Mahmood, R (on the application of) v General Medical Council [2007] EWHC 474 (Admin)

Case No CO/3835/2006[2007] EWHC 474 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 28 February 2007
Strand
London WC2
B E F O R E:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF MARDAN MAHMOODClaimant-v-
Between
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 R POWELL (instructed by Ormerods) appeared for CLAIMANTMISS K GALLAFENT (instructed by General Medical Council) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MITTING: On 29 March 2006 the Fitness to Practise Panel of the General Medical Council ordered that Dr Mahmood be erased from the register. It did so, having found that he had been guilty of serious professional misconduct in three respects: first, that while he was a treating doctor (a haematologist) to a Miss A, he had, beginning in December 1999, conducted a personal and sexual relationship with her, which was an abuse of that relationship and not in the best interests of the doctor/patient relationship; secondly, that between August 2000 and June 2001 he had borrowed money from her which he did not repay, likewise abusing the doctor/patient relationship; thirdly, that he had prescribed medication for her outside of the clinical setting and had prescribed medicines on one or two occasions for himself. The Panel concluded that that too was inappropriate improper, unprofessional and not in the best interests of Miss A as his patient.[2]Having concluded that, together and individually, those acts amounted to serious professional misconduct, the Panel, having properly reminded itself of the various sanctions available to it, ordered his erasure from the register and immediate suspension. This appeal does not concern the merits of its findings, but with claimed procedural improprieties that led it to conduct the hearing in his absence, and so to reach those findings without any personal input from him beyond the documentary material that had been supplied by his solicitors beforehand.[3]Dr Mahmood had claimed that he had suffered from heart problems for some time. When the first hearing of the complaints against him were due to take place on 8 August 2005, he had been admitted to Croydon Hospital with chest pains. Accordingly, and without any opposition from the General Medical Council on that occasion, the Panel had adjourned that hearing.[4]On 23 February 2006, written notice was given to him of a five-day hearing to take place at the General Medical Council's premises (off Euston Road) on 27 March 2006. On 24 March 2006, on a letter sent to him by a member of the Council's staff, in his own handwriting he said that he would attend. On 27 March 2006, he was, as she said in her evidence before the Panel, seen by Miss A at ten to nine outside and near to the Council's premises. He says he was there five minutes earlier. The precise time does not matter. It is common ground that he was in the vicinity of the Council's premises immediately before the hearing was due to start at 9.30. He did not then attend. The Panel had therefore to consider whether or not to proceed in his absence.[5]A lengthy submission was made by counsel for the Council to the Panel urging it to hear the case in his absence. In effect, what counsel said was that, by his conduct, Dr Mahmood had demonstrated that he had voluntarily waived his right to attend. The Panel, not content to assume that that was so, sensibly insisted on hearing from Miss A about what had occurred that morning. They did so and she told them what I have already summarised. The Panel determined, having heard from her, to continue with the hearing. Its reasons for doing so were stated in the most general terms. It determined that all reasonable efforts had been made to serve notice on the doctor, as was required by the rules. It reminded itself of the observations of the House of Lords in R v Jones and of the Court of Appeal in R v Hayward and of observations of the Judicial Committee of the Privy Council in Tait v Royal College of Veterinary Surgeons. It took into account the interests of the doctor and of the public at large.[6]Although it did not say so, it clearly had at the back of its mind the fact that the doctor had attended for the hearing and then absented himself: in other words, that he had decided not to participate in the hearing that he knew was due to take place that morning. Whether or not that is described as a waiver or simply as not attending a hearing that he knew would take place for no good reason does not matter.[7]Mr Powell, for the doctor, makes criticisms of the submissions of law that were made to the Panel by counsel for the Council. In my judgment, they are not in point. It was not at that stage suggested that the doctor was unable to attend because of ill-health or because of some supervening circumstance which justified his absence. The Panel were simply considering whether or not to continue in the knowledge that he had appeared and had then disappeared. Its decision in that instance, in my view, was procedurally proper, contained no error of law and is unimpeachable.[8]What in fact had happened is that Dr Mahmood had been admitted to University College Hospital on the opposite side of Euston Road from the General Medical Council's premises. There is a studiedly neutral report from Dr Jean McEwan after the event, dated 6 July 2006, which sets out what happened. He was admitted on 27 March and discharged on 29 March:
"This man was admitted as an emergency to UCH with a three day history of chest pain. He reported having been investigated before and having been said to have non-critical coronary disease. His only recognised risk factor was said to be recognised increased cholesterol. He had been admitted to the May Day Hospital a few days previously but had self discharged, but had felt much worse on the day of attendance at UCH. The blood test revealed no elevation in the serum Troponin T which remained less than 0.01. In view of his chest pain, cultural origin, gender and age, it was recommended that he should proceed to coronary arterial radiography. Initially plans were made for angiography during the admission to UCH ..."
