Walker, R (On the Application Of) v General Medical Council [2003] EWHC 2308 (Admin)

Case No CO/3588/2003[2003] EWHC 2308 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 15th August 2003
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF STEVEN JAMES WALKERClaimant- v-
Between
GENERAL MEDICAL COUNCILDefendant
Computer- Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS W OUTHWAITE (instructed by RADCLIFFLEBRASSEUR, LEEDS, LS1 2RU) appeared for CLAIMANTMR T DE LA MARE (instructed by THE GENERAL MEDICAL COUNCIL) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE STANLEY BURNTON: Section 41A of the Medical Acts 1983 (as amended) introduced new powers to be exercised by the Interim Orders Committee (universally referred to as the IOC) of the General Medical Council for interim measures to be taken in relation to a registered doctor in circumstances where there are disciplinary proceedings pending against him which, by definition, have not resulted in any finding. The section was produced, I understand, as a result of the public concerns following the prosecution of Dr Shipman for multiple murders. It was found when he was charged that the GMC had no power to prevent his continuing to work as a doctor pending the resolution of the most serious criminal charges against him, given that during that period, of course, there was no resolution of any disciplinary charges against him.[2]I regret to say that section 41A bears some of the hallmarks of rushed draftsmanship. I say that for this reason. The section creates an original jurisdiction and power on the part of the IOC to take steps where necessary for the protection of the public, or otherwise in the public interest or in the interest of the doctor concerned, among other possibilities, to impose an interim suspension order. A suspension order has a drastic effect on the ability on a doctor to work. Whilst suspended he cannot render services as a registered medical practitioner. The Act provides for provision for recourse to the courts. That provision is to be found primarily in subsection 10, although subsection (6) is also relevant. Subsection (10) provides:
"Where an order has effect under any provision of this section, the court may- (a) in the case of an interim suspension order, terminate the suspension; (b) [is irrelevant for present purposes]; (c) in either case, substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it), and the decision of the court under any application under this subsection shall be final."
[3]The IOC is, of course, a Committee consisting of professionally qualified members, members of the medical profession, who are aided by a legal adviser but who make the decision and announce the decision themselves. The terms of subsection 10 indicate that the appeal to the Court is a full appeal, that is to say, the Court does not interfere on a review ground but itself decides what order is appropriate. That appears from the general formulation of subsection (10). It also follows from the express power of the Court to substitute for a period specified in an order for, as in this case, interim suspension some other period. It is clear from that power that the Court itself is determining what period is appropriate rather than simply considering whether the decision of the IOC was one it could lawfully have made and did lawfully make.[4]What is noticeably lacking from subsection 10, or indeed any of the provisions of section 41A, is any power on the part of the Court to remit to an IOC a matter which it has considered in circumstances where the Court is of the view that the reasons given have been inadequate, or some consideration that should have been considered was omitted from the Committee's consideration or the Committee considered a factor as relevant when it was not.[5]That is an unfortunate omission given that in the very nature of things the IOC will normally have considered matters of medical practice and expertise and the consequences for a doctor of the measures it takes. A professional tribunal is likely to be able to bring to bear knowledge and experience which the High Court, frankly, will not normally possess. The power to quash and remit or simply remit for reconsideration is, in those circumstances, not simply a welcome power but one which will often be highly appropriate.[6]In theory, the jurisdiction for judicial review is available in relation to an order made by the IOC but, as has been recognised, in circumstances where Parliament has apparently deliberately provided a procedure for recourse to the courts, which does not include provision for quashing and remission, it can only be in the most exceptional case that judicial review will be available when the exercise by the IOC of its power falls to be considered.[7]In the present case the IOC did order the suspension of the claimant. The hearing took place on 9th July 2003. The committee gave its decision at the end of the hearing. Both parties, I should say, that is to say the GMC and Mr Walker, were legally represented and brief reasons were given by the chairman of the Committee.[8]The decision of the Committee is challenged on the principal basis that insufficient reasons were given and the measure taken (and I advisedly do not use the words such as "sanction" and "punishment") was disproportionate in the circumstances. In a sense those criticisms, whilst available, cannot lead the Court in a case such as this to its ultimate decision. Since this is a rehearing rather than a review, the Court must decide whether or not the decision made by the Committee was a correct decision and, if not, what decision to substitute for it in terms of either termination of the suspension ordered or the abbreviation of the period of suspension.