Gibson, R (on the application of) v General Medical Council & Ors [2004] EWHC 2781 (Admin)

Case No CO/5274/2004[2004] EWHC 2781 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 5 November 2004
Strand
London WC2
B E F O R E:
MR JUSTICE ELIAS
Between
THE QUEEN ON THE APPLICATION OF ALEXANDER GEORGE GIBSONClaimant-v-
Between
THE GENERAL MEDICAL COUNCILDefendantMS & OTHERSInterested Party
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)
MR ANDREW HOCKTON and MR SIMON CRIDLAND (instructed by The Medical Defence Union, London SE1 8JP) appeared for CLAIMANTMR PUSHPINDER SAINI (instructed by Field Fisher Waterhouse, London EC3N 2AA) appeared for DEFENDANTMR JAMES BADENOCH QC AND MR OLIVER SANDERS (instructed by Harman & Harman, Kent CT2 8BP)appeared for INTERESTED PARTIES.
J U D G M E N TFriday 5 November 2004
[1]MR JUSTICE ELIAS: The claimant is a retired medical practitioner. He is the subject of disciplinary proceedings before the Professional Conduct Committee ("the PCC") of the General Medical Council ("the GMC")for alleged professional misconduct. He now seeks judicial review of two decision made by the PCC in the course of a preliminary hearing in this case held some five weeks ago.[2]The first is a decision not to stay the proceedings against him. He has alleged that the delays in hearing his case were such that it would be an abuse of process, alternatively a breach of Article 6 of the ECHR for the proceedings to go ahead now. Second, he challenges a decision to refuse his application for voluntary erasure from the Medical Register. Had he been allowed voluntarily to erase his name, the proceedings would have been stayed. There is an urgency in this application because the substantive hearing is due to take place next week on 11 November. Hence the court has accommodated the parties and heard this application with considerable dispatch.[3]I have been assisted by representations by Mr Hockton, counsel for Dr Gibson, Mr Saini, counsel for the GMC and Mr Badenoch QC acting for the complainants. He is present as an interested party. However, he will in fact prosecute the proceedings before the PCC. This has been agreed between the claimants and the GMC. The GMC has agreed (within reasonable limits) to fund the complainants' costs. Accordingly, it was in fact Mr Badenoch who made submissions at the preliminary hearing in opposition to the arguments advanced by Mr Hockton on behalf of Dr Gibson. I return later in this judgment to comment on the role of the complainants in the prosecution. The history[4]Dr Gibson became a Consultant Pathologist at what is now the Kent and Canterbury Hospital in 1974. During the material period, that is 1990-1995, he was one of three pathology consultants working at the hospital in the Histopathology Department the other two being Dr Farley and Dr Illesley. In October 1995, problems emerged in relation to the cytology service provided at the hospital. (Cytology involves looking at cells under a microscope for the purpose inter alia of deciding whether cancer has taken hold). In particular, there were widespread concerns with the cervical screening programme being conducted there.[5]These concerns have spawned a number of reviews. First, there was an external review set up by the hospital in November 1995, which reported in January 1996. Then in February 1996, the Royal College of Pathologists arranged a visit to the Histopathology Department and produced a report the following month. In February 1997, the Trust responsible for the hospital produced a report following a re-screening of all negative smears between 1990 and 1995. That involved a reconsideration of over 91,000 smear tests. On 23 June 1997 the Secretary of State set up an independent review of the cervical screening programme chaired by Sir William Wells. It was designed to restore public confidence in the service. The scope of the inquiry was to determine what had gone wrong and what lessons might be learned for the future. A report was produced in October 1997. It is an authoritative document which, in certain respects, confirmed what some of the earlier report had already identified. In particular, it concluded that there had been poor and confused management in the pathology laboratory; that there had been under-staffing, poor training, low moral and a breakdown in relations which have continued for many years despite repeated warnings; that the consultants had appeared remote and uninterested in the cytology screening programme and that there was a clear lack of lines of accountability in the management structure. Various proposals for a reform were made.[6]Prior to the reports being produced, the inquiry had indicated to the GMC that it had concerns about the quality of the diagnostic performance in cervical cytology of all three of the consultants. In addition, it raised questions about the quality of the histopathology reporting of Dr Gibson. (Histology involves the microscopic examination of living tissues, as opposed to examination of cells).[7]Following receipt of the Wells Inquiry Report, the GMC notified Dr Gibson on 3 November 1997 that they were conducting an investigation into his professional practice and conduct in the light of that report; and that it was being undertaken by Field Fisher Waterhouse, solicitors acting for the GMC. Once the investigation had been concluded, the evidence was considered by a "screener". This is a procedure under the rules where a decision is taken as to whether or not further action is warranted. During the course of the investigation, there had also been a number of individuals who had made specific complaints to the GMC.[8]On 21 September 2000, Harman & Harman, solicitors for the complainants, submitted complaints to the GMC on behalf of eleven women. The current case against Dr Gibson relates to alleged misconduct with respect to five of these women. It is not clear what happened to the other complaints but, no doubt for a variety of reasons, they are no longer being pursued. I will return to the particulars of the case against Dr Gibson below. In the case of each of these five complainants, they had taken civil proceedings against the Trust and the Trust had accepted liability and had reached a settlement without a public hearing.[9]On 2 January 2002 a letter was sent to the claimant informing him that the screening had determined that "there were no issues arising from the Wells Report that reached the threshold of serious professional misconduct." However, Dr Gibson was notified that the complaints from certain specified individuals could amount to serious professional misconduct, and that these would therefore be referred to the Preliminary Proceedings Committee ("the PPC") for their consideration. Details of the complaints and the documents relied upon were sent to Dr Gibson on 31 July 2002.