But for reasons that are not material, it could not then be carried out. When carried out, it revealed no coronary artery problems of significance and he was reassured that his long-term prognosis was excellent. Her letter therefore confirms his admission to UCH and a stay as an in-patient from 27 to 29th March, during which some tests were administered, but that, in the event, there was nothing serious wrong.[9]It is common ground that at 2.55pm on 27 March, Dr Mahmood telephoned the General Medical Council's offices to tell them what had happened. He says that he had asked that a message be passed to the Council by a nurse earlier on that day, but in the event no such message was received by the Council or the Panel. There is a note by the member of staff, Danny Walsh, who took the call. It reads:
"Dr Mahmood fell in street. In UCL Hospital in coronary care unit. There 2-3 days? CCU angio Coronary Care Unit [and then his mobile telephone number]."
[10]Counsel for the Council drew the attention of the Panel to that note and accurately summarised its contents. He then reminded the Panel that, on 8 August, when the first hearing was fixed, Dr Mahmood had been taken to the Coronary Care Unit in Croydon. The Panel adjourned for a short time to permit Ms Taylor, from Field Fisher Waterhouse, the Council's solicitors, to make a telephone call to the hospital. Her note of that call reads as follows:
"No coronary care @ UCL Hospital. [Something indistinct] is at Heart Hospital. Could try AMU [Acute Medical Unit]. Explaining L Taylor from FFW [Field Fisher Waterhouse] from GMC. Dr M [Dr Mahmood] does not want any information. Ward Sister Anne McBrearpy."
[11]That summary amounted to this, as was accurately reported to the Panel, that Ms Taylor had made a telephone call, and that it was known that Dr Mahmood was in the Acute Medical Unit at UCH. Counsel explained to the Panel that Ms Taylor had taken, as he put it:
"The very prudent course of making sure that the medical staff are not going to be embarrassed by giving something out over the phone and then being in trouble with the doctor as a consequence. The message came back that he was not prepared to give out any information. He was not prepared to allow any information to be given out on his behalf to Ms Taylor."
[12]Counsel for the Council submitted that, in those circumstances, the hearing should continue. The Panel decided that, because it was in the middle of hearing evidence from Mr Morris, who had investigated Miss A's complaint, it would be courteous to him and convenient for it to continue to hear his evidence without prejudicing any decision that it might make on the next day as to what should happen to the hearing. There can be no criticism of that decision.[13]The appeal turns upon what occurred on the following morning in the light of the events that I have described. At 5.15pm on 27 March, Ms Taylor again made a telephone call to the hospital and again spoke to Ann McBrearpy, the ward sister in the ward in which Dr Mahmood was an in-patient. She wrote down and formulated the precise question that she wished to be conveyed to him:
"Anything which the doctor would like us to know which may help explain circumstances of his admission as hearing is currently going on."
[14]She notes the response communicated to her by Ann McBrearpy:
"Nothing he wants to say"
. In a fuller note, made in respect of the same telephone conversation, she wrote:
"Again states LT [Ms Taylor] from FFW for the GMC when telephoned AMU at UCH ... I spoke to ward sister Ann McBrearpy and asked if the doctor had anything that he would like to tell the GMC to explain the circumstances of his admission as the hearing is currently taking place and it might be in his interests. I asked AM [Ann McBrearpy] to ask the doctor once again if there was anything he wants to say and she said 'no there is nothing he wants to say'."
[15]According to the record of the proceedings before the Panel on the following day (the 28th) a further telephone call was made on the morning of the 28th which confirmed that he was still in hospital. Submissions were made by counsel for the Council that the hearing should continue. The nub of the submission was that, notwithstanding the admission of Dr Mahmood to University College Hospital, the facts demonstrated that he was unwilling to engage with the proceedings and that that was demonstrated by his refusal to provide information which the Panel had requested about the circumstances of his admission to the hospital. The legal assessor, giving his advice to the Panel, drew their attention to Brabazon-Drenning v UKCC, and in particular to the extract from the judgment of Elias J in which he said:
"In my judgment this hearing should have been adjourned. Save in exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process."
