Tinsa, R (on the application of) v General Medical Council [2008] EWHC 1284 (Admin)

Case No CO/3946/2005[2008] EWHC 1284 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 12th May 2008
Strand
London WC2A 2LL
B e f o r e:
Between
THE QUEEN ON THE APPLICATION OF DR JAZWINDER SINGH TINSAClaimant
MR JUSTICE UNDERHILL
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 Stephen Chippeck (instructed by Messrs McCarthy & Co Solicitors) appeared for ClaimantMr Tom Weisselberg (instructed by the General Medical Council) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE UNDERHILL: At a hearing of the Fitness to Practise Panel of the General Medical Council on 20th May 2005 the appellant admitted two criminal convictions, both in the Birmingham Magistrates' Court - the first for a public order offence and the second for failing to surrender to bail. He was also found guilty by the Panel of two separate instances of serious professional misconduct. The first arose out of his behaviour towards one of the witnesses in the matter which led to his conviction on the public order offence. He had been charged with intimidation of the witness in question, although in the event the matter was disposed of by way of a bind-over. The second related to his failure to answer a series of letters from the General Medical Council between January and September 2004. On all those matters taken together, the Panel decided that the appellant's name should be erased from the Register. This is an appeal against the latter decision (that is to say the decision on sanction) under section 40 of the Medical Act 1983.[2]The appellant has been represented by Mr Stephen Chippeck and the GMC by Mr Tom Weisselberg. I am grateful to them both for their succinct and effective submissions.[3]The notice of appeal as originally drafted took a number of points but the appellant now confines himself to a single ground stated in an amended grounds of appeal (for which I gave permission) in the following terms:
"The hearing before the Panel was procedurally unfair and in breach of the Appellant's rights under Article 6 of the European Convention of Human Rights. In that, a) The Panel failed to adjourn or consider adjourning the case after the finding of serious professional misconduct so that the Appellant could obtain legal advice and representation to present his mitigation. b) The Panel failed to obtain a psychiatric report or consider obtaining a psychiatric report to assist the Panel with their decision as to how to sentence the Appellant."
[4]The factual background to the issues raised by those amended grounds can be summarised as follows. The appellant qualified as a doctor in 1992. He had, while a medical student in Aberdeen, been in some trouble with the law, since in 1991 he was convicted in the Sherrif's Court of a number of breaches of the peace, making an offensive telephone call and breach of bail conditions; but the matters in question cannot have been very serious, since the only penalty imposed was an admonition. In 1994 he was convicted by the Walsall Magistrates Court of driving at an excessive speed, for which his licence was endorsed and he was disqualified. Much more significantly, he was in July 1997 convicted in the Crown Court of dangerous driving, for which he received a short prison sentence and a three-year disqualification. It is clear that at that time the appellant was encountering problems in his personal life. He had marital difficulties and had been denied access to his son. He was also having difficulties with one of his GP trainers, which resulted in the termination of that element of his training. As a result, it would appear, of his criminal conviction, he was subjected by the Council to (to use the usual shorthand) health procedures. These involved his being under the supervision of a consultant psychiatrist called Dr Kahn between August 1997 and May 2002, when, following a report from Dr Kahn, the restrictions were lifted. No report or notes from Dr Kahn are available but his diagnosis appears to have been one of mild depression. The appellant continued to work during this period and apparently took antidepressants from time to time during the course of it. It is fair to say, however, that two psychiatrists, a Dr Betts and Professor Bluglass, who saw him at the beginning of the period -- that is to say in 1997 -- found no psychiatric illness or personality disorder. The incident which led to the appellant's convictions in July 2003 occurred in September 2002. The details are immaterial for present purposes but they arose out of an altercation between the appellant and security staff at a restaurant which he frequented. He appears to have been drinking heavily at the time. The incident which led to the bind-over was also, as I have said, part of the same sequence of events. No doubt because of these further convictions, the GMC felt obliged to reconsider the question of the appellant's fitness to practise. It wrote to him in January 2004, seeking further information, and asking him to agree to be examined for the purpose of health reports. He did not reply to that letter and over the period between then and 16th September there were six further letters, to none of which the appellant replied in writing, although he did in July or August contact the GMC on the telephone and agree to be medically examined, but it was necessary that he give a written acknowledgment of that agreement and make detailed arrangements, and he failed to so.