[9]Manifestly, however, a lack of adequate reasons, or a decision which is disproportionate in its interference with the rights of the doctor in question, will encourage the Court to examine broadly the decision made by the Committee and substitute its own in a way which it might be less willing to do where the decision appeared to be fully reasoned and proportional.[10]As I have already said, this is a rehearing rather than a review. Nonetheless, just as in appeals against penalties determined upon by the Professional Conduct Committee, the Court will normally give broad credit to the appreciation by a professionally qualified Committee of the conduct of the accused doctor, its reprehensibility and the appropriate sanction. So, in a case such as this, where full and substantial reasons are given by the Committee, it seems to me that the Court will give considerable weight to those and will be slow to interfere.[11]The present case is an unusual case in one important respect. The claimant, Mr Walker, has already been the subject of disciplinary proceedings. They concerned his treatment of and the surgery he carried out on a number of patients who had died as a result of such surgery.[12]I have before me the written decision of the Professional Conduct Committee hearing which, it seems, took place between 10th September 2001 and 3rd November 2001. A number of charges were accorded as admitted and proved. Others were found not proved. The findings of clinical misjudgment and failure to apply clinical competence and technical expertise were clearly regarded by the Committee as being serious. Having considered the facts the Committee originally came to the conclusion that, if it could, it would, on the grounds of the disciplinary offences which had been committed by Mr Walker, have precluded him from carrying out surgery (it being surgery which had led to the charges rather than any other medical service). But it concluded that it could not deal with the matter by imposing such a prohibition and therefore decided to direct the erasure of his name from the medical register.[13]The matter was appealed to the Privy Council, who decided that the Committee could have imposed a condition on the registration of Mr Walker which would preclude him from working as a surgeon. The matter was remitted and an order in such terms was made.[14]At that stage, therefore, the position was that Mr Walker was entitled to render medical services, but not as a surgeon. He had in fact ceased to act as a surgeon for some time. He had obtained an appointment in the Army, in which he was giving other medical services. His contract with the Army came to an end at the end of June 2003; the contract has not been renewed.[15]On 7th February 2003, meanwhile, the GMC's solicitor wrote to the Registrar of the Fitness to Practice Directorate, setting out certain information that it had received, in terms of statements and other documents and stated that from that information it would appear that, in brief, Mr Walker had had documents, including photographs relating to a number of patients, including patients who had been the subject of investigations within the hospital where patients had died, and relating to patients who had been the subject of the disciplinary proceedings, at his home. Those documents included an Operations Register from the theatre at which he operated, boxes of private patients' records, including photographs of patients from another hospital and medical records of a female patient. The letter stated that the removal and retention of the patient records, and indeed of Theatre Operations Register, had been inappropriate, irresponsible and potentially put patients' care at risk. The documents were retrieved from Mr Walker's home because there had been a criminal investigation into his professional conduct. A search was carried out of his home by members of the Lancashire Constabulary in connection with the criminal investigation. That led to the discovery of these documents.[16]The relevance of the documents is two- fold. One is, as the letter states and as I think Mr Walker recognises, he should not have had such documents. Secondly, and equally if not more importantly in the present context, the documents related to matters which were the subject of investigation within the hospital and by the GMC, and the question arose as to whether they had been deliberately removed, with a view to the information in them not being available to those concerned to investigate his treatment of patients his the conduct in relation to them.[17]That issue was particularly pertinent because certain of the items found had been requested in a notice to produce documents, served on Mr Walker's solicitors in May 2001. His solicitors had responded to that notice, which related to the Theatre Operations Register at Theatre 2 where he operated, that he had borrowed the register for a short period in 1996 but had returned it to theatre. Its discovery at his home indicated that information provided by Mr Walker's solicitors on his instructions was, at best, inaccurate and, at worst, untruthful and deliberately so. Field Fisher Waterhouse's letter asserted that the appropriate conclusion was that Mr Walker had failed to respond truthfully to the enquiry concerning that document.