[10]On 29 January 2003 Dr Gibson's solicitors wrote to the GMC making various observations on the allegations. In particular, they complained about delay which had occurred, noting that the proceedings had been dragging on in a desultory fashion for over five years since Field Fisher Waterhouse were first asked to investigate the complaints. In addition, they indicated that Dr Gibson desired voluntarily to have his name erased from the Register.[11]After taking into account these written observations made on his behalf, the PPC decided on 24 February 2003 to refer the case to the Professional Conduct Committee ("the PCC"). It notified Dr Gibson that the letter did not address the issue either of delay or voluntary erasure. Subsequently, however, it was explained that the Committee had formed the view that the question of delay should be a matter to be considered by the PCC, and that as far as voluntary erasure was concerned, there should be a formal application.[12]Such an application was made on 15 May 2003. It was considered by the PPC and rejected on 30 July 2003, and Dr Gibson was notified of the decision about a week later.[13]Dr Gibson indicated that he would want to advance the two issues of delay and voluntary erasure before the PCC. There was a dispute as to whether these should be treated as preliminary issues, or be considered immediately before the substantive hearing, but ultimately it was resolved that the former course should be taken. A formal application for erasure was made orally before the PCC once the case had been opened. (For reasons I explain below the application had formally to be made at that stage or else the PCC would not have had jurisdiction to deal with it). Following an oral hearing, the decision in relation to delay was taken on 29 September 2004 and on voluntary erasure on the following day. The allegations against Dr Gibson[14]I am concerned with only the decisions taken at a preliminary hearing; accordingly, it is not necessary to set out in any detail the allegations made against Dr Gibson. However, it is necessary for the purpose of resolving this dispute to indicate their general nature.[15]As I have said, the complaints relate to five patients. It is said that Dr Gibson made specific and individual errors in his cytological and his histological analysis of reporting. The complaints are therefore directed at his performance as a doctor, rather than what are sometimes referred to as "scandalous" issues such as sexual impropriety or dishonesty. Nonetheless, it is said that the standards of his work in relation to the analysis and reporting of these specimens were so low, and the errors so gross, that they amount to serious professional misconduct. Mr Hockton accepted that in principle issues relating to poor performance could, if sufficiently grave, amount to serious professional misconduct.[16]In relation to two of the women patients it is said that Dr Gibson made errors in relation to cervical smear tests. In relation to three it is said that the errors were in the course of carrying out and reporting the results of a histological analysis.[17]In relation to patient "A" it is alleged that Dr Gibson erroneously reported a malignancy in the breast when the evidence did not disclose this. As a consequence, Mrs "A" had a mastectomy and, not surprisingly, suffered considerable physical and psychological harm. In the case of patients "B" and "D" it is alleged that he had failed to carry out a proper histological analysis in relation to a number of slides and failed to identify the gravity of the condition of these two women. With respect to patient "C" and "E" it is alleged that Dr Gibson failed to carry out a proper analysis of the cervical smear, and again underestimated the seriousness of their condition. Sadly two of the women have in fact died, although it is not alleged that any errors of Dr Gibson caused or contributed to their premature deaths.[18]In the case of patient "E" there is a potentially serious additional complaint. It is this: Dr Gibson was asked by a consultant surgeon to review a number of earlier cervical smear tests, including one of his own. It is alleged that he again misdiagnosed, at least to some extent, these earlier slides. It is specifically said that one possible inference of his conduct is that in relation to some of the earlier smears he sought deliberately to mislead the surgeon. That allegation was not for some reason made in connection with the slide which he himself had earlier tested. However, Mr Badenoch submits that the allegation is that he may have deliberately sought to mislead the surgeon as to the earlier slides, either to protect those third parties or possibly because it would otherwise have pointed up the failing in his own earlier analysis. Delays[19]I turn first to consider the contention that the PCC ought to have stayed the proceeding on the grounds of delay. The legal principles are not fundamentally in dispute. The case was put both on the basis that it was an abuse of process at Common law for the proceedings to continue, and also on the ground that it would be an infringement of Article 6 of the European Convention on Human Rights. However, Mr Hockton accepted both before the PCC and before me that for reasons which I will briefly develop below, Article 6 added nothing to the Common law principles in the context of this case.[20]In Attorney General's Reference (No 1 of 1990) [1992] 1QB 630, the Court of Appeal had held, after reviewing the relevant authorities, that at common law, even where there were unjustifiable delays in criminal proceedings, a stay should not be imposed unless: "The Defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words that the continuance of the prosecution amounts to a misuse of the process of the court." (Lord Lane CJ giving the judgment of the court at page 644 B).[21]In addition, however, the courts have also held that there are circumstances where even although the fairness of the trial itself is not in question, nonetheless it would be so unfair to try the accused for the offence that it would be an abuse of process for the trial to continue: see for R vHorseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42.[22]It is now firmly established that similar principles apply in relation for Article 6. This article requires so far as is material that:
"In the determination of his civil rights and obligations of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time..."
