X, R (on the application of) v General Medical Council [2011] EWHC 3271 (Admin)

Case No CO/9354/2010[2011] EWHC 3271 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 December 2011
Before
THE HON. MR. JUSTICE SUPPERSTONE
Between
THE QUEENClaimanton the application of Mr XClaimantGENERAL MEDICAL COUNCILDefendant
Martin Forde QC (instructed by Medical Defence Union) for ClaimantCatherine Callaghan (instructed by GMC Legal) for DefendantHearing Hearing dates: 15 November 2011
JudgmentMr Justice Supperstone :Introduction
[1]The Claimant is a surgeon. His registration as a medical practitioner under the Medical Act 1983 as amended (“the Act”) is currently subject to an interim suspension order. He has applied to a Fitness to Practise Panel of the General Medical Council (“the Panel”) for voluntary erasure on the basis that he is suffering from severe depression and his condition is not likely to be resolved in the near future. In June 2010 the Panel made a decision that his application for voluntary erasure should be made in public with two exceptions, namely(1) that the Panel would hear in private session any evidence and submissions relating to the Claimant’s family matters, and(2) that the Panel would hear in private session any reference to the Claimant’s health condition and prognosis beyond “severe depression not likely to be resolved in the near future”.[2]At the outset of this hearing I made an order pursuant to CPR 39.2(3)(a), (c) and (g) that Mr X should be granted anonymity. The identity of Mr X must not be disclosed.[3]In this claim the Claimant seeks to challenge only that part of the Panel’s decision which permits reference to be made in a public hearing to the nature of the Claimant’s health condition and prognosis, that is, severe depression not likely to be resolved in the near future. He contends that the Panel should have decided only to permit a generic reference to be made to “a medical condition or conditions” in public session, which would have avoided reference to the nature of his condition and prognosis.

The factual background

[4]The background to this application is that in May 2010 the Defendant gave the Claimant notice that a fitness to practise hearing would commence in June 2010 to consider an allegation that his fitness to practise is impaired by reason of misconduct and/or deficient professional performance (“the Conduct Hearing”). This allegation related to the allegedly inadequate treatment of some 16 different patients between 1989 and 2007. The alleged inadequacies include failing to diagnose patients correctly, failing to arrange re-assessment or to refer patients for further investigation when appropriate, failing to communicate with patients, colleagues and others, failing to prescribe appropriate medication and/or to follow correct procedures, making serious mistakes during surgery, failing to respond to requests for information from the GMC, and failing to inform all relevant hospitals about the complaint referred to the GMC.[5]In May 2010 the Defendant also gave the Claimant notice that a Fitness to Practise Panel would consider an allegation that his fitness to practise was impaired by reason of his adverse health, (“the Health Hearing”) and that allegation would be considered by the Panel at the same hearing in June 2010.[6]In June 2010 the Panel convened. At the outset of the hearing Mr Martin Forde QC, who appeared for the Claimant and who also appears for the Claimant on the present application, asked the Panel to hear an application by the Claimant for voluntary erasure. Mr Forde requested that this application should be heard in private. The Panel determined that it is in the public interest and also in the interests of all the patients and family members involved in the case that the voluntary erasure application should be heard in public (“Decision 1”).[7]The hearing was then adjourned and the following day Mr Forde sought to persuade the Panel to reconsider its decision on the basis that new medical evidence had become available since the previous day’s hearing. The Panel accepted Mr Forde’s submission that it should receive oral evidence from both GMC Medical Examiners as to whether there was a risk that the Claimant may self-harm or commit suicide if the voluntary erasure application were to be held in public.[8]The Panel heard evidence from Dr Hirons and Dr Pandita-Gunawardena in private and then made its determination (“Decision 2”). “Having heard the new evidence on this point, and also the submissions made by [Mr Forde and Mr Ozin], the Panel has reconsidered whether it is still appropriate to hear [the] application for voluntary erasure in public, bearing in mind the provisions of Rule 41(6)(c). In determining this issue the Panel has considered three specific questions:(1) is a voluntary erasure application different from a substantive Fitness to Practise Hearing?(2) Would disclosure into the public domain of background information relating to [the Claimant’s] family matters, be likely to affect his health adversely? And(3) Would disclosure into the public domain of the medical diagnosis and prognosis, in terms such as ‘severe depression that is not likely to be resolved in the near future’ be likely to affect [the Claimant’s] health adversely? In considering the first question, the Panel is satisfied that there is a significant difference between a voluntary erasure hearing and a substantive Fitness to Practise hearing. If the panel were to grant voluntary erasure, [the Claimant] would avoid the scrutiny that a full enquiry would entail. In this regard, the Panel is mindful of the weight it must give to the public interest in all the circumstances of this case, namely the large number of patients involved, the protracted period of time this case spans, and the seriousness of the allegations made. In considering the second question, the Panel is not satisfied, on the basis of the new evidence presented today, that disclosure of information relating to [the Claimant’s] family matters would not be appropriate, as such disclosure would be likely to affect [the Claimant’s] health adversely, and that such a potential effect outweighs the public interest in this case. In considering the third question, regarding disclosure of a medical diagnosis and prognosis, the Panel has considered all the evidence presented, both in documentary form and orally. It notes that Dr Hirons specifically told the panel that, in her view, disclosure into the public domain of reference to ‘severe depression is not likely to be resolved in the near future’ would not pose a significant risk of affecting [the Claimant’s] health adversely. When asked the same question, Dr Pandita-Gunawardena, gave answers on this specific point that were inconsistent. However, Dr Hiron’s evidence was consistent and persuasive, and so the panel preferred her evidence. In all the circumstances, and having balanced [the Claimant’s] interests against the interests of the 16 patients and their relatives involved in this case, as well as the wider public interest, it is the determination of the Panel that the application for voluntary erasure should be made in public with two exceptions: (1) the Panel will hear in private session any further evidence and submissions relating to [the Claimant’s] family matters. (2) the Panel will consider in private session any reference to any health condition and prognosis beyond ‘severe depression not likely to be resolved in the near future’.” In determining this issue the Panel has considered three specific questions: The statutory framework The Medical Act 1983 as amended (“the Act”)

