SS, R (on the application of) v Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin)

Case No CO/2550/05

[2006] EWHC 26 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date Thursday, 19 th January 2006

Before

MR JUSTICE TOULSON

Between

DR SSClaimant

KNOWSLEY NHS PRIMARY CARE TRUSTDefendant

THE SECRETARY OF STATE FOR HEALTHInterested Party

DR J K GHOSHClaimant

NORTHUMBERLAND NHS CARE TRUSTDefendant

THE SECRETARY OF STATE FOR HEALTHInterested Party

(Transcript of the Handed Down Judgment of

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Mr Neil Garnham QC and Mr Neil Sheldon instructed by RadcliffesLeBrasseur for Claimants

Mr Jonathan Holl-Allen instructed by Hill Dickinson and Crutes for Defendants

Mr Jason Coppel instructed by The Office of the Solicitor to the Department of Health for Interested Party

Judgment

[1]These cases concern the procedure to be adopted by a Primary Care Trust when considering removal of a general practitioner from its performers list under Regulation 10 of the National Health Service Performers Lists Regulations 2004 (“the Regulations”).

The legislative framework

[2]The Regulations are made under section 28X of the National Health Service Act 1977. This states: (1) Regulations may provide that a health care professional of a prescribed description may not perform any primary medical service for which a Primary Care Trust or Local Health Board is responsible unless he is included in a list maintained under the Regulations by a Primary Care Trust or Local Health Board. (4) Regulations under this section may make provision in relation to lists under this section and in particular as to – (f) suspension or removal from a list (including provision for the grounds for, and consequences of, suspension or removal).

[3]The Regulations contain detailed provisions governing the drawing up and publication of performers lists. Regulation 22 provides that a medical practitioner may not perform any primary medical services unless he is a general medical practitioner and his name is included in a medical performers list.

[4]The contract between a general practitioner and a PCT is a contract for services. Its form is controlled by statute.

[5]Regulation 10 deals with removal from a performers list. The relevant parts for present purposes are as follows:

“(3) The Primary Care Trust may remove a performer from its performers list where any of the conditions set out in paragraph (4) is satisfied. (4) The conditions mentioned in paragraph 3 are that – (a) his continued inclusion in its performers list would be prejudicial to the efficiency of the services which those included in the relevant performers list perform (“an efficiency case”); (c) he is unsuitable to be included in that performers list (“an unsuitability case”). (8) Where a Primary Care Trust is considering removing a performer from its performers list under paragraphs 3 to 6…, it shall give him – (a) notice of any allegation against him; (b) notice of what action it is considering and on what grounds; (c) the opportunity to make written representations to it within 28 days of the notification under subparagraph (b); (d) the opportunity to put his case at an oral hearing before it, if he so requests, within the 28 day period mentioned in sub-paragraph (c). (9) If there are no representations within the period specified in paragraph 8(c), the Primary Care Trust shall decide whether or not to remove the performer and then, within 7 days of making that decision, notify him of – (a) that decision and the reasons for it (including any facts relied upon); and (b) any right of appeal under Regulation 15. (10) If there are representations, the Primary Care Trust must take them into account before reaching its decision, and shall then, within 7 days of making that decision, notify him of – (a) that decision and the reasons for it (including any facts relied upon); and (b) any right of appeal under Regulation 15. (11) If the performer requests an oral hearing, this must take place before the Primary Care Trust reaches its decision, and it shall then, within 7 days of making that decision, notify him of – (a) that decision and the reasons for it (including any facts relied upon); and (b) any right of appeal under Regulation 15. (12) When the Primary Care Trust notifies the performer of any decision, it shall inform him that, if he wishes to exercise any right of appeal, he must do so within the period of 28 days beginning with the date on which it informed him of its decision and it shall tell him how to exercise any such right. (14) Where the Primary Care Trust decides to remove a performer under paragraph 6, he shall not be removed from its performers list, until – (a) a period of 28 days starting with the day on which it reaches its decisions; or (b) any appeal is disposed of by the FHSAA, whichever is the later.” whichever is the later.”

[6]FHSAA is an acronym for the Family Health Services Appeal Authority, an authority constituted under section 49S of the 1977 Act.

[7]Regulation 11 sets out various matters which a PCT must take into account when considering whether to remove a performer from its performers list.

[8]Regulation 15 provides a right of appeal to the FHSAA against a decision of a PCT to remove a general practitioner from its performers list. The appeal is “by way of redetermination”.

[9]The procedure before the FHSAA is governed by the Family Health Services Appeal Authority (Procedure) Rules 2001. These rules were made by the Lord Chancellor in the exercise of powers under section 126(4) and schedule 9(A)(2) of the 1977 Act, and after consultation with the Council on Tribunals in accordance with section 8 of the Tribunals and Inquiries Act 1992. The procedure before the FHSAA has all the essentials of a judicial process. The FHSAA is an independent body. It can give such directions as are necessary to enable the parties to prepare for the hearing, or to assist the panel to which the case is allocated to determine the issues. It can give directions requiring any party to provide such particulars or supplementary statements as may be reasonably required for determining the appeal. It can make orders for the disclosure of documents and it can summon witnesses. The appellant and the respondent health authority are entitled to be legally represented. Parties are entitled to give evidence, call witnesses, question witnesses and address the panel both on the evidence and generally. The panel may admit evidence which appears to it to be relevant, although such evidence would be inadmissible in a court of law, but it may not refuse to admit any evidence which is admissible at law and is relevant.

Department of Health Advice to PCTs

[10]By contrast with the detailed procedural provisions that apply to hearings before the FHSAA, there are no other statutory provisions about the procedure to be adopted at the stage when a PCT is considering the removal of a general practitioner from its performers list apart from the extracts from Regulation 10 which I have set out. Regulation 10 is silent about pre-hearing directions, the calling of witnesses or legal representation. No doubt in the consciousness that PCTs would welcome some guidance, the Department of Health (DOH) has published advice to PCTs on medical performers lists, which includes advice about hearings under Regulation 10. The current edition was published in August 2004.

[11]Paragraph 2.2 of the DOH Advice describes the aim of the Regulations:

“Protection of patients should be the overriding consideration when considering whether a performer should be admitted to a list, suspended or removed from a list, whether restrictions should be placed on a performer’s position on a list, or whether the performer should be excluded from all lists (disqualification).”

[12]Paragraph 3 explains the background:

“Legal changes 3.1. In the past there had been concerns about the way in which the NHS handled issues involving practitioners’ suitability, efficiency and probity. Evidence from a number of very serious cases (most notably, but not exclusively, that of Harold Shipman) indicated that there were shortcomings in the way that quality issues were addressed in primary care, and in the processes available for dealing with them. In August 2002, the NHS Plan proposed that PCTs should be responsible (and accountable) for the formal processes. 3.2. Following passage of the primary legislation necessary to amend the 1977 NHS Act, Regulations were made as part of a phased programme to bring all general medical practitioners within a statutory PCT list management framework. For GP Principals this was done by means of amendments to the NHS (General Medical Services) Regulations 1992…However the Health and Social Care (Community Health and Standards) Act 2003 further amended the 1977 NHS Act in a way that permitted a single list of practitioners performing primary medical services to be established in each PCT. The NHS (Performers Lists) Regulations laid down that this would happen on 1 April 2004.”

[13]Paragraph 4 emphasises the need for equality and fairness in the application of the Regulations and warns:

“Any decisions taken by PCTs need to be procedurally robust. They will want to ensure that their decisions are likely to be lawful if they come under judicial scrutiny. PCTs that act inappropriately may well find their decisions overturned if a practitioner appeals to the Family Health Services Appeal Authority (FHSAA) and may be vulnerable to other legal challenge.”

[14]Paragraphs 27 and 28 give advice about how PCTs should investigate cases where there are concerns about a doctor’s conduct, performance and competence.

[15]Paragraphs 30 to 32 deal with hearings in cases where a PCT is proposing to remove a doctor from its performers list. Paragraph 30 suggests that the panel appointed by the PCT to consider the doctor’s representations will be most effective if it has authority to confirm or to change the proposed decision.

[16]Paragraph 31 states that panel proceedings are for the PCT to determine but that panels ought to have written procedures, which will provide a framework for the decision-making process and help to justify the manner in which decisions are reached. Paragraph 31.7 indicates that the case for removal will normally be put by an investigating officer and the doctor should then be given the opportunity of making his own representations.

[17]Paragraph 31.5 gives the following advice about witnesses:

“Witnesses who have made statements that may be used during the hearing may be asked to attend. However any decision to call witnesses should rest solely with the Chair and they ought only to be asked to attend when the Chair is satisfied that their attendance will add materially to the decision-making process. Witnesses are not under any legal obligation to attend and, generally speaking, their written statements should be sufficient. If a witness is asked to attend it will be to give direct evidence. They may be questioned by the Panel, but not by the Investigating Officer or by the performer.”

[18]On legal representation paragraph 31.7 states:

“A companion of his choice may accompany the doctor (who may be a representative of the LMC [Local Medical Committee] or a medical defence organisation). However since these are internal proceedings and not a quasi-judicial hearing, there will be no right to legal representation on the part of either the PCT or the doctor. Some doctors may prefer to have a legally qualified person present to advise them on questions of procedure, on the validity of any allegations or actions proposed during the hearing, or to take notes for the purpose of any right of appeal that is available. However there will be no reason why such a person should be able to question or cross-examine witnesses or address Panel members directly.”