[23]In Attorney General's Reference (No.2 of 2002) [2003] UKHL 68 [2004] 2AC 72, the House of Lords had to consider whether the criminal proceedings should be stayed on the ground that there had been a violation of the reasonable time requirement even in circumstance where the accused could not demonstrate any prejudice arising from the delay. The Privy Council had decided in the earlier case of HM Advocate v R [2002] UKPC (D3) [2003] 2 WLR 317, by a majority (Lords Hope, Clyde and Rodger; Lords Steyn and Walker dissenting) that once it was established that there had been an unreasonable delay, it was an infringement of Article 6 for the prosecution to continue. In the later case the House of Lords unusually consisted of nine judges. They chose by a majority (Lords Bingham, Nicholls, Steyn, Hoffman, Hobhouse, Millett and Scott, Lords Hope and Rodger dissenting) to depart from the approach adopted by the Privy Council. The approach of the majority is summarised in the following passage (para 24) from the opinion of Lord Bingham (with whose judgment each of the judges in the majority agreed):
"If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the Defendant's Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgment of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will no be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances."
[24]As to the second category, where it would be unfair to try the defendant even although a fair trial would be possible, Lord Bingham said that this would include cases of bad faith, unlawfulness and executive manipulation. But he also accepted that there could be cases where the delay was of such an order that it would unfair to continue the proceedings against the defendant (paragraph 25). His Lordship emphasised that such cases would be "very exceptional" and that the stay would never be appropriate if any lesser remedy would adequately vindicate the defendant's Convention rights.[25]In considering what constitutes a very exceptional case, I think it helpful to bear in mind the observations of Lord Diplock in Hunter v Chief Constable of the West MidlandsPolice [1982] AC 529,536 when he said that abuse of process. "concerns the inherent power which any court of justice must possess to prevent the misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to the litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people."[26]In my judgment, therefore, the Convention principles, insofar as they relate to circumstances where a stay may be required, add nothing to the Common law. Of course, there may be remedies under the Convention in circumstances where there would be no relief at common law, namely where there has been unreasonable delay but a fair trial is possible. But at both common law and under the Convention in order for a stay to be justified, the party seeking the stay must establish either that a fair trial would not be possible, or that for some other compelling reason it would be unfair to try him.[27]Indeed in one respect the common law would appear to be more favourable to a defendant than Article 6. This is because under the Article the "reasonable time" referred to in the Article does not begin to run until the earliest time at which a person is sufficiently officially alerted to the likely of criminal proceedings against him: see the observation of Lord Bingham in Attorney General's Reference (No 2 of 2001) at paragraph 27. In the context of GMC proceedings, this has been held to be the date when the screener notifies the defendant that the matter will be referred to the PPC: see GMC v Pembrey [2002] Lloyds Rep Medical 434 per Crane J. The reason for selecting this time is that the purpose of the Article is to ensure that criminal proceedings, once initiated, are prosecuted without undue delay. By contrast, at common law the court is concerned with the whole of the delay starting from the time when the conduct giving rise to the grounds of complaint arose. In this case it is when Dr Gibson is alleged to have made the inadequate analysis of the various slides relating to the particular patients, which was at various times between 1990 and 1995.[28]In view of this, Mr Hockton rightly accepted, as I have indicated, that it was not necessary to focus on Article 6. The discretion of the Committee[29]The Committee considered both limbs of abuse of process and rejected each of them. The concluded, unsurprisingly, that looking at the overall period, as one is required to do in common law, the delays were unsatisfactory. (It would not in fact have held that the short period under Article 6 would have been unreasonable). The Committee focused on the question of prejudice. It concluded as follows:
"The Committee had determined that notwithstanding the delay, Dr Gibson has not demonstrated that he has suffered such serious prejudice as would deprive him of the ability to have a fair hearing."
[30]The Committee then considered the alternative limb of whether, even although it considered a fair hearing to be possible, it was nonetheless unfair in the circumstance to continue with the proceedings. It summarised very briefly the contentions advanced by Mr Hockton in relation to this matter and concluded that there was no abuse of process in the proceedings continuing.[31]In addition to these two matters, there was a third argument advanced before the Committee and which has been renewed before me. It is advanced partly in support of the second limb of the abuse argument, but also as a freestanding argument in its own right. It arises in this way. A new Statutory Instrument came into force on 1 November 2002, namely the General Medical Council (Fitness to Practise Committees (Amendment) Rules 2002. This provides that in relation to misconduct there will be a general principle that complaints of misconduct made more than five years after the event giving rise to the allegation will not be referred to the PPC, unless the screener takes the view that the public interest requires such an exceptional step to be taken. In this case, by the time the Statutory Instrument came into force, namely 31 July 2002, the complaints were already under active consideration by the PCC; the screener's role was defunct. The legal adviser notified the PCC that this Statutory Instrument was simply of no relevance since it was not in force, and the PCC followed that advice. Mr Hockton submits that this was an error. He accepts that the regulations are not directly applicable; they were not in force and could not have been applied in accordance with their own terms given that the case had gone beyond the screener stage. But he said that they should have been taken into consideration by the PCC; they should have informed the way in which that Committee exercised its discretion. The Committee, therefore, ought to have asked itself whether there were exceptional circumstances which required this case now to be heard in the public interest. Had they approached matters that way, says Mr Hockton, then they could not sensibly have reached the conclusion that they did.[32]Finally, there was a bold submission that in the case of a disciplinary hearing it was not necessary to establish any prejudice at all, and that mere unjustifiable delay would be sufficient to warrant the case being stayed.[33]I now turn to consider the four distinct ways in which the delay argument has been advanced. I will consider the fourth ground first, since if it is good in law, then given that the PCC found that there was unjustifiable delay, the proceedings would inevitably have to be stayed. Do disciplinary hearings constitute a special case where noprejudice is necessary?[34]The short answer to this submission is that it was not, as I understand it, an argument advanced before the PCC. If that is so, it cannot properly be advanced before me now. However, I will briefly address the argument.