The statutory framework

[9]Section 31A of the Act provides that the Defendant may make regulations providing for the erasure by the Registrar from the register of the name of any person who applies for erasure, and providing for refusal by the Registrar of such an application in prescribed cases and circumstances.[10]Paragraph 1 of Schedule 4 to the Act empowers the Defendant to make rules for Fitness to Practise panels with respect to the procedure to be followed in proceedings before such a panel. Paragraph 1(4) provides:
“Rules made under this paragraph in connection with any other proceedings before a fitness to practise panel shall include provision— (d) … for proceedings before a Panel to be held in public unless and to the extent that the rules provide otherwise…” (d) … for proceedings before a Panel to be held in public unless and to the extent that the rules provide otherwise…”
General Medical Council (voluntary erasure and restoration following voluntary erasure) (amendment) Regulations 2009 (“the Regulations”)[11]The Regulations, made pursuant to section 31A of the Act, provide for a practitioner to apply in writing to the Registrar for his name to be erased from the register: Reg.3(1). The application must comply with certain requirements as to form: see Reg.3(2). The remainder of Reg.3 sets out how the application will be considered. The Registrar is obliged to erase the practitioner’s name from the register, except in circumstances where there is information or an allegation that the practitioner’s fitness to practise is impaired. In such a case, the erasure application is to be determined by a particular body, which depends on the stage at which the allegation has reached.[12]Regulation 3(8) provides:
“Where, on the date the Registrar receives an erasure application, an allegation against the practitioner has been referred to a FTP panel under the Fitness to Practise Rules and the hearing before the FTP panel has commenced, the Registrar shall refer the application for determination by the FTP panel, and the application shall be determined by the FTP panel accordingly.”
[13]The Regulations make no reference to whether applications for voluntary erasure heard by Fitness to Practise panels should be heard in public or private.

The General Medical Council (Fitness to Practise) Rules 2004 (“the Rules”)

[14]The Rules, which are made under the powers contained in Schedule 4 to the Act, set out the procedural rules applying to fitness to practise proceedings. There is no express reference to voluntary erasure in the Rules.[15]Rule 41 (entitled “Attendance of the Public”) provides as follows:
“(1) Subject to paragraphs (2) to (6) below, hearings before the Committee and a FTP panel shall be held in public. (2) The Committee or FTP panel may determine that the public shall be excluded from the proceedings or any part of the proceedings, where they consider that the particular circumstances of the case outweigh the public interest in holding the hearings in public. (3) Subject to paragraphs (4) to (6), the Committee or a Panel shall sit in private, where they are considering— (a) whether to make or review an interim order; or (b) the physical or mental health of the practitioner. (4) Where it is considering an allegation, the FTP panel may revoke an interim order in public. (5) A panel shall, where it is considering matters under paragraph 3(a) sit in public where the practitioner requests it to do so. (6) Subject to paragraph (5), the Committee or Panel may, where they are considering matters under paragraph (3)(a) or (b), hold a hearing in public where they consider that to do so would be appropriate, having regard to— (a) the interests of the maker of the allegation (if any); (b) the interests of any patient concerned; (c) whether a public hearing would adversely affect the health of the practitioner; and (d) all the circumstances, including the public interest.” (a) whether to make or review an interim order; or (b) the physical or mental health of the practitioner. (a) the interests of the maker of the allegation (if any); (b) