Aaalamani, R (on the application of) v General Medical Council [2003] EWHC 2582 (Admin)

Case No CO/2603/02Case No CO/4600/02Case No CO/5895/02[2003] EWHC 2582 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 27 October 2003
Strand
London WC2
B E F O R E:
MR JUSTICE HENRIQUES
Between
THE QUEEN ON THE APPLICATION OF DR HOSSAIN AAALAMANIClaimant-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)
THE CLAIMANT APPEARED IN PERSON (assisted by his McKenzie Friend, Mr Amihyia) for in personMISS JANE MULCAHY (instructed by Field Fisher Waterhouse) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE HENRIQUES: The claimant, Dr Aaalamani, is a psychiatrist. The defendant, the General Medical Council, is the Body responsible under the Medical Act 1983 for the regulation of the medical profession. One of the ways in which it is empowered to so regulate is by suspending or imposing conditions on the registration of a practitioner in cases where a practitioner's standard of professional performance is seriously deficient. This function is carried out by its Committee on Professional Performance (CPP). Another committee, the Interim Orders Committee (IOC), has the same powers as the CPP, but for a limited period where it thinks it necessary for the protection of members of the public.[2]Three statutory appeals are today listed before me. Those appeals being against three decisions made by the Interim Orders Committee. Those decisions being dated 18 March 2002, 16 September 2002 and 11 December 2002. There are two subsidiary matters apparently listed by which the appellant sought to challenge the decision of interim orders committees refusing to provide him with copies of his entire GMC files from 1974 to 2002 in breach of the provisions of the Data Protection Act 1998. As will be clear from my review of the chronology of these matters, those two subsidiary matters appear to have been dealt with by Elias J on 14 January 2003.[3]The history of these several matters commences by way of a complaint received by the GMC as to Dr Aaalamani's performance as a psychiatrist in Cardiff. Upon receipt of the complaint, Dr Aaalamani was assessed by a performance assessment panel who referred his case to the Interim Orders Committee. On 18 March 2002, the Interim Orders Committee imposed conditions on Dr Aaalamani's registration. The essential one being that he should only work in supervised posts within the National Health Service. This is the subject matter, or purports to be the subject matter, of the first of the three statutory appeals.[4]The papers appear to have been placed before Scott Baker J as an application not by way of statutory appeal, but by way of an application for judicial review when Scott Baker J refused permission, observing:
"You have not identified any arguable error of law on the part of the defendant. The letter of 23 April 2002 from the Privy Council suggests you may have an alternative remedy which you should have used rather than judicial review."
[5]The fact of the matter was that the learned judge and the applicant appear to have been at cross purposes -- the applicant not in fact requiring permission to pursue a statutory appeal pursuant to section 41A(10)(b) of the Medical Act 1983. The learned judge, upon the paperwork before him, believed that this was an application for permission to apply for judicial review.[6]A pending renewed application was adjourned by Mr Nigel Pleming QC, sitting as a deputy judge of the High Court on 20 September 2002. In the meantime, on 3 September 2002, Dr Aaalamani's case came before the Committee on Professional Performance (CPP), which concluded that his performance had been seriously deficient and it imposed eleven conditions which related to training and supervision. Those conditions are attached to his registration for a period of three years. The Committee on Professional Performance also directed that the Interim Orders Committee order of 18 March -- the subject matter of the first of these three statutory appeals -- should be revoked with effect from the date when the conditions imposed by the CPP came into force. Pending the taking effect of the CPP order, the CPP directed that the 18 March conditions should remain in force but only up until the taking effect of the CPP order. The IOC reviewed the 18 March 2002 conditions on 16 September 2002, and varied them so that they coincided with the CPP conditions. That is the subject matter of the second of the three statutory appeals. It will be noted, however, that since the IOC conditions coincided with the CPP conditions, they added nothing and were in no way a burden in themselves upon Dr Aaalamani's registration.[7]On 11 December 2002, the IOC conditions were further reviewed. That is the subject matter of the third of the three statutory appeals. On 14 January 2003, Elias J heard applications for disclosure in CO/2603/02 and CO/4600/02 together with new proceedings concerning the 11 December 2002 decision. At that hearing all decisions were stayed pending Dr Aaalamani's appeal to the Privy Council against the CPP's decision of 3 September 2002.[8]On 22 January 2003, the GMC's application to have the Privy Council appeal struck out was heard. The Privy Council advised Her Majesty to dismiss Dr Aaalamani's appeal. The consequent order was made on 27 February 2003, and on that date, the CPP order took effect and the IOC conditions ceased to apply. The very nub of the difficulty which Dr Aaalamani faces today is that he seeks to appeal against IOC conditions which from 27 February ceased to apply. Put very simply and in layman's language, there is no condition against which he can appeal since the condition no longer exists. In any event, had the condition run concurrent with the CPP condition which it does not, an appeal would not in any way have availed Dr Aaalamani because the CPP order would be in effect. A listing for a mention on 30 June 2003 was adjourned by agreement at Dr Aaalamani's request and the several matters are now re-listed.[9]On 9 July 2003, a letter was written by the solicitors to the General Medical Council endeavouring to set out for Dr Aaalamani's assistance the situation as they then saw it, and it will no doubt assist those reading this judgment to hear the contents of that letter. So far as is relevant, it states as follows:
"As you will be aware the court at your request adjourned the hearing listed for 30 June 2003. We understand that you are seeking legal representation in relation to these matters. "
The court have now re-listed your cases CO/5895/2002 and CO/4600/2002 for hearing on 27 October 2003. We enclose copies of the letters we have received about this listing. "We would invite you to consider carefully our application that your claim should be dismissed. The claims all relate to IOC orders which are no longer in existence. Your registration is now subject to the substantive order made by the CPP on 3 September 2002. "As the court letters make clear, it is open to you to withdraw your proceedings and we would urge you to consider taking this step. If you continue with your proceedings and we are required to attend the hearing in October, you should be aware that we reserve our client's right to seek an order that you pay the costs incurred in relation to this matter. "If you do secure legal representation in this case, we would ask you to ensure that your solicitor is shown the recent application and witness statement of Sarah Louise Ellson." That witness statement which I have read sets out in full the history of these proceedings. Indeed, with that witness statement before me, this judgment has been formulated.[10]Dr Aaalamani sought leave for Mr Amihyia to make representations to me as a McKenzie friend and I granted permission for him to do so. Two separate matters were brought to my attention. Firstly, I was told that the fundamental point behind this appeal is to gain access to all the papers which were before the IOC when they imposed their conditions. The doctor has not had sight of the documents and he wished to have sight of them, believing that the only way in which he could undermine the decision would be to have sight of those documents. Of course, I remind myself that the applications for disclosure were both dealt with by Elias J on 14 January 2003.[11]The further matter which was canvassed before me was that an adjournment was sought of today's statutory appeals to a later date sine die to enable the European Court of Human Rights to judge a complaint which Dr Aaalamani has placed before the European Court alleging breaches of Articles 6 and 8 of the Convention. Without in any way indicating that there is any merit whatsoever in those applications, and pointing out that the merits of those applications are not a matter for me, it is right to point out that before the European Court will consider a complaint in circumstances such as this, it is necessary for Dr Aaalamani to have exhausted the appellate process within the domestic jurisdiction. The fact that matters stood adjourned before this court would have been of no assistance to Dr Aaalamani, quite the contrary. He would, in all likelihood, have found that by reason of these matters standing adjourned, had I agreed to that course, he would have been found not to have exhausted his remedies pursuant to domestic law.[12]I am entirely satisfied that the only course open to me today is to dismiss these three statutory appeals. Since there are no conditions presently in force, there is simply nothing against which Dr Aaalamani can appeal. He has already sought to appeal to the Privy Council against the same conditions imposed by the CPP and that appeal was struck out. So far as any order of the CPP is concerned, I have no jurisdiction. That is a matter entirely for the Privy Council.[13]In all the circumstances, these three appeals pursuant to section 41A(10)(b) of the Medical Act 1983 are dismissed. So far as the two subsidiary matters are concerned, the three statutory appeals being dismissed, there are no remaining matters with which this court is concerned.[14]MISS MULCAHY: My Lord, you will see that we did put in a statement of costs, indeed two of them. We do apply for our costs. Perhaps I should just explain the basis for those statements of costs. The first is for the proceedings in their entirety, save for one period between 20 December 2002 and 15 January 2003 because Elias J, in relation to the applications heard on 14 January 2003, made no order. The alternative basis on which we ask for costs is the second schedule. The reason that 14 March 2003 is chosen as the starting date is that that is the date on which the General Medical Council -- or those instructed by the General Medical Council -- told the court about the Privy Council decision, and therefore explained that there was nothing left to appeal. So, my Lord, we do ask for our costs on one of those bases. My Lord, I would obviously urge your Lordship with the former, but I am in your hands.