[35]Mr Hockton says that the public interest in requiring that criminal proceedings should be heard unless a fair trial is not possible, is quite different to the public interest which has to be taken into account when considering whether disciplinary proceedings should be allowed to continue. He says that there is always a strong public interest in requiring criminals to be brought to book, however long the period since the offence was committed. By contrast, there is far less justification for seeking to subject professionals to a disciplinary process particularly where, as here, the complaint is essentially about lack of competence in the performance of the doctor's duties, and he has long retired from practice.[36]Both counsel for the GMC and for the complainants contend that there is no warrant at all for this distinction. As Mr Pushpinder Saini pointed out, disciplinary proceedings attract the safeguards of Article 6 because they involve a determination of the practitioner's civil rights and obligations: see for example the observations of the Privy Council in Haikel v GMC [2002] UKPC 37 Lloyds Reports (Medical)415 following Gosh v GMC [2001] 1 WLR 1915. As Lord Bingham pointed out in Attorney General's Reference case to which I have referred, it would be absurd to apply Article 6 in the field of civil law so as automatically to stay proceedings where there has been unreasonable delay, since whilst that might protect the Convention right of one party, it would violate the Convention right of another. In this context it would mean that the legitimate concerns of the complainant that the alleged misconduct should be properly scrutinised by the professional body, would be ignored. I bear in mind the observations of Lightman J in R v General Medical Council ex parte Toth [2001] 1 WLR 2209, that both the legitimate expectation of complainants and the public confidence in the regulation of the medical profession require that the complainant should, in the absence of some special and sufficient reason, be publicly investigated. It would undermine that important principle if mere unreasonable delay, absent prejudice, were to require a stay to be granted.[37]Furthermore, not only is the argument in my view wrong in principle, it finds no support in any authority. Accordingly, I reject the notion that there is some third category of disciplinary proceedings lying between criminal and civil proceedings to which this special rule, giving unique protection to the defendant, is applicable. Can a fair hearing be held?[38]The first limb of the abuse argument required the PCC to consider whether, having regard to the whole of the period from the date of the alleged offences to the hearing, the defendant could show that he would be seriously prejudiced in conducting his defence by the delay. I make the trite but important observation that it is not for me to substitute my view for that of the PCC. I must determine whether that body erred in law.[39]Mr Hockton's principal submission here was that when all the material factors are considered, it is not open to a reasonable committee, properly directing itself, to conclude that a fair hearing could be held. He also referred to certain matters where he submitted that the Committee had failed to give appropriate weight. But that is par excellence a matter for the committee and not for a court on review.[40]Mr Hockton advanced a number of grounds in support of his submission that it was not now possible for Dr Gibson to have a fair hearing. He contended that it is wrong simply to see these charges as relating to an assessment of a number of slides. They must be viewed in the context of the general functioning of the histopathology department at the hospital at the material time. He said it is no longer possible to obtain relevant evidence about that. The cytology department itself is now closed; many of the records, such as computer records and those relating to the movement of staff, are no longer available; one of the consultants, Dr Farley, who was the head of the department, has now sadly died and the other, Dr Illesley, has left the hospital. Moreover, it is alleged - and this is not disputed - that in various ways there have been changes in the way in which cytology services are now provided, both nationally and locally in the Kent area.[41]Moreover, he submits that even if one focuses upon the narrow charges as formulated, it is unfair now to expect the claimant to deal with the allegations as to his conduct when he has been retired for more than seven years and is out of the run of carrying out analyses of these kinds. He will inevitably to some extent have lost his skills and it is unfair to expect him now to justify an analysis of particular slides made so long ago.[42]The GMC and the interested parties contend that none of these matters will preclude the GMC from being able to conduct a fair trial. They submit, and I accept, that it is wrong to suggest that these particular allegations which are designed to make good the charge of serious professional misconduct are concerned with anything more than the analysis of certain particular cells and tissues and the careful reporting of the results. The relevant slides are available and it is a matter largely of expert evidence whether the claimant fell so far below that standard as to constitute serious professional misconduct in relation to any or all of these specimens. If Dr Gibson feels disadvantaged now as a result of not practising in the field for some years, he can obtain his own expert evidence (which apparently he proposes to do if the case goes ahead).[43]I also accept their submission that it is difficult to see how the wider aspects, such as the loss of records or the fact that the cytology laboratory has closed, would have any significant impact on this. This is not a case where it is being said that crucial documents have been lost, or important witnesses are no longer available. It may well be material that Dr Gibson was under a significant workload at the time. I can see that this would be a mitigating factor if he is found guilty of professional misconduct. It would also arguably be material to the issue of whether any misconduct is properly characterised as serious misconduct. But there is plenty of evidence dealing with that issue in the various reports to which I have made reference.[44]Similarly, even although there have been some changes in the way in which cervical screening now takes place, these are not, it seems to me, material to this case. The PCC will of course have to be satisfied that there was serious professional misconduct having regard to the prevailing standards at the material time, between 1990 and 1995. But they can take expert evidence as to the extent to which practices have changed. That is not an unusual situation for the PCC to be placed in.[45]Accordingly, I am wholly satisfied that the PCC was fully entitled to conclude that a fair hearing could be given to Dr Gibson in these circumstances, notwithstanding the unacceptable delays. Of course, if in the course of the hearing anything untoward emerged to suggest otherwise, then the PCC would have to revisit the matter. I should add that even if Article 6 imputes a more stringent review, I would reach the same conclusion. Was the Committee entitled to find that it was fair tocontinue the hearing?[46]Mr Hockton made a number of submissions in relation to this aspect of the case. He, in part, relied upon the delay, but he supplemented it with additional features, which he submitted ought to have compelled the PCC to conclude that it was unfair to continue these proceedings even if a fair hearing were possible.