Council for the Regulation of Health Care Professionals v General Medical Council & Anor [2004] EWHC 527 (Admin)

[2004] EWHC 527 (Admin)

Case No CO/6109/2003

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/03/2004

Before

THE HONOURABLE MR JUSTICE LEVESON

Between

COUNCIL FOR THE REGULATION OFAppellant

HEALTH CARE PROFESSIONALSAppellant

(1) THE GENERAL MEDICAL COUNCILRespondents

(2) Dr GIUSEPPE ANTONIO RUSCILLORespondent

John Howell QC and Thomas De La Mare (instructed by Baker and McKenzie) for Appellant

David Anderson QC and Jemima Stratford (instructed by Peter Steel) for General Medical Council

Neil Garnham QC and Neil Sheldon (instructed by RadcliffesLeBrasseur) for Dr Ruscillo

Hearing Hearing date: 27 February 2004

Approved Judgment

[1]Historically, it has been the responsibility of healthcare professionals to regulate their own discipline and, to that end, detailed statutory frameworks are in place for a number of the professions, each slightly different one from the other and each providing for a determination of disciplinary allegations by a panel or committee largely comprising its own members. Thus, any allegation of serious professional misconduct made against a medical practitioner falls to be considered by the General Medical Council (“GMC”) that has the power to refer the matter for hearing by the Professional Conduct Committee (“the PCC”). Subject to limited rights of appeal by the doctor concerned (in the past) to the Privy Council, the decision of that Committee has been final.

[2]It appears that a measure of public concern has been expressed that the existing arrangements for self regulation have not proved sufficiently adaptable and that, on occasion, professional self interest has been placed before the interests of the patients. As a result, following recommendations made in the Report of the Public Inquiry into children’s heart surgery at the Bristol Royal Infirmary, chaired by Professor Sir Ian Kennedy, the Council for the Regulation of Health Care Professionals (“the Council”) has been established to provide a degree of oversight of existing self regulatory bodies. Its general functions and powers are set out in Part 2 of the National Health Service Reform and Health Care Professions Act 2002 (“the 2002 Act”) and include rights to step in after the conclusion of the disciplinary process and to refer disciplinary cases to the Court. This case, one of the first references to be made, raises important issues of principle as to the scope of such rights.

The Facts

[3]The background to this reference is important because it provides the context in which the Council seeks to exercise what it contends are its powers and illuminates the preliminary issues of jurisdiction very clearly. On 20th October 2003, Dr Giuseppe Antonio Ruscillo appeared before the PCC charged with serious professional misconduct. The particulars of the charge were as follows: “That, being registered under the Medical Act, 1. At the material times you were working as a General Practitioner at the King Street and University Medical Service in Lancaster; 2. Between February and April 2002 you were involved in(a) an emotional relationship,

(b) a sexual relationship, with a patient of the practice who you had treated, namely Mrs A; 3. Mrs A had a history of significant psychiatric problems and was therefore particularly vulnerable and you were aware of that history; 4. Your actions as described above were: (a) inappropriate (b) an abuse of the doctor-patient relationship

(d) likely to bring the medical profession into disrepute; 5.

(d) likely to bring the medical profession into disrepute;

[4]At the hearing, the GMC, represented by Counsel, applied to amend the charge by altering the details of the meetings in paragraph 5 but, more significantly, by changing paragraph 3 so that it read only that “Mrs A had a history of psychiatric problems”; thus, the allegation omitted the references to the doctor’s knowledge of the history and to the fact that the problems were significant and caused particular vulnerability. Counsel for Dr Ruscillo did not object to this course and he then admitted paragraphs 1, 2, 3 and 5. In order that the PCC could determine what was called “charge 4”, the case was opened in very brief form. The only facts additional to those admitted were that both the doctor and Mrs A were married; that the doctor had been treating the patient since November 2001; that the relationship was ended by him when he told his wife and partners; and that the partners then suspended the doctor and made a statutory declaration to the GMC.

