Eden, R (on the application of) v General Medical Council [2008] EWHC 1905 (Admin)

[2008] EWHC 1905 (Admin)Case No CO/2278/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 16 June 2008
Strand
London WC2A 2LL
B e f o r e:
SIR GEORGE NEWMAN
Between
THE QUEEN ON THE APPLICATION OF EDENClaimantv
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 A Jenkins (instructed by Radcliffes le Brasseur) appeared for ClaimantMiss A Foster QC (instructed by Legal Department, General Medical Council) appeared for Defendant
J U D G M E N T

SIR GEORGE NEWMAN: This is an appeal brought under Section 40 of the Medical Act 1983, as amended. Section 40 (7), which is on the statute book as a result of amendment, provides as follows:

"On an appeal under this section from a Fitness to Practise Panel, the court may - (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or (d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court, and may make such order as to costs ..... as it thinks fit."
[2]There are three grounds of appeal:(1) that the findings on paragraphs 36c and 41c of the notice of hearing were perverse,(2) that the finding that the appellant's fitness to practise was impaired was unfair and contrary to the evidence, and(3) that the decision to suspend the appellant's registration for nine months was unduly harsh, disproportionate and unfair.[3]The grounds develop the underlying momentum/basis for their presentation to the court. As to the first, the complaint centres on the fact that two of the five persons who were the subject matter of the allegations were investigative journalists. That fact is deployed by Mr Jenkins to seek to undermine the conclusion of the Panel that, first, those journalists were patients and, secondly, being patients, the conduct of the appellant was not in the best interests of them as patients.[4]As to the second ground, namely a finding of impairment, the ground as put before the court in writing appears to centre upon the character of the legal assessor's advice. It is not, having heard the argument orally, entirely clear what criticism is being made of what the legal assessor actually said. It is accepted that the legal assessor did draw to the Panel's attention the fact that a present conclusion that a doctor was impaired could be based on past conduct. With respect, that appears to me obvious. In any event, it is something which is borne out by Section 35C of the Medical Act 1983, as amended. Mr Jenkins did not disagree with the proposition that past conduct was capable of forming a basis for a present conclusion that the doctor in question was impaired. As necessary, I shall revert to that second ground of appeal.[5]The third ground is, as one would expect, the more broad based ground which makes complaint about the level of sanction imposed by the Panel. As to that, there must be more in this judgment. In particular, it will be necessary briefly to set out the clear nature of the role the court has in an appeal going to that part of a decision of the Panel.[6]The factual background was not extensive but it is reflected in some 41 paragraphs of the notice of hearing and the allegations of conduct which were before the Panel of the General Medical Council (GMC). It is unnecessary to go into all of them because, as is plain from the record, barring such reservations as indeed are those advanced to the court today, to a very large degree, all the allegations were admitted. It would not be possible to deal with the points raised on behalf of the appellant without some brief factual background which is what I shall now give.[7]The appellant Dr Eden set up an internet medical website - E-med - in about 2001. The purpose of the website was originally to provide information on diving medicine and to give advice to divers and others concerned with diving medicine all over the world. Mr Jenkins helpfully explained the original concept. The appellant desires to continue the service. It is apparently a discrete but nevertheless necessary and undoubtedly, according to some of the material the court has seen, useful form of the provision of medicine by way of advice to those who engage in diving. Diving takes place in distant parts of the world where the level of expertise in the medical needs of divers may not be very well developed.[8]That being the original concept, it also evolved into a general medical practice. It has been said, and does not appear on the evidence to be contradicted, that the number of patients in this category were low. The conduct is clear from the schedule of allegations which can be seen in bundle A1 tab 5 pages 36 to 47. In essence, the case concerns the treatment of five patients. Subsequently, two of those were revealed to be investigative journalists. As medical director of the website, he prescribed for the patients.[9]The first patient was Mrs H for whom he prescribed dihydrocodeine and diazepam. The essence of the Panel's findings were that Dr Eden did not examine Mrs H or take an adequate history from her. He did not adequately assess her condition or ask whether her general practitioner (GP) had considered alternative medication. He did not seek to contact her GP either before or after the prescription nor ask if she wished her GP to be contacted. He did not advise her she should inform her GP of the medication prescribed. He did not put himself in a position adequately to judge whether or not she might be misleading him and he therefore put her at risk. As it seems to me to be noted, repeat prescriptions were written for the drugs for approximately a year, at monthly intervals, without any adequate review of the condition being carried out or contact with the patient's GP.[10]To his credit Dr Eden admitted this conduct. He admitted that it was inappropriate. He admitted that it was irresponsible. He admitted that it was not in the best interests of the patient.[11]Patient X registered and told Dr Eden that he was not registered with a GP. The allegations which were found were that in outline a number of prescriptions for zolpiden and zopiclone (sleeping tablets) were issued without first adequately assessing patient X's condition. A total of 43 prescriptions for a month's supply and eight prescriptions for a month's supply were given. The doctor suggested to the patient that he order his prescriptions a week in advance. On some occasions the patient telephoned saying his prescription had been lost in the post. Replacements were then provided by Dr Eden who failed to check whether the allegedly lost prescription had been dispensed or otherwise check the veracity of the claim. Between August 2003 and June 2005 when there was prescribing there was no face-to-face consultation with patient X. When the patient was eventually seen in June 2005 Dr Eden failed adequately to review his condition. He did not ask if he had registered with a GP and nor did he recommend that he do so.[12]The Panel found that during the course of his prescribing the doctor failed to monitor the patient's condition adequately. To his credit Dr Eden admitted to the Panel that his prescribing for the patient was excessive, irresponsible and not in the patient's best interests.[13]The next patient - patient A - was a patient who e.mailed him late at night stating that he was suffering from intense anxiety states, panic attacks and that he required benzodiazepam without a face-to-face encounter with the doctor, that he was in crisis and that he required urgent medication. This request was initially refused by Dr Eden who, nonetheless, indicated that were the patient to join E-med he could be prescribed propranolol for immediate use. No inquiry was made as to the patient's age, history or condition.[14]Later that day upon joining E-med the patient registered, indicating, among other things, that he was aged 16 years and did not wish his own GP to be contacted. The patient also indicated that he might have borderline personality disorder, that both his parents had a history of depression, that he had a lot of mental health difficulties, was suffering from insomnia and panic attacks and had on one occasion self-harmed. He explained he was being treated weekly by the Child and Adolescent Mental Health Services as an out-patient and had had in-patient psychiatric treatment and he had a history of allergy. He indicated further he was a regular smoker of cannabis, was suffering from confusion and intense anxiety and needed urgent medication.[15]Dr Eden responded on the same day, indicating that he had prescribed propranolol - 40 milligrams three times a day - and the prescription had been e.mailed to a pharmacy. No further inquiry about the patient's condition or history was made, and no attempt to find out more about the treatment he was receiving or whether medication of the type he was seeking or the type that was prescribed had ever been considered by his treating doctor. He did not advise the patient that he should inform his GP or specialist of any proposed treatment or offer to speak to any of his carers. Dr Eden did not advise the patient that he would need to see a doctor face-to-face before any prescription could be given. Dr Eden did not consider history of allergy as a contraindication associated with propranolol.[16]Dr Eden on this occasion admitted his conduct was inappropriate but he did not admit that it was irresponsible and not in the patient's interest, but those matters were found proved. There has been no appeal to me in respect of that part of the conclusion of the Panel.[17]The history of patient E, nevertheless, also included insofar as it was given to Dr Eden an e.mail to the effect that the 16-year old had started to self-harm at the age of 13 and had attempted suicide and been a psychiatric in-patient between the ages of 14 and 15. He continued apparently to have suicidal thoughts and thought it would be helpful to have a face-to-face consultation. He also indicated that his treating doctors would not give him any medication and he hated them because of that.[18]In respect of this information, the Panel found that Dr Eden responded by e.mail inviting him to arrange a face-to-face consultation but made no further attempt to seek the patient's permission to contact either his GP or treating doctors so that he could advise them of the prescriptions he had issued. Nor did Dr Eden advise them of the propranolol. He did not counsel the patient against the misuse of the drug, nor advise him he should not take the medication already prescribed in the light of the new information. He did not speak to the patient's carers on his behalf.[19]Again Dr Eden admitted inappropriate actions but denied that they were irresponsible and not in the patient's best interest, but the Panel found otherwise.[20]I turn to the other two patients although dispute has been raised before me as to whether they could properly be regarded as patients. They were two investigative journalists.[21]One of them Mr Oliver Harvey - it was found by the Panel - had filled out two inconsistent questionnaires in order to obtain an appetite suppressant drug called reductil. He declared his body mass index to be much less than that which he declared in the second e.mail. He was prescribed the appetite suppressant on the basis of the information in the second questionnaire of communication. There was no face-to-face consultation sought. He did not examine Oliver Harvey. He did not take any adequate history, nor his blood pressure. He did not weigh him or advise him regarding diet and exercise. He did not seek to advise him of the medication or adequately advise him regarding possible side effects. Adequate arrangements were not made to monitor the patient's condition. Dr Eden failed to take into account the first of the questionnaires submitted by Oliver Harvey.