[47]First, he contended that since the general allegations of systemic failings as identified in the Wells Report were not the subject of disciplinary proceedings, it was wrong and unjust for proceedings to be taken in relation to the narrower category of specific complaints. Indeed, before the PCC, he contended that there was an element of double jeopardy involved, but prudently did not advance that argument before me. I sensed that underlying this complaint was the feeling, no doubt strongly and genuinely held by Dr Gibson, that the decision had been taken to bring these proceedings against him merely because it was thought, to put it colloquially, that someone should be brought to book for the failings of the Department for the years in question and that this had, perhaps subconsciously, influenced the decision to take the proceedings. The answer to this submission, it seems to me, is that the PCC can do nothing except assume that the charges have been properly brought. It cannot question the motives of those who framed the particulars of the case, nor the decisions of the screener or PCC to send the case further. If the charge is ultimately without merit, that will be clear following the substantive hearing. I should add that there is no evidence before me that the charges have been pursued for any improper motive.[48]Mr Hockton also suggested that it was wrong for a case of serious professional misconduct to be advanced at all, given that the concerns were only with allegedly poor performance. But that submission suffers from the same blemish. Mr Hockton realistically accepted that it was open to the GMC in an appropriate case to bring defects of performance of sufficient gravity under the rubric of serious professional misconduct. Absent a charge of bad faith, which is not alleged, the PCC would have to assume that the charges were properly framed.[49]Next, he prayed in aid the particular factors relating to his personal circumstances, namely the fact of his age, that he had retired, and that there was no longer any need to take disciplinary action to protect the public from any lack of competence he may have had. However, it seems to me that these personal factors carry little, if any, weight in the context of this particular submission; the abuse of process principle focuses essentially on wrongdoing or failings by the prosecution which render it unfair for the prosecution to be allowed to pursue the case.[50]I bear in mind, of course, that it is a matter for the Committee to determine whether or not it would be fair to continue these proceedings. But as Lord Bingham pointed out in the Attorney General's Reference case, to which I have already made reference, it will be very exceptional for a court to stay proceedings on this basis. There is both a public interest and the interest of the complaints to consider, and there should be a very plain case of manifest unfairness in the conduct of the proceedings before this principle comes into play. One can of course sympathise with the position in which Dr Gibson finds himself, facing these serious charges while in retirement and so long after the events have occurred. But I cannot say that the Committee was compelled in this case to hold that it would be unfair for these proceedings to continue. In my judgment, they were fully entitled to conclude that there were no sufficiently exceptional circumstances to warrant that very unusual step. Accordingly, this aspect of the case fails.[51]In the context of this argument, however, I should draw attention to two further specific matters which, although not advanced as independent grounds for challenging the decision of the PCC, were relied upon as matters which ought to have weighed with the PCC when considering this aspect of the abuse argument. The first relates to the fact that, as I have said, the prosecution was conducted not by counsel for the GMC, but by counsel instructed by the solicitors for the complainants. They were, however, funded by the GMC. It appears that the agreement to this course of action was taken in October 2003 although prior to that there had been discussions between the complainants' solicitors and Field Fisher Waterhouse, who were carrying out the investigation for the GMC. Mr Hockton accepted that this seemed to be permitted under the relevant rules, but he contended that it was unfair and unsatisfactory. (It is right to point out, however, that he expressly reserved his position on this matter before the PCC and did not advance it as a ground of complaint). I confess that I also consider it unsatisfactory that the prosecution in these cases should be in the hands of the complainants, rather than the evidence - including that of the complainants if they wish to give testimony - being called by an independent prosecutor instructed by the GMC. There is, it seems to me, a potential conflict of interest between the duty to the Tribunal and to the complainants; and also possibly a perception of unfairness. I am told that as a result of a very recent change in the rules this arrangement will not be permitted in the future, and I consider that to be a desirable change. But the rule does not apply to cases already under consideration.[52]However, it has not been suggested that there has in fact been any unfairness arising from that fact in this case. In my event, I do not see how this is a matter to weigh in the overall question whether it is fair to try the case at all since if it were considered to be such a fundamental defect (and I do not think that it is) it could be remedied before the substantive hearing.[53]Second, Mr Hockton raised concerns about the approach of the screener in relation to this matter. Dr Gibson was told on 2 January 2002 that the decision had been taken to send the individual complaints to the PCC, but not the issues arising out of the Wells inquiry. Some six weeks later, on 22 February 2002, a letter was sent to Sir William Wells informing him that the screeners had concluded that no issues raising questions of serious professional misconduct had been identified against any of the consultants concerned. That is a confusing letter in the circumstances, and I heard a number of explanations as to why it should apparently mis-state the position in that way. In fact it seems that the most likely explanation is that there were two separate screenings, one in relation to the matters arising out of the Wells report, and one relating to the individuals who had independently made complaints to GMC. Sir William was merely informed of the outcome of the investigations resulting from the complaint made by his Committee.[54]Mr Hockton submits that if there were two separate screenings, as there appear to have been, then it is anomalous that they could find that there was no case to answer in respect of allegations which had been the subject of a detailed allegation taking over three years, and yet find that there was a case to answer with respect to this very much narrower range of complaint. This anomaly, he says, is an additional feature in the assessment of fairness.[55]I do not accept that the fact that there were two different decisions is necessarily anomalous at all. It depends on the evidence before the screeners. But the short answer to this in any event, it seems to me, is that the case was before the PCC and they must assume that the screeners and the PPC had acted fairly and lawfully in referring it. It is not for the PCC to question whether the screeners ought to have let the case through, or even to take the view that there may be some doubt about the matter such that they can take the uncertainty into account in the doctor's favour when determining whether it is fair to continue the proceedings. Is the statutory instrument a material factor?[56]The argument here is that the PCC ought to have had regard to the fact that under the current rules it is not, save in exceptional circumstances, open to the PCC to hear complaints of misconduct made more than five years after the relevant events giving rise to the allegations occurred. I have been referred to a consultation document and other materials which preceded the change which show that the reason for it was both the feeling that it was unsatisfactory that Dr Gibson should still potentially remain liable after such a period of time, and also that there are frequently significant problems in sustaining cases of fitness to practice after such a period.