[5]Counsel for Dr Ruscillo then made it clear that he did not intend to call Dr Ruscillo and made lengthy submissions to the effect that the admitted or proved facts were insufficient to support a finding of serious professional misconduct. The PCC then decided that what they called “head 4” was “not proved in its entirety” that is, that none of those allegations were made out; it then went on to consider the question of serious professional misconduct. The Chairman announced the decision in these terms:

“The only information provided to us is that contained within the charge itself. We have received no evidence as to the circumstances or context of any relationship with Mrs A, nor of any treatment you provided to her. The Committee are entitled to draw logical conclusions from such facts as are admitted. However, the Committee are acutely aware of the dangers of making unsupported assumptions to fill the void resulting from a lack of evidence and we have therefore not done so. Having in mind that the standard of proof required is that we should be sure, the Committee have determined that such facts as have been found proved are insufficient to support a finding of serious professional misconduct. We have accordingly recorded a finding that you are not guilty of serious professional misconduct. That concludes the case.”

[6]On 20 October 2003 the GMC sent the Council a copy of the minute of the decision of the PCC and subsequently obtained a full transcript. Meanwhile, on 28 October 2003, the doctor’s Primary Care NHS Trust wrote to the Council bringing this case to its attention. It is said that medical records were available to establish those elements of the charge which had not been pursued or found not proved (and which may well have “filled the void”) and that the partners of the doctor had been willing and available to give evidence before the PCC but had not been called. For the purposes of this judgment it is unnecessary to recount the details of what the records might have proved or why the case took the course it did. Further, I make it clear that I am not expressing any view on the merits of this review which has not, in any event, yet been argued.

[7]In addition to writing to the Council, on 5 November 2003, the Chief Executive of the Primary Care Trust also wrote to the GMC enclosing a note which purported to be a record of a meeting that he had conducted with Mrs A. The GMC took the view that the material comprised within the letter contained allegations that could result in further proceedings against Dr Ruscillo and an investigation was commenced.

[8]For the sake of completeness, and in fairness to Dr Ruscillo, I ought to add that, in January 2004, the Interim Orders Committee of the GMC decided to take no action in respect of Dr Ruscillo’s registration pending further consideration of the matter. Dr Ruscillo has submitted detailed representations; it has been confirmed that the process of investigation remains ongoing.

[9]Meanwhile, pursuant to its understanding of its powers under section 29 of the 2002 Act, on 14November 2003, the Council instituted an appeal against the dismissal of the proceedings by the PCC (described as “a direction that there be no finding of serious professional misconduct against … Dr Ruscillo”). Both the GMC and Dr Ruscillo are Respondents by virtue of section 29(7)(b) of the 2002 Act and Part 52.1(3)(e)(i) of the CPR respectively. The PCC has also been served but has taken no part in the present hearing.

[10]Two preliminary issues have been identified by the parties. Both go to the jurisdiction of the Court in the circumstances that arise and determine whether the Council can proceed to pursue an appeal on the merits. It is common ground that both have significant implications for the scope and effectiveness of the new regime for the regulation of health care professionals introduced by the 2002 Act. They are, first, whether the Council has any power to refer to the Court the case of a health care practitioner who has been acquitted on a disciplinary charge by his professional body. The second is whether the Council may exercise its right to refer the case of a health care practitioner to the Court after a relevant disciplinary decision has been taken by his professional body when there is outstanding against him(i) any allegation that may lead to other disciplinary proceedings or

(ii) any other such proceedings. It is these issues which fall to me to decide.

The Statutory Framework in General

[11]Before addressing the specific issues, it is worthwhile identifying the overall framework of the legislation. The Council was established by section 25 of the 2002 Act. Its general functions (as set out in subsection (2) of that section) are - “(a) to promote the interests of patients and other members of the public in relation to the performance of those functions by the [regulatory bodies], and by their committees and officers, (b) to promote best practice in the performance of their functions, (c) to formulate principles relating to good professional self regulation, and to encourage regulatory bodies to conform to them, and (d) to promote co-operation between regulatory bodies; and between them, or any of them, and other bodies performing corresponding functions.”

[12]Its powers and duties are widely expressed. By section 26 of the Act it is provided:

“(1) Except as mentioned in subsections (3) to (6), the Council may do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the performance of its functions. (2) The Council may, for example, do any of the following (a) investigate, and report on, the performance by each regulatory body of its functions, (b) where a regulatory body performs functions corresponding to those of another body (including another regulatory body), investigate and report on how the performance of such functions by the bodies in question compares, (c) recommend to a regulatory body changes to the way in which it performs any of its functions.” (a) investigate, and report on, the performance by each regulatory body of its functions, (b) where a regulatory body performs functions corresponding to those of another body (including another regulatory body), investigate and report on how the performance of such functions by the bodies in question compares, (c) recommend to a regulatory body changes to the way in which it performs any of its functions.”