[22]The doctor, to his credit, admitted his conduct was inappropriate and irresponsible. He denied that it was not in the patient's best interests.[23]As I have indicated, there is something of a confused submission being made to this court - which was no doubt made below - on behalf of Dr Eden which, if I thought the Panel had been influenced by it, might have raised some concerns. But the nature of the defence was essentially, what has been described as, a technical one. Technical or otherwise, it was wholly unmeritorious and misconceived. The argument was acting as a journalist and not with a view to consuming the medication, he was not to be regarded as a patient. Nor, even if he was a patient, was it possible to say that it was not in the patient's best interests because even if it was, it was in his best interests. It was in his best interests as a journalist apparently to obtain the medication.[24]The second journalist was an Independent on Sunday journalist called Severin Carrell. A request was made, but this time for viagra, in relation to an alleged erectile dysfunction. The Panel found that the doctor had not considered the questionnaire at all and did not seek to establish any possible psychological causes for the dysfunction that had been claimed and he did not advise the patient to speak to his GP and nor did he seek permission to contact him himself.[25]In this regard, the Panel did not find the conduct irresponsible or inappropriate but they did find that he was a patient and they did find that it was not in the best interests of the patient.[26]That completes a relatively brief summary of the essential material which was before the Panel and their conclusions upon it.[27]The Panel set out, in addition to their findings of the allegations, a number of pages of reasons. At page 5 (page 52 of the bundle) the Panel stated as follows:
"The Panel is very concerned with your apparently cavalier approach to prescribing in the cases of these patients. It accepts that on establishing the website, e-med, you sought the views of, amongst others, the GMC and the BMA. You have criticised the scant advice received by you from the GMC with regard to doctor-patient services over the internet. However the Panel found that the advice, albeit brief, was succinct - that you should make sure you can treat patients in accordance with the principles of Good Medical Practice. You, as a treating General Practitioner, were familiar with the guidance issued by the GMC, which states that good clinical care must include an adequate assessment of the patient's condition, based on the history and symptoms, and if necessary an appropriate examination. It also makes clear that repeat prescriptions should only be issued where you have adequate knowledge of the patient's health and medical needs. By your own admissions, you did not. Good Medical Practice (May 2001), paragraph 45, also provides that: 'If you provide treatment or advice for a patient, but are not the patient's general practitioner, you should tell the general practitioner the results of the investigations, the treatment provided and any other necessary for the continuing care of the patient, unless the patient objects.'"
[28]The Panel referred to other aspects of their finding. They also referred to paragraph 45 of the Good Medical Practice, May 2001:
"If the patient has not been referred to you by a general practitioner, you should inform the general practitioner before starting treatment except in emergencies or when it is impracticable to do so. If you do not ..... you will be responsible for providing or arranging all the necessary after-care until another doctor agrees to take over."
[29]I refer to that because Mr Jenkins has more than once emphasised the way in which he says this all came about, namely that in good faith and for a different purpose the website was set up, that somehow or other the doctor had rather drifted into this wider use of the website as a form of providing medical treatment, that he had had rather wide-eyed naïvety in his approach and that he had sought the views of the GMC and the BMA.[30]I am bound to say, listening to submissions, I am rather of the view expressed by the Panel that it was indeed creditable that he had been open with the GMC and the BMA about his desire to provide website treatment. But he was before the Panel, so far as his conduct was concerned, for fundamental failures to comply with the principles of good medical principle which applied as much to internet treatment as they did to any other form of treatment. He had been reminded of those in simple and clear terms. It cannot possibly be suggested that somehow or other he was a victim of uncertainty in respect of the standards required of him in respect of which he was being criticised. It is perfectly plain that he knew the standards. As he ultimately, and to his credit, accepted, he had not behaved in accordance with them.[31]Let me revert to the grounds. The first ground: not patients. This is, in my judgment, wholly misconceived as a submission. The intention and purpose of the person who approaches a doctor for advice or medication is not determinative of the relationship which is established. The route or source of the relationship is that which evolves from a request being made of a medical practitioner for the treatment or medication. It is the doctor, in his capacity as a medical professional, so approached, who, when he accepts the request for treatment or medication, does so assuming the professional duty and obligation of a doctor. The duty is owed by the professional doctor to the individual who has requested the treatment. It is the character of the doctor's actions which are central to this area of professional practice and the law. A person does not cease to be a patient because of what may be his motive or intention for requesting the doctor to act.