The case of Dr S

[19]Dr S practised as a sole practitioner from premises in Knowsley until he was suspended by the Knowsley NHS PCT on 22nd August 2002. He was initially suspended under section 49(1)(a) of the Act because he was under investigation by the police arising from complaints of indecent assault. In November 2002 he was charged with 12 offences but in May 2004 the proceedings were stayed as an abuse of process. The reason for the stay was that there had been shortcomings in the investigative process, involving contamination of witnesses’ evidence and the loss of some original witness statements.

[20]On 9th August 2004 the PCT informed Dr S’s solicitors that it intended to proceed with an investigation to determine whether action should be taken to remove Dr S from the performers list pursuant to Regulation 10. The PCT appointed as investigating officer Dr Geoff Roberts. He interviewed and took statements from a number of Dr S’s former patients. Dr Roberts did not interview the witnesses on whose evidence the previous criminal charges had been based, but he took statements from three other patients who had initially made complaints to the police and from a patient who had not made any complaint to the police. These four patients all accused Dr S of treating them indecently in the course of medical examinations. (A fifth patient, who had formed part of the initial police case, contacted the Patient Advice and Liaison Service and asked to be interviewed. An interview took place, but Dr Roberts excluded her evidence from his investigation after representations by Dr S’s solicitors). Dr Roberts also took statements from various other people, including nurses and receptionists at the practice. Their statements contained critical remarks about the way in which the practice was run and also some hearsay evidence of patients’ complaints or comments about Dr S’s treatment of them.

[21]On 2nd March 2005 Dr Roberts sent copies of the witness statements to Dr S and invited him either to be interviewed or to submit his written comments. The offer of an interview was not accepted. Dr S asked for 10 weeks to give a written response. This request was refused and he was given a deadline of 23rd March for his written comments.

[22]On 24th March Dr S’s solicitors sent Dr Roberts a letter summarising his response to the witnesses’ statements and complaining that he had been given an unreasonably short time in which to respond. They said in the letter:

“Dr S has good reason to consider that there has been contamination of the witness evidence amongst those who make complaints in the present case. After all, the criminal trial against him collapsed largely because of such contamination. This underlines the importance of understanding how the statements which have been disclosed by you came to light and what steps have been taken by you to exclude that risk. The statements themselves are hopelessly vague as to times, dates and events. It also appears that you, as Investigating Officer, have made no attempt to examine the contemporaneous medical records to check the credibility of the statements against the recorded entries. Necessarily this leaves Dr S a large amount of work to do if he is properly to address the partial and unfair presentation of the case against him as the evidence now stands and, as we assume, already appears in your preliminary report. He needs sufficient time to do so. It has taken over three months for you to collect the evidence presently served on Dr S. At the very least he should be given a proper period, say 10 weeks to be allowed to respond and collect his own evidence. There is no pressing urgency for a hearing. Dr S remains suspended from practice.”

[23]The letter contained a denial of all allegations of inappropriate examination or treatment. It observed, for example, in relation to one patient that during a period of two years, when Dr S was working part-time, the complainant attended 24 consultations with Dr S without complaint, although it was said that there was another doctor available who was then working full time at the practice.

[24]The letter also complained about the generalised and hearsay nature of other statements.

[25]On 29th March 2005 Dr Roberts completed his report. He recommended that the PCT consider the removal of Dr S from the performers list on the grounds of unsuitability and/or inefficiency. He stated:

“In making that recommendation, I have taken into account the comments made by Dr S’s solicitors in their letter dated 24th March 2005 and have paid due regard to the fact that Dr S has indicated that he has not had sufficient time to consider and respond to the witness statements which were provided to him on 2nd March 2005. I would repeat that having interviewed the various complainants whose witness statements are referred to in this report, I found their evidence to be credible and cogent.”

[26]On the same day the PCT notified Dr S that the PCT was considering his removal from the performers list.

[27]The letter gave him notice of his right to an oral hearing and said:

“Assuming that you do wish to have an oral hearing, then I enclose herewith a copy of the document which sets out the procedure that will be adopted…You should also be aware that it will be entirely a matter for the Chairman of the Panel to decide whether or not any witnesses should be invited to attend the hearing. Please note that because the hearing is an internal procedure and not a quasi-judicial hearing, there is no right to legal representation on the part of the PCT or yourself. You may, of course, prefer to have a legally qualified person present to advise you on questions of procedure, on the validity of any allegations or actions proposed during the hearing or to take notes for the purpose of any right of appeal that is available. However, such a person will not be able to question or cross-examine witnesses or address Panel members directly.”

[28]The enclosed document stated among other things:

“The Chair of the Panel has the right to adjudicate on all matters of process, procedure and the conduct of the hearing. Witnesses who have made statements that may be used during the hearing may be asked to attend. However any decision to call such witnesses rests solely with the Chair. Generally speaking written witness statements should be sufficient. Where a witness does attend, they may only be questioned by Panel members and not by the Investigating Officer or the Performer.”

[29]To anticipate the argument, Dr S contends that this letter amounted to a decision not to allow him legal representation or to cross-examine witnesses. He seeks an order quashing the decision and giving directions as to the conduct of the proceedings. The PCT contends that no such decision has been taken. It relies on the statement in the enclosure to its letter that “the Chair of the Panel has the right to adjudicate on all matters of process, procedure and the conduct of the hearing”, and it argues that these proceedings are premature.

[30]On 8th April 2005 Dr S’s solicitors wrote to the PCT arguing that in order for the hearing to be fair and to comply with the rules of natural justice:

[1]all witnesses whose evidence was intended to be relied upon by the PCT as justifying removal should attend to be cross-examined;

[2]Dr S should be permitted to be legally represented at the hearing and to cross-examine the witnesses through his legal representative; and

[3]the hearing should be listed for a sufficient period to allow the case to be properly argued (which Dr S suggested would be 7 days).

[31]The letter gave notice that unless these points were assured an application would be made for judicial review. The letter also suggested that it would be an appropriate case for the PCT in its discretion to appoint a legally qualified chairman with experience of medical law and litigation.

[32]There was no substantive response to the letter. On 22nd April 2005 an application was made for permission to apply for judicial review. On 13th May 2005 permission was given by Ouseley J.

The case of Dr Ghosh

[33]Dr Ghosh practised at a surgery in Blyth. Until 2003 he was in partnership, but the partnership broke up in that year and he became a sole practitioner.

[34]On 27th January 2005 the PCT decided to suspend him from its performers list pending an investigation whether he should be removed from the list. The investigation resulted from a complaint made to the PCT by a letter dated 7th January 2005 from solicitors for SH. She was employed as a receptionist at the practice between 1999 and 2000 and as a practice clerk from 2002. She was also a patient of Dr Ghosh. In March 2003 Miss H alleged that he had indecently assaulted her on 3 occasions. He was prosecuted and the case went to the Crown Court, where he was acquitted after a trial.

[35]Miss H subsequently brought proceedings against Dr Ghosh in an employment tribunal alleging sexual discrimination. The complaint of sexual discrimination was based on the same allegations of indecent assault. The tribunal upheld the complaint, preferring the evidence of Miss H to that of Dr Ghosh.

[36]On 9th February 2005 the PCT appointed as investigating officer Mrs Pauline Fryer, Head of Corporate Affairs at Newcastle PCT. The complaint by Miss H led Mrs Fryer to talk to other members of Dr Ghosh’s staff, who raised wider issues about his relations with his staff. They also raised matters of clinical competence. On 5th May 2005 the PCT appointed another investigating officer, Dr John Unsworth, to investigate the clinical issues.

[37]On 20th June 2005 Dr Gill Fraser, the PCT’s Director of Clinical and Care Governance, wrote to Dr Ghosh to summarise the findings of the investigations. The letter said that Mrs Fryer had interviewed 22 people, concluding by seeing Miss H and Dr Ghosh. It also said that as the incidents cited by Miss H were upheld by an employment tribunal, the investigation could accept its finding as fact and focus on the associated issues brought up by the interviewees. The concerns expressed were put under a number of heads: poor practice management, bullying and harassment, poor professional relationships, failure to treat colleagues fairly and clinical concerns. The letter gave notice that the PCT was proposing to remove Dr Ghosh from its performers list on the grounds of both suitability and efficiency and that the hearing would be on 19th July 2005. That date was subsequently adjourned.

[38]Dr Ghosh’s solicitors (who also act for Dr S) raised a number of concerns in correspondence with the PCT, including concerns about lack of clarity of the allegations upon which the PCT was considering Dr Ghosh’s removal. Dr Fraser responded by a letter dated 30th August 2005 in which she set out 20 allegations and cross-referenced them to paragraphs in a finalised investigation report. The report with appendices runs to 573 pages.

[39]The first 14 allegations relate to clinical matters. They fall into a number of groups. Three allegations concern Dr Ghosh’s treatment or lack of treatment over a 7 month period of a patient with deteriorating health, weight loss and anaemia. The patient died. 9 allegations concern three male patients who had raised PSA levels. Two allegations are that Dr Ghosh did not refer patients early enough to the district nursing service for palliative care and was often reluctant to initiate symptomatic relief of pain via syringe drivers.

[40]The other 6 allegations are of a very different kind. They concern Dr Ghosh’s behaviour towards his staff, several of whom were also patients. The allegations are that he pursued a policy of recruiting young, attractive, vulnerable women, who were predominately his patients, to his staff. He then used his professional position to establish or pursue a sexual or improper emotional relationship with them. It is also alleged that he selected particular members of staff for preferential treatment while bullying or humiliating others, and that he was unprofessional in his relationships with his staff by making inappropriate comments about their clothing and appearance.

[41]Although the allegations of indecent assault made by Miss H are not listed among the specific allegations set out by Dr Fraser in her letter dated 30th August 2005, it is clear from paragraphs 106 to 125 of the finalised investigation report that those allegations form one of the central parts of the case made against Dr Ghosh. There are various quotations from the judgment of the employment tribunal, which is appended to the report, and it is stated that the investigating officer relies on the judgment in its entirety.

[42]On 14th September 2005 Dr Ghosh’s solicitors wrote to Dr Fraser saying that the case now put against Dr Ghosh was extremely wide ranging and gave rise to the need to assemble a considerable quantity of evidence. They asked:

[1]whether Dr Ghosh would be permitted legal representation at the hearing;

[2]whether any witnesses of fact would be giving evidence; and, if so, who those witnesses would be, and whether Dr Ghosh (or his legal representative) would have an opportunity to question them;

[3]whether the investigating officers who prepared the report would be present at the hearing and whether Dr Ghosh or his legal representative would be allowed to question them;

[4]what would be the composition of the panel and, in particular, whether it would contain a legally qualified member.

[43]Dr Fraser replied on 19th September 2005. Her answer to the question about legal representation was:

“The DOH guidance does not permit legal representation. I believe you have received a letter from Crutes Law Firm confirming this.”

As to which witnesses would be attending and whether they could be questioned, she wrote:

“The trust will have the investigating officers present, Dr Unsworth and Ms Pauline Fryer. I will present the overall findings and also give evidence of the dealings with the GMC. Several of the witnesses are not our employees and we could not compel them to give evidence… In terms of cross-examination the DOH guidance is unclear but to ensure that the process follows the essential requirements of natural justice it would seem appropriate that Dr Ghosh be allowed to ask questions.”

On the question of the panel composition she said that it would consist of a senior board member, a non-executive board member and an independent general practitioner, none of whom would be legally qualified.

[44]Dr Ghosh’s solicitors took the letter as a decision that he would not be allowed legal representation and that the only witnesses who would attend the hearing would be those identified by Dr Fraser.

[45]On the 26th September 2005 Dr Ghosh’s solicitors applied for permission for judicial review. On the following day Burton J made an order by consent that permission should be granted, that the case should be joined with the case of Dr S and that there should be an expedited hearing.

Undisputed principles

[46]Mr Neil Garnham QC on behalf of the doctors submitted that:

[1]the Regulations neither prescribe nor proscribe any particular form of procedure for an oral hearing under Regulation 10;

[2]it is accordingly for the body concerned to devise its own procedure, subject to a duty of fairness;

[3]its discretion in this area cannot be fettered by a third party; its discretion must be exercised in every case.

[47]Neither Mr Holl-Allen for the PCTs nor Mr Coppel for the Secretary of State disputed these propositions. But they submitted that the statutory scheme must be considered as a whole in considering what fairness requires, and that in deciding what procedure to adopt at a Regulation 10 hearing a PCT may properly have a general framework, provided that it is prepared to depart from it if fairness so requires in an individual case. Mr Garnham did not dispute those additional points. Disputed issues There are essentially three disputed issues:

[1]Whether either PCT made a decision about the procedure to be adopted, or not to be adopted, at the hearing.

[2]If so, whether such a decision is open to judicial review in circumstances where the doctor will have a right of appeal under the statutory scheme against any decision to remove him from the list.

[3]If either PCT made a decision regarding the procedure at the hearing and that decision is open to judicial review, what order, if any, should be made by this court at this stage.

Whether the PCTs made a decision

[49]The letter from Knowsley PCT dated 29 March 2005 and the letter from Northumberland PCT dated 19 September 2005 would in my view have led any reader to conclude that the procedure established by the PCTs for the proposed hearing under Regulation 10 did not permit legal representation of the doctors.

[50]The letter from Knowsley PCT said in terms that, although Dr S could have a legally qualified person present to advise him, “such a person will not be able to question or cross-examine witnesses or address Panel members directly”. The letter from Northumberland PCT implied the same by its statement that “the DOH guidance does not permit legal representation”. It is relevant also to note paragraph 2 of Northumberland PCT’s summary grounds for resistance of judicial review, which stated:

“The letter did not prescribe any format for a hearing or record any “decision”

. It merely notified the claimant’s solicitors of the defendant’s case – who would present the case, what evidence was to be adduced, the composition of the Panel and that legal representation would not be permitted. If and in so far as there was any “decision” in the letter it was only that the claimant would not be permitted legal representation at the hearing.”

[51]The letter from Knowsley PCT would also have led the reader to understand that Dr S would not be allowed to cross-examine witnesses (because it stated that the procedure would be as set out in the enclosure, which stated that any witness may only be questioned by panel members and not by the performer), in contrast with the letter from Northumberland PCT which envisaged that cross-examination would be allowed but would have led the reader to understand that the only witnesses present at the hearing (apart from any witnesses for Dr Ghosh) would be Dr Fraser and the investigating officers.

[52]The position of the PCTs at the hearing was that they did not regard themselves as having established a procedure which precluded legal representation or cross-examination of witnesses and that any decision in these matters would be for the panel’s independent judgment. It was therefore argued that the application for judicial review is premature. Whether the PCTs present position reflects a change in their internal thinking (as I suspect that it does, after legal advice) there has certainly been a change in their external presentation of their position. I read the letters as communicating decisions in the case of Dr S that he would not be allowed to cross-examine witnesses or be legally represented, and in the case of Dr Ghosh that he would not be allowed legal representation.

[53]Judicial review is a discretionary remedy. A court will ordinarily refuse permission to apply for judicial review of an allegedly unfair decision if there is a satisfactory internal method of appeal, but both these cases have passed the permission stage. Although permission has been granted, the existence of an alternative remedy may still cause the court to decline to grant relief even if it considers that the claimant’s grievance has substance. But the Secretary of State advanced a different argument, which was not based on discretion. The argument ran in essence as follows:

[1]The removal of a doctor from a PCT performers list is a two stage process: the Regulation 10 stage and the appeal stage.

[2]There will be no breach of

article 6 of the European Convention

if a complainant has, looking at the proceedings as a whole, access to all of the guarantees required by article 6.

[3]A fair second stage hearing would cure any previous unfairness and would result in there having been no breach of article 6.

[4]A similar principle applies in our domestic administrative law.

[5]Therefore the court has no jurisdiction to intervene to prevent unfairness at the first stage.

[55]Proposition 1 is undisputed. Propositions 2 to 4 do not distinguish between a second stage hearing which has the effect of avoiding any violation of article 6 or unfairness in the process and a second stage hearing which has the effect of remedying a violation or unfairness. That there is such a distinction has been highlighted by the decision of the House of Lords in R (Hammond) v. Secretary of State for the Home Department

[2006] 1 All ER 219

. (The decision was delivered after the argument in the present case, but counsel have made written submissions on it.) I do not accept proposition 5. In my view it is illogical and, if rigorously applied, could lead to results which would be neither sensible nor just.

[56]Where there is a two stage process, it is axiomatic that the nature of the second stage may be very relevant in considering what fairness requires at the first stage. A process which would be unfair if it were the entire process may be fair if it is only the first stage of a process. But the Secretary of State’s argument goes beyond that. The argument advanced is that if a decision has been made to conduct a first stage hearing in a way which will not comply with the requirements of fairness, the court has no jurisdiction to intervene. Any challenge by way of judicial review must wait until after the conclusion of the second stage.

[57]Where there has been an unfair first stage, all that can remain is cure. If there is an internal method of cure available, it makes sense (other things being equal) for the court to require the complainant to pursue his internal remedy. Where there is about to be an unfair first stage, there is the possibility of prevention. There is therefore an obvious distinction between a court looking forwards at an unfair procedure and backwards at an unfair procedure. That is not to say that a court would or should readily intervene to prevent prospective unfairness. It would be highly undesirable if the Administrative Court became burdened with large numbers of applications for judicial review in relation to proceedings which have yet to take place. That is a reason for approaching any such application with caution but not for denying a jurisdiction to do so.

[58]Article 6 came in to the argument in a slightly unusual way. Counsel for the doctors based his arguments on domestic law principles. He developed no separate argument based on article 6, because he submitted that it added nothing to the position at common law.

[59]Counsel for the Secretary of State relied on article 6 because he submitted that there could be no article 6 breach if there was a fair appeal process and that there was no difference under the common law rules of natural justice applicable to the proceedings. He relied on a number of authorities but principally on Preiss v. General Dental Council

[2001] UKPC 36

[2001] 1 WLR 1926

[60]In that case a dentist appealed to the Privy Council against a determination by the Professional Conduct Committee (PCC) of the General Dental Council finding him guilty of six charges amounting to serious professional misconduct and imposing a suspension for twelve months. A part of the grounds of appeal was that the PCC had effectively operated as prosecutor and judge, in that the chairman of the PCC had also been the preliminary screener of the complaint made against the dentist and the PCC had a predominance of members of the body (the Preliminary Proceedings Committee) on whose behalf the disciplinary charges had been brought.