[13]The relevant exception is contained within subsection 3 which itself is subject to subsection 4 and provides the basis of the argument on the second of the two issues which I have to decide. The exception is as follows: “(3) The Council may not do anything in relation to the case of any individual in relation to whom –(a) there are, are to be, or have been proceedings before a committee of a regulatory body, or the regulatory body itself or any officer of the body, or

(b) an allegation has been made to the regulatory body, or one of its committees or officers, which could result in such proceedings. (4) Subsection (3) does not prevent the Council from taking action under section 28 or 29, but action under section 29 may be taken only after the regulatory body's proceedings have ended. (a) there are, are to be, or have been proceedings before a committee of a regulatory body, or the regulatory body itself or any officer of the body, or (b) an allegation has been made to the regulatory body, or one of its committees or officers, which could result in such proceedings.

[14]Furthermore, not only is the Council given power in relation to each regulatory body but, in addition, in the exercise of its functions each body must co-operate with the Council (see section 27(1) of the 2002 Act) and there is a power (not, as I understand it, yet in force) permitting the Council to give directions requiring a regulatory body to make rules if it “considers that it would be desirable to do so for the protection of members of the public”: see section 27(2).

[15]It is thus clear that the intention of Parliament is to provide the Council with the widest powers to oversee the activities of each of the regulatory bodies brought under its umbrella. With one exception, no aspect of the work of these bodies is exempt from investigation, recommendation or report (and, potentially, in relation to the rules of the body, direction). The exception is the case of an individual. As I have said, that exception forms the basis of the second preliminary issue but, for present purposes, it is sufficient to note that during the course of any disciplinary investigation or while proceedings are on foot, the relevant self regulatory body is free from any interference and, to that extent, self regulation is preserved. After the investigation and any proceedings are over, however, the exception ceases to bite and not only can the Council investigate, recommend and report but, in certain circumstances, it can intervene in the disciplinary process that has been undertaken and refer the matter to the Court.

[16]Mr Garnham QC for Dr Ruscillo submits that the general functions establish that the focus of the Council is to assist regulatory bodies better to administer their own practices and processes. He points to the fact that there is no reference to the phrase “protection of the public” and that there is thus no support to be found for the proposition that the Council is intended to exercise some form of over-arching supervisory jurisdiction to step in as and when a decision is made which, in the Council’s view, does not adequately protect the public.

[17]I do not agree. Promoting the interests of patients and other members of the public necessarily involves promotion of their protection; the absence of the phrase is not significant. Further, these provisions do not deal with the review of decisions; for that it is necessary to look at section 29. In my judgment, what can be derived from this framework is the intention of the legislature to strike a very important balance between the general responsibilities of the Council covering a wide range of health professions, on the one hand, and the independence retained by the self regulatory body of a particular profession over any particular disciplinary investigation and, at least initial, disposal of cases concerning its members.

The Extent of the Power to Refer

[18]A clear introduction to the provisions of section 29 of the 2002 Act (which governs references to the Court) is provided in the written argument submitted on behalf of the Council by Mr John Howell QC and I gratefully adopt it. Suffice to say that the Council may refer “relevant decisions”. That phrase is defined, by section 29(3) of the 2002 Act, as being “the things to which this section applies”. Those things fall into two broad categories defined respectively by subsections (1) and (2) of that section.

[19]Section 29(1) refers to certain specific directions, determinations, disciplinary orders, steps or corresponding measures taken or made in respect of a health care practitioner by a regulatory body under specified statutory provisions. These matters are all disciplinary measures which may be taken against such a practitioner if (for example) there has been a finding of a criminal offence, of professional misconduct, of failure to comply with any requirement imposed on him as a condition of his registration, or of deficient professional performance on his part. The types of disciplinary measures which may be taken include erasure of the practitioner’s name from the relevant register, suspension of his registration for a limited period, making his registration conditional upon compliance with specified requirements or admonishing him. Thus, so far as doctors are concerned, subsection (1) applies, for example, to “(c) a direction by the Professional Conduct Committee of the General Medical Council under section 36 of the Medical Act 1983 (c. 54) (professional misconduct and related offences)”.