[18]In a letter dated 20th June 2003 the Lancashire Constabulary informed the GMC about the decisions it had made, no doubt in conjunction with the Crown Prosecution Service, concerning the police investigation. The Lancashire Constabulary decided that Mr Walker would be prosecuted on an indictment containing three counts of manslaughter and, in addition, a count of theft of the Operating Theatre Register and, in relation to that document, and that document only, that Mr Walker had, with intent to pervert the course of public justice, done an act which had a tendency to pervert the course of public justice in that he had concealed the Operating Theatre Register of that Hospital NHS Trust. At the date of the letter, Mr Walker had already been charged with those offences and bailed unconditionally to appear at the Central Criminal Court. I understand that there will be in September 2003 the plea and directions hearing which is likely to lead to a trial due in the course of next year. It has not been suggested to me, but there will be an application at the PDH for those charges to be dismissed on the basis that there is no case to answer.[19]I said that this case was unusual in a particular respect and it is. The manslaughter charges which Mr Walker faces are the criminal counterparts of the charges faced by Mr Walker before the PCC, which led to the sanction imposed on him to which I referred earlier. One of the questions that arises in the present case, and no doubt will arise if Mr Walker is convicted, is whether it is appropriate for the GMC to revisit those charges in the light of a conviction. I say that because it is those charges which form some of the matters which the IOC had to consider in deciding, as it did, to make an order for Mr Walker's interim suspension.[20]It is clear from the provisions of the Medical Act itself that a criminal conviction may itself justify, that is to say form the basis of, disciplinary proceedings against a doctor: see section 36(1)(a).[21]The unusual aspect of this case is, as I have already stated, that the criminal conviction, so far as manslaughter is concerned, would cover the same ground as the Professional Conduct Committee has already considered. One of the matters relevant to the appeal today is whether the PCC could properly revisit those matters and impose a greater sanction than it did before.[22]However, those are not the only matters which are the subject of potential disciplinary charges against Mr Walker. I say "potential charges" because, at present, disciplinary charges against him have not been formulated. The matter has gone to a screener but there no charges have been formulated. Moreover, I suspect that there can be no question of any substantive proceedings being taken against Mr Walker until the disposal, one way or the other, of the criminal charges against him. As I said, those are not the only matters which may be the subject of disciplinary investigations sanction. There is also the question of the theft of documents and the allegation of doing an act in order to pervert the course of justice.[23]Both of those, and particularly the latter, are serious matters on the part of the doctor. The latter is particularly serious in circumstances where the document relates to matters done by the doctor in the course of his profession as a doctor which were the subject of investigation by the GMC and by the PCC. The implication of the charge is that the PCC may have made its decision on an incomplete understanding of the evidence and, in addition, on an incorrect appreciation of Mr Walker's honesty and credibility. If that be right, and the charges are substantiated, then it seems to me that it would be open to the PCC to review the sanctions that previously determined it, and would do so on the basis that Mr Walker would have been found guilty of criminal offences and that the sanctions previously determined were not appropriate to his conduct as disclosed by those criminal convictions. All that is, of course, some way away. The matter came before the IOC because the criminal proceedings were pending; they related to matters which could give rise to disciplinary charges and indeed, in the normal course, would, certainly if they were convictions. Having regard to the seriousness of the charges, interim measures had at least to be considered.[24]There is relatively little dispute as to the functions of the IOC under section 41A, at least for present purposes. It is not the function of the IOC to make findings of fact in relation to the pending disciplinary charges against the person concerned. It seems to me that it must of course consider whether there is substance in the charges. There may conceivably be circumstances where the IOC can be persuaded that such charges as are being put forward are of no real substance and therefore do not merit any interim measures. Normally, however, particularly where matters have gone beyond the screener, it will assume that the charges are charges which may be proved in due course. It must then decide, as required by subsection (3) where it is considering a suspension, whether it is satisfied that an interim suspension is necessary for the protection of members of the public or is otherwise in the public interest or the interest of the person concerned.[25]In the present case, having heard submissions on both sides, the chairman said this:
"The Committee has carefully considered all the evidence before it today and the submissions made including the determinations of the hearing of your case by the [PCC] on 3 November 2001 and 13 February 2003."
