee which may come to his knowledge and advise them of his own motion where it appears to him that, but for such advice, there is a possibility of a mistake of law being made.”

Subject to certain qualifications, the advice must be given in the presence of the parties (rule 4); and, where the Committee does not accept the advice – “… a record shall be made of the question referred to him, of the advice given and of the refusal to accept it (together with the reasons for such refusal).”

[35]It was no doubt in pursuance of those responsibilities that the legal assessor in this case formulated the questions for the Committee to decide, and invited submissions of counsel on them. It is unfortunate that this resulted in what must have been a very confusing debate as far as the Committee were concerned. The inclusion of the words “consciously or unconsciously” was no doubt intended simply as a helpful expansion, rather than a modification, of the test in Porter v Magill. Furthermore, it had been made very clear in the submissions of Miss O’Rourke that what she was concerned with was the possibility of “unconscious” rather than conscious bias. Accordingly, there can have been very little doubt in the Committee’s mind that this was a matter which they had to consider. In those circumstances, the objection taken by Miss Plaschkes to the legal assessor’s formulation, and the ensuing discussion, must have left the Committee (as it has left me) very confused as to precisely what in practical terms the argument was about.

[36]However, the debate raises a more fundamental issue, as to the nature of the “advice” which the legal assessor should give in such cases. With respect to the experienced assessor in this case, I think it was a mistake to present the advice simply in terms of questions to be answered by the Committee. (That view is reinforced by the fact that the second question is not supported by Mr Englehart QC who appeared for the GMC before us.) As I have said, a possible breach of the rules of natural justice is a matter of law, as well as being a potential “irregularity” within rule 3. Furthermore, the legal assessor is much better placed than the Committee to express the objective view of the “fair-minded observer”; indeed that is precisely what he is or should be.

[37]Accordingly, where an issue such as this arises in the course of proceedings before the PCC, I would regard it as the duty of the legal assessor not simply to pose questions, but to provide answers – or at least “advice” as to the answers (since under the rules the ultimate decision is that of the Committee). In doing so, there is no reason why he should not look at the matter in the same way as would a judge directing a jury, while taking account of the special characteristics of the Committee which he is advising.

Adjournment for the High Court application

[38]The second issue is more limited in scope and can be dealt with relatively shortly. The Committee clearly recognised that their decision might be subject to challenge in the High Court. They were also naturally concerned at any further delay in the proceedings, two days having already been lost.

[39]As their stated reasons made clear, they proceeded on the basis that refusal of the adjournment “would not affect” Dr Mahfouz’s right to pursue his application for Judicial Review. Theoretically of course that is right. It would have been possible for the application for judicial review to have been prepared and made by someone other than Miss O’Rourke. However, in my view, that gave insufficient weight to the practicalities of the matter. It was vital that any application to stay the proceedings should be made as soon as possible. That would most likely be achieved by the involvement of Miss O’Rourke, who had detailed knowledge of the proceedings, and would be best able to inform the High Court Judge of the circumstances. The involvement of new counsel would inevitably cause additional delay in the preparation of instructions and the time needed to read in to the matter. Conversely, there was no practicable possibility of anyone else being instructed in sufficient time to represent Dr Mahfouz’s interests before the Committee on the Thursday.

[40]Also important was the appearance of fairness. It is true that Dr Mahfouz had apparently chosen not to participate further in the proceedings before the Committee, a stance for which I can see no justification at all. However it was important that the Committee should not impede his undoubted right to test their decision before the High Court. Their decision to refuse an adjournment put Miss O’Rourke in the invidious position of having to choose in which forum she could best represent her client’s interests. Mr Englehart queries whether the claim that the delay would have been limited to 27 hours was realistic, having regard to the possibility of adjournment of the application to the High Court and further appeals. However, he accepts that the Committee could have given notice that the adjournment would not extend beyond 27 hours, without a specific order from the Court.

[41]The judge described the decision to refuse an adjournment as “a stern one”, but considered that it was within the scope of the discretion of the Committee, having regard to the interests of justice and the desirability of proceeding with the inquiry. He also took account of the fact that Miss O’Rourke “had experienced solicitors with her who could have carried on with the hearing”, and “that a short adjournment to enable fresh counsel to be instructed had been offered, but had been declined”. However, there was no real possibility of anyone other than Miss O’Rourke being able to do justice for her client before the Committee; and a half hour adjournment could not have made any material difference. In my view fairness, and the appearance of fairness, required that the Committee should have granted the limited adjournment requested by Miss O’Rourke.