[20]That section of the Medical Act (“the 1983 Act”) provides:

“Where a fully registered person - ... .... (b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not; the Committee may, if they think fit, direct - (i) that his name be erased from the register; (ii) that his registration in the register shall be suspended (that is to say shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or (iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests.” (b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not; the Committee may, if they think fit, direct - (i) that his name be erased from the register; (ii) that his registration in the register shall be suspended (that is to say shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or (iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests.”

[21]Reverting to the 2002 Act, the second category of things to which section 29 applies (and which are thus “relevant decisions”) are decisions not to take any such disciplinary measures or to restore a health care practitioner to the register after he has been removed from it as a disciplinary measure. Thus, subsection (2) provides that:

“This section also applies to - (a) a final decision of the relevant committee not to take any disciplinary measure under the provisions referred to in whichever of paragraphs (a) to (h) of subsection (1) applies; (b) any corresponding decision taken in relation to a nurse, midwife or health visitor, or to any such person as is mentioned in subsection (1)(j) and (c) a decision of the relevant regulatory body, or one of its committees or officers, to restore a person to the register following his removal from it in accordance with any of the measures referred to in paragraphs (a) to (j) of subsection (1).” (a) a final decision of the relevant committee not to take any disciplinary measure under the provisions referred to in whichever of paragraphs (a) to (h) of subsection (1) applies; (b) any corresponding decision taken in relation to a nurse, midwife or health visitor, or to any such person as is mentioned in subsection (1)(j) and (c) a decision of the relevant regulatory body, or one of its committees or officers, to restore a person to the register following his removal from it in accordance with any of the measures referred to in paragraphs (a) to (j) of subsection (1).”

[22]The Council’s power to refer a case to the Court under section 29 is then conferred by subsection (4). This provides that: “If the Council considers that -(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practice on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or

(b) a relevant decision falling within subsection (2) should not have been made, and that it is desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court.” (a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practice on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or (b) a relevant decision falling within subsection (2) should not have been made,

[23]Moving from that introduction, the effect of subsections (1) and (4)(a) is clear. Take a case in which the PCC decides, in its discretion, not to direct that the name of a medical practitioner be erased from the register but, rather, to direct that his registration should be made conditional on compliance with specific requirements. There has been a direction within section 29(1)(c) so that if the Council consider it to be unduly lenient and desirable for the protection of the public, the case can be referred to the Court under section 29(4)(a) of the 2002 Act. So much is common ground.

[24]If, again in the case of a doctor, there has been a final decision not to take any disciplinary measure under section 29(1)(c), the Council can also refer the case when it considers that this decision “should not have been made” and, further, that it is desirable for the protection of the public. So, if the PCC make a finding of serious professional misconduct, but do not, in their discretion, direct erasure, suspension or conditional registration (being the three possible directions under section 36 of the 1983 Act) and, instead, reprimand the doctor, it is common ground that section 29(4)(b) gives jurisdiction to the Council to refer. Mr Garnham argues that this is the limit of the effect of this provision.

[25]The issue in this case is what the position is when there is no finding of serious professional misconduct at all. Mr Howell contends that a final decision not to take a disciplinary measure includes within its compass a decision to the effect that the relevant health care practitioner is found not to have been guilty of serious professional misconduct (or of other failures set out in section 36 of the 1983 Act) so that, if such a decision should not have been made, the Council has power to refer the case to the court if it considers that desirable for the protection of members of the public. Mr Garnham, on the other hand, argues that such a finding does not involve a decision not to take a disciplinary measure all; it is merely a finding to the effect that the regulatory body has no power to take such a measure.

