WAF, R (on the application of) v General Medical Council & Ors [2006] EWHC 1269 (Admin)

Case No CO/4745/04[2006] EWHC 1269 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 26th April 2006
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF WAFClaimant-v-
Between
THE GENERAL MEDICAL COUNCILDefendantDR ADR B
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS J SIMOR (instructed by Messrs Bindman & Partners) appeared for ClaimantMR A MCCULLOUGH (instructed by The Medical Defence Union) appeared for Interested Parties.
J U D G M E N T
[1]MR JUSTICE SULLIVAN: There are orders protecting the child in this case. The claimant is to be known as F and his daughter is to be known as H. Nothing is to be published which might identify the child.[2]In this application for judicial review the claimant challenges the decision of the defendant's Preliminary Proceedings Committee ("the PCC") on 14th July 2004 not to refer his complaints against two doctors, Dr A and Dr B ("the doctors") to the Professional Conduct Committee ("the PCC") of the defendant.[3]The claimant complained to the defendant on 14th January 2004. At that time the statutory scheme provided for a three stage process. First, the claimant's complaint was considered by a medical screener who had to decide whether it should be referred to the PPC. The screener concluded that it should be referred, and formulated what can be called a number of "charges" against the doctors in the screening memorandum. Charge 9 against Dr. A was in these terms:
"An application for a care order was placed with Chelmsford County Court on 18 July 2003. a. You colluded with another doctor by meeting with social workers to discuss H's case. b. You colluded with another doctor by being a joint signatory of the official deposition to the court, alleging child abuse by the mother on 18 July 2003. c. In a professional meeting [on 28/11/03] ordered by the judge, you acted unreasonably by disagreeing with expert opinion, which pointed to H possibly having ME/CSF. d. Your actions were deceitful, when you later admitted in the presence of witnesses that H was suffering from ME/CSF but had not informed the local authority or the court of your change of mind."
Charge 12 against Dr. B was in identical terms. The PPC explained its decision not to refer the case to the PCC in a letter to the claimant dated 14th July 2004. The application for permission to apply for judicial review challenged the PPC's decision on a number of grounds. Having considered the application on paper, Collins J granted permission on a limited basis, as follows:
"There is one matter which troubles me and that is the allegations at 9(d)in relation to Dr A and 12(d) in relation to Dr B. If they did admit on 28.11.03 that they did not believe the diagnosis of F11 and accepted that ME/CFS was the correct diagnosis, they were clearly wrong to continue to support F11. The time when they formed the view (if they did) is obviously material, but the allegation does depend on an issue of fact and, if established, is, I would have thought, capable of amounting to SPM. It does not seem to have been dealt with expressly in the PPC's reasons nor in the three Acknowledgements of Service which have been lodged. That matter alone does seem to me to require further consideration. I grant permission limited to that issue."
[4]The claimant renewed the application for permission on some but not all of the original grounds, and Mitting J granted him permission to apply for judicial review on an additional ground, that the defendant had failed to disclose to the claimant a letter dated 5th December 2003, written by the doctors (and another two doctors) to the Social Services authority's Child Protection Team so that the claimant could comment upon it. The letter had been relied upon by Dr. A in his response to the charges. The defendant's position was set out in a letter dated 14th July 2005 from its solicitors. So far as relevant that letter said:
"The GMC's position. The GMC accepts, as Collins J observed when granting permission, that the allegations of deceit by the Interested Parties arising from a failure to disclose an alleged change of mind are, unfortunately, not dealt with in the PPC's reasons, as set out in the GMC's letter of 14 July 2004. Having given the matter careful consideration, the GMC has decided not to serve evidence in opposition to the claim, nor to serve detailed grounds in accordance with Rule 54.14. Instead, it asks that a copy of this letter be placed before the judge in advance of any further hearing. The GMC is content to abide by the decision of the court in these proceedings. The GMC notes that the claim form seeks a quashing order in respect of the PPC's decision not to refer the claimant's complaint against the Interested Parties to the Professional Conduct Committee. Rule 54.19 of the CPR is relevant in this regard. If, contrary to the submissions which the GMC understands the Interested Parties wish to advance, the court were to conclude that a quashing order was appropriate, the GMC would not, in those circumstances, object to an order that the question of the allegations at paragraphs 9(d) and 12(d) of the respective rule 6 letters be remitted to the PPC for reconsideration. It seems to the GMC that there is no basis for any other of the allegations in the rule 6 letters to be reconsidered."
Although the letter accepts that the PPC's reasons do not deal with charges 9(d) and 12(d), it should also be noted that the same omission occurs in the internal note of the PPC's proceedings which is before the court.[5]The defendant was not represented before me. Mr McCullough represented the two doctors as interested parties. Since, notwithstanding his submissions on their behalf, I am satisfied that this application should be allowed and that the matter should be remitted to the PPC so that it can consider charges 9(d) and 12(d), I propose to say as little as possible about the background facts, since they are in dispute between the parties and I am anxious not to pre-empt any consideration of the matter by the PPC. Although Mr McCullough sought to persuade me that the defendant's attitude was neutral, it is plain, reading between the lines, that the defendant effectively concedes that the PPC did not consider charges 9(d) and 12(d) and that if it did its reasoning was inadequate. It was of course open to the defendant to seek to obtain evidence that, notwithstanding the lack of reasons, the PPC had in fact considered charges 9(d) and 12(d), but it has not chosen to file any evidence in opposition to the claim and, as I have mentioned, what evidence there is about the proceedings before the PPC in the form of the internal note confirms the lack of any reference to these particular charges in the letter dated 14th July 2004.[6]Mr McCullough submitted that the claimant in these proceedings was advancing a case that had not been advanced before the PPC, and indeed was advancing a case which was inconsistent with the case that had been advanced before the PPC. Whatever the merits of the case advanced by the claimant, as to which I deliberately express no view whatsoever, I do not accept these particular criticisms. The claimant's original complaint to the defendant is very lengthy, repetitious, and in places somewhat difficult to understand. However, he did complain that:
"False information was provided to social workers. The local authority solicitor and ultimately the court. This false information was persisted in, even as they had agreed in the presence of solicitors and others that H did indeed have ME/CSF. Thus resulting in the court deliberations continuing whilst at the same time the allegations made in their deposition had been withdrawn elsewhere by these 2 doctors. This then resulted in the local authority encouraged and supported by the above 2 doctors, seeking an immediate care order for our daughter H to be taken into care. Only the intervention of our solicitors, Bindman & Partners saved H from being taken into care. For it then to emerge only after challenge by the solicitors, 3 months into case, that H was indeed suffering from ME/CSF. This was agreed by both doctors in the presence of 2 solicitors and others. They [the doctors] used their positions as doctors to gain an advantage and circumvent the judge's directions and they used their positions to pour ignorant scorn on Dr Speight, Dr Monro, and us."
The local authority had instituted care proceedings and at court had ordered an independent assessment of the claimant's daughter. That was provided by Dr. Speight, and a meeting of health professionals, together with representatives from the local authority, the child's guardian, and the claimant's solicitors was held pursuant to an order of the court on 28th November 2003. The claimant in his complaint to the defendant contended that at that meeting the doctors unreasonably maintained their diagnosis of Factitious and Induced Illness ("F11") in the face of the conclusions of Dr Speight and Dr Monro that the claimant's daughter was suffering from chronic fatigue syndrome or ME.[7]The complainant continued, having referred to subsequent hearings before the court concerned with the care proceedings on 4th and 9th December 2003:
"Even at this stage Dr. B and Dr. A offered no apology to us and H. No mention was made by these 2 doctors to the court or the local authority that H was indeed ill and suffering from ME/CSF. No effort was made by these 2 doctors to stop the court action. Indeed, 2 solicitors, one an independent have confirmed that before this date both Dr A and Dr B had agreed that H did indeed suffer from ME/CSF. The judge was so informed in the presence of the local authority's barrister."
Whilst the complaint may well have been presented in a somewhat confused and confusing manner, that did not prevent the screener from being able to formulate charges as set out above. Bearing in mind that the claimant did not have any hand in framing the wording of the charges, they adequately encapsulated the complaints that he was making.[8]In his skeleton argument on behalf of the interested parties, Mr McCullough submitted that there is an inherent contradiction between charges 9(c) and 12(c), and charges 9(d) and 12(d): with charges 9(c) and 12(c) alleging that at the meeting the doctors unreasonably adhered to their diagnosis of F1I, notwithstanding the contrary view expressed by Dr. Speight and Dr Monro, whereas charges 9(d) and 12(d) have the doctors admitting that H was indeed suffering from ME/CFS. He pointed out that there was no evidence of any admission after 28th November 2003; indeed, no evidence of any meeting at which anything could have been admitted in the presence of witnesses. However, that assumes that charges 9(d) and 12(d) refer to a later day than the 28th November 2003 as opposed to later during the course of the meeting on 28th November 2003. There is no necessary inconsistency between an allegation that at the meeting on 28th November 2003 the doctors initially, and in the claimant's contention unreasonably, maintained that the diagnosis was FII, and then later in the meeting conceded that the proper diagnosis was ME. Mr McCullough refers to the wording of the charge and says: how could 9(d) and 12(d) relate to the meeting on 28th November 2003 because the contention is that the local authority was not informed of the change of mind. A local authority representative was present at the meeting. Hence, he says that 9(d) and 12(d) must be referring to some other occasion about which there is no evidence.