[57]As I have said, Mr Hockton does not suggest that the new rules were directly applicable, but he submits that they ought to have informed the way in which the PCC exercised its discretion on delay. It was a factor for them to bear in mind. It involves the GMC having to take a view as to where the public interest should be struck, between the need to discipline errant doctors on the one hand and the unfairness and difficulty of pursuing stale complaints on the other.[58]I do not accept that analysis. In my view there was no reason for the Committee to have regard to this particular provision. If they were obliged to view these rules as reflecting the various relevant public interest they would have had to stay the proceedings unless there were exceptional reasons for not doing so. I do not sensibly see how they could have regard to these rules without applying them. But that would be indirectly to give the provisions retrospective effect. I do not think that could be right. It follows that I consider that the legal advice was correct and that the PCC acted lawfully in following it. The decision on erasure[59]In setting out the history of this matter, I have already noted that Dr Gibson has made an unsuccessful application for voluntary erasure to the PCC before later renewing his application before the PCC. I am told that it has been the practice for applications to be renewed. I would have thought that once an application has been made and rejected, then the GMC, through whatever committee, would be entitled to refuse to consider a fresh application at least unless there was a material change in circumstance. Be that as it may, the PCC did hear the application without objection, and it is their decision which is now under challenge.[60]The specific rules under which the application was made are the General Medical Council (Voluntary Erasure and Restoration following Voluntary Erasure) Regulations 2003. They came into effect on 1 July 2003. They stipulate that any doctor may apply to the Registrar for his name to be erased from the Register. The application must comply with certain requirements as to form. If it is properly completed, the Registrar is obliged to erase the name from the Register, save in circumstances where there is a complaint or information relating to a doctor which may result in proceedings being taken under the Conduct Rules. The Registrar is then not entitled to erase the doctor's name from the Register unless the erasure is agreed by a particular body. The relevant body which has to give its agreement depends upon the stage at which a case has reached. If it has not been referred to the PPC or to the PCC it is the professional conductor screener; if it has been referred to the PPC or to the PCC but the case has not yet been opened before the PCC then it is the PPC; but where it has been opened by the PCC under Rule 24 of the Conduct Rules it is the PCC itself.[61]The effect of an erasure is that the proceedings are stayed. There is no indication in the rules of the criteria which the relevant body ought to consider when determining whether or not to agree to the erasure.[62]In fact in this case when Dr Gibson made his application to the PPC there was no power for the PCC to consider an application for voluntary erasure. However the new rules for the first time conferred a power on the PCC itself to consider an application for erasure. It can do so under Regulation 2(7(c) once the case has been opened by the PCC under Rule 24. Hence the reason why Dr Gibson had to wait until the preparatory hearing itself and the opening of the case before formally making his application.[63]In this case the legal assessor to the Committee initially advised the PCC that the claimant had to satisfy to the criminal standard that the application should be allowed. Subsequently, after the Committee had been deliberating for some three hours, I am told, he recalled the parties and corrected the first part of his advice. He advised the Committee that they needed to be satisfied that only on the balance of probabilities that it would be right to erase his name. The decision of the Committee[64]The Committee's decision is relatively detailed. The Committee identified the public interest, the interest of the complainants and the interest of the doctor as all being material to the decision it had to reach. It commented that it was not required to give these matters equal weight. As far as the public interest was concerned, it identified in that context the interests of the public, the maintenance and promotion of public confidence in the profession and the upholding of proper standards of conduct. It noted that where the erasure followed as a sanction for serious professional misconduct, there can be no application for restoration until five years has elapsed. In contrast, where it is voluntary, there can be an application at any time for the doctor to be restored to the Register, although in those circumstances the matters are to be referred back to the PCC. However, the Committee realistically recognised that Dr Gibson would be most unlikely to seek to return to practice. The Committee then continued as follows:
"The Committee have accepted Mr Hockton's submission that Dr Gibson, who is now aged 67 and retired from practice, is unlikely to seek to return to practice. However, the other elements of public interest must be considered. Public confidence in the profession requires proper public scrutiny of serious complaints. The Committee regard the allegations as serious and furthermore, one of them, if proved would amount to conduct tantamount to dishonesty. If the Committee were to agree to Voluntary Erasure, the current proceedings could not continue and such scrutiny could not take place. In this context the Committee have well in mind that the GMC have a duty to ensure that proper standards of conduct are upheld. The interests of the complainants is also a significant factor. The Committee acknowledge that complainants have a substantial and continuing interest in a proper investigation of their complaints. It is relevant to consider the extent to which a complaint has been the subject of other procedures. Inquiries have included those by Sir William Wells and another by the Royal College of Pathologists, into cervical screening at Kent and Canterbury Hospital, which addressed the systemic failings of the Screening Programme. There has been civil litigation in cases brought by the complainants but liability was admitted by the Trust. There has therefore been no significant public ventilation of the allegations now made against the doctor. When balancing the doctor's interests against those of the public, the Committee have considered that the relevant factors include: his health; his age; that he retired from practice in 1997; the lapse of time since the original allegations; the timing of his application for voluntary erasure and his reasons for it. Further, the Committee recognise the distress that any professional person may suffer when facing disciplinary proceedings. In ordinary course the public interest and the complainants' interest require that the substantive inquiry should proceed in order to maintain public confidence in the medical profession and in the role of the General Medical Council in maintaining professional standards. The Committee, having carefully considered all the material before them, are satisfied that the interests of the public and maintenance of the profession are best served by public consideration of this case. The Committee therefore do not agree the application."