The latter being the date when the final sanction is imposed:
"In accordance with section 41A of the Medical Act 1983, as amended, the Interim Orders Committee is satisfied that it is necessary in the public interest to make an order suspending your registration for a period of 18 months with effect from today. In reaching its decision, the Committee considers it necessary in the public interest to suspend your registration because of the serious allegations of manslaughter, theft, and committing an act which had a tendency to pervert the course of justice. Charges have been laid in respect of the above matters subsequent to the determinations of the PCC. The Committee has taken account of the issue of proportionality and has balanced the need to protect the public interest and the maintenance of public confidence in the profession against the consequences of for you of the suspension of your registration. Whilst it notes that this has removed your ability to practice medicine it considers that there are no conditions which would adequately protect the public interest. It is therefore satisfied that the order of suspension is proportionate response. In deciding on the period of 18 months the Committee has taken into account the uncertainty of the time to resolve all the issues in the case. The order will be reviewed at a further meeting of the Committee to be held within 6 months."
The review that was referred to was one that is required under subsection (2) of section 41.[26]It is submitted on behalf of Mr Walker that those reasons were inadequate. In judging their adequacy it is necessary to take into account, first, the terms of the General Medical Council Procedure Rules Orders of Council 2000 which in Rule 14 stipulates that it will give the decision of the Committee and brief reasons for the decision orally at the hearing. Paragraph 2 of Rule 14 requires the reasons to be reduced into writing and provided to the practitioner in question. However, what is reduced into writing are the "brief reasons for the decision", in other words, the very same reasons as have been given orally.[27]Brevity therefore is not simply here a virtue but a statutory requirement. Mrs Outhwaite nonetheless criticises the reasons given by the Committee as inadequate, amounting to no more than a statement of conclusion or a series of conclusions rather than disclosing any process of reasoning.[28]In my judgment, one does not expect detailed reasons in a case such as this, particularly having regard to the provisions of Rule 14, but also having regard to the facts(a) that the members of the Committee are professional men and do not include a chairman who is legally trained and(b) that the Committee is dealing with an interim order, which involves, as I have already said in general, no findings of disputed facts, but will be arrived at by a process of weighing up the interests of the doctor (unless it is thought that his own interests require a making of an order) and the other interests referred to in section 41A.[29]Nonetheless, in my judgment, the reasons given by the IOC in this case were inadequate. They did not expressly identify the public interests concerned. The Committee did not, in terms, refer to a need to suspend Mr Walker for the protection of members of the public. The question therefore arose as to what the public interest which required a suspension was and that public interest had to be weighed against his own interest and the prejudice he would suffer if a suspension order were to be made.[30]The closest one comes to an identification of a public interest is in the fourth paragraph of the transcript, which refers to the need to protect the public interest and the maintenance of public confidence in the profession. The disjunctive "and" may conceivably not have been intended; it may be that that was the public interest which the Committee had in mind. Except in the terms of generality, no other has been suggested. On the other hand, that is a substantial public interest which the Committee were entitled, if not bound, to take into account.[31]There is no analysis of the consequences of the order for Mr Walker. Nor does it appear whether the Committee were concerned equally with the manslaughter charges and the dishonesty charges (and I include in the latter the perversion of the course of justice charge) or only the former or only the latter. There seems to be relatively little focus on the unusual aspect of this case, namely that the manslaughter charges related to conduct which had already been the subject of investigation, finding and sanction. There is nothing to indicate whether there was any new evidence relating to the manslaughter charges which had not been before the PCC other than the alleged concealment of the theatre register.[32]This is a case, therefore, in which, were these judicial review proceedings, I should have quashed the decision of the Committee and remitted the matter back for decision by a fresh Committee. They having committed themselves to a particular course, it would have been unfair to remit the matter back to the same Committee. That is a course that can only be taken in the most exceptional circumstances.