Ghosh, R (on the application of) v General Medical Council [2006] EWHC 2743 (Admin)

Case No CO/8238/2005[2006] EWHC 2743 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 18th October 2006
Strand
London WC2
B E F O R E:
MR JUSTICE BEAN
Between
THE QUEEN ON THE APPLICATION OF TAPAN KUMAR GHOSHClaimant-v-
Between
THE GENERAL MEDICAL COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR DAS (LAY REPRESENTATIVE) ADDRESSED THE COURT for APPLICANT WHO APPEARED IN PERSONMISS D ROSE QC (instructed by GMC, London NW1 3JN) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE BEAN: This is an appeal by Dr Ghosh against the decision of the General Medical Council through its Fitness to Practise Panel, made on 13 September 2005, to suspend his registration for a period of 12 months.[2]The background is that in December 2003 the GMC received a complaint about him from a recruitment agency, Pioneer Recruitment Limited. Pioneer sent the GMC copies of complaints they had received from a group practice where he had worked as a locum, and an organisation called Healthcall Medical Services, giving telephone advice.[3]On 3 June 2004, the GMC wrote to Dr Ghosh informing him that a screener had invited him to agree, under the Professional Performance Rules 1997, that an assessment of the standard of his professional performance should be carried out. He was at that stage represented by the Medical Protection Society and through them, on 12 June 2004, he declined to agree to the assessment. The consequence of that was that the medical screener referred the case to the Assessment Referral Committee.[4]A hearing before that Committee took place on 1 September 2004. Dr Ghosh was present and represented by counsel. The Committee decided that there was sufficient prima facie evidence of deficient professional performance to make it necessary that an assessment of his professional performance should be carried out within three months. Dr Ghosh did not seek to appeal that decision.[5]Through Mr Das, his advocate before me today, he has said that he felt that at that hearing he was not allowed to speak a word and was treated as a puppet and this made him nervous about attending future meetings. I can understand that it may well be that a doctor attending a hearing of this kind feels that a great deal is said about him and that his speaking role in the proceedings is minimal, but the fact remains that counsel instructed by the MPS did appear for him. I have no transcript but there is nothing in the material before me to suggest that there was anything wrong with that decision, and indeed there was no appeal from it.[6]So matters proceeded to the stage of assessment. Dr Ghosh was required, by letter dated 22 November 2004, to complete an assessment portfolio to be returned within two weeks and the assessment itself was due to take place from 31 January to 2 February 2005. He failed to complete the portfolio or to attend the assessment.[7]On 10 January 2005, Mr Das, who had by then been asked by Dr Ghosh to take over the conduct of his case from the MPS, wrote to the GMC saying:
"In order for me to fully and properly advise my client it is imperative I receive all documentation held by you to include, 1. Statements from complainants. 2. Notes from the Surgeries. 3. Statements from the Doctors/Manager at the Surgeries. 4. Notes held by you to include diaries of the investigation carried out by you . 5. Records of any preliminary findings. Upon receipt of the above I will be able to advise my client and refer to you thereafter."
The GMC's reply of 19 January said:
"With regard to your request for information regarding Dr Ghosh's case, I can inform you that on 30 July 2004 Dr Ghosh was sent all information which was presented to the Assessment Referral Committee on 1 September 04."
[8]Mr Das repeated his request for the documents and once the GMC had satisfied themselves that he was indeed now Dr Ghosh's designated representative, he was sent the indexed bundle of documents which had been before the ARC.[9]On 1 February 2005, Dr Ghosh was informed that following his failure to submit to an assessment the matter would be referred to a Fitness to Practise Panel. On 3 August he was sent a notice of hearing before the Fitness to Practise Panel outlining the allegations against him. The notice of hearing includes the following:
"By a letter dated 9 December 2003 information was received by the General Medical Council from Pioneer Recruitment, which raised concerns about your fitness to practise and in particular allegations relating to: (a) Poor clinical diagnosis and treatment. (b) Unsympathetic and intimidating attitude towards patients. (c) Lack of response to complaints as laid out in the General Medical Council's publication, Good Medical Practice. 2. You were invited to be assessed on 3 June 2004. "3. The Medical Protection Society, acting on your behalf, refused this invitation in writing on 12 July 2004 and you were therefore referred to Assessment Referral Committee... 4. ... The ARC directed you to undergo an assessment of your professional perfomance... 5. ... the GMC wrote asking you to complete your portfolio and return it to the GMC within 14 days. 6. You failed to comply with the assessment, in that you did not return your completed portfolio."
And that by reason of the matters set out above, your fitness to practise is impaired because of: a. Your deficient professional perfomance; and b. Your misconduct."[10]The Fitness to Practise hearing was listed for 12 and 13 September. Mr Das's response to the notice of hearing, on behalf of Dr Ghosh, was to say that until he received a satisfactory reply to his letter of 10 January requesting documents he was unable to advise Dr Ghosh. He requested that the hearing be cancelled. By letter of 12 August the GMC explained it did not hold any further documents relating to the case, and that, in any event, Dr Ghosh had the right to produce evidence at the hearing. I should say for the record that the documents produced at the hearing are in my bundle: they include favourable references about Dr Ghosh, in particular one from Dr Cox, dated 29 August 2004. Dr Cox is the senior partner of a general practice in Lowerstoft, for whom Dr Ghosh worked as a locum, and the reference is extremely favourable.