[61]The Privy Council undertook a complete rehearing and allowed the appeal in part, rejecting some of the findings made by the PCC and substituting an admonition for the order of suspension.

[62]Counsel for the Secretary of State relied on paragraph 9 of the judgment delivered by Lord Cooke of Thorndon. Referring to the complaints about the constitution of the PCC, he said:

“This part of the argument for the appellant is founded on natural justice and on article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998. Article 6(1) begins with the declaration that in the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Since the decision of the majority of the European Court of Human Rights in Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 EHRR 1 it has been accepted that a decision of a professional tribunal affecting the right to practice the profession is a determination of civil rights and obligations. The argument accepts that the points taken under article 6(1) cannot succeed if the Board is itself prepared to conduct a complete rehearing of the case, including a full reconsideration of the facts and of the question whether the facts found amount to serious professional misconduct. Their Lordships consider that the position is no different under the common law rules of natural justice applicable to proceedings before domestic tribunals: compare Calvin v. Carr [1980] AC 574.”

[63]It was submitted that it followed from this decision that the court could not interfere to stop an unfair first stage hearing (because if it were followed by a fair second stage hearing, the end result would be fair). However, it is instructive to see how the judgment in Preiss v. General Dental Council continued. In the next paragraph Lord Cooke of Thorndon said:

“As the Board has undertaken such a complete rehearing…, to discuss the appellant’s points might seem unnecessary; but for several reasons, it is as well to do so. First, a disciplinary system in which a hearing satisfying article 6(1) could be secured only by going as far as the Privy Council could not be commended. Secondly, the right is to have such a hearing within a reasonable time. Although there has been no suggestion of undue overall delay in this instance, that might not always be the case. Thirdly, it has recently been emphasised in a judgment of an English divisional court R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929 [reversed by the House of Lords at [2001] UK HL 23, [2003] 2 AC 295, but not on the general proposition in question] that the proceedings as a whole have to be considered in deciding whether article 6(1) is satisfied. While again this does not apply to the instant case, there may be some risk of unpredictable circumstances where even a full Privy Council rehearing is not enough.”

[64]The Privy Council went on to hold that in the circumstances there had been both an appearance and a real danger that the PCC lacked the necessary independence and impartiality. Lord Cooke of Thorndon added that “Only the ultimate right of appeal to Her Majesty in Council saves the day” (paragraph 20).

[65]In the improbable, if not unreal, event that in a subsequent case the same body had decided to adopt the same procedure, despite the previous criticisms of the Privy Council, and an application had been made for judicial review to ensure an impartial tribunal at first instance, I can not imagine that the court would have refused to intervene on the basis that there could always be another appeal to the Privy Council. As Lord Cooke of Thorndon said, a disciplinary system in which a hearing satisfying article 6(1) could be secured only by going as far as the Privy Council could not be commended. In such hypothetical circumstances, prevention would be better than cure.

[66]The decision in R (Hammond) v. Secretary of State for the Home Department

[2006] 1 All ER 219

concerned the regime for setting the punitive tariff for certain categories of prisoner sentenced to life imprisonment for murder. Paragraph 11(1) of schedule 22 to the Criminal Justice Act 2003 provided that the matter was to be determined by a single judge of the High Court without an oral hearing. The applicant successfully argued that an unqualified statutory denial of an oral hearing in such circumstances would contravene article 6 and that the provision should be “read down” so as to make it compliant with the Convention. The argument for the Secretary of State in that case was founded on the availability of an appeal to the Court of Appeal, which would constitute an oral hearing with a power to admit oral evidence. It was argued that any deficiency in the statutory scheme at first instance would therefore be remedied on appeal and there was accordingly no incompatibility between the scheme and the Convention. This argument was rejected by the House of Lords.

Lord Brown of Eaton-under-Heywood said:

“(40) In examining the Strasbourg jurisprudence it is necessary to bear in mind that the only concern of the ECtHR is to decide whether, having regard to whatever domestic proceedings there may have been, the complainant is the victim of an unremedied violation of a Convention right…It is hardly surprising, therefore, that when one comes to consider the article 6 case law, one finds a certain looseness of expression and perhaps even some apparent inconsistency of approach as to whether, in those applications to Strasbourg which have failed, that is because the domestic appeal process is found to have avoided a Convention violation or merely to have remedied it. (44) As I have explained, it matters not to the ECtHR whether a violation has been remedied by the domestic courts or whether there has never been a violation in the first place: in either event the article 6 complaint will fail.”

[68]It cannot, however, be in accordance with the spirit of the Convention or the common law that the court should be powerless to prevent a violation of a right to a fair procedure, merely because of the existence of a later way of remedying the consequences. A stitch in time may save nine.

[69]R (Hammond) v. Secretary of State for the Home Department is instructive for two other reasons. Lord Bingham of Cornhill (with whose judgment the other members of the Appellate Committee all agreed) said at paragraph 16 that even if it were “an inevitable result” that a hearing in the Court of Appeal would remedy the lack of an oral hearing at first instance, he doubted whether this would entitle the court to regard paragraph 11(1) as compatible with the Convention. This observation runs counter to the argument that where there is a two stage process a person can have no enforceable rights to fairness at the first stage, as long as any unfairness at that stage can be remedied later.

[70]Secondly, Lord Bingham of Cornhill recognised (at paragraph 11) that the expression “civil rights and obligations” in article 6 has been given a broad meaning so as to embrace some administrative and disciplinary decisions of public bodies which do not have, and are not intended to have, the independence and impartiality of a judicial tribunal. But he recognised, as Lord Hoffmann recognised at paragraph 27, that article 6 does not apply with the same weight to such bodies as it does to a judicial tribunal. Some of the requirements of article 6 may be omitted in relation to such bodies, provided that there is adequate judicial review.

[71]That is highly pertinent when considering what fairness requires at each stage. But the existence of an enforceable duty of fairness and its content are different matters. On the question of the existence of a duty, the argument advanced on behalf of the Secretary of State amounts to recognising that there is a duty of fairness at the first stage but denying that it is enforceable, so long as there is fairness at the second stage. I reject that argument. If there is a duty of fairness at the first stage, in my judgment it must be enforceable by the court as a matter of jurisdiction. The real question is whether it is appropriate for the court to make a ruling about what fairness will require at the first stage.

Relief claimed: arguments and discussion

[72]Mr Garnham submitted that the decisions of the PCTs should be set aside and orders made in each case requiring that(1) the doctor should be permitted to be legally represented at the hearing,

(2) the witnesses of fact on whose evidence the PCT is considering the removal of the doctor from its performers list should be requested to attend the hearing and

(3) the doctor’s legal representative should be entitled to cross-examine witnesses who attend the hearing. If that is going too far, he submitted that the PCT should at least be required to take the first step of asking those witnesses to attend the hearing. At a minimum he submitted that the decisions should be set aside.

[73]Mr Holl-Allen for the PCTs and Mr Coppel for the Secretary of State submitted that issues about procedure at the hearing are for the panels to decide and that it would be wrong for the court to intervene by giving advance directions.

[74]Mr Holl-Allen also submitted that it is permissible for a PCT, in setting a framework from which a panel would be open to depart, to indicate that there should be a strong presumption against cross-examination of witnesses or legal representation at hearings under Regulation 10.

[75]At the heart of the debate lay different views not only about the proper role of the court but more fundamentally about what the requirement of fairness entails at this stage.

[76]Mr Holl-Allen submitted that in essence the decision of a PCT to remove a doctor from its performers list is an employment decision, and that although removal from a PCT’s performers list may have consequences for the doctor in finding other employment with another PCT, the position is no different in principle from that of any employee facing dismissal from his job. Employment law protects employees against unfair dismissal, but the duty of an employer to act fairly does not require an internal hearing with a right to legal representation and cross-examination of witnesses.

[77]This is not a convincing analogy. The DOH Advice itself recognises the difference between the statutory provisions about performers lists and employment contract procedures. It says:

“Distinction between these procedures and employment contract procedures 1.5. Where a contractor, provider or PCT employs a practitioner under a contract of service (or contract for services), any action that is taken under the provisions of the performers lists regulations does not preclude other actions that may be available under the terms of the contract. In the case of an employment contract with a NHS body this is dealt with in “maintaining high professional standards in the modern NHS (Department of Health, December 2003).”

[78]To regard the Regulations as mere employment procedures is to downgrade their significance and importance. They serve the important public purpose of keeping inefficient and unsuitable people from performing as doctors in the NHS. The scheme properly contains mechanisms designed to see that a doctor who is removed from the performers list of one PCT will not be placed on another PCT’s performers list unless circumstances have changed.

[79]However, Mr Coppel rightly pointed out that PCTs and the FHSAA are both institutions within the NHS, established, maintained or utilised by the Secretary of State pursuant to his duty to continue the promotion of a comprehensive health service (under sections 1(1), 16A and 49S of the 1977 Act). Their roles have to be looked at together. Most importantly, the decision at the first stage is not required to be made by an independent judicial tribunal, although the panel is required to act fairly.