[26]Before considering the language of the provision further, it is worth looking at other aspects of these provisions and, in particular, the extent to which the Court can ever be concerned with issues of liability to an adverse finding of serious professional misconduct (which, for convenience, I shall refer to as issues of guilt) or the extent of such a finding. In that regard, the language of section 29(4)(a) is clear: the Council is concerned with whether a relevant decision (that is, in the case of a doctor, a direction under section 36 of the 1983 Act) has been unduly lenient “whether as to any finding of professional misconduct or fitness to practice on the part of the practitioner concerned (or lack of such a finding), or as to any penalty” (my emphasis). Thus, an unduly lenient finding, or lack of a finding, of serious professional misconduct is sufficient to trigger the power.

[27]The effect of this provision can be illustrated from the facts of this case. Assume (for the purposes solely of argument) that, whether because the facts were opened at a slightly higher level or because some evidence was called or for some other reason, the PCC had concluded that the doctor’s conduct did represent serious professional misconduct (perhaps only because it was likely to bring the medical profession into disrepute) and that, in the circumstances, a suspension of 6 months was an appropriate penalty. It then transpired (as is alleged here) that the true picture was never put before the PCC. There can be no doubt that the Council could argue that the finding of serious professional misconduct had been unduly lenient and that the failure to find other heads of serious professional misconduct had been unduly lenient. This would be quite apart from any submission as to penalty and would require the Court to unpick and analyse issues going to the extent of the finding of guilt. To use the language of the criminal law, the Court would have to examine whether the conviction should have been on a totally different basis.

[28]It is conceded that the same would be so (through the mechanism of section 29(4)(b) of the 2002 Act) if instead of a suspension for 6 months the PCC had reprimanded the doctor concerned. Equally, it would be so if there were two separate allegations of serious professional misconduct: an adverse finding (with a direction under section 36) on one, with an acquittal on the other could lead to that acquittal being referred but an acquittal on both could not lead to any reference. Mr Anderson QC for the GMC referred me to Reza v. GMC

[1991] 2 AC 182

which encourages separate charges only where there are allegations of distinct types of misconduct but it is clear from that case that there may be more than one charge, that the rules appear to contemplate an inquiry by one committee into every matter put before them and that any disciplinary measure should reflect the outcome on all the charges (see per Lord Lowry at pp 196-7).

[29]Thus, the effect of the construction of these provisions for which Mr Garnham contends is that the Council can be concerned with (and refer) decisions relating to guilt in cases which in large part have been found not proved provided only that there is some finding of serious professional misconduct in relation to any aspect of any allegation. On the other hand, without such a finding (however insignificant) there is no basis on which the Council may take the matter further.

[30]If that is the true effect of these provisions, then so be it. I must, however, reject the suggestion that this is or may be an intended consequence of provisions specifically aimed at the protection of the public; rather, I accept Mr Howell’s submission that there is and could be no logic to such a scheme. If the legislature had determined that the Council could only refer penalty on the basis of facts as found by the PCC, that would be one thing; given that in certain cases there can be a reference in relation to the extent of any finding of guilt, to make the jurisdiction to refer depend on whether there is any finding of serious professional misconduct, however unrelated to an acquittal which is challenged, is very different.

[31]It is, in any event, more serious than that. The ‘relevant decision’ in relation to the medical profession is, as set out above, “a direction by the PCC” which, in its discretion, may involve erasure from the register, suspension, or ordering registration to be conditional. Pursuant to section 29(1)(d) a ‘relevant decision’ can also be “a direction by the Committee on Professional Performance of the GMC under section 36A of [the 1983] Act” which does not grant a discretion but rather mandates the relevant Committee (using the word “shall”) to direct suspension of registration or conditional registration “where the standard of professional performance … is found to have been seriously deficient”. There can be no question of there ever being a final decision not to take any disciplinary measure (assuming of course the allegation is found to be proved) save for the extremely unlikely event that the Committee deliberately ignores its statutory duty.

[32]That is not all. Section 29(1) (g) of the 2002 Act applies to “any step taken by the Professional Conduct Committee of the General Osteopathic Council under section 22 of the Osteopaths Act 1993”; there is an identical provision at section 29(1)(h) in relation to chiropractors. The provision in the Osteopaths Act 1993 (mirrored in a similar section in the Chiropractors Act 1994) goes further than section 36 of the 1983 Act and sets out, in section 22(1) the duty of the relevant Professional Conduct Committee to consider an allegation referred to it and, in section 22(2) if satisfied it is well founded, a duty to proceed, if appropriate, to take one of a number of “steps” set out in section 22(4) which include admonishment and other penalties up to “removal” from the register. Mr Garnham argues that because the making of the finding of guilt is included within the section in each case, for those professions, the Council can refer the failure to make an adverse finding. I am not sure about that, because it is at least arguable that the use of the word “step” in section 29(1)(g) and (h) respectively refers to the penalty (or “steps”) set out in section 22(4) of each Act. If Mr Garnham is right, however, a remarkable state of affairs would result: in an Act intended to promote consistency across the range of health care professionals, the Council would have been given power to refer acquittals in the case of some professionals and not in the case of others.