[11]The stance about documents does seem to have been unfortunate, but the material before the Fitness to Practise Panel did not put only one side of the case.[12]At the Fitness to Practise Panel hearing Dr Ghosh was neither present nor represented. The transcript of all that took place before the Panel is before me. The Panel had to decide whether to proceed in the doctor's absence and they decided to do so. In my judgment they were plainly entitled to do so. Dr Ghosh and Mr Das had full knowledge that the hearing was going to take place. They chose not to attend. Any Tribunal, in those circumstances, would have been entitled to proceed.[13]The legal assessor, Mr Gale QC, pointed out to the Committee that "it is a serious step to hear the case in the absence of the practitioner because it would mean you would be trying very serious issues without the practitioner being able to put his case. The allegations are, on the face of them, so serious that the eventual decision of the Committee could affect the practitioner's whole livelihood and certainly his career."[14]Mr Gale advised the Committee they had to decide whether there was a reasonable explanation for the doctor's absence and whether it was clear, on the facts, that the doctor's absence was deliberate. The answer to those two questions, in my judgment, was obvious. There was not a reasonable explanation for absence and it was clear that his absence was deliberate. Mr Gale QC then helpfully referred the Committee to the decision of the House of Lords in the criminal appeal of R v Jones about trials in the absence of a defendant.[15]The Committee decided they could proceed in the defendant's absence. They did not accede to a request which Mr Das had made in correspondence to postpone or abandon the hearing, and therefore they decided to proceed. The complaints were limited and the determination of the Panel says this at page 26E:
"Throughout its deliberations the Panel has been careful only to judge Dr Ghosh against the allegations outlined in the Notice of Hearing, ie that he failed to respond to patient complaints and to co-operate with the GMC assessment. It has not considered the substance of the complaints themselves nor has it made any findings in relation to them."
Then after references to the 2001 Edition of Good Medical Practice and to rule 78 they went on at page 27E:
"The Panel considers that, in failing to respond to patient complaints, Dr Ghosh has not met his professional ethical obligations. It has therefore found that his fitness to practise is impaired by reason of his deficient professional performance. The Panel has also found his fitness to practise impaired by reason of his misconduct in that, in addition to his failure to respond to patient complaints, he has also failed to co-operate with the GMC in the assessment of his professional performance."
They then went on to consider the question of sanction.[16]In other words, and this may be some comfort to Dr Ghosh, the Panel were not making findings that he had given inappropriate medical treatment to patients or molested them, or anything of that kind. Their findings were that he had failed to respond to complaints from patients and that he had failed to co-operate with the GMC. These are simple questions of fact and they were not obliged to, nor did they, go into the underlying merits of the patients' complaints. It is even more obvious that I should not do so.[17]The allegations found proved were simply failure to respond and whether or not a patient's complaint is justified he or she, or the organisations which forward the complaints on his or her behalf, are entitled to a response. It is still more obvious that when the GMC Assessment Referral Committee directs that an assessment of a doctor's professional performance takes part, the doctor is bound to co-operate with that order for assessment.[18]The grounds of appeal to this court are set out in the appellant's notice and the accompanying material. The first is that Mr Das, on Dr Ghosh's behalf, wrote to the GMC on 10 January 2005 asking for copies of documents. Despite requests those documents were not disclosed so the appellant was unable to prepare for the hearing. The GMC has repeatedly said in correspondence that they have disclosed to Dr Ghosh and Mr Das all the documents which they hold and, in particular, all the documents which were before the Assessment Referral Committee in the first place, and which were, in due course, placed before the Fitness to Practise Panel in September 2005. That seems to me the end of that ground of appeal. Any appellant is entitled to know what the adjudicating Panel is going to be told about him, in particular what is going to be said against him, but that is all. In particular, the GMC cannot be ordered to produce documents which it does not have.[19]The second ground of appeal says:
"The case was heard in appellant's absence as the appellant sought an adjournment as he had no documents to consider. As such the appellant has not had a chance to show that he is a competent and caring Doctor."
The first part of that paragraph is puzzling. The appellant had documents to consider, namely all the ones that were before the Fitness to Practise Panel and some of which, as I have pointed out, were favourable to him. I have already given my reasons for saying that the Fitness to Practise Panel did not err in law, or otherwise, in hearing the case in his absence. To say that he did not have the chance to show that he was a competent and caring doctor is, to some extent, true, but Dr Ghosh brought that on himself. If only he had not stayed away he would have had the chance to argue that point orally, or to call witnesses if the position was not sufficiently made clear, for example, in the testimonial from Dr Cox; but there it is. It is not a valid ground of appeal.[20]Ground 3 says the GMC has not provided the details of its own investigation so the appellant has not had a chance to respond. As the GMC made clear in correspondence before the Fitness to Practise Panel, there was never a full investigation of the substance of the complaints made by patients and the Fitness to Practise Panel was not asked to, and did not, make any findings on the substance.