[42]Before leaving this issue, I should comment on Mr Englehart’s submission that it was wrong in any event for a stay to have been granted of the PCC proceedings. He said that the court should not encourage the making of judicial review applications part way through proceedings of a tribunal, whenever a party is dissatisfied with some procedural ruling. He referred to R (Hounslow LBC) v School Appeal Panel

[2002] 1 WLR 3147

[2002] EWCA Civ 990

, which concerned a hearing before the panel relating to admission of children to particular schools. May LJ expressed concern that the proceedings had got “bogged down with questions of legality and the possibility of judicial review”. He made clear that applications for judicial review in the course of an appeal to an appeal panel were to be discouraged. Those remarks were made in the context of a statutory scheme in which speed was essential to enable school lists to be finalised as quickly as possible (see para 60). Similarly, in R v Huddersfield Justices ex p D [1997] COD 27, it was emphasised that magistrates should in general seek to avoid adjourning cases part-heard, for applications to be made to the court: “Rather they should as a general rule proceed to their own final determination and leave a dissatisfied party to appeal to the Crown Court. That procedure was quite cheap and available locally. Proceedings before the Divisional Court were more expensive and necessarily took longer.” (para 29).

[43]The present context is rather different. The charges go back to events in 2001, and the proceedings had been programmed to take 8 days. Although there is a general need for such issues to be decided as quickly as possible, the need for speed is relative. Furthermore, as Miss O’Rourke says, to leave Dr Mahfouz to his remedy of an appeal following a determination against him disregards the serious prejudice to him, which would be caused in the meantime by a finding of serious misconduct. She also draws attention to the fact that her client is funding the proceedings himself without any prospect of recovering costs even if he wins; if the proceedings are fundamentally flawed, he should not be put at risk of having to pay twice.

[44]I see force in these points. There can be no inflexible rule. However, I agree with Mr Englehart that in general it is preferable for proceedings to be allowed to take their course and a challenge to their validity to be taken by way of appeal. Consideration must also be given to the difficulty of organising such proceedings in a complex case, and the potential inconvenience to witnesses who may have had to make special arrangements to attend the hearing, and may be reluctant to repeat the experience.

[45]My view that there should have been an adjournment to allow the application to be made is based on the particular facts of this case. The issue had arisen on the second day of a programmed 8-day hearing; it had been treated as an important issue, requiring detailed legal argument; and there had been an apparent difference of view between the Committee and their legal assessor as to the correct test. The GMC might well have wanted its own counsel to attend the application and be heard, particularly on the question of a stay. In those special circumstances it seems to me that justice and the appearance of justice required at least an opportunity to be given for that matter to be raised before a High Court Judge.

Conclusion

[46]For the reasons I have given I would dismiss the appeal on the first point but allow it on the second. The consequence of this for the continuation of the proceedings will be a matter for the newly-convened Committee acting on legal advice. The unfortunate delay caused by Dr Mahfouz’s objection will no doubt add to the problems of dealing with the matter fully and expeditiously. It would not be appropriate for this court to express any view in advance as to how those practical difficulties should be resolved.

[47]The Committee should be advised by the legal assessor in the clearest terms (as they will already be aware) that they must decide the case solely on the evidence before them; and that the 1987 disciplinary decision, and any other matters referred to in publicity outside the hearing, should be completely disregarded. This message will no doubt be reinforced, so far as appropriate at the time, by a specific disclaimer by counsel for the GMC.

[48]Finally, I would express my strong regret at the expense and inconvenience that has been incurred by all parties, as a result of apparently irresponsible reporting by the newspapers concerned. (I say “apparently” because we have not sought or heard any explanations from the newspapers concerned.) It is to be hoped that a responsible reporter would realise that to refer to a previous striking off, which had not been mentioned in the course of the proceedings, would be likely to cause problems; and, if in doubt, would seek clarification from the GMC Press Office. Unfortunately under the present law there appears to be no sanction against such reporting in relation to proceedings of the PCC. The unfortunate history of this case suggests that it may sometimes be necessary, at least in a case likely to attract substantial press attention, to advise members of the PCC to avoid reading any articles about the case. But it needs to be plainly understood that no public interest whatsoever is served by jeopardising the process before the GMC’s Professional Conduct Committee.

[49]I agree

[50]I also agree.

Order

Appeal allowed to the limited extent stated in the judgment; any submissions on the consequences to be dealt with subsequently on paper; direction by Waller LJ that submissions from the respondent must be lodged with the Civil Appeals Office no later than 4.30pm on Tuesday 9th March 2004 and that the submissions from the appellant must be lodged with the Civil Appeals Office no later than 4.30pm than Thursday 11th March 2004. (Order does not form part of the approved judgment)