[65]Mr Hockton submits that there have been a number of errors with respect to this analysis. First, he contends that the incorrect legal advice, initially given by the legal assessor, has tainted the decision of the Committee and that should be sufficient to invalidate its conclusion. I reject that. The assessor corrected matters before the Committee had made its determination and as a consequence his advice would have been very much in the forefront of the Committee's mind. Indeed, the Committee specifically stated, having noted that neither the burden nor standard of proof were prescribed in the rules:
"Before agreeing to voluntary erasure the Committee should be satisfied in all the circumstances that it is right to do so."
That seems to me to be a perfectly proper direction in relation to the provision.[66]It is then alleged that the determination of the Committee was one which no reasonable committee could have reached in all the circumstances. The basis of this argument was that the case against Dr Gibson is essentially one of poor performance, that the overriding public interest in such cases is the protection of the public, and that erasure from the Register - particularly in circumstances where the doctor has long retired from practice - fully provides the necessary protection. Insofar as other matters are material at all, Mr Hockton submits that they could not properly displace this overwhelming factor. It could only be described as oppressive to refuse the application and require Dr Gibson to face those charges now. Moreover, the wider concerns arising out of the procedures adopted at the hospital had already been the subject of public investigation on a number of occasions, particularly in the Wells report.[67]I do not accept that submission. The Committee properly identified the various strands in the public interest, the interest of the complainants and the interest of the doctor, which had to be taken into account. There was a difficult balancing exercise for the Committee in this case. They concluded that the interests of the public and the maintenance of professional standards require this hearing to go ahead. The Committee also put some weight, as it seems to me they were fully entitled to do so, on the fact that one of the allegations was not merely of professional incompetence, but of covering up, which the Committee described as "tantamount to dishonesty".[68]Mr Hockton submits that this is a very thin case of deliberate wrongdoing. He may well be right about that, but that is the allegation made, and it is only once the evidence has been heard that the merits can be determined. The PCC also placed emphasis on the need for there to be a public ventilation of these particular issues. These individual complaints, as opposed to the systemic failings, have not been the subject of any public investigation, nor were they scrutinised in the context of the settlement of the litigation. Even if to some extent they were considered in the investigations carried out by Field Fisher Waterhouse, that was not an investigation in the public domain. These were, in my judgment, plainly factors to which the PCC were entitled to have regard. I can see no basis for saying that the decision was perverse.[69]Then it was alleged that the Committee had failed to have regard to certain factors. One was the fact that these were stale applications. It is plain that the Committee had that in mind, and they expressly referred to it.[70]It was also suggested that the PCC were wrong to say that the complainants wished these proceedings to go ahead. This was on the basis that the solicitors for the complainants had written a letter in which it had asked the complainants to write if they did not want the case against the doctor to continue. None had written to that effect. In fact, there is a letter from one of the complainants to show that she did wish the case to continue, although it is fair to say it was cast in somewhat lukewarm terms. It was, I think, an unsatisfactory way for the solicitors to canvass the views of the complainants, but I have no doubt that the solicitors and counsel acting for the complainants at the enquiry did so on the clear understanding that they were properly instructed to do so. In any event, I can see no basis on which the Committee could or should have taken any other view, and they cannot be criticised for not having done so.[71]It follows, therefore, that I also reject the argument that the decision not to agree the voluntary erasure register was wrong. In all the circumstances, and notwithstanding the attractive submissions of Mr Hockton, this application for judicial review fails.[72]MR SAINI: My Lord, I ask for the GMC's costs.[73]ME BADENOCH: My Lord, may I ask in the particular circumstances of this case for the costs of the second named defendant. Your Lordship will be very familiar with the case of Bolton MBC v Secretary of State for the Environment. The imposition of affairs, as we put it in relation to costs of the second defendant, is this. There were proceedings brought of a detailed kind before your Lordship, if I may say so without criticism, in a considerable hurry, without the luxury of time to reflect between the two named defendants and to divide up the issues between them. The nature of the relationship between Harman & Harman and the GMC and Harman & Harman's involvement generally was the subject of specific criticism. The question was raised whether or not they were truly instructed by the complainants, a point which was given considerable importance when it came to the matter of voluntary erasure.[74]There was a substantial part of the claimant's case directed at the proposition that in various ways the role of Harman & Harman as prosecutor contributed to a general picture, or flavour, of oppression.[75]My Lord, leaving those matters and turning to the interests of the parties whom I effectively represent, there is no doubt - and your Lordship has so found - that the complainants have a legitimate interest, and a considerable one, in the public airing of their complaints against Dr Gibson. There were important questions which did to some extent arise over the medical issues which underpinned the whole of this case, which made the presence of those who were seized of the actual substantive case important to this hearing, albeit I fully accept that in the event it was a relatively minor role that I played in that regard.