[21]Ground 4 says the GMC has acted unilaterally under rule 38 (I think that means section 38 of the Medical Act) and no warning of the immediate suspension was intimated to the appellant. That is simply wrong. As the GMC point out, the letter of 3 August 2005 sent by the GMC made it clear that a possible outcome of the hearing of which that letter gave formal notice was an order for immediate suspension of the doctor's registration under section 38(1).[22]Ground 5 says it is denied that the appellant failed to engage in GMC proceedings as he attended an earlier hearing and has merely sought to be in possession of the facts so that he can respond to the allegations. He had indeed attended the earlier hearing, but the correspondence about documents, as I have already said, did not provide a good reason why the appellant should have stayed away, or been entitled to stay away, from the most important hearing, namely the Fitness to Practise Panel hearing.[23]Ground 6 says that the doctor has a portfolio ready for inspection and is happy for the same to be examined. Sadly it is too late to say that after the event. Even if such a portfolio had been presented to me, which quite rightly it was not, I would have no jurisdiction to say that on the strength of a portfolio of work shown to me but not shown to the primary decision-makers, namely the Fitness to Practise Panel, I should interfere with their decision.[24]Ground 7 says the allegation that he has not responded to the complaints cannot be responded to as he has no knowledge of any such complaint. If someone had not been happy he would always be happy to explain what he had done. This, I am afraid, is simply wrong. The material before the Assessment Referral Committee, and subsequently the Fitness to Practise Panel, did indeed show that complaints had been made and had not been responded to.[25]Ground 8 says that the appellant ran his own surgery from 1986 to 1999 with no complaints. I am quite prepared to accept that, but it is not a ground of appeal against the FTP's findings, as Miss Rose QC points out in her helpful skeleton argument. Had Dr Ghosh attended the hearing he could have put forward evidence and mitigation in support of his case as he chose, including his many years of practice in which, so far as I know, there had been no cause for complaint. I say "so far as I know" as I simply do not have the material to judge, but I am prepared to accept, for today's purposes, that that is the case.[26]Similarly in paragraph 9 it is argued that the GMC did not see copies of "excellent references attached which show that Dr Ghosh is, and has always been, a conscientious and respected doctor". Again the same point: these are matters which could have been argued before the Fitness to Practise Panel and it is very unfortunate that they were not.[27]I said at the beginning that the Fitness to Practise Panel's decision, given on 13 September 2005, was that Dr Ghosh would be suspended from practice for 12 months. I was dismayed to learn from Miss Rose that the effect of sections 38 and 40 of the Act of 1983 is that the period of suspension so far, pursuant to the order for immediate suspension under section 38(1), does not count towards the 12 months' suspension ordered by the Fitness to Practise Panel. This is in contrast to, for example, appeals by convicted prisoners to the Court of Appeal (Criminal Division) where time spent in custody pending appeal normally counts, though the court has a discretion (rather rarely exercised) to disallow it. If it is indeed the case that where a doctor, whose immediate suspension under section 38(1) has been ordered and who appeals to the High Court against the order for suspension imposed by the Fitness to Practise Panel, may be adding several months (or in this case, because of the unfortunate length of time it has taken to list the case, a year) to the period of suspension ordered by the Panel, this ought to be made widely known. Those responsible for keeping the provisions of the Medical Act under review ought perhaps to consider whether it should be made a matter of discretion either in the Fitness to Practise Panel or in this court, or both, as to whether the period of suspension, served pursuant to section 38(1), should count towards the substantive period of suspension ordered by the Panel. Unfortunately I do not have any power to do anything about it in this case.[28]For the reasons I have given, I would dismiss the appeal.[29]MISS ROSE: On the point about the suspension, perhaps one point I should make clear is, of course, the order of the Fitness to Practise Panel included a requirement whereby there should be an assessment of Dr Ghosh's performance before the Review Hearing. Part of the difficulty is that while that order is under appeal he has not undergone any such assessment. I have been asking my solicitor during this hearing whether it would be possible to bring the review forward earlier than the end of the 12-month period, but the difficulty, as I understand it, is that it takes some time to set up the assessment. Then, of course, there has to be a period during which Dr Ghosh is assessed.[30]My instructing solicitor tells me that even if Dr Ghosh was to start co-operating today and matters proceeded without any hitch or difficulty, in effect it will take a good nine months for the assessment to be completed. That may explain why it is that the full period of suspension is, in practice, inevitable.[31]MR JUSTICE BEAN: I accept, of course, that that a 12-month suspension is not necessarily the end of it, because, as you say, the doctor is then reassessed and the Fitness to Practise Panel may impose a further period of suspension. So there is not necessarily an injustice. It does seem to me there is the potential for injustice. However, in the present case I will say to Dr Ghosh and Mr Das that Dr Ghosh would be very well advised to co-operate with any process of assessment and review now so that there is no delay in enabling the Panel to consider at the end of the 12 months, which has yet to run, whether he can be allowed to resume practice.[32](There then followed submissions on costs. The Appellant was ordered to pay £3416 + VAT towards the GMC's costs.)[33]MISS ROSE: The final matter is that we do ask for our costs. There is a summary bill.