[9]In my judgment, that places undue emphasis upon the particular formulation adopted by the screener. The claimant had not seen, much less approved that particular formulation. The screener was doing his or her best to encapsulate the underlying complaints that were being made by the complainant. If the PPC had been uncertain about the date on which it was said that the doctors had admitted in the presence of witnesses that H has suffered from ME/CFS, then the PPC would have been able to make the appropriate inquiries using their powers under the rules. If they had been concerned about the lack of particularity as to which witnesses were said to have been present when the admission was alleged to have been made, again they could have sought further information.[10]The difficulty with this submission made by Mr McCullough, as well as with a number of other submissions, is that the PPC might have made similarly critical comments if it had engaged with this allegation, but it simply failed to engage with the allegation at all. It therefore failed to consider whether, if there was any doubt or uncertainty, it ought to resolve that uncertainty by making further inquiries of the complainant and seeking further particulars from him, so that, in fairness, those particulars could be put to the doctors. In their response to the charge, the doctors denied making any such admissions, and one of them responded by saying that the allegation was unparticularised. Asking the claimant for particulars is an example of a course that would have been open to the PPC if it had engaged with this particular allegation and, if it was concerned about a lack of particularity.[11]Mr McCullough submitted that there simply was not material capable of founding a charge of deceit that was before the PPC. In my judgment, that is to ignore the claimant's own evidence in his complaint. Whilst criticisms can be made about the complaint, the screener was able to understand it sufficiently to formulate the charges and, as Collins J observed when granting permission, if there was deceit such as was alleged, then it would have been open to the PPC to conclude that such conduct was capable of amounting to serious professional misconduct. Whether any conduct does amount to serious professional misconduct is a matter for the PPC and ultimately for the PCC.[12]Mr McCullough submitted that the PPC's reasons were sufficient because it had chosen to deal compendiously with charge 9. The letter of 14th July 2004 says in part:
"Although the committee noted there had been extensive views expressed by all the professionals involved in this case about the various diagnoses, it concluded that this was not something they were required to deliberate on, as its role was to determine solely whether either doctor's conduct in this case raised a question of serious professional misconduct. When considering the individual heads of charge as set out in the Rule 6 letter for each doctor, the committee concluded overall both doctors actions in this case had been reasonable and in the best interests of their patient."
It explained that the committee did consider the individual heads of charge. They chose to deal with charge 9 compendiously, upon the basis that what it was alleging was collusion with Social Services and other professionals involved in the care proceedings. The committee concluded that there was no evidence to support the allegation that either of the doctors had so colluded. In my judgment, the charge as formulated by the screener in line (d) did raise a specific and separate allegation describing actions as deceitful. The gravamen of the complaint is that the doctors, having admitted in front of witnesses that the proper diagnosis was ME, not FII, then failed to inform the local authority or the court of their change of mind and therefore allowed the proceedings to continue. That was an allegation that deserved to be dealt with separately in the committee's reasons and consideration.[13]In the circumstances, it is unnecessary to consider the further ground on which the claimant has permission to apply for judicial review. The PPC should reconsider the matter in the light of all the evidence that is now available. That includes the doctor's letter of 5th December 2003. Also, there is also now other evidence as to what occurred at the meeting on 28th November 2003. For the reasons given earlier, I refrain from summarizing that evidence. All this evidence is now available to be considered by the PPC.[14]Finally, Mr Mccullough submitted that a distinction should be drawn between the two interested parties. He said that whilst there might be material capable of suggesting that Dr B had admitted on the 28th November that the diagnosis was ME/CFS, there was nothing in the material now available which would support such a suggestion in respect of Dr. A. In my judgment, it is for the PPC, not me, to decide whether a distinction can or should be drawn on the evidence between Dr A and Dr. B, just as it is for the PPC to decide whether, on the evidence now available, charges 9(d) and 12(d) should be referred for consideration by the PCC. It is not for me to usurp the PPC's function.[15]For these reasons I am satisfied that the PPC did not give proper consideration to the matters raised by charges 9(d) and 12(d). The matter should be remitted to them so that they can do so. I reiterate the point that I have already made, that in remitting the matter back to the committee, I express no view whatsoever as to the merits of the allegations contained in those charges, that being entirely a matter for the PPC to consider.[16]MISS SIMOR: We apply for costs after 14th July when the defendant withdrew from the case as against the interested parties and prior to that as against the defendant. We suggest that if you were minded to give that order, you could allow the GMC liberty to apply to return to court, since they have indicated in their letter to the court, dated 14th July, that they expected the judgment to be reserved.

MR JUSTICE SULLIVAN: One of the points was that you had ----

[18]MISS SIMOR: I am willing to address that point now. The other option is for them to have liberty to apply and for them to answer, if they decide to do that ---

MR JUSTICE SULLIVAN: It would be sensible to enable the representations to be made in writing.

MR JUSTICE SULLIVAN: Mr McCullough, have you any submissions to make on costs after 14th July?

[21]MR McCULLOUGH: I accept that the interested parties should in principle pay the claimant's costs from 14th July. I understand that no application is made before that date. There is one point that I should mention for the avoidance of doubt. This matter was listed for a substantive hearing in February of this year. It was adjourned at the claimant's requests because of funding difficulties. I do not know if the claimant has incurred additional costs. If he has they ought not to be laid at the door of the interested parties, that adjournment having been necessary as a result of their failure to get their funding in order.[22]MR JUSTICE SULLIVAN: That is a matter to be taken into account on taxation, on assessment. You are putting it down as a marker.[23]MR McCULLOUGH: Yes. It seems unlikely that there were costs. My brief was not delivered.[24]MISS SIMOR: There were no additional costs.[25]MR JUSTICE SULLIVAN: So far as costs are concerned, the costs up to 14th July 2005 are to be paid by the defendant to the claimant, but the defendant is to have liberty to make representations in writing as to why there should not be a full award or a partial award bearing in mind the observations in the letter. That is bearing in mind the observations in the letter of 14th July. Any representations are to be made in writing. The defendants are to pay the claimant's costs up to 14th July, such costs to be subject to detailed assessment if not agreed.[26]MISS SIMOR: Would it be helpful to have a time limit?[27]MR JUSTICE SULLIVAN: I would have thought representations within 14 days of the judgment being received and a response 14 days later. Costs after 14th July 2005 are to be paid by the interested parties, those costs to be the subject of detailed assessment if not agreed.[28]MR McCULLOUGH: As to the form of the order, it would appear, in the light of your judgment, that the suggestion made by the GMC reflects the form of the order, namely that the current decision of the PCC should be quashed and the matter remitted.[29]MR JUSTICE SULLIVAN: It is not remitted at large. It is remitted to consider 9(d) and 12(d). That should be included in the form of the order. The decision is quashed. It is remitted in respect of considering those two paragraphs in the light of the evidence as it now stands, which includes the letter of 5th December 2003 which the claimant now knows about.[30]MR McCULLOUGH: There is one matter in relation to your judgment. In recording a submission which I made, I would not wish it to be thought that I made or intended to make it. When you said at the end that I had conceded that there might be material supporting a charge against Dr B, what I had thought I had conceded was that there was material capable of suggesting that Dr. B had admitted on 28th November that the diagnosis was of ME/CFS, not that it was capable of supporting the charge.[31]MR JUSTICE SULLIVAN: I think that is a fair observation. As I said it I was conscious of the fact that I should have expressed it more tentatively. I will correct it in the final judgment.[32]MR McCULLOUGH: I would be grateful. I would not want it used against my colleagues ----

MR JUSTICE SULLIVAN: I will certainly look at that and flag it up to correct it.