[33]I agree with the common submission of counsel that this provision is inelegantly drafted and not conspicuous for its clarity but, in the end, I have come to the conclusion that, on its proper construction, it does not have the limited meaning for which Mr Garnham contends. Mr Garnham agreed that if section 29(2)(a) of the 2002 Act had applied the power to refer in section 29(4) to “a final decision of the relevant committee which involved not taking any disciplinary measure”, there would be no doubt that an acquittal could be referred. In my judgment, in the context of this legislation, the phrase “a final decision … not to take a disciplinary measure” means the same thing and identifies the ultimate conclusion of the disciplinary process howsoever that conclusion has been reached. Mr Howell accurately identified that there is no abuse of language involved if the answer to the question, “Did the PCC erase the doctor from the register?” is “No, he was acquitted of serious professional misconduct”. That construction removes all the problems to which I have referred above and creates a coherent, comprehensible system without artificial limits on the power to refer decisions affecting liability to penalty depending on whether or not there was some finding, in relation to some charge, of serious professional misconduct. It also fits entirely with the overriding intention of the legislation to further the interests of and to protect the public.

[34]In deference to Mr Garnham, I must deal with a number of his other arguments. These were directed to justifying the dividing line where he drew it, as opposed to where I have determined that it falls. First, he argued that there was no reason why acquittals should be referred because there were many decisions taken by the GMC with regard to matters of professional conduct left untouched by section 29 of the 2002 Act. By way of example, he referred to the possibility that the prosecution arm of the GMC may fail adequately to investigate a complaint, so that the risk to the public is never uncovered; alternatively, the screener of the complaint could wrongly decide that a valid complaint should not proceed; the Preliminary Proceedings Committee could wrongly decide that such a complaint should not be referred to the PCC for a hearing.

[35]Each of these possibilities could, indeed, arise but I reject the argument that the Council would be unable to intervene. Once a decision has been taken that there are no proceedings to be taken, the bar set out in section 26(3) of the 2002 Act will cease to operate and, if information comes to the attention of the Council, it can investigate and report on what has happened; it can also recommend changes in the way the GMC performs its functions and doubtless invite them to review a decision which has been taken. In the very unlikely event that the GMC refuses to review decisions, bearing in mind the general functions in section 25(2) of the Act, including the promotion of best practice, the power to make regulations as to the effect of the making of recommendations by the Council may come into play: see section 28(2)(f) of the 2002 Act. This balance is a reflection of the underlying purpose to allow the self regulation the chance to work but to provide a longstop to allow the Council to step in if, for the protection of the public, it considers it necessary to do so.

[36]Mr Garnham’s second argument was to the effect that if it was the intention of Parliament that erroneous acquittals should be referred, it would be necessary to point to some indication that the ability of the PCC properly to determine what amounts to serious professional misconduct has ever been a cause for concern. In that regard, he points to the Council’s understanding of the Act as set out in proposals for Consultation. I do not rehearse the detail; Mr Howell pointed out that, on advice, the Council had now taken the view of its powers for which he now argued. Whatever they might have thought initially cannot be determinative. As to the main thrust of the argument, however, if Parliament had not been concerned about the way in which the PCC carried out its duty, there would never have been a power to refer in any circumstance; in any event, it may not be the fault of the PCC but rather in the process so that the relevant panel was not acquainted with all the facts. Take the facts of this case; I repeat that I have not examined the merits in any way but assume hypothetically that, because of some failure within the prosecution process, evidence that should have been put before the PCC was not. The decision of the PCC, on the information before it, might be perfectly justifiable but, in the light of the true facts, not merely inappropriate but clearly wrong. If desirable for the protection of the public, there would be every reason to justify re-opening it without in any way impugning the actual decision of the PCC.