[16]One of the factors that the legal assessor advised should be borne in mind was whether or not it would be fair to ask Miss A, who attended on 8 August and had actually given evidence on the 27th, to attend again. In its decision, the Panel decided to continue with the hearing. Its reasons are as follows:
"Dr Mahmood contacted the GMC yesterday afternoon to inform it that he had been admitted to the Acute Medical Unit of the University College Hospital, Euston Road, London. On the basis of that information the Panel has again considered whether to proceed in the continued absence of the doctor. It has considered your submissions and the advice of the Legal Assessor. It has applied the criteria set out in the case of Brabazon-Drenning v UKCC in that a [Panel] should not 'go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process'. The Panel also took account of the case of Baba v The GMC where medical evidence 'fell far short of what was needed to support an application [for an adjournment]' and 'it was undesirable to require a witness to attend on another occasion'. It also had in mind the principles it applied in its first consideration of this matter yesterday, including the interests of Dr Mahmood and the interests of the public at large, including the complainant. • The charge against the doctor is serious; • There have been a series of delays in hearing this case; • The August 2005 hearing was postponed following receipt of information that Dr Mahmood had allegedly been admitted to hospital; • The doctor had previously requested a postponement of that hearing for a holiday that had not yet been booked; • The hearing listed for January 2006 was postponed at the doctor's request by reason of a booked holiday. The Panel has not been provided with any medical evidence relating to Dr Mahmood's health in general and with particular regard to his alleged hospital admissions. The Panel has also taken account of the fact that the GMC had contact with UCH on three occasions over the past two days and that Dr Mahmood has refused to provide any information about his admission to hospital, condition, diagnosis, and prognosis. In short, there is a complete absence of medical evidence before this Panel. In addition, Dr Mahmood has made no request to adjourn his case. Taking all these matters into account the Panel has, therefore, decided to accept your submission and to continue with the case in the continued absence of Dr Mahmood."
[17]Mr Powell draws attention to the words "allegedly" and "alleged" twice used in that passage. He submits, correctly in my view, that the Panel misstated the fact that Dr Mahmood had been admitted to hospital on 8 August 2005, and was in fact in UCH on 27, 28 and 29 March 2006. There was nothing alleged about it. By itself that would be a minor matter. What appears to underlie the findings of the Panel, but is not stated by them and is not claimed to have been justified by the facts found, is that it may have thought that Dr Mahmood was yet again seeking to postpone a hearing for no good reason. If that was its view, it should have said so and stated the factual basis upon which it reached that conclusion. It is not a satisfactory way to proceed to have something in mind without stating it expressly as a reason for reaching a decision and indicating the facts upon which the conclusion is reached.[18]It is clear from the reasoning of the Panel, which I have recited, that it placed heavy emphasis on, as it put it, the fact that Dr Mahmood "has refused to provide any information about his admission to hospital, condition, diagnosis and prognosis" so that there was "a complete absence of medical evidence before this Panel". If the Panel had caused Dr Mahmood to be asked whether he consented to the provision of information about the reason for his admission to UCH and his condition by the medical staff treating him there, then that conclusion would have been unimpeachable, if he had refused to give his consent. But he was not asked for that consent. What was done, for perfectly proper reasons of patient confidentiality and so not to put pressure upon him, was to ask the polite question whether he would like the Panel to know anything which may help explain the circumstances of his admission to UCH. That question was not asked to him in writing; it was asked via the ward sister, Ann McBrearpy. The answer which came back, "no, nothing he wants to say", may simply have been a polite indication that there was nothing that he personally wished to say about it. But as he says in his witness statement, he was never asked to give his consent to the medical staff providing information to the Panel.[19]The Panel's conclusion that he had refused to provide any information about his admission to hospital, condition, diagnosis and prognosis was therefore somewhat overstated. Its conclusion that there was a complete absence of medical evidence before the Panel, while true, was irrelevant because no effort had been made beyond asking him the polite question to which I have referred to obtain such evidence. It is not a sensible basis upon which to find that a hearing should continue -- that there is no medical evidence of an admission as an emergency to a hospital -- when no effort has been made to obtain from the medical staff at the hospital any such evidence.[20]The reasoning of the Panel, which led to its conclusion to continue with the hearing on the 28th, was therefore, in my view, flawed. The test which it should have applied is clearly and uncontroversially set out in R v Jones [2003] 1 AC 1. In paragraph 6, Lord Bingham observed:
"The existence of such a discretion [that is to say to continue with the hearing of the criminal trial in the absence of the defendant] is well established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond."