[80]Mr Holl-Allen described a decision by a PCT to remove a doctor under Regulation 10 as merely a provisional step, but that rather downplays it. To describe a decision as provisional ordinarily implies that it is temporary or conditional and that the decision maker has not reached a final view. The decision by a PCT to remove a doctor from its performers list is not provisional in that sense. It is provisional only in the sense that it may be reversed on appeal and that its effect is suspended until after the expiry of the time for appeal or the disposal of an appeal.

[81]It is no doubt because a decision to remove a doctor from a PCT performers list is important that a doctor has a statutory right to know the grounds on which the PCT is considering whether to do so and a statutory right to put his case at an oral hearing. The purpose is so that the doctor concerned should be able properly to address the case made against him.

[82]The question whether a fair opportunity of doing this requires the doctor to be able to cross-examine witnesses or to be permitted legal representation or both might reasonably attract different answers in different cases, depending on their nature and complexity.

[83]In the case of Dr S, the central allegations are that he indecently assaulted four patients. If those allegations are true, he is plainly unsuitable to remain on the PCT performers list. The core issue is a stark one of credibility. The investigating officer has given his opinion that the complainants are credible.

[84]The panel would obviously be in a far better position to reach a fair judgment whether the complaints are true if they hear from the complainants and Dr S, and their stories are tested, than if the panel’s evaluation of the witnesses’ credibility is based on their untested statements and Dr Roberts’s opinion about their credibility. The complainants might not be willing to give evidence, and the panel would then have to proceed without them, but that would be from necessity. Mr Garnham submitted that fairness at least requires that they should be asked to give evidence. Mr Holl-Allen submitted that to agree to Dr S’s request in this respect could be to start on a slippery slope. He pointed to the suggestions from Dr S’s solicitors that the hearing would take 7 days, during which Dr S’s team would want to go back over the circumstances which led to the abandonment of the previous criminal proceedings, and that there should be a legally qualified chairman. All this seemed to presage a lengthy and legalistic hearing, interspersed with arguments about the relevance and admissibility of what happened in the police investigation prior to the PCT’s investigation.

[85]I do not believe that it would be right for the court to compel a panel to conduct a hearing of that kind. But I am far from convinced that the only choice is between refusing to hear the complainants or having a 7 day hearing. Unless there is some obstacle which I cannot at present see, fairness to the public and to the doctor would appear to me to dictate that the panel should hear the complainants and permit cross-examination of them (if they are prepared to give evidence) concentrating on what the complainants have to say about their relationship with Dr S. I find it difficult to see how that should take anything approaching 7 days.

[86]If there is to be cross-examination of the complainants, that would be a powerful reason for permitting legal representation, in order to avoid the complainants being cross-examined by Dr S himself.

[87]In referring to the evidence of the complainants, I am not overlooking the fact that Dr Roberts also took statements from other people, but their evidence is of a secondary nature. Exercising a sense of proportion, a panel might reasonably conclude that it was not necessary for the sake of fairness to hear oral evidence from witnesses of minor value. The panel would be fully entitled to concentrate on what they regard as the heart of the case.

[88]Whereas in the case of Dr S the core issues are straightforward (ie whether or not he indecently assaulted patients), the issues in the case of Dr Ghosh are more diverse and complex. The allegations of clinical shortcomings are specific and particularised, with one exception. The exception concerns Dr Ghosh’s alleged failure to refer patients promptly for palliative care and reluctance to initiate symptomatic pain relief. These allegations are based on interviews with district nurses, who have not provided written statements. One patient is named. She was referred to Dr Ghosh in October 2004 with a venous leg ulcer. It is alleged that he wrongly allowed her to dress her own wounds instead of arranging for her to have treatment instigated via the district nursing service to reverse her venous hypertension. For the rest, the investigative report acknowledges that the allegations of the district nurses are unparticularised and relate to un-named patients. The panel might think it unlikely that the district nurses interviewed by Dr Unsworth would be able to add materially to the evidence in the case if they were called, and that any challenges by way of cross-examination on the medical issues could fairly be put to Dr Unsworth. It appears from the PCT’s letter dated 19 September 2005 that Dr Unsworth will be available for questioning at the hearing.

[89]In relation to the allegations of sexual misconduct and unprofessional behaviour towards staff, Miss H is in a different position from other witnesses in that her complaints have resulted in reasoned findings by a judicial tribunal after a hearing at which she and Dr Ghosh were legally represented, gave evidence and were cross-examined. Of the score of other witnesses interviewed by Mrs Fryer six provided witness statements. The overall picture presented by Mrs Fryer is summarised in paragraph 191 of the finalised investigation report:

“When the statements and notes of interview of the witnesses are taken together it is the Investigating Officer’s conclusion that Dr Ghosh did not merely have poor recruitment procedures, but actively targeted vulnerable young women the majority of whom were patients at his practice. He then engaged in a policy of bullying and harassment. Those who were his favourites, which by inference appears to be those he found most attractive were rewarded, while others were not.”

[90]If Dr Ghosh is not given the opportunity of testing the evidence of any of these witnesses, there is an obvious likelihood that the panel will treat the cumulative effect of their evidence in exactly the way that the investigating officer invites them to do. It would be quite natural to conclude that there cannot be that much smoke without fire.

[91]In the case of the people who were interviewed but did not provide witness statements, it may be a reasonable inference that they would not be willing to give evidence. In assessing the value of what they have said, the panel will have to take into account that they have not signed statements. Those who have provided statements may or may not be willing to give oral evidence. Unless they are asked and decline, it could not be assumed by the panel that they are unwilling. If in truth their evidence is worth less than might cumulatively appear on paper, it is hard to see how Dr Ghosh is going to be able to show this merely by a denial of the accusations without the opportunity to put questions to his accusers. So, if the witnesses are willing, it is only fair that he should have that opportunity unless there are good reasons to make an exception.

[92]It is arguable that there are such reasons in the case of Miss H. She is in a different position from other witnesses for reasons previously stated. Dr Ghosh has already had full opportunity of cross-examining her before an independent judicial tribunal (which the panel is not). This point was not argued before me, but I can see a case for saying that fairness would not require the panel to allow Dr Ghosh the opportunity of further cross-examination of her on matters which are the subject of a reasoned judgment after a full judicial process.

[93]On the subject of legal representation, the fundamental question is whether the doctor could fairly be expected to represent himself. In many cases that may be a quite reasonable expectation. In Dr Ghosh’s case none of the allegations made against him is individually complicated, but taken together the case is sufficiently complex (with the large number of allegations, their diverse nature and the volume of paperwork) that I would be very surprised if a doctor could do himself justice in trying to handle the case unrepresented. A helper sitting beside him would be of some but limited assistance. It would be wrong that witnesses who complain of bullying and intimidation by Dr Ghosh should feel themselves exposed to the same risk in cross-examination by him (even though that might give powerful support to their evidence), and that would be an additional reason for allowing him to be represented. The alternative suggested in the DOH Advice of having questions put through the chairman of the panel might be appropriate in some circumstance, where the purpose is merely to supplement or clarify matters stated by the witness, but it is not realistic to expect cross-examination to be conducted on behalf of the doctor through the chairman.

[94]It was submitted on behalf of the Secretary of State that under the regime before the Regulations were introduced the procedure for stopping unsatisfactory doctors from working in the NHS was so labyrinthine and expensive as to deter health authorities from using it. It would not be in the public interest if the procedure under Regulation 10 were made so cumbersome that PCTs were deterred from attempting to remove doctors whom they believed to be substandard, and it need not be so. But expediency need not and must not lead to the exclusion of fairness. (Moreover, even in terms of expediency, it cannot be assumed that the overall result of permitting cross-examination or legal representation at a hearing under Regulation 10 will be repetitiveness and delay, while the doctor argues his case first before the panel and then on appeal. For every case where that happens there may be others where there is no appeal, either because the panel decides not to remove the doctor from the performers list or because the doctor or those advising him see no worthwhile prospect in an appeal. There are no scientific means of forecasting such outcomes and they could only properly be measured by some form of post legislative scrutiny. It is, however, readily predictable that there will be appeals if the first stage hearing is not seen as providing a fair opportunity properly to challenge the case put for the doctor’s removal.)

[95]Where there are procedural issues to be decided about who should attend the hearing and whether the doctor should be allowed legal representation, it would ordinarily be sensible for these matters to be sorted out in advance. To some extent this is anticipated in the DOH Advice at paragraph 31.4, which states:

“The procedures should permit the Chair and the parties to hearings (which includes the doctor) to agree a list of the people who may attend the hearing. The Chair should have the right to adjudicate in cases of dispute.”

If there is a dispute about whether witnesses should be asked to attend so that they can be cross-examined, the panel might reasonably want to know details of the doctor’s case in response to the allegations made by the witnesses concerned before reaching a decision.

Conclusion

[96]In argument the panels were referred to sometimes as if they were part of the PCTs and sometimes as if they were separate from the PCTs. To be clear, they are not bodies with separate legal personality. They are committees of individuals acting jointly as delegates of the PCTs for the performance of a statutory function. As paragraph 30 of the DOH Advice recognises, the scope of their delegated power authority may vary. It may be limited to making recommendations to the PCT or it may allow them to make a decision on behalf of the PCT. In the present cases the panels (as I understand) are authorised to make decisions. But it is open to the PCTs to set a framework within which the panels are to operate. The document enclosed with the letter from the Knowsley PCT to Dr S dated 29 March 2005 effectively did so.