MR JUSTICE BEAN: Yes, I think I have seen that already.

[35]MISS ROSE: The bill was sent to Mr Das, who has asked us to communicate with him, on Monday. We were handed a letter immediately before the hearing this morning which Mr Das said had been faxed, but which I understand has not been received by the GMC, from Mr Ghosh saying he had not received this bill. It is not clear to me whether he is saying he did not receive it personally because we sent it to Dr Das on behalf of Dr Ghosh, because that is the way we understand they wanted to conduct the proceedings. Your Lordship will see the description of the fee and the rates and the total is £6,791, including the fees (?) which is just under £6,000 exclusive of VAT.[36]MR DAS: My Lord, the fact is, as I put down in the last -- in my letter that because the other side last Friday Mr Hiscock, a solicitor of the GMC, phoned me and proposed that to join your application we will not impose the costs on you. It is a sort of blackmail, isn't it? I said, "So you take the permission to consult the matter with your client?" and he said "No". I said "You consult the matter with your client and then come back". On Friday at least six times he phoned me. Every time he said he failed to discuss the matter with his client. I said, "Very good," then in that case he said "Of course".[37]I believe, my Lord, that asking for costs by the GMC is superfluous in the sense that the GMC cannot ask for costs from a member of this organisation, because the organisation in fact are (inaudible) £290 every year so in that case they shouldn't ask for any costs from a member of the GMC. Of course he is (inaudible), his registration is under suspension. As was pointed out, it is an abnormally long period and the GMC did not bother to look at the side of Dr Ghosh, how Dr Ghosh is running his family without money. The fact is that from that point of view, my Lord, I appeal to you not to allow any costs to the GMC because GMC cannot -- is not the GMC is not a private company. It is a company run by the subscription of the members of that company.[38]MR JUSTICE BEAN: It is not a private company but that does not matter. It is, as you say, run on subscriptions of the members. The question is whether the costs, which have been involved in bringing the case against one of the members, should be paid by that member or by the rest of the members.[39]MR DAS: The fact is that it isn't proper now. How come they are forcing him to commit suicide, to carry on that way unless you order the GMC to reinstate him tomorrow so that he can earn some money and maintain his family. It is literally true that he has not a single penny in his pocket. You can easily understand that for the last one-and-a-half years almost he is starving, no income and this is done by the GMC. How the GMC, it is a shameless organisation, ask for money when they forcibly put him in trouble. Again the rule of law is victimised.