[37]Mr Garnham next refers to the impact on practitioners and contrasts a power to refer acquittals with the inability to appeal an acquittal by the criminal courts (although Part 10 of the Criminal Justice Act 2003 visualises just this possibility albeit in very limited circumstances). He refers to the lengthy process that the disciplinary system involves and the enormous stress and hardship that would flow from an appeal against an acquittal. He also raises the spectre of the prosecuting authority learning from a failed prosecution or seeking repeated prosecutions. These are, of course, very powerful arguments but it is important to underline the rationale of professional discipline and its regulation: in this field, it is intended to promote the interests of patients and other members of the public and to ensure that the public can have confidence that those who are entitled to practise their profession meet the high standards that are required of them.

[38]Secondly, the power to refer a case (whether an unduly lenient sentence or an acquittal) is no more than a power; ultimately, it will be for the Court to ensure that the process is not abused and that it is only in appropriate cases that appeals are allowed and either other decisions substituted or the case remitted back to that committee. In references by the Attorney General of unduly lenient sentences pursuant to section 36 of the Criminal Justice Act 1988, the Court of Appeal has made it clear that it will not intervene unless there has been some error of principle so that public confidence would be damaged if the sentence were not altered (see Attorney General’s Reference (No 4 of 1989) 90 Cr App Rep 366 and Attorney General’s Reference (No 5 of 1989), (Reg. v. Hill-Trevor) 90 Cr App Rep 358; allowance is also made for the principle of double jeopardy. I have no doubt that equal stringency will also be applied to any appeal (whether in relation to liability to penalty or penalty) in relation to health care professionals.

[39]Finally, Mr Garnham referred me to the well known principle of legal policy that a person should not be penalised except under clear law and that the Court should strive to avoid adopting a construction which penalises a person where the legislator’s intention to do so is doubtful or penalises him or her in a way which is not made clear (see s. 271 Bennion’s Statutory Interpretation, 4th edn page 705). On the other hand, a penal enactment will not be given a strict construction if other interpretative factors weigh more heavily in the scales: see, for example, Re Lo-Line Electric Motors Ltd

[1988] Ch 477

at 489 where, in the context of the disqualification of directors, Browne-Wilkinson VC rejected a strict construction of the word ‘director’ and approached the issue on a normal basis because the paramount purpose of disqualification was the protection of the public. I take the same view here for precisely the same reasons.

[40]In the circumstances, I conclude the first issue in favour of the Council: in my judgment, it does have the power, in appropriate circumstances, to refer to the Court the case of a health care practitioner, and in particular for the purposes of this case a medical practitioner, who has been acquitted of serious professional misconduct by his professional body.

When may the Council make references to the Court?

[41]I turn to the second issue and, for ease of reference, repeat parts of the 2002 Act in these terms: “26(3) The Council may not do anything in relation to the case of an individual in relation to whom –(a) there are, are to be, or have been proceedings before a committee of a regulatory body, or the regulatory body itself or any officer of the body, or

(b) an allegation has been made to the regulatory body, or one of its committees or officers, which could result in such proceedings. (4) Subsection (3) does not prevent the Council from taking action under section 28 or 29, but action under section 29 may be taken only after the regulatory body’s proceedings have ended. …… 29(6) The Council may not so refer a case after the end of the period of four weeks beginning with the date on which the practitioner concerned has the right to appeal against the relevant decision.” (a) there are, are to be, or have been proceedings before a committee of a regulatory body, or the regulatory body itself or any officer of the body, or (b) an allegation has been made to the regulatory body, or one of its committees or officers, which could result in such proceedings.

[42]The rival contentions can be stated shortly. Mr Howell for the Council argues that subsection (3) prohibits the Council from referring the case of any individual to the court under section 29 only while that case is being considered or, if disciplinary proceedings have been undertaken, until a “relevant decision” has been taken by the appropriate regulatory body in that case. Mr Garnham for Dr Ruscillo submits, however, that the Council may not refer a case to the court under section 29, even if a relevant decision has been taken that brings to an end the proceedings to which it relates before the regulatory body, if there are or are to be any other proceedings in respect of that individual or if (as in this case, in the view of the GMC) an allegation has been made that could result in such proceedings.