MR JUSTICE HENRIQUES: So these are cumulative? It is £6,080 plus £4,671?

[16]MISS MULCAHY: No, my Lord. The first one includes the second one. It is up until today and the second one is the shorter period.[17]MR JUSTICE HENRIQUES: I see. So you are claiming £6,080 -- sorry you are going to have to explain, I have misunderstood. The difference between the two schedules?[18]MISS MULCAHY: My Lord, the first one is £6,080 and I assume, and I will be corrected if I am wrong, we believe that there is not much difference between them -- £2,000 -- actually not very much happened in the early part of the proceedings because nothing had happened in which the GMC, save for ongoing looking after of this case, had to be involved. Things really got going with the December 2002 application, and therefore, there was the case on 14 January 2003. That period has been taken out of the first schedule because Elias J said for the purposes of that application there should be no order as to costs. So the first schedule includes things before 20 December 2002.[19]MR JUSTICE HENRIQUES: I would be faithful to Elias J's views if I made an order in the lesser amount.[20]MISS MULCAHY: My Lord, the only difference between the two of them is there was some earlier matters which were not related to the proceedings before Elias J which the GMC also seeks its costs for which were the, if you like, watching brief-type matters.[21]MR JUSTICE HENRIQUES: The matter really only becomes clear, does it not, when matters get to the Privy Council?[22]MISS MULCAHY: My Lord, we are in your hands. I am sure we would be very grateful if we had the smaller sum of £4,000.

MR JUSTICE HENRIQUES: Is there anything you would like to say to say to me about costs, Mr Amihyia?

[24]CLAIMANT: All I am instructed to say is that I am not in a position to argue as to individual costs on the individual matters because I am not privy to those matters.

MR JUSTICE HENRIQUES: You have seen a schedule, have you not?

[26]CLAIMANT: Yes, indeed. I understand the basis on that. All I am instructed to say is that the applicant himself is on income support and therefore would there be any, if you like, merit in the costs for practical purposes?

MR JUSTICE HENRIQUES: You are simply saying that he is not in a position to pay?

[28]CLAIMANT: Precisely, because he is on income support. He can prove that.[29]MR JUSTICE HENRIQUES: It will be a matter of course as to whether they seek to enforce it, but on the other hand, your client might win the pools or receive a legacy or anything else.[30]CLAIMANT: Pigs might fly, my Lord.[31]MR JUSTICE HENRIQUES: The principle is, I am afraid, that those who lose pay, particularly when they have had a letter in the very clear terms that was sent here.[32]CLAIMANT: I understand.[33]MR JUSTICE HENRIQUES: I am minded to make it in the lesser of the two sums asked for because it seems to me matters did only become clear at a later stage. So I will, by way of summary assessment, assess the costs in the sum of £4,671.80.[34]CLAIMANT: If I may say one thing on that. Rather than give directly what they said, you should take into account the likelihood of a slight inflation on the bills which they propose.[35]MR JUSTICE HENRIQUES: I have looked at the figures with care and I can assure you that, compared to many claims and many charging rates, these are extremely modest, as indeed are the hours that have been claimed for.[36]CLAIMANT: Because generally when someone puts £4,000 even with all the invoices and receipts generally --

MR JUSTICE HENRIQUES: You normally expect a little bit to be knocked off?

[38]CLAIMANT: Precisely.[39]MR JUSTICE HENRIQUES: But I have looked at all these figures and they are extremely modest. You will see the pile of these papers that have had to have been gone through.[40]CLAIMANT: As your Lordship pleases. I have been asked to put it to your Lordship for the sake of completeness. I have been asked can the applicant appeal? I am merely putting it to you what I have been told to say for the sake of completeness.

MR JUSTICE HENRIQUES: Can you help me as to his rights under the Act?

[42]MISS MULCAHY: Our understanding is that it would be a normal appeal, if you like, at this stage to the Court of Appeal. So there would have to be the usual realistic prospects of success.[43]MR JUSTICE HENRIQUES: Of course. If he wishes to seek permission to appeal then I will refuse it, and I will refuse it on the grounds that there is no prospect of success.[44]CLAIMANT: I have already explained that.[45]MR JUSTICE HENRIQUES: In terms of exhausting your appeals, that would be deemed to have been exhausted. You do not have to go to the Court of Appeal. Once I have said that you have no prospect of success you have reached the end of the road.