MR JUSTICE BEAN: Thank you, Mr Das.

[41]MR DAS: One thing, my Lord, if you excuse me, the last bit of your order I couldn't follow. If you could just say what is the fate of my application and what you have done regarding the suspension of such a long period?[42]MR JUSTICE BEAN: I have dismissed the appeal. The effect of that is that the 12 months' suspension ordered by the Panel begins now. I am afraid I have no power to do anything about that, but if it had not been so Dr Ghosh, as Miss Rose points out, would have been the subject of assessment and review at the end of the first 12 months to see whether there should be a further period of suspension ordered.[43]MR DAS: You mean to say another 12 months?[44]MR JUSTICE BEAN: Yes, that will now take place in 12 months time, ie not now. Is there anything else you would like to say about costs?[45]THE MCKENZIE FRIEND: Yes, as I say, my Lord, you mean to say, my Lord, as I understand correctly, you are giving another 12 months to the GMC to review this case?[46]MR JUSTICE BEAN: The effect of dismissing the appeal is that your client's case will come up for review in 12 months time. It will obviously be in his interests to co-operate with that, otherwise I expect you will find we have the same result: no co-operation therefore continued suspension. But that is not a matter for me today.[47]THE APPELLANT: My Lord, may I have a say?

MR JUSTICE BEAN: If you like.

[49]THE APPELLANT: On 1 September 2004 I have given details of the cases to the MPS it was presented to the GMC. They did not accept it. There is a video recorded for one hour. Where is that video? I have given details and that was not spoken at the time of interview with the judges and I was not allowed to speak.[50]MR DAS: That was also requested by Susan --[51]THE APPELLANT: He said portfolio I have given to the MPS what have they done for me that is it, I have given portfolio or other paperwork necessary I have given to the MPS -- presented. I have given in full and each and every case to defend myself. That was not spoken in the meeting. That was not accepted.[52]MR JUSTICE BEAN: Thank you, Dr Ghosh. I have given my decision on the merits. We are on to costs. Mr Das, is there anything else you would like to say about costs?[53]MR DAS: Nothing else I have to say.[54]MR DAS: I leave to your decision, but the fact is that 12 months is over and again you say another 12 months. You are allowing the GMC to rule over him ruthlessly so he has no other alternative.

MR JUSTICE BEAN: Thank you very much.