[43]It is important to appreciate that the Council is only prohibited from doing anything in relation to “the case” of an individual; the prohibition does not relate to the individual himself. Furthermore, section 26(4) permits action to be taken after “the regulatory body’s proceedings” have ended, that is after the proceedings of the regulatory body, not after any proceedings of the body.

[44]Mr Howell further argues that a construction which requires the Council to wait until all proceedings against (and any other investigation into) a particular practitioner have been concluded would almost inevitably mean that the Council would fall foul of the very strict time limit of four weeks beginning with the last date on which the practitioner concerned has a right of appeal. This jurisdictional bar would have the consequence that the mere existence of some entirely different complaint, then being investigated, could prevent a reference ever being made.

[45]In response, Mr Garnham submits that the approach of Mr Howell effectively seeks to construe section 26(4) as though section 26(3) did not exist and that the prohibition in section 26(3)(a) against doing “anything in relation to the case of an individual in relation to whom … there are or are to be … proceedings before a committee” would be rendered meaningless. He goes on that if that refers only to the present case, there would be no decision capable of appeal and thus no purpose in prohibiting action. Accordingly, the proceedings there referred to must be some proceedings other than those in which a relevant decision has been taken.

[46]In my view, Mr Garnham’s submission overlooks the division to which I referred at the beginning of this judgment between the general responsibilities of the Council and the independence retained by the self regulatory body of a particular profession over any particular disciplinary investigation and, at least initial, disposal of a case concerning one of its members. Section 26(1) empowers the Council to do anything which appears to it to be necessary in connection with the performance of its functions (including the promotion of the interests of patients). This is subject to section 26(3) which prohibits any action in relation to the case of any individual where the investigative process is underway; it is not limited to references to the Court. Thus, the Council cannot run a parallel investigation into a specific allegation, however serious or of importance to the public, even prior to a case being referred for proceedings before a regulatory body; that is the prerogative of the self regulatory body. In other words, section 26(3)(a) is not rendered meaningless.

[47]Neither is section 26(4) otiose. I referred in paragraph 28 of this judgment to the decision in Reza v. G.M.C. which allows of the possibility that a decision could be taken on one set of charges (dismissing an allegation of serious professional misconduct) while another set of charges is still to be determined. Given that only one disciplinary measure is to be passed in relation to all charges, it is perfectly sensible to await the overall outcome of the entire case before permitting the Council to step in and refer to the Court.

[48]There is no logical justification for denying the Council the right to refer any matter to Court simply because of some other, entirely extraneous, investigation unrelated to the issues which had been ventilated before the relevant disciplinary committee and I do not believe that section 26 should be construed in such a way that it does. In the circumstances, I reject the construction which Mr Garnham places on these provisions and conclude that the Council may exercise its right to refer the case of a health care practitioner to the Court after a relevant disciplinary decision has been taken by his professional body notwithstanding an allegation that may lead to other disciplinary proceedings or any other such proceedings.

[49]I ought to add that I am not sorry to reach this conclusion for reasons which will be clear from a consideration of this case. The allegation presently being considered by the GMC concerns further matters relating to the relationship between Dr Ruscillo and Mrs A (the precise nature of which I have not considered). If, however, they were to lead to an allegation before the PCC, without knowing the outcome of this reference, that body would have to grapple with the consequences of the earlier decision and determine the extent to which it is permissible to go behind the material then presented to them. Only thereafter would this reference be decided and the possibility exist of yet a further hearing. Nobody could suggest that such an outcome is satisfactory.

Conclusion

[50]The upshot of this analysis is that the Council is able to refer to the Court the finding of the PCC acquitting Dr Ruscillo of serious professional misconduct. Further, it is not constrained to wait until the outcome of the investigation presently being undertaken by the GMC. It follows that there must now be a hearing on the merits during the course of which it may be necessary to consider the precise ambit of the Court’s powers and the circumstances in which those powers should be exercised: some submissions were addressed to me on this topic, but it is more appropriate to consider them in the light of the specific case being advanced. Having said that, I will hear counsel on the appropriate directions that should be given.

Cited in 1 later judgment

Council for the Regulation of Healthcare Professionals v General Medical Council & Anor 2004