[5]The matter eventually was referred to the Panel in April 2005. At the hearing on 20th May the appellant was unrepresented. He admitted the two criminal convictions but he did not accept that the other matters alleged constituted serious professional misconduct. As regards that issue, he made certain submissions, followed by giving evidence on oath. He was then cross-examined by counsel for the GMC and asked questions by the members of the Panel. He was asked questions not only about the circumstances of the convictions but also about his personal history, including his history of mental ill health and his use of alcohol. He denied in firm terms that there was any problem about his mental health at the relevant time. He had, he said, suffered from "stress and depression" as a result of the break up of his marriage, but that had been five years previously and he had since been given a clean bill of health and was not on any medication. He accepted that at the time of the incidents in question alcohol had been, as he put it, "a contributing factor, but not a major factor" in his behaviour. He did he not believe that he had had, or indeed had, any alcohol problem generally. He did not call any medical or other evidence except a short statement from his brother. Following the conclusion of his evidence, he made further submissions to the Panel, addressing both the question of whether the conduct alleged amounted to serious professional misconduct and, albeit briefly, the question of what sanction would be appropriate depending on the Panel's findings. After receiving advice from the Legal Assessor and retiring to consider the matter, the Panel found that the appellant had been guilty of serious professional misconduct. It then continued directly to the question of sanction and, after considering the various options open to it, concluded that erasure was the only appropriate sanction. It then heard the appellant again briefly on the question of whether there should be an immediate suspension to cover the 28-day period before erasure would take effect. In that connection, the appellant referred to the possibility of his taking legal advice in connection with an appeal.[6]At no stage before the Panel did the appellant suggest that he was at that time suffering from any mental ill health or that he felt under any difficulty in defending himself, still less that he wanted an adjournment either to seek legal representation or for any other purpose. On the contrary, as I have said, he said that such problems as he had were well past and that he was currently well and taking no medication. The impression which comes across from the transcript is that his behaviour during the hearing was wholly unexceptionable. He was articulate and answered questions clearly and appropriately. However, it is his case now that that impression is misleading. In a witness statement dated 4th January 2008 he says that he now appreciates that he was in fact unfit to conduct the hearing because he was suffering from "depression and apathy". More specifically, he says this at paragraph 3 of his statement:
"With hindsight I do not think I was mentally well enough to conduct my case before the GMC Tribunal. I was unable to confide in anybody and did not have the initiative to seek legal advice. I found myself unable to make any adequate preparation for the Tribunal hearing. I in fact attended the hearing with some loose paperwork and little else. At the hearing I soon realised that I was completely out of my depth but did not know what to do other than to try to make the best of a bad situation. I did not fully understand the questions that were being put to me by the Tribunal and lawyers and in most cases felt bullied or pressured to agree with their suggestions of interpretations and believe I made statements which I really did not intend to make. This was due to my general confused state caused by my illness ... At the time of the hearing itself I now realise that I lacked judgment and insight sufficient to enable me to conduct my case properly and also realised that this condition was caused by my very bad depression."
He supports that case by a medical report from a Dr van Woerkom, a consultant psychiatrist who saw him for the purpose of making a report in these proceedings on three occasions in June, September and December 2006. That report expresses the view that the appellant was at the time of the hearing "in no fit state to defend himself". I will have to consider its detailed terms presently.[7]On the basis of that evidence, Mr Chippeck puts the case for the appellant in two ways.[8]First, he submits that it should have been apparent to the Panel on the material before it that there was at least a serious question mark over the appellant's mental health as at the date of the hearing. It knew of his history of at least a degree of mental ill-health, in particular during the period between 1997 and early 2002 when he was under the supervision of Dr Kahn; and both the conduct which led to his conviction and the conduct which was held to constitute serious professional misconduct should have suggested that he had continued to suffer depression or other psychiatric symptoms since that date. The unwise decision to represent himself at the hearing was also, Mr Chippeck submits, suggestive of a failure to appreciate his true position and was evidence that he was not capable of thinking clearly. Accordingly, it is said, the only fair course for the Panel was not to consider the question of sanction until there had been an adjournment for up-to-date psychiatric evidence to be sought and also for the appellant to consider obtaining legal representation.[9]I have no difficulty in rejecting that submission. There was in fact no medical evidence as such before the Panel but such information as it had, mostly emanating from the appellant himself, was clearly to the effect that, to the extent that he had ever suffered from any depressive illness, that was well over by 2002, and that if it was necessary to find an explanation for his behaviour subsequently that was likely to lie in alcohol abuse (though even there, as I have said, the appellant did not himself admit to a serious problem). There was no evidence before the Panel that he had a continuing alcohol problem, and certainly there was no evidence whatever to suggest that he might be unfit as a result of any such problem to conduct his own case at the hearing. In those circumstances, I can see no basis whatever on which the Panel could be said to have erred in law in failing on its own initiative to propose an adjournment for the purposes suggested.