[33]The second criticism made is one of lack of proportionality. I find that a difficult matter to deal with on the appeal for a number of reasons. The first is this. I was invited, on behalf of Mr Walker, to assume that the documents which had been recovered from his home were of no significance in the investigation of the charges by the PCC, in that all the information in them was information which was or would have been readily available to the PCC from other sources. That is a conclusion that would involve my reviewing the substance of one of the criminal charges, namely the perverting the course of justice charge. It seems to me that I, like the Committee, must assume that, where a police force has decided on bringing such a serious charge against a professional man, there are substantial grounds for bringing that charge. I would require some persuasion that I was entitled to deal with the matter differently. I am particularly reluctant to do so given(a) that I do not have the documents or copies of them before me, and(b) the correct inference to be drawn must depend to a significant extent on matters of medical knowledge, expertise and experience, which I am not qualified to bring to bear. Indeed, they were not put before the Committee who dealt with the matter, on the basis there were allegations which simply would have to be fought. I therefore do deal with this matter on the basis that there are serious allegations made against the doctor which relate to the PCC proceedings themselves and possibly other proceedings.[34]The second source of discomfort is that it seems to me that the question of prejudice was not adequately investigated before the Committee. There are two aspects of prejudice to be considered. One is the general effect of any suspension which precludes a doctor from working. It is the most serious interim measure and is to be applied only in serious cases. The second aspect which falls for consideration is the immediate effect of the suspension on the doctor's renumeration and his office. In Tarnesby & Kensington, Chelsea and Westminster Area Health Authority [1981] ICR 615, the House of Lords held that a suspension ordered after a substantive decision by the PCC had the effect of terminating the employment of a doctor by an NHS hospital automatically and as a matter of law. Such a termination of employment would be inappropriate and indeed unfair in the case of a doctor who is the subject of an interim measure taken in circumstances where he has been found guilty of no misconduct of any kind whatsoever. Section 47(3) of the Medical Act 1983 has been amended to take account of that unfairness. It provides:
"Suspension of the registration of a fully registered person by [a direction of the Committee on Professional Performance... or an interim order [under [section 41A]] above shall not terminate any appointment such as is mentioned in subsection (1) above, but the person suspended shall not perform the duties of such an appointment during the suspension."
The appointments referred to in subsection (1) include appointments in the naval, military or air services and indeed in any hospital or a prison.[35]At the date of the hearing before the IOC, Mr Walker was working as an Army doctor. He had, as I have already stated, had a contract which expired on 30th June. The Army were considering the renewal of that contract but he worked after the expiration of the contract as an Army doctor. On the face of it, therefore, as at the date he appeared before the IOC, he did have an appointment with the military service. I say "on the face of it" because this issue was not investigated in any real sense before the IOC, nor has the documentation relating to it been produced before me today. If it is right that he had an appointment, it has not been brought to an end by the interim suspension. Mr Walker cannot work in it but, on the assumption that the provisions relating to renumeration of navel, military of air service doctors are the same as those in the NHS, he will continue to be entitled to be paid. In that connection I refer to the comment on the decision in Madan v GMC [2001] Lloyds Law Reports 539, set out at the end of the judgment of Brooke LJ in that case at page 549- 550 of the report.[36]If that is the case, Mr Walker will be significantly disadvantaged by the suspension but the prejudice to him is not as great as it might otherwise be. The Army is precluded from terminating his appointment during the period of the suspension. That was a matter which was not brought to the attention of the IOC. It has been argued before me today, as appears from what I have said, but in a way which is not entirely satisfactorily, bearing in mind(a) the lack of any relevant documentation before me and(b) the fact that in the time available since the issue was raised, Mr Walker's solicitors have been unable to seek from the Army confirmation of their position, one way or the other, as to Mr Walker's appointment, if such he has. There is therefore a whole area of investigation which was not put before the IOC.[37]There is one other area which was not before the IOC, and that is Mr Walker's explanation of his possession of the documents which form the subject of the charges of dishonesty and perverting the course of justice. Counsel on his behalf said relatively little about it. He said:
"All I can say is that Mr Walker has a perfectly reasonable and honest explanation for having that book [that I think is a reference to the operation theatre register] along with a large number of old records principally from his private practice in his house at the time of the police search."