[97]The statement in that document that “where a witness does attend, they may only be questioned by Panel members and not the Investigating Officer or the Performer” could cause unfairness for the reasons previously discussed if applied at face value.

[98]The statement was taken from paragraph 31.5 of the DOH Advice. The first part of that paragraph, stating that any decision to call witnesses should rest solely with the chair, and that they ought only to be asked to attend when the chair is satisfied that their attendance will add materially to the decision-making process, is sound general advice. However, where there is an important point of primary fact on which there is a dispute between the witness and the doctor, and the point turns vitally on the word of one against the other (rather than, for example, on conclusions to be drawn from clinical records), it is hard to see in the ordinary nature of things how it would not add materially to the decision-making process for the panel to hear and see the witness at first hand.

[99]The statement that a witness who attends the hearing may not be questioned by the investigating officer or the performer suggests a constraint which has no foundation in the Regulations. Where there is a serious dispute of fact between a witness and the doctor, questioning of the witness by the chair is unlikely to be an effective way of probing the witness’s evidence, compared with cross-examination.

[100]As to Mr Holl-Allen’s suggestion that a proper framework might contain a strong presumption against cross-examination, I do not see the language either of presumption or strong presumption as appropriate. Taking as a starting point that witnesses should only be asked to give oral evidence where this is likely to add materially to the decision-making process, it is bound to depend on the nature of the issue whether fairness requires that the doctor should be able to put questions directly to the witness. As with the decision whether to ask the witness to attend, the question is whether cross-examination will materially advance the decision-making process or, to put it more fully and more accurately, whether refusal to allow cross-examination will result in the doctor not having a fair opportunity of effectively challenging the allegations made against him. If the underlying fear of PCTs is that cross-examination may get out of hand, the remedy should lie in the power of the chair to control it.

[101]As to legal representation, the statement in paragraph 31.7 of the DOH Advice that there will be no right to legal representation on the part of either the PCT or the doctor is true in the sense that the Regulations do not give the doctor a general right of legal representation, but is liable to be understood as it was by Dr Fraser in her letter dated 19 September 2005 on behalf of the Northumberland PCT, when she wrote that “the DOH guidance does not permit legal representation”. That is going too far. It may be that in many cases legal representation would be unnecessary, but the question in each case must be whether the doctor can reasonably be expected to represent himself or whether legal representation is necessary in order to enable him to be able properly to present his case. I do not see that this can be a matter of presumption but must depend on the circumstances, including particularly the complexity of the allegations and the evidence.

[102]It follows from what I have said that the issues of attendance of witnesses, cross-examination and legal representation in these two cases need to be considered differently from the way in which they have been previously considered, but I will give the parties time to study this judgment before considering whether it is necessary or appropriate to make any order for the future.

[103]MR JUSTICE TOULSON: Yes, I am grateful to counsel for the editorial errors which you picked up and which have all been incorporated in the finalised version, which I hope you now have. There are copies available for other interested parties. MR GARNHAM: We do not yet, but I am sure --

[105]MR JUSTICE TOULSON: Well, here they are. There are enough copies, I hope, for anyone in court who is interested. Subject to anything which you may be about to say, that is the judgment.

[106]MR GARNHAM: My Lord, I am very grateful. We are grateful for your Lordship's judgment. Matters that follow: can I deal, first, with matters that, as I understand it, are agreed between the parties. The first is that in the light of your Lordship's judgment the decisions should be quashed, and, just for the sake of clarity, our understanding of the decisions for these purposes are: in Dr S's case a decision to refuse legal representation and to decline the right to cross-examine, and in Dr Ghosh's case the decision to refuse legal representation. MR JUSTICE TOULSON: Yes.

[108]MR GARNHAM: So the quashing of those decisions is agreed. I understand, also, that costs are agreed. I ask for my costs. I think my learned friends will make submissions as to how they should fall, but I understand that that too is agreed. MR JUSTICE TOULSON: Yes.

[110]MR GARNHAM: The only matter that remains outstanding in those circumstances is what, if any, further orders the court ought to make in the light of your Lordship's judgment. MR JUSTICE TOULSON: Yes.

[112]MR GARNHAM: I hope your Lordship has seen a draft order in both cases that we have prepared. That is our stance. The stance of my learned friends, as I understand it, is: Mr Coppel is neutral on the matter and Mr Holl-Allen invites your Lordship not to make the order we suggest and instead to leave it to the discretion of the panels. MR JUSTICE TOULSON: Yes.

[114]MR GARNHAM: Your Lordship left open this question in the final paragraph of your judgment, paragraph 102, and it will ultimately be a matter for how your Lordship reads and wishes to interpret your own judgment. I would therefore make only very brief submissions. As regards Dr S's case, I will remind your Lordship of paragraphs 84 through to 87 of the judgment. In particular, in 84, you observe that the panel would be in a far better position to judge if it is tested. Then in 85 you say:

"Unless there is some obstacle which I cannot at present see, fairness...dictate[s]."

At 86:

"If there is to be cross-examination... powerful reason for permitting legal representation..."

[115]Our stance, my Lord, is that, in the light of the way your Lordship has dealt with this matter, there can be no other proper decision on legal representation other than that Dr S is permitted legal representation.

[116]MR JUSTICE TOULSON: That rather predisposes that the people agree to come. If they all say, "We are not coming", Dr Ghosh is then faced with a paper exercise. MR GARNHAM: Dr S, my Lord.

[118]MR JUSTICE TOULSON: Dr S. I am so sorry, Dr S is faced with a paper exercise. So the question of cross-examination would have been rendered moot.

[119]MR GARNHAM: It would be, my Lord, in those circumstances, that is right, but that presupposes that the only matter on which there should be legal representation in this case is on cross-examination. It may be, although your Lordship's judgment does not, understandably, address this, that there should also be legal representation on submissions that follow, and, for that matter, that precede the decision, as to whether or not which witnesses should be called. So we would invite your Lordship to say that there should be legal representation before the panel and that, in respect of such witnesses as attend, there should be the right to cross-examination.

[120]My Lord, similar considerations apply in respect of Dr Ghosh. The relevant part of the judgment is 88 through to 93. Again, we would invite your Lordship to conclude that the only proper conclusion that could be open to Northumberland PCT, against the analysis that your Lordship advances, is that there should be legal representation and that those who provide a statement should be invited to attend for cross-examination.

[121]My Lord, the practical significance of this is that if the matter is not disposed of by directions by your Lordship, there is a risk -- it will go back before the panel -- but that they will then come to conclusions that are inconsistent with your Lordship's judgment and we will all be back here arguing the matter again, whereas directions along the lines of those suggested in our draft would eliminate the danger of this all happening again at considerable expense, both to the public purse and to the doctors. We would submit that given the obvious care, if I may respectfully say so, that your Lordship has taken over this judgment, to risk us all having to rerun it would, if your Lordship will excuse the vernacular, be daft.

[122]MR JUSTICE TOULSON: Yes. Thank you very much indeed. Yes, Mr Holl-Allen.

[123]MR HOLL-ALLEN: My Lord, may I deal with the agreed matter of costs first of all? MR JUSTICE TOULSON: Yes.

[125]MR HOLL-ALLEN: My Lord, agreement has been reached, happily, between the defendants and the Secretary of State in relation to meeting the claimants' costs of these claims. My Lord, the form of words that I would respectfully suggest is, and I hope that this accurately reflects the agreement, "The interested party do pay 50 per cent of the claimants' costs of this claim incurred on or after [and then the date on which, in each case, the interested party is served]. The balance of the claimants' costs to be paid by the defendants."

[126]MR JUSTICE TOULSON: If the parties have come to an arrangement which is highly sensible I think I would ask counsel to draw up the appropriate order and I will initial it.

[127]MR HOLL-ALLEN: Yes, thank you, my Lord. Moving on to the form of order, as Mr Garnham has indicated there is a difference of view between him and myself on those issues. My Lord, Mr Garnham has properly referred you to the various passages in your judgment where you deal with what fairness requires, or would appear to require, but, in my submission, your Lordship was very careful in all cases not to use mandatory language but certainly to give what I might describe as a strong, or indeed a very strong, steer to the panel who will now reconsider these questions as to what the requirements of fairness are in a particular case.

[128]My Lord, if I can go back to the text of your Lordship's judgment, I am working from the draft but I am sure it is the same, in paragraph 85, in relation to the S case, your Lordship specifically states that:

"Unless there is some obstacle which I cannot at present see, fairness to the public and to the doctor would appear to me to dictate that the panel should hear the complainants and permit cross-examination of them..."

[129]My Lord, just pausing there, I recalled, reading that passage, the exchanges when this case was heard when points were made that there might be particular circumstances in which, for example, it would be a reasonable exercise of discretion not to request, say, a particularly vulnerable witness to come to give evidence.

[130]Now, my Lord, the effect of your Lordship's judgments and the strong guidelines that your Lordship has laid down are plain for all to see. MR JUSTICE TOULSON: Yes.

[132]MR HOLL-ALLEN: Clearly the panel that will be hearing this case in due course would depart from what clearly is the judicial intent in these circumstances with considerable temerity and only where the circumstances justified it. But, my Lord, if I can draw another example to your attention, the conclusion of page 91, when your Lordship is addressing the circumstances of the Ghosh case, your Lordship says:

"So, if the witnesses are willing, it is only fair that he should have that opportunity unless there are good reasons to make an exception."