[10]The second way that Mr Chippeck puts his case is this. It is common ground between counsel, having regard to the decision of the Privy Council in Sai Baba v General Medical Council (Privy Council Appeal No: 16 of 2000) -- see paragraph 11) -- that an appeal against a decision of the Panel may be allowed in circumstances where subsequent evidence establishes that the appellant was not in a fit state to defend himself at a hearing, even though the evidence in question was not before the Panel at the time. The question is whether this is such a case. In support of his submission that it is, Mr Chippeck relies on the evidence of the appellant and Dr van Woerkom. In fact, somewhat more extensive evidence has been put before the court, but much of that was submitted by Mr Weisselberg to be irrelevant and in the event Mr Chippeck made it clear that he put his case squarely on the two pieces of evidence to which I have referred.[11]Mr Weisselberg takes the point that that evidence should not be admitted on Ladd v Marshall principles. I do not think that it is useful for me to consider that as a separate question. If the evidence relied on by Mr Chippeck is in fact reliable, it will, to put it at its lowest, strongly suggest that the appellant could get over the first Ladd v Marshall hurdle, since the mental incapacity which it seeks to assert is likely to justify the failure to produce the evidence at the time of the hearing. As for the second and third Ladd v Marshall hurdles, my consideration of them will in practice be co-extensive with my consideration of the issues of substance. I propose therefore to proceed to consider the effect of the evidence on which Mr Chippeck relies.[12]The evidence of primary importance is that of Dr van Woerkom: I should not and do not wholly discount the appellant's own evidence but I do not believe that it could suffice by itself to establish unfitness without independent expert support. In my view, Dr van Woerkom's evidence does not establish any sufficient case that the appellant was not at the time of the hearing in a fit condition to conduct his own defence. I make the following points.[13]First, Dr van Woerkom did not himself see the appellant at or near the relevant period. He first saw him over a year after the date of the hearing before the Panel. At that time the appellant was, as he found, in good mental health and not suffering from any kind of psychiatric condition. It follows that his conclusions were wholly dependent on what he was able to learn from the documentary records available to him and from the appellant's own history, supported in fact by the evidence of his sister, whom he also saw on one occasion.[14]Secondly, so far as the documentary materials are concerned, the only medical notes which Dr van Woerkom claims to have seen are described in his reports as "copies of background medical and psychiatric reports". It is not entirely clear what these are but the only reports referred to in the text of his report are those of Dr Betts and Professor Bluglass, to which I have already referred, which date from 1997, and a letter from Dr Kahn in September 2001, being apparently the letter in which he expressed the view that the appellant no longer needed any psychiatric supervision. None of those materials are, of course, of any value (except possibly, and to a modest extent, a negative value) in establishing that the appellant was suffering from any kind of psychiatric illness at the time of the hearing before the Panel in May 2005. I should note in passing that Dr van Woerkom says in terms that he had been unable to have access to any notes or reports from Dr Kahn, covering the five year period of his supervision (except presumably the last letter to which I have referred). He does not say why, though Mr Chippeck has told me on instructions that he understands that the problem was that Dr Kahn's notes of from the period in question have been destroyed. It is perhaps unfortunate that no clear evidence about this is before the court, but the point is not of central importance given that the period covered by the reports ended three years before the period with which I am primarily concerned. In any event, what matters is that Dr van Woerkom had no medical reports or records from anywhere close to the relevant period. That is particularly surprising because there is clear reason to believe that relevant reports did exist. Dr Van Woerkom mentions that "around May 2005" the appellant had seen a Dr Derasari, described as a psychiatrist in Wolverhampton, following a GP referral. Presumably this is something of which Dr van Woerkom had been told by the appellant. The only other details given are that Dr Derasari had treated him with Cipramil, which I am told is an antidepressant, and that he had arranged for him to see a doctor whom Dr van Woerkom describes as Dr Gurguis, though in fact his name appears to be Dr Guirgula and who is a consultant addiction psychiatrist, "for advice on his drinking". Evidence of Dr Derasari's examination and findings and the history which he took would have been of obvious value for the purpose of establishing the appellant's medical health at the time of the hearing, but I am told no more about it than appears in the passage which I have referred to in Dr van Woerkom's report. The end result of all this is that Dr Woerkom had virtually nothing by way of contemporary medical records to assist him in diagnosing the applicant's mental health in May 2005.[15]Thirdly, so far as the appellant's own evidence is concerned, what he apparently told Dr van Woerkom is that:
"He thinks that at the time of the GMC hearing in May 2005 he was at rock bottom; he says he was sleeping excessively, felt very low, fatigued, withdrawn and was neglecting himself." "... it appears after discussion with Dr Tinsa, that he had misinterpreted the gravity of his situation and was distinctly unwell, depressed, with flawed judgment, at that time." "