[32]Equally the argument that it is not in his best interests because, for some reason or another, the patient may not wish to use the medication for conventional purposes is again, in my judgment, quite wrong. Where a patient - and on this hypothesis somebody who has approached a doctor - has sought treatment and the doctor has responded to that person with a view to providing treatment and agreeing to do so, he is a patient. Where a patient is in possession of prescription drugs for which he has no need he has been prescribed medication which is not in his best interests because he has no interest in the medication itself. It is therefore not in his best interests that he should be in possession of it. This is exactly what the regulatory system set up under statute is designed to prevent. People should not be in possession of prescription medicine in circumstances which are unauthorised.[33]Whatever his motive might be, it is peripheral and has no bearing on the interests he has in having the medicine. He may wish to sell it. If he did so, his conduct would plainly be criminal. In this instance the journalists had no use for the drugs at all for their own purposes as patients. The only reason that they did want it was not in any way related to the drugs themselves. It was only relevant to the doctor's conduct which they were interested in investigating.[34]The argument is completely misconceived. Even if I were wrong, it seems to me that it has absolutely no bearing on the central criticism which was made of this doctor. Even if it were to be eliminated from the case as an aspect, its impact on the overall conclusions on the Panel is minimal. It was accepted that it was inappropriate to do what he did vis-a-vis the journalists. Whether or not they were to be patients or whether or not it was not in their best interests, as a matter of common sense, follows. But even if it did not, what was always under consideration by this Panel was the way in which he behaved and that is what was at the heart of this case.[35]There is a faint but not developed argument in this part of the appeal that somehow or other the appellant has been hard done by by the Panel because they stated that they were not impressed with this argument and they were not impressed that he had had it advanced on his behalf by his legal representative, counsel Mr Jenkins. The hard response to that is that you do not escape the consequences of submissions advanced by your counsel if you permit them to be made and if you have knowledge that they are going to be made. They have been repeated in this court. They form part of the case.[36]I would not hold this against the appellant. I am quite sure from having seen the conclusions of the Panel that they did not hold it against him either. It was not an impressive argument for the reasons that I have stated. But in these situations litigants like Dr Eden are, no doubt, often grateful if counsel can come up with what looks like a bit of an argument which might carry some weight with somebody. it happens in most litigation.[37]One comes to the impairment argument to which I have already alluded. The Panel have to be satisfied that by reason of such conduct as they have found on the part of the practitioner that the practitioner is presently impaired. That does not require up-to-date evidence. There may be some which could be material. In this instance the critical findings were found and concluded upon by the Panel. So far as impairment was concerned, the Panel put it with admirable clarity.[38]Without reading extenso from the conclusions to which they came on 20 February 2007, the Panel stated:
"The Panel needed to be satisfied that you had learnt from your mistakes, that you posed no significant risk of repeating your misconduct and that you had some insight into the seriousness of your failings, before concluding that suspension that would be sufficient. With this in mind, it noted the Indicative Sanctions Guidance in relation to erasure ..... "
The Panel at that stage then went on to conclude as to their length of suspension. At an earlier stage (page 51 of the bundle) the Panel had set out an elaboration by way of summary on the earlier conduct contained in the various allegations. In stating its position on impairment, it stated (page 48):
"In deciding whether your fitness to practise is impaired, the Panel has had regard to the fact that the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on his registration or at all."
Then they went into the history to which I have referred.[39]They concluded that the conduct fell well below the standards expected of a registered GP. It represented a breach of the principles which are central to good medical practice. Having considered all the evidence, the Panel found that the doctor's fitness to practise was impaired by reason of his misconduct.[40]The challenge on this part of the case was not to that conclusion or it was not clearly directed at that conclusion. Doing the best I can with the way in which it was formulated and having reviewed those findings, I am entirely satisfied that there was no error of law. The Panel did not go wrong in the way in which they approached the question of impairment.[41]Therefore I turn to sanction. So many cases which come before the court by way of appeal are often all about the penalty, the sanction, and, as the cases demonstrate, sometimes with a measure of success which has not always gone down favourably in the Court of Appeal. Appeals of this nature have sometimes touched the hearts and humanity of judges so that they have stepped in and substituted what they thought might be necessary or could have been necessary or what might have met the bill in terms of public interest and, of course, the interest of the doctor.[42]But fortunately although the matter has long been made plain in the cases, in particular in the well known case of Bolton v Law Society [1994] 1 WLR 512 at 517 and 519 - - Sir Thomas Bingham (as he then was) set out the position which has recently been reaffirmed. A quotation in a later case says it adequately in this regard:
"In particular he pointed out that since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right."
Sir Thomas Bingham had then gone on to say at page 519:
"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price. Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case."
It is the sanction, whether it be erasure or otherwise, which falls to be considered in the light of the same approach.[43]Lord Hope in another case - Marinovitch v General Medical Council - stated as follows:
" ..... it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their Lordships are satisfied that there are no such grounds. This is a case of such a grave nature that the finding that the appellant was unfit to practise was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case while undoubtedly severe was wrong or unjustified."
[44]Mr Jenkins has submitted that the penalty of suspension in this instance was wrong or unjustified. He submitted that a reprimand would have done. Alternatively, he said, if it was not to be a reprimand and it was to be a suspension then it should have been a suspension on conditions. But the conditions which would have represented the result would have meant that he could continue to practise by way of giving advice and so forth in connection with his diving sector - his professional interest - but would have been, for example, restrained from prescribing in relation to certain particular medication which could have been specified, the sort of medication by way of analgesics and, no doubt, sleeping tablets and the like which could give rise to risk.[45]The result of the earlier cases was encapsulated or reviewed in the more recent case which was brought to my attention, Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46. The point that one can note is that the - " ..... principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel."[46]That again reflects an earlier decision of the Privy Council in Ghosh v General Medical Council [2001] 1 WLR 1915:
"The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner's failing amounts to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances."
[47]The Panel made it plain why they regarded the conduct on this occasion to require suspension. I have considered the general request by Mr Jenkins on behalf of the doctor to review the question of sanction by asking whether a reprimand would have been enough.[48]In my judgment, it is quite impossible on the facts of this case, given the findings of the Panel, for this court to conclude that it is so obvious that it is wrong for the Panel to have concluded - where fundamental matters of good professional practice in respect of prescribing have not been complied with - that suspension was wrong. Even in respect of the three cases of the three individuals, the length of time over which the conduct persisted is, in itself, telling.[49]I can see no basis at all for impugning the professional judgment of the Panel that this was a case that called for suspension. The Panel took account of it; they said so. They listed it. When it came to the length of the suspension, they said:
" ..... the Panel has taken account of all the mitigating factors in this case including the testimonials that attest to your being an otherwise useful and competent doctor, not least in the field of diving medicine. Moreover the Panel accepted that there was little risk of your repeating the same mistakes. It has also taken into account the extensive admissions you made at the start of this hearing. It considers that you have learnt a salutary lesson from these proceedings."
I interpose, but nevertheless then the critical part of their reasoning which carries such weight with this court - "Nevertheless, these incidents of misconduct were serious and the Panel has borne that in mind when balancing your interest against the wider public interest. Therefore the Panel finds it appropriate and proportionate to direct that your registration be suspended for a period of nine months." It is to be noted that 12 months could have been the period of suspension. They plainly gave effect to the factors they have listed in reducing it from 12 months to nine months.[50]I can find no fault which would justify the court intervening with that decision. Taking the words of Lord Millett from Ghosh:
"I can find no warrant for the court interfering."
Judges ask frequently in criminal cases, if somebody is sentenced to nine months' imprisonment, "Would not three months have done?" That is looking at it from the interests of the individual appellant. That three months might have done for Dr Eden, namely in terms of the effect and consequences upon him, is not of great weight, as Sir Thomas Bingham said in Bolton. What is critical is the judgment of those who control and regulate the medical profession in the public interest. And it is their judgment as to what is necessary to maintain the reputation of the medical profession which matters. They are to ensure that the public can be confident that people who are not abiding by clear and fundamental rules of practice in connection with their medical practice will receive a penalty from the General Medical Council Panel which reflects the gravity of the occasion. In so doing they need to preserve the confidence of the public in these matters.[51]For all those reasons I am entirely satisfied that there is nothing in this appeal which merits the interference of the court, and the appeal is dismissed.[52]MISS FOSTER: In those circumstances I formally invite you to dismiss the appeal and to make an order for costs in favour of the General Medical Council. I would ask you to assess those costs. I have what I am instructed are the relevant matters.