[76]My Lord, there was also an undercurrent of submissions concerning the fact that Harman & Harman, who instructed me, had during the delay complained of - that is to say the delay prior to their own involvement - had sent certain letters and made certain observations about that delay which could be described as critical, upon which my learned friend placed some reliance. Overall, my Lord, in the particular circumstances of this case, we submit that the second named defendant did in this case appear properly in the sense that there were separate issues, some of them did arise, others which might have arisen, on which the prosecutor instructed on behalf of the complainants was entitled to be heard. Indeed the interests of these particular complainant patients was one which required separate representation, as apparently reflected in the fact that we were named as second defendant. My Lord, I do not think I can add to that.[77]MR HOCKTON: Mr Lord, I cannot resist the application made by Mr Saini. I do however resist Mr Badenoch ---[78]MR JUSTICE ELIAS: I am not prepared to award costs in favour of the second defendants in this case. The reason why they were here - I am very grateful for Mr Badenoch's contribution, but in part their greater significance was because of the internal relationship, if I may put it that way, between the GMC and the second defendants and the GMC choosing to instruct Mr Badenoch's solicitors to deal with the matter. I do not think in the circumstances that the costs of the second defendant - they were really here as the interested party, albeit in an unusual form - should also be borne by the claimants, I think it would be unjust.[79]MR HOCKTON: One other matter. My Lord, I do ask for permission to appeal. The reasons are these. Your Lordship has already adverted to the fact that we have two parallel strands of judicial opinion on the prejudice issue in relation to applications concerning delay at the highest judicial level. We have authority in HM, the case from the Privy Council, set against the recent decision of the House of Lords in A-GNo.2. The fact that we have conflicting opinions at the highest judicial level in relation to these matters illustrates, in my submission, the difficulty which these cases can give rise to in terms of legal analysis. There is no authority that I am aware of which specifically grapples with the question as to the proper approach to applications of this sort in a disciplinary context. Disciplinary cases may give rise to special considerations. They straddle the fields of both civil and criminal law. Whilst for the purposes of Article 6 they are regarded as civil cases, the criminal law prevails under the specific rules applied by the GMC under Rule 50, and indeed in other disciplinary bodies. That alone gives rise to some difficulty in analysis as to the proper approach.[80]Moreover, in cases involving the GMC there is the added complication of the effect of the statutory instrument which in effect reverses the burden of proof, and although your Lordship found that it had no application on the facts of this case, there is, at least, a potential argument, in my submission, as to the interpretation of that statute with regard to where the public interest lies.[81]For that reason, I wish to persuade your Lordship that this is an appropriate case to at least grant permission for those who instruct me to consider the question of an appeal, to invite the Court of Appeal, if so instructed, to state what the proper test is with regard to applications of this sort in a disciplinary context, what the effect of the statutory instrument is and where the public interest lies in relation to litigation of matters which, on the face of it, are - and I do not think this is contested - stale. My Lord, that is one question.[82]The other question is the interpretation of the voluntary erasure rules. The rules are new. To my knowledge there is no judicial comment on their application other than your Lordship's, and it may well be that the application of those rules becomes a matter of considerable public interest if in future there are disciplinary cases involving matters going back many years where medical practitioners may wish to make applications of a similar nature to Dr Gibson.[83]So my Lord, for those reasons I would invite your Lordship to grant permission to appeal. Can I say that in making this application no decision has been made as to whether or not, if your Lordship were to grant permission, an appeal would in fact be made. Obviously one would wish to make that decision extremely swiftly, indeed in view of the fact that this case is listed to start next Thursday.[84]MR SAINI: My Lord, we submit that the legal principles following the House of Lords' decision in Attorney General's Reference are well established. The Court of Appeal will not be able to entertain any argument that somehow for example the Scottish approach of the Privy Council should have been preferred to the approach of the House of Lords. This is a case where the legal principles were agreed - essentially it was decided on the facts - that the PCC had got it right. There is simply no issue of law here to go any further.[85]As far as voluntary erasure is concerned there is no dispute as to the law; it is essentially a factual decision. So, with respect, we say that there is nothing here for the Court of Appeal, and if my learned friend is to go there he should try and persuade a single Lord Justice that there is a case.[86]MR JUSTICE ELIAS: Sorry, Mr Hockton, I do not think there is a clear enough legal principle involved. The House of Lords binds me and the Court of Appeal, if you like, notwithstanding the Privy Council. So you will have to persuade the Court of Appeal. Can I thank everybody for their submissions and for getting all these papers together at such very short notice. I am very grateful to you all for that.

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