JUDGMENT ON COSTS

[56]MR JUSTICE BEAN: Miss Rose, on behalf of the GMC, applies for the costs of the appeal. Mr Das resists it on three bases: firstly, that the GMC, being a body financed by the subscription of its members, should not impose a bill for legal costs on one of those members. I am afraid this cannot be right. The burden of the costs of disciplinary proceedings regarding the medical profession falls on the members of the medical profession as a whole. If a doctor mounts an unsuccessful appeal, in the old days to the Privy Council, nowadays to the High Court, and loses, the same result should follow as normally follows in ordinary litigation, namely the unsuccessful litigant pays the costs. Otherwise the medical profession, as a whole, is put to yet more costs whenever an appeal is brought.[57]Secondly, Mr Das complains that last Friday a member of the GMC Legal Department offered that if the appeal was withdrawn at that stage the GMC would not seek costs. Mr Das describes that as blackmail, but I am unable to agree. On the contrary, it is making a concession. The GMC would have been entitled to say last week, "Whether you withdraw the appeal or not it is too late and we want our costs to date". Very sensibly they did not do so. It is not a matter for any criticism whatever of the solicitor who had that telephone conversation, that he sensibly invited Dr Ghosh and Mr Das, in effect, to cut their loses and withdraw gracefully.[58]The third is that it is oppressive for Dr Ghosh to have to pay costs when he has already been suspended for a year with the prospect of another year to come. I have some sympathy with that, but not a great deal because this was an appeal without any merit and it would be wrong, simply because Dr Ghosh has been suspended and may suffer hardship, to deny the GMC (in effect, as I have said, the general body of the medical profession) some reimbursement of the expense they have been put to in pursuing this case.[59]I am not, however, prepared to make an order on summary assessment in the full amount claimed. The GMC's solicitors costs come to £916. Those seem to me entirely reasonable. As to the fees of Miss Rose, her well deserved appointment to the ranks of Queen's Counsel this week is to be welcomed, but Dr Ghosh should not have to pay for it. If one assesses this case on the basis of the status of counsel who signed the papers at the time that she did, namely in November 2005, it seems to me that a total of £5,000 for what is described as "advice/conference/documents and the hearing" is more than the appellant should have to pay.[60]I will require Dr Ghosh to pay half of that, that is £2,500 plus the £916, plus VAT on that.[61]MR DAS: My Lord, just before you finish, one thing in my -- feeling very ashamed because of the fact that the legal department, solicitor department of the GMC is part of the GMC they are acting under the GMC and under the same rule as they say. I do not know how -- is a private practitioner or under the same rule as the GMC, I don't know? That should be cleared.[62]Secondly, of course, you have finished your job but I'm sorry to point out this matter: you say that another 12 months unless Dr Ghosh shows the sign of co-operation with the GMC, but my Lord I don't know if it would be correct to point out that matter to you, to your Lordship, what sort of co-operation? The GMC rule is it the GMC will take leadership and write to Dr Ghosh that, yes, he will have to co-operate and show it like this, nothing of that sort. That is why I am in a bit, in a hesitant mood to be - the point is that the justice is still in trouble or not. That is my last point, my Lord. You excuse me, but the point is, as you understand, you gave another 12 months but within that 12 months you say that you will show the co-operation of the GMC, but it is with respect in how -- in which way because the GMC, unless the GMC take the initiative Dr Ghosh cannot because Dr Ghosh is under suspicion.[63]MR JUSTICE BEAN: The GMC, as I understand it, will, in the coming months, initiate assessment and review procedures to enable a decision to be made if they wish to seek it to be made before September 2007 as to whether the suspension should end then. Is that correct, Miss Rose?[64]MISS ROSE: We are happy to explain to Mr Das and Dr Ghosh outside what the procedure will be. My understanding is that Dr Ghosh will be written to explaining to him what steps he needs to take now in order to initiate the assessment process.[65]MR DAS: That is correct. My learned friend is very kind to offer her advice, but the fact is I would have been very happy if that was the part of your decision that you direct, or ordered, the GMC to prove their sincerity that they would first take the initiative to write to Dr Ghosh. That you just struggle to co-operate with us and we are eventually going to withdraw the suspension. If that was the part of your Lordship's decision I would have been much, much happier and Dr Ghosh as well. Under the present situation it is absolutely now -- he is speechless, I think. He cannot say a single word. He is shaky. I can see from here. The fact is that just today, as I understand, from this country, natural justice that is different, it is the rule of law. I can still understand the descent rule of law that -- but the fact is that in practice I find the applicability of this rule of law is very rare. I am sorry about that.[66]MR JUSTICE BEAN: So am I. But the GMC will write to you explaining the procedure they intend to follow.

Cited in 3 later judgments