So there was no explanation put before the IOC and, it seems to me, in those circumstances, they were bound to take the view that there may not be any good explanation.[38]Of course, Mr Walker is not bound to give any explanation, at this stage, to the IOC. He is entitled to refrain from doing so with a view to ensuring that he has the fairest possible trial of the serious criminal allegation against him. A statement has now been produced. It is unsigned. My understanding is that it is a statement which was actually given to the police in relation to those documents - at what date, I am not clear and whether it was given to them before or after he was charged in relation to those documents I do not know. But, if it be right that the statement has been given to the police, there seems to be no reason why it should not be put before the IOC.[39]If, leaving aside the reasons it gave, I ask myself whether the decision of the IOC was a reasonable decision for it to make in the circumstances, my answer is affirmative. The charges that were faced, the manslaughter charges, are of very great seriousness. It is right that they have already been investigated. But, at this stage, it cannot be known, as far as I am aware, whether there is material which is to be put before the criminal court, on those charges, which was not before the PCC. More importantly, there is a consideration of the dishonesty charges made thereupon, the proceedings before the PCC and its decision both in substance and the matter and so far as reasonably concerned.[40]While it must be right that, where there are multiple manslaughter charges against a doctor, very serious consideration must be given to an interim suspension, of course such a measure cannot be applied as a matter of course. The decision and the jurisdiction are those of the IOC and not of the Crown Prosecution Service. But, when one takes into account, as I have already stated, that such charges are not prosecuted except on substantial grounds, an IOC will, in cases where there has been no previous consideration of the relevant facts, give the greatest and most anxious consideration to an interim suspension of the doctor in question. Confidence in the medical profession will be at risk if doctors who face charges of that seriousness are free to practice during the dependency of the criminal proceedings. This matter differs from the generality, in the way I have already indicated. The PCC has already reached a view as to the seriousness of the appropriate sanction. But the new charges, as I have already indicated, cast another light on that. Notwithstanding the seriousness of the effect of a suspension on Mr Walker, on the basis that he holds an appointment with the Army, I certainly would not interfere with the decision made by the IOC.[41]What should I do, therefore, in the circumstances which apply at present? It may be irrelevant what steps can be taken by the IOC in the light of this judgment but the reality of the matter is this. There is new material to go before the IOC. That new material consists, firstly, of Mr Walker's statement, which the IOC can consider, and while not making a finding of fact one way or the other, can reach a view as to whether it affects the view that the Committee ought to take concerning the additional charges. As I say, it seems to me that a professional Committee is best placed to take a view whether there is substance in the suggestion that little or no information was withheld. Secondly, it will be able to consider, on the other hand, whether or not Mr Walker has an appointment with the Army and, if so, whether he will continue to be paid under that appointment. Those are matters which should be considered by the IOC on a review of the decision it has made. It may review the decision it has made where new evidence, relevant to the order, has become available after the making of the[42]For present purposes, however, it is sufficient for me to say that I regard the decision made one which - on the material before me and on the assumptions I have made and giving deference for what must have been the view of the IOC - the IOC was entitled to make and which I do not feel it appropriate to interfere with, while expressing the view that the IOC should review its order, in the light of the information to which I have already referred.[43]This being an appeal under section 41A(10) rather than the judicial review proceedings and it having been accepted that this is the substantive hearing of that appeal, the result is that the appeal is dismissed. However, I direct that a copy of the transcript of my judgment be prepared and provided to the GMC as soon as possible, with a recommendation that the IOC consider the order it made in the light of the new material put before it.[44]MR DE LA MARE: May I have a couple of moments to take instructions? My Lord, I do make an application for costs on behalf of the GMC. I appreciate your Lordship may wish to give some discount as to the reasons point on which you found against the GMC and I leave that to my learned friend as to submissions as to how much a discount is appropriate in the circumstances and I will respond to that.[45]The reason I ask for my costs is that, firstly, the GMC succeeded. Secondly, if there were any inadequacies on the preparation of the evidence on the GMC's part that is because we were, through no fault of the Court and may be no fault of the claimant - I do not know - we were bounced into Court effectively. The first I knew about this matter was at 5 o' clock yesterday. We have done the best we can in the circumstances.