[21]In paragraph 13, he observed:
"If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin."
[22]At paragraph 38, Lord Hutton observed:
"... in my opinion there can be circumstances where in the interests of justice a judge is entitled to decide to proceed, particularly when the defendant has deliberately absconded to avoid trial."
[23]If the Panel had decided on proper grounds that Dr Mahmood had deliberately absented himself from the hearing and had sought admission to UCH simply as a ploy, its decision to continue in his absence would have been unchallengeable. But it did not decide that. What it decided, as I have indicated, was that he had refused to provide information about his admission to hospital, condition, diagnosis and prognosis, and that there was a complete absence of medical evidence before the Panel. I have already indicated that the conclusion that he refused to provide that information was overstated, and that it is unsurprising that there was an absence of medical evidence before the Panel. On the information which it had and on the facts which it found, the Panel could not properly have concluded that his absence from the hearing was deliberate.[24]In those circumstances, applying the observations of Lord Bingham in particular in Jones, there was, in my view, a clear and serious procedural irregularity in continuing with the hearing; or, to put it another way (for there is in truth no difference), that it was wrong to do so without at a minimum obtaining independent evidence from the medical treating staff that Dr Mahmood was fit to attend the hearing.[25]I readily understand and sympathise with the frustration which the Panel must have felt with a hearing having to be adjourned yet again in circumstances where it was not receiving perfect co-operation from the doctor. But for the reasons which I have indicated, it was wrong, even allowing for that, to continue with the hearing in his absence.[26]I turn now finally and summarily to the procedural errors that Dr Mahmood has made in his appeal. He did not file his notice of appeal in time because he did not accompany the notice which he did file in time with the proper fee. That was only done on the following day. He did not serve the notice of appeal on the General Medical Council for several weeks after the date upon which it should have been served in the mistaken belief that the court would do it. He did not supply his witness statement in time and his skeleton argument was late. This is, in a sense, all of a piece with the difficulties which the Panel felt that it had, but they would not begin to justify my refusing an otherwise meritorious appeal on the grounds of procedural irregularity on his part.[27]To the extent necessary, I extend the time for the taking of necessary steps required by the rules to permit this appeal to be determined on its merits. For the reasons given, I allow this appeal.[28]Everyone agrees, if I were to allow the appeal, that the only appropriate step is for me to remit it to another Panel to hear the matter afresh, and I so order.[29]MR POWELL: I seek my costs.[30]MISS GALLAFENT: My Lord, can I make the point, before we come on to costs, there are three corrections I would suggest.

MR JUSTICE MITTING: 5 August, the first mention of the first hearing.

[32]MISS GALLAFENT: That was the first of them, my Lord, yes. That was 8 August. The second was the time of the telephone call, which you said was 7.15pm. I have it at 5.15.[33]MR JUSTICE MITTING: Thank you. I mis-read the 17.[34]MISS GALLAFENT: The third was, after reading out that note, you say that "according to the record of proceedings on the 28th a further call was made in the morning to the same effect". Of course the third call was not to the same effect. The third call was simply to confirm he was still at the hospital. There were no further enquiries made of him on that morning, in an abundance of fairness to the doctor.[35]MR JUSTICE MITTING: Thank you for that correction. I had made the same mistake, I think, as the Panel.[36]MISS GALLAFENT: I think I also made the same mistake in my skeleton submissions, so I am as culpable as anyone. Perhaps now is the moment to make the correction.[37]MR JUSTICE MITTING: Quite right. Costs.[38]MISS GALLAFENT: My Lord, we have not had, to the best of my knowledge, a summary schedule of costs. I certainly have not seen one. So I am not able to deal with the question of how much they might be. I can deal with whether we should pay them in principle. We do say that the appellant in this case has taken a number of poor points. They are set out at great length in the appellant's skeleton submissions, and responded to in my skeleton submissions. A number of them were abandoned before we even got to the supplementary skeleton submissions and further were not pursued before your Lordship today. The only point upon which the appellant has succeeded on is a point that was not taken until the supplementary skeleton submissions were filed two weeks ago, and a point which was refined before your Lordship this morning. In those circumstances, we do say that it would be quite wrong for the General Medical Council to have to pay the entirety of the appellant's costs of dealing with this appeal, particularly when those costs have been run up because of the circumstances in which the appeal has been heard. There has been a great deal more correspondence than would otherwise have been the case because of the failures to comply with the procedural rules. Your Lordship has the complete volume of the correspondence, I am afraid, although I have only taken you to one of the documents there. I simply say this appeal has not been dealt with in the way that it should have been. Costs have been run up unnecessarily, both in terms of the procedure that was followed and in terms of the points that have been taken. I am not in a position, as there is no summary schedule, to say what proportion of costs is attributable to the point on which the appellant has succeeded on, but one can see that he succeeded in challenging only one decision out of three, when we clearly identified that there were three separate decisions, all of which run into much of a piece in the appellant's original skeleton submissions. In relation to that third ground, he has only succeeded on one of three -- or perhaps four -- of the grounds as they were listed before your Lordship this morning in relation to that decision. So we do say that -- I do not want to adopt a mathematical approach to the amount that perhaps should be paid by way of the appellant's costs, but it is very small -- certainly less than half. We would say, less than a quarter. But, as I say, without a summary schedule, which clearly it would have been helpful to have been provided with, not least given that the time estimate has slipped to less than a day, by agreement, even though the court listed it for two days, it would have been helpful to have that and we would have been able to deal with it today. In any event, if your Lordship is minded to make an order at all, it should be for a very reduced proportion of the appellant's costs.

MR JUSTICE MITTING: Mr Powell?

[40]MR POWELL: My Lord, I am disappointed to hear the criticisms of my learned friend for the GMC as regards my argument. Clearly I should take every point which I think is arguable. The vast bulk of the costs of course are engaged in reading, generally, all of the evidence. I have to read it all before I can see which points need to be taken. It may be that I did not forcefully pursue all of the points that were put before you -- no doubt on, I hope, a wise appreciation that they did not find favour with the court. But I pursued those points which I thought were strongest ultimately. I think it would be wrong to reduce costs on the basis that a number of points were put in argument but only a small number necessarily pursued to the Nth degree.[41]As regards a schedule of costs, I cannot assist, but I would submit that costs should follow the event. Very little, if any, expenditure would have been made in addition. In regard to the supplementary skeleton, the points which I tried to bring out there are ones that found favour with the court, that for whatever the circumstances, the enquiries made were not sufficient for the Panel to conclude that they could safely proceed in the absence of Dr Mahmood. Unless I can assist you further? The costs to be assessed, if not agreed.[42]MR JUSTICE MITTING: Anything you want to say about the procedural irregularities which you needed to have waived?[43]MR POWELL: My Lord, in respect of the appellant's notice, it was in fact filed with the court on the 27th, which was within time. The time expired on the 28th.

MR JUSTICE MITTING: That is the least of the problems.

[45]MR POWELL: Indeed. As regards the skeleton argument, clearly it is right that, at the time the appeal notice was filed, he had not yet instructed solicitors. He did so. They in turn instructed me, and it was necessary for me to spend some time carefully considering the evidence, which is why the skeleton argument could not be filed until June, I think it was. No additional costs arose from those delays, other than perhaps one or two letters requesting them. That is the sort of correspondence that arises in the course of a hearing in any event.[46]MR JUSTICE MITTING: Thank you. The respondent will pay two thirds of the claimant's costs of and relating to this appeal on the standard basis. I reduce the sum awarded from 100 per cent to two thirds for two reasons. First, arguments have been advanced on paper and orally about the refusal of the Panel to adjourn, or its decision to continue with the hearing in the absence of Dr Mahmood on the first and second of the two occasions to which I referred in the judgment. Those arguments have not succeeded and indeed seem to me to be without foundation at all. Secondly, the appellant has, as I have recited briefly, been guilty of certain procedural irregularities that ought to be visited by depriving him of a small proportion of his costs. Taking those two facts together, I reduce the costs that I would otherwise have ordered the respondents to pay to two thirds. There will be a detailed assessment if not agreed.

Cited in 2 later judgments