His sister confirms his state of depression, low mood, and self neglect at that time." I have been given a witness statement from the appellant's sister, which is undated but which I will assume corresponds broadly to what she told Dr van Woerkom. This describes in general terms that, following what she describes as the intervention of the General Medical Council, the appellant was depressed, did not go out and spent a lot of time in his room and did not always open his post. I am prepared to accept that Dr van Woerkom was given that history, or something like it, by the appellant and his sister and I do not suppose that it is fabricated, but there are important questions here both of the degree and of the timing of the symptoms described. The question for me is whether the appellant was in such poor psychiatric health in May 2005 that he was incapable of conducting his own defence and that fairness demanded that his hearing be postponed. The passages in question, which are very general in terms, seem to me a pretty flimsy basis by way of psychiatric evidence for such a finding to be made.[16]Fourthly, the one piece of near contemporary evidence that I do have is a report from Dr Guirgula, to whom I referred before. He says that he saw the appellant on three occasions in October and November 2005, that is to say some five months after the hearing before the Panel. In the section of his report headed "Mental State Examination", he says this:
"Throughout the 3 assessment sessions, Jaswinder was a pleasant and decent Asian male with good eye contact and rapport. His speech was spontaneous and coherent and in keeping with his level of education. There was no evidence of disorder in thought or perception. His mood was mildly depressed, which was in keeping with his difficulties. There were no self harm thoughts or plans. His cognitive functions were grossly intact."
Though it is of course possible that the appellant's condition had improved since May 2005, if Dr Guirgula's findings represented his state of health at that time, there could be no question of his being unfit to conduct his defence.[17]Fifthly, I must, albeit with some reluctance, say that the way in which Dr van Woerkom's report is written does not inspire confidence in its impartiality or rigour. There is no real discussion of the test of fitness which he is seeking to apply or of the degree of depression which he was, albeit retrospectively, diagnosing. The report contains a great deal of what can only be described as advocacy and it also contains opinions about matters which are plainly outside Dr van Woerkom's expertise, in particular about proceedings in the criminal courts and about the requirements of what he describes as "a fair trial under human rights legislation". The report also appears to proceed on an uncritical acceptance of the history which had been presented to him. It is not without significance that the final paragraph of the section headed "Mental Health", which contains the gist of Dr van Woerkom's views on the issues which I have to consider, reads as follows:
"New evidence, provided by his sister, confirms his own opinion, that he was severely depressed, not coping, and lacking insight at the time of the Hearing in 2005, and not in a fit state to conduct his own defence."
It would not be entirely fair to Dr van Woerkom to treat that paragraph as representing the entirety of his thinking and as showing that he was merely accepting what he had been told by his patient and his sister. Nevertheless, I do not get any very different impression from a reading of the report as a whole.[18]Sixthly, as I have already said, the transcript appears to show a very different picture from that painted by the appellant in his statement and what he told Dr van Woerkom. It shows him as alert, articulate and well focused. He discusses the question of his own mental health candidly, in answer both to questions from counsel and the Panel, but without giving any indication whatever that he was, or had been, recently suffering from any symptoms of depression. I note in particular that when he was asked about his failure to answer correspondence he does not say anything to the effect that he had been in a depressed state and had not felt up to answering his post: he gives a quite different account involving his having been away a good deal (particularly staying in Oxford with his brother) and how that had given rise to some difficulties. I remind myself that I do not have the qualifications to make any sort of diagnosis of mental condition from a transcript of this kind, and I recognise that a depressed person may not have the insight to correctly describe his own symptoms. Nevertheless, and aiming off for all those matters, I am entitled to have regard to the impression that the transcript makes on me, and I do find it very difficult to reconcile with the picture painted by the appellant himself. Also, and importantly, I bear in mind that the members of the Panel will certainly have been well qualified to spot any signs of depression or mental ill-health, and there is no indication at any stage during the hearing that they had any concerns on this score.[19]Taking all those matters together, I do not believe on the evidence which I have seen that the appellant was not in a fit state to conduct his own defence or to advance the points which he was entitled to advance on the question of mitigation. Nor do I believe, as Mr Chippeck urged on me by way of fallback, that the matter is in sufficient doubt that the only fair course is to remit it to the Panel to be considered by a body with proper medical qualifications. I am satisfied that the appellant had a fair hearing and that justice does not require that his matter be remitted for reconsideration. I accordingly dismiss this appeal.[20]MR CHIPPECK: Thank you, my Lord. Would my Lord forgive me for a moment. (pause)[21]My Lord, I am instructed to invite the court to consider the question of appeal.