SIR GEORGE NEWMAN: Has Mr Jenkins seen that?

[54]MISS FOSTER: I thought that he had, but it seems that he had not. I pass a copy to your Lordship (Handed).

SIR GEORGE NEWMAN: In terms of solicitors' input, we have five hours, £116, coming out at £580.

[56]MISS FOSTER: Yes.

SIR GEORGE NEWMAN: Then attendance at a hearing today, six hours.

[58]MISS FOSTER: Yes. From leaving the office to here, I think. I am told there was an assessment made before the time - - - - -

SIR GEORGE NEWMAN: I know. That is why I have raised it. We have got through rather more quickly, have we not? I have saved Dr Eden a little money.

[60]MISS FOSTER: I suppose you could say half-an-hour. I am not sure when the clock began to run. I will take some instructions. Four-and-three-quarter hours as opposed to six. There is no overlap in travel.

SIR GEORGE NEWMAN: I am delighted to see the amount so far as you are concerned, Miss Foster.

[62]MISS FOSTER: Other than tell my clerk how long it took, I have had no input into this in the usual way.

SIR GEORGE NEWMAN: Your skeleton argument has been very useful. That is not stating it as warmly as I should. Obviously it was a good skeleton argument, but I take it that that is included in the first figure I see; advice, conference and documents.

[64]MISS FOSTER: It is all documents. Five or six days of transcript and skeleton argument.

SIR GEORGE NEWMAN: Fees for the hearings is the thing that is caught, unless you want to address argument to me.

[66]MISS FOSTER: I am somewhat embarrassed to address argument. I know how it is with these things. I may have the transcripts with me, by chance. This is not above what is generally seen.

SIR GEORGE NEWMAN: One way in which I try to avoid the invidious position of counsel - which when I was at the Bar I never experienced - is to ask the person in Mr Jenkins' position if he would not mind telling me what he has on his brief for the day either by showing me the back sheet or whatever he wants.

[68]MR JENKINS: A figure of £2,500, that is for today.

SIR GEORGE NEWMAN: Preparation of the skeleton argument.

[70]MR JENKINS: I think I received £900 for that sometime ago.

SIR GEORGE NEWMAN: Your total fee is about £3,500 plus VAT.

[72]MR JENKINS: Yes. Much of that was done a year ago.

SIR GEORGE NEWMAN: You were familiar with the case obviously.

[74]MR JENKINS: I was.

SIR GEORGE NEWMAN: Miss Foster was not. She had a lot of reading to do.