[46]In terms of the new evidence that is before you, Mr Walker's statement was something that he could have provided himself. So far as there is any other uncertainty as to that he is to blame. Likewise, I would say that it is his responsibility to describe fully his employment position and to have invoked section 47. Those rights are there for the doctors' protection. He should have carefully considered whether or not section 47 applied to him. The fact that I, to a certain extent, made his case for him does not detract from that. They are both matters that should have been put by the claimant before the Court. Your Lordship has indicated that this is a case where you would not have been minded to interfere but for those areas of uncertainty and the GMC has quite responsibly indicated that it is willing to expedite any hearing of this case by the IOC so that fresh evidence can be considered. That may take a little bit of time. But, for those reasons, my Lord, we have won, we have won substantially. Our arguments as to why this was the right decision in the circumstances were correct, and I would invite your Lordship to direct that the claimant pay our costs.[47]MISS OUTHWAITE: Can I deal with the late notification point first, being a minor one. It is true that the GMC got late notice of this. I understand they were first informed of it yesterday afternoon when they received a copy of my skeleton. However, the application was made on Tuesday, the 12th and Mr Slidders, who works in the List Office, told my instructing solicitor, who is not one of the instructing solicitors who are behind me but who is called Clare Chapman at RadcliffesLeBrasseur, that the appropriate mechanism for going forward - and you will appreciate that there was some confusion about that because the application was made originally on the form of a Practice Direction for judicial review in relation to urgent applications before the Administrative Court. Then, on the advice of the Listing Officer, it was done by way of appeal. In fact this hybrid application is technically not an appeal but a statutory application which falls in between the two. I am instructed that Mr Slidders of the Listing Office told my instructing solicitor that he would forward a copy of the drafting application to the GMC.[48]MR JUSTICE STANLEY BURNTON: I am not going to punish anyone on your side for having had the energy to get this matter on as quickly as you have. There may have been a hiccup with service but no one is going to be punished for that. I have to say, I am impressed with the way both sides have brought this on. The reason why the two are before me is incomplete, I am afraid, is because neither of you had time to stand back and focus on the issues in a way that might have produced a more analytical approach.[49]MISS OUTHWAITE: My Lord, I am grateful for that indication.[50]MR JUSTICE STANLEY BURNTON: The position, I can see on any basis an appeal was justified having regard to the brevity of the reasons.[51]MISS OUTHWAITE: The fact there has been an opportunity to have substantive determination on it is of course most welcomed. But, if I may say so, having had the benefit and heard your Lordship's judgment, one of the points which had some significance for you was the fact that Mr Walker may have an appointment and therefore there were the dramatic consequences which I had believed to apply and may or may not apply and do not come into train and did not apply and the proportionality exercise is effected because of that. That appeared for the first time I think at 2 o' clock today. It is quite a legitimate criticism that we could have discovered that by careful statutory analysis ourselves. The fact it was not raised. It was not raised before the IOC and was not considered and was raised at a late stage today. In those circumstances that is the turning point of this case. In those circumstances we have won some and we have lost some and I invite you to split the costs 50/50.

MR JUSTICE STANLEY BURNTON: Do you mean to award the GMC half its costs?

[53]MR DE LA MARE: I think a fairer example would be 75/25 of our costs. It is primarily Mr Walker's job to work-

MR JUSTICE STANLEY BURNTON: Why do I not have any schedules?

[55]MR DE LA MARE: We concentrated on getting the case on rather than preparing the schedules. The costs are unlikely to be huge, given how quickly the case has come on. The reason I say 75% is that Mr Walker's contractual position is primarily a matter for him to investigate and for him to ascertain as between the trust. Section 47 is there for his protection, he should consider his application to his case.[56]MR JUSTICE STANLEY BURNTON: It turns out it does not help him. I do not know yet.[57]MR DE LA MARE: It may turn out. From the evidence we have heard in Court today prima facie it sounds like he will. So, I do accept a discount as I did initially on the grounds of reasons is appropriate, but for the other reasons I gave I invite 75% costs to be made within 28 days to be assessment.[58]MR JUSTICE STANLEY BURNTON: In my judgment, the appropriate portion is 60. I say that because the brevity of the reasons invited an appeal in this case. On the reasons, which was the subject of considerable argument, the claimant was successful. So, there will be an order that Mr Walker pay 60% of the GMC's costs, which will be determined by detailed assessment. That is all you need from me, is it not? If not agreed.

order

(see section 41A(2)(b). Whether strictly this is material which has become available since the making of the order, or material which could have been made earlier available, is something I have not considered. I understand that in a similar case the IOC did consider material put before it by the practitioner which, at least in theory, could previously have been put before it.

Cited in 14 later judgments

and 5 more of the most senior