MR JUSTICE UNDERHILL: Yes.

[23]MR WEISSELBERG: My Lord, sorry to rise. My understanding is that this is a second appeal and so I think only the Court of Appeal is entitled to give permission.[24]MR JUSTICE UNDERHILL: That sounds right to me, Mr Chippeck, but I can put the matter beyond doubt by saying that in any event I would have not considered this as a proper case for myself granting permission to appeal. No difficult or sensitive question and certainly no question of law appears to me to arise from it. The only question of law that I saw potentially present was in fact defused by Mr Weisselberg's helpful reference to Sai Baba and the position is, of course, a fortiori if this is indeed a second appeal or to be treated as a second appeal.[25]MR CHIPPECK: My Lord, thank you.[26]MR WEISSELBERG: My Lord, the GMC asks for its costs. There is some issue as to whether or not the appellant is legally aided. We have been told that he is in receipt of public funding. We have not seen a certificate and I am not sure if the certificate is on file. What we would ask, and I think my learned friend has not seen a copy of the certificate himself --[27]MR CHIPPECK: I have. (handed)

MR JUSTICE UNDERHILL: It looks as if things have moved on.

[29]MR WEISSELBERG: My Lord, the position is, on the basis of the document I have just been handed, that a substantive certificate for full representation was issued on 26th July 2007. Obviously for acts before that date and costs incurred before that date, Mr Tinsa does not have any form of costs protection.[30]MR JUSTICE UNDERHILL: Yes. The problem of course is that your statement of costs here is not split up between the different periods.[31]MR WEISSELBERG: So what I would invite your Lordship to do is to order a detailed assessment. As part of that detailed assessment the question will be what costs were incurred before the costs protection arose and what costs protection arose thereafter and the costs judge will then have the discretion to determine whether or not any costs should be paid.[32]MR JUSTICE UNDERHILL: Is that right? Should I not exercise that discretion? I mean, one way I could do it would be to say, subject to anything that may be said on the question of principle about whether there should be costs at all -- but, assuming I am not persuaded on that -- I should say that you should have your costs to be assessed; any costs arising prior to that date to be paid within X days after the assessment; any costs after that date not to be paid without whatever the formula is, without leave of the court. I think, I dare say, but I have not looked -- the costs judge could do that as well, but since I am in the position to do so, it might just be more sensible for me to say it.[33]MR WEISSELBERG: My Lord, I am entirely happy with that.[34]MR JUSTICE UNDERHILL: Mr Chippeck, other things being equal, the respondent is entitled to an award of costs. Have you anything to say on the question of principle?[35]MR CHIPPECK: My Lord, no. My Lord has given a clear judgment. I think that there is an obvious distinction between the time before costs protection arose and after.[36]MR JUSTICE UNDERHILL: Yes, that is recognised in the form of order which I have proposed. Now, for reasons I do not quite know about, we do not have an associate in court. Could I ask counsel therefore -- I think that it has to be Mr Weisselberg, since he is the one who is the beneficiary of this -- to prepare a draft order, get it agreed by Mr Chippeck and then get it lodged with the court.[37]MR CHIPPECK: My Lord, would my Lord certify that -- my client has been publicly funded. I think my Lord needs to say that there be detailed assessment of the appellant's publicly funded costs.[38]MR JUSTICE UNDERHILL: Yes, I do so. Make sure Mr Weisselberg puts that in the order.[39]Thank you both. I thought that was very well argued on both sides.