[76]MISS FOSTER: I am trying to find a transcript where these matters are discussed. All I can say - and I have to invite your Lordship on trust - so surprised was I by the figure that I have shown it to my colleagues because it overtops what was being asked on my behalf in a similar case by such a margin. That is unacceptably anecdotal, and one is not supposed to treat this as a matter of levity because it is a matter of costs. All I can say is that is about the way it is, generally speaking, in my experience personally - I can go no further than that - and those of my colleagues, a similar experience in court. I feel I should not be saying that.

SIR GEORGE NEWMAN: YOu have done very well.

[78]MR JENKINS: I do not resist an application for costs. Your Lordship is considering whether the sum asked for is a reasonable and appropriate sum. I encourage you to think about it.

SIR GEORGE NEWMAN: What happens in costs before the Panel?

[80]MR JENKINS: There is no award for costs in the GMC. I should say that sometimes doctors appear here when they are supported by a defence organisation - the Medical Defence Union, the Medical Protection Society. Dr Eden does not have the support of them for this hearing. Any award will be paid by him personally.[81]MISS FOSTER: I am sure that my friend accepts that he was supported below by the MBU. So this will be the first occasion on which he will be obliged [to pay].

SIR GEORGE NEWMAN: In the light of my judgment there is a request for costs by the General Medical Council which, in principle, must follow the event. Mr Jenkins does not submit otherwise. I have a schedule. I have already expressed openly my concern about the level. It plainly does not relate to the level of solicitors' costs which seem to me to be at an appropriately moderate and reasonable level having regard to the hourly rate claimed for the preparation. I am concerned about the extent of counsels' costs. That said, nobody should believe that the court is not indebted to Miss Foster as it is to Mr Jenkins for the efforts they have put into the preparation of the case. Doing the best I can, so far as Miss Foster is concerned, recognising that she came to this case fresh and not as counsel who had been concerned below I nevertheless consider the figure of £15,000 which includes her pre-reading of documents and preparation of skeleton argument and £11,000 for the hearing today to be figures which, so far as she is concerned are no doubt perfectly appropriate

[83]MISS FOSTER: I think you might have, by a slip of the tongue

SIR GEORGE NEWMAN: Does the £11,000 include your skeleton argument?

[85]MISS FOSTER: Everything together is 15,000, yes.

SIR GEORGE NEWMAN: The whole thing in round terms is 15,000.

[87]MISS FOSTER: Yes, indeed. It goes to just over - 16,844.

SIR GEORGE NEWMAN: So be it. In terms of the round figure of £16,884 for counsel, which includes all preparation and so forth and attendance today, in my judgment, it must be significantly reduced. That is not to say that I regard the sum that has been negotiated on Miss Foster's behalf by her clerk to be in any way improper, but nevertheless I am concerned with the level of fees, broadly speaking, which the court can oversee as reasonable when affecting a litigant such us Dr Eden.

[89]For those reasons it seems to me that the appropriate figure for Miss Foster should be reduced to - I will give a global figure - £8,500. There will be VAT on top of that.[90]As to the solicitors' costs, the case has not taken quite as long as was originally estimated. Of the six hours at £158, it is fair to say that probably something in the order of two hours can be knocked off. I would reduce the total figure for the solicitors' costs by £250. The total is higher; it would come to slightly more than that - £320. £158 an hour twice. We are probably speaking of just under £320. I am reducing it only by £250, so I am still according a bit of latitude to your solicitor for her journey time. Do you understand, Miss Foster?[91]MISS FOSTER: I am trying to strike through 948 and put in a figure. I am not quite certain whether your Lordship is telling me it is to be about 700 that you are leaving untouched for travel.

SIR GEORGE NEWMAN: I was pruning the six hours by two hours. What the consequence of that is - - I was pruning it not by the full amount of the two hours but by £250 because I have been pretty draconian in relation to the other.

[93]MISS FOSTER: For the sake of the mathematics, would you be prepared to prune it by £248 to make that a round 700?

SIR GEORGE NEWMAN: Absolutely. Is that all right with you?

[95]MR JENKINS: The figures I am left with are £8,500 in respect of counsel's fees and - at the top of the second page - I did have, having taken £250 off, 1594.

SIR GEORGE NEWMAN: It is 1596.

[97]MR JENKINS: Yes. Plus VAT?

SIR GEORGE NEWMAN: Yes.

[99]MR JENKINS: We can calculate that, thank you.