[133]My understanding, rightly or wrongly, of your Lordship's judgment, is that your Lordship is saying, effectively, that there is a discretion on these issues but it is a limited, or very limited, discretion, and it could only be exercised in circumstances where there was very good reason for departing from the position that your Lordship clearly envisages will prevail. MR JUSTICE TOULSON: Yes.

[135]MR HOLL-ALLEN: Your Lordship clearly had this in mind in drafting the final paragraph of your Lordship's judgment in the way that your Lordship did. In my submission it would be sufficient for the decisions that have been made to be quashed and for an order simply to be made that the question of the procedure to be adopted should be reconsidered in accordance with the principles and guidance set out in your Lordship's judgment. It will be quite clear to my lay clients that to depart from what your Lordship has laid down will have to be justified in the clearest terms. But to do what Mr Garnham is suggesting will effectively remove any discretion from the panels and any opportunity to depart from the matters which are laid down in the draft order.

[136]MR JUSTICE TOULSON: Yes. So far as Dr Ghosh's case is concerned -- MR HOLL-ALLEN: Yes.

[138]MR JUSTICE TOULSON: -- in the light of the judgment that I have given, is there any arguable case against him having legal representation? You may say my judgments are wrong, and that will be a matter for challenging in a different way, but as the judgment stands the view I have taken is that this is a complex matter for the reasons stated and that it is not actually realistic to expect a doctor to do himself justice, or for that matter particularly help the panel, in handling this variety of matters with somebody sitting at his side nudging his elbow saying say this, say that. That being so, adopting the practical approach that Mr Garnham suggests, is there any sensible reason why I should not direct that he have legal representation?

[139]MR HOLL-ALLEN: My Lord, that, I think, was the one area in which your Lordship could be said to have laid down, or certainly approached laying down, a mandatory requirement. Therefore I do not pursue that issue particularly strongly, but I think in every other area --

[140]MR JUSTICE TOULSON: I can see that in relation to Dr Ghosh I did not hear specific argument on the point regarding Miss H and I have indicated what I see as a tenable position.

[141]So far as Dr S is concerned, consistent with the tenor of my judgment, is there any reason why they should not here and now see whether the four complainants, as I describe them, who are really the core to this case, are willing to give evidence? MR HOLL-ALLEN: Well, my Lord --

[143]MR JUSTICE TOULSON: You touched on the fact that there might be exceptional reasons because they might be vulnerable witnesses and there might be particular reasons for not seeking to see whether one of those -- it is, I confess, some time since I read this because I prepared the judgment, as you know, before Christmas, but I do not recall any indication in them that any of those four complainants was a vulnerable witness.

[144]MR HOLL-ALLEN: My Lord, I am not in a position to respond in detail in relation to that, but would your Lordship give me a moment just to consider the terms of your Lordship's judgment? MR JUSTICE TOULSON: Certainly.

[146]MR HOLL-ALLEN: I merely refer your Lordship to the qualification that your Lordship inserted in paragraph 85. MR JUSTICE TOULSON: Yes.

[148]MR HOLL-ALLEN:

"Unless there is some obstacle which I cannot at present see..."

[149]MR JUSTICE TOULSON: Quite. Well, I rather envisaged that by using the text and the final paragraph that I did, and indicating through my clerk that if the parties needed longer time after delivery of the judgment before the argument to deal with consequences you could have it, that you might be in a position to say that there is a real point that we want to argue about.

[150]MR HOLL-ALLEN: Well, my Lord, regrettably there has not been sufficient time to take instructions in that detail.

[151]MR JUSTICE TOULSON: I do not make any blame on that. As we are clear, from the tenor of my judgment, I think that the panel must take a fair view and is entitled to take a robust view as to what the case is really all about. The S case is really, fundamentally, about serious allegations from four complainants. If they stand up then the doctor should not be on the PCT list. If those disappear then what they are left with is something of a very different nature.

[152]The panel, of course, is entitled to take a view of what it sees as a (inaudible). If the panel thinks that the other matters, apart from the complainant's complaints of sexual assault, are grave and weighty matters on which there are primary issues of fact, though inconsistent with the tenor of this judgment, fairness would seem to mandate that those other matters in evidence should be probed. But if they take the view that those are all rather secondary matters in the heart of the case of the four complainants then it would not be unreasonable for the panel to say that those are the people on whose evidence, frankly, this case turns and we should hear from them. That is why I have left an element of steerage for the panel because they are the people, including doctors, who are able to take a view on what they regard as the seriousness of this different collection of matters.

[153]But what must be plain is that the allegations of four complainants are important and central and those are not matters which involve, so to speak, medical judgments. They are factual issues. MR HOLL-ALLEN: Yes.

[155]MR JUSTICE TOULSON: Subject to any particular reason not presently canvassed, the effect of my judgment is that, if they are willing, the doctor ought to have an opportunity of probing them. If that is to happen, then, although it may well be that the doctor could cross-examine them, all our experience in other jurisdictions has been that it is most undesirable; that an alleged victim be cross-examined by the alleged abuser. In the criminal courts steps have been taken to stop that very thing happening. But that is, of course, consequential on their willingness to give evidence. MR HOLL-ALLEN: Yes.

[157]MR JUSTICE TOULSON: I will hear from Mr Garnham before indicating how I am presently minded to deal with the matter. Is there anything else you would like to say? MR HOLL-ALLEN: No, my Lord.

[159]MR JUSTICE TOULSON: Thank you very much. Yes, Mr Garnham?

[160]MR GARNHAM: I wonder whether, in light of the exchange that your Lordship has had with my learned friend, the way through this is for your Lordship to direct the panel to invite those witnesses who they regard as central or important, the choice of word may require further reflection, to give evidence, and if those witnesses attend then Dr S is to be entitled to cross-examine them and have legal representation. That would leave to the panel the task of identifying which witnesses they regarded as of central importance and the matters that followed on cross-examination and legal representation would depend on their attendance or willingness to attend.

[161]MR JUSTICE TOULSON: I am not adverse to that, subject only to this, that I think the other side should have some timeframe for just considering whether there is any special reason why they want to say in relation to a particular witness: this witness should not be asked to come and give evidence. One way of doing that would be for me not to sign off on an order until they have made those enquiries. MR GARNHAM: 7 days, my Lord.

[163]MR JUSTICE TOULSON: Then the order, as drawn by counsel, I can initial. If there is a problem then the matter can be dealt with by written submissions and, if necessary, but this would be a last resort, a further oral hearing.

[164]MR GARNHAM: Yes, yes. Well, I look around and I cannot see any difficulty with that, my Lord. I would invite your Lordship to do that.

MR JUSTICE TOULSON: Mr Holl-Allen, do you want to say anything about that?

[166]MR HOLL-ALLEN: My Lord, I am just thinking through the practical implications.

MR JUSTICE TOULSON: Yes, certainly, let us be practical about it.

[168]MR HOLL-ALLEN: It certainly has always been my client's position, and, as I understand it, still to be their position, that the form and procedure to be adopted at the hearing is to be determined ultimately by the panel, although your Lordship has indicated in his judgment that essentially the panel is part and parcel of the defendant and I do not dispute that. But, my Lord, I am conscious that in your Lordship's judgment there is a reference to the observations which I made on my client's behalf on the last occasion about the implications of all of this for the length of the hearing. Your Lordship said that if there was an issue about the scope of cross-examination that can be dealt with by regulating it effectively.

[169]Now, my Lord, I will be making an application for permission to appeal in due course and one of the points that I was going to make was that if we are going down that line it seems to me difficult to see how cross-examination of witnesses such as this can be properly and fairly controlled other than by a legal chairman. MR JUSTICE TOULSON: That is a matter for the PCT.

[171]MR HOLL-ALLEN: It is a matter for the PCT, my Lord, but if we get to a situation in the S case where this hearing proceeds and there is significant control, as I may put it, of cross-examination, then that in itself, unless carefully dealt with, may become the subject of complaint and proceedings in due course. So, it is an area in which I can fully understand that the Knowsley PCT may want to give very serious consideration to the appointment of a legal chairman and it would be that chairman who would be, in those circumstances, making judgments about which witnesses whom he felt it appropriate to approach and to call, in which case a 7 day timeframe is not a help.

[172]MR JUSTICE TOULSON: I see that point. In relation to the point you have made about a legally qualified chairman, of course it is open to the PCT to do that if they want, but there are plenty of examples of effective tribunal chairmen who are not legally qualified. I certainly had experience at the bar in disciplinary hearings, for example in teacher cases, of appearing before tribunals where the chair was entirely effective and was not legally qualified. It would be entirely a matter for the PCT who they wanted to appoint, but it is not, I think, a universal assumption that you have to be a lawyer in order to be able to exercise fair and firm discipline in the conduct of a hearing.

[173]MR HOLL-ALLEN: I do not necessarily dissent from that, but may I come back to where I think Mr Garnham began? MR JUSTICE TOULSON: Yes.

[175]MR HOLL-ALLEN: I understand on one level that he is saying: unless this court makes directions we may well all be back here. MR JUSTICE TOULSON: Yes.

[177]MR HOLL-ALLEN: But the reality is that the purport of your Lordship's judgment is entirely clear. Is it, I ask rhetorically, not much more sensible to have a simple order saying: quash the decisions, retake the decisions in accordance with the clear strong guidance, and in some cases mandatory guidance that your Lordship has given, in the full understanding that your Lordship's judgment is, of course, going to be read carefully by my clients? They are clearly going to have the benefit of legal advice as to the import of it.

[178]MR JUSTICE TOULSON: Yes. Well, I am broadly with you on that, but from a matter of pragmatism there are two areas where, at the moment, I think I am inclined to make a further direction because it seems to me pretty open and shut. One is representation of Dr Ghosh. The other is in relation to Dr S; that the four complainants should be asked whether they are willing to give evidence. It seems to me that there is no point in messing around on time on that, but for that order not to be drawn up until you have had 7 days to see whether there is any particular reason why you would want to advance an argument that that witness should not be asked, because I would not want to foreclose that. In other words, if there is a real point on it I would not want to foreclose your opportunity for having an argument on it, and if there is not a real point on it then there is no point not giving the direction. MR HOLL-ALLEN: Yes, my Lord, I understand.

[180]MR JUSTICE TOULSON: But I can see that the whole thing may be rendered rather different if the case is going to go on for another stage. Do you want to say any more about that? MR HOLL-ALLEN: No. MR JUSTICE TOULSON: Mr Garnham?

[183]MR GARNHAM: My Lord, I make no further submissions in the light of what your Lordship has said save this: if the invitation in the S case is accepted I would invite your Lordship to say that, in those circumstances, there should be legal representation for Dr S, because you make it clear in your judgment that there could be nothing else that is fair. MR JUSTICE TOULSON: Yes. Where now? Where next?

[185]MR HOLL-ALLEN: My Lord, I think the only remaining issue is permission to appeal. MR JUSTICE TOULSON: Yes.

[187]MR HOLL-ALLEN: My Lord, I do have instructions on behalf of both primary care trusts to seek permission to appeal on the following grounds. Clearly your Lordship's judgment has implications for the operation of the system of oral hearings under the regulations generally.

[188]What your Lordship has found is required in the interests of fairness, in my submission, in the Ghosh case in particular, is likely to result in a lengthy hearing. Certainly a hearing which, in my submission, is unlikely to be concluded within one working week and, in my submission, inconsistent, therefore, with what was envisaged by the regulations which is an oral hearing taking place under Regulation 108(d) within 28 days of notification of the allegations which the doctor faces.

[189]My Lord, I have already made the point that in paragraph 100 of your Lordship's judgment there is a suggestion that cross-examination might be controlled by the panel chairman in circumstances where, in the S hearing in particular, it might be considered to be ranging too broadly or going over ground in too much detail. But despite what your Lordship has said, given the nature of the allegations, my Lord, it seems to me that it is likely to involve the introduction of a legal chairman, or at least legal assistance to the panel perhaps in the form of a legal assessor.

[190]My Lord, perhaps the point of greatest significance in relation to the ramifications of your Lordship's judgment is this, that although I am sure that I could be criticised for entering the realms of speculation, the reality is this: that in a situation in which a primary care trust is contemplating removing a practitioner from its list, the sort of circumstances which are going to lead to that, are, in a very great number of cases, going to involve significant issues of credibility of witnesses and/or complexity of factual background, which certainly arises in circumstances where the allegations, as they often do, relate to the sub-standard administration of practice or indeed sub-standard provision of patient care.

[191]So, the possible implication of this judgment is that a hearing, and quite a significant hearing, may well be required in a large, if not the majority, of cases. The effect of the judgment is to accord to the doctor at the first stage what goes a long way towards being the quasi-judicial hearing to which he is entitled on appeal.

[192]My Lord, clearly and properly your Lordship was focusing, in the latter part of your Lordship's judgment, on the requirements of fairness at the oral hearing stage, but in the course of that part of your Lordship's judgment my recollection is that there was no reference, at that stage, to the fact that, of course, there is, in every case, the right to a full quasi-judicial hearing on appeal and that the requirements of fairness at the first instance, if I can put it that way, must be interpreted in that light.

[193]So, my Lord, for all those reasons I ask for permission to appeal. MR JUSTICE TOULSON: Yes.

[195]MR COPPEL: My Lord, I also ask for permission to appeal. Can I briefly supplement what Mr Holl-Allen has said? MR JUSTICE TOULSON: Yes.

[197]MR COPPEL: Four points, my Lord. First of all, we say that the issues in this case are of far-reaching importance. These are obviously national provisions and, as Mr Holl-Allen has said, these are not really exceptional cases. Many cases will fall within the principles which my Lord has expressed.

[198]The second submission I make is that the precise point which is raised by these cases is one on which there is little direct authority of the higher courts. The submissions before my Lord proceeded by way of extrapolation from cases such as Preiss and Hammond which are not directly on point, but where there were comments which either party said were prescient or material for the purposes of the present case. In particular there is no Court of Appeal authority on the precise situation which arises.

[199]The third point, my Lord, again to support what Mr Holl-Allen has said, is that we are concerned that my Lord's decision has the potential for creating difficulties for PCTs and therefore from discouraging them from using the new system to the overall detriment of patients.

[200]Mr Holl-Allen has said to my Lord that he is concerned about the possible knock-on effects in terms of having to have a legally qualified chairman. I would express concern, in addition, as to the situation which my Lord has reached in relation to the calling of witnesses. We are concerned that doctors will simply not accept that it is sufficient for witnesses merely to be asked to attend and for the PCT to proceed even if the witnesses refuse to attend. We can envisage further litigation whereby doctors try to stop a PCT from relying on evidence of a witness who is asked to attend but does not attend, or indeed from proceeding with the hearing at all.

[201]The fourth point, my Lord, is again one made by Mr Holl-Allen which is in relation to my Lord's reasoning and to the marginal role, we submit, which was played within that reasoning by the quasi-judicial hearing before the FHSAA. My Lord did note in the argument towards the end of the case that it would be unsatisfactory to have a witness giving evidence twice, first before the PCT and then in the quasi-judicial hearing for which the Regulations provide for the FHSAA. We submit that the proper solution to that dilemma is to leave it to the FHSAA, which is the body which is specifically charged and better qualified to carry out that function. We are concerned that my Lord's solution of asking a witness to attend, but proceeding anyway if they refuse, is an unsatisfactory halfway house for the reasons which I have given.

[202]So, for those full reasons, my Lord, we also ask for permission to appeal. MR JUSTICE TOULSON: Yes.

[204]MR GARNHAM: My Lord, we would resist the grant of permission to appeal. The legal foundations for the issue of principle that your Lordship decides are well-established. Your Lordship resisted what we would say was a novel argument by my learned friend Mr Coppel, but beyond that it was, we would say respectfully, pretty well-established law that gave the foundation to the main point. Thereafter your Lordship was simply looking at the facts of this case to determine what fairness dictated.

[205]In none of those circumstances, we would submit, would this be a proper case to go to the Court of Appeal.

[206]MR JUSTICE TOULSON: Thank you very much. I will give permission to appeal. A number of points made in support of the application do not persuade me; for example, the suggestion that this judgment would lead to the position that if an important witness declined an invitation to attend that should stymie the entire proceedings. That seems to me to be simply without foundation and no reason for giving permission to appeal. Again, the suggestion that the judgment is arguably flawed because I did not have in mind, in considering what fairness required at the first stage, that there was the full judicial rehearing available by way of appeal, is not a point which moved me in the least because I had the structure very firmly in mind when giving the judgment. Nor am I greatly influenced by the suggestion, which may or may not be correct, that these are typical cases, because if they are, and if fairness requires what I think it requires, then it should be available in those cases, and if they are not the point disappears.

[207]But I do think it is right to give permission to appeal because I can see that another court could take an altogether different approach to that which seems to me to be right. Although the view which I have ultimately come to is, in my own mind, clear and I do not entertain personal doubts about it, it is a different matter to ask oneself whether you think that somebody has a sufficiently arguable case that they ought to be allowed to take it on appeal. In conjunction with that is the question of importance and this is manifestly a matter of importance to doctors and the public.

[208]So for those reasons, and not others, I will give permission to appeal.

[209]That then rather, I think, has a knock-on consequence on the form of order, because if there is going to be an appeal, frankly I see little point in an order being made now as to the PCT's right to asking witnesses whether they are willing to come. The implications of my judgment, if it stands, as to what the PCT should do, are quite clear. The reasons for giving those further directions, at least at this stage, would essentially have been pragmatic, for the reasons put forward by Mr Garnham. There is not a lot of point in making those pragmatic orders if nothing is going to be done upon them because the matter is now going to be reviewed on appeal.

[210]So for those reasons I think that the sensible course is for me to quash the decisions. The inevitable consequence of that is that the PCTs, if the judgment stands, will have to reconsider them. Costs will be directed as agreed. I do not see a practical advantage in giving further directions at this stage in the light of the permission to appeal.

[211]MR GARNHAM: My Lord, thank you for that. I do not ask for anything further except perhaps your Lordship would say, "PCTs reconsider their decisions in the light of the judgment of the court."

[212]MR JUSTICE TOULSON: Yes, that seems sensible to me. MR HOLL-ALLEN: I am very happy with that. MR GARNHAM: My Lord, thank you.

[215]MR JUSTICE TOULSON: Thank you very much indeed. If you would kindly draw up the order with the costs rubric that you have agreed and I will initial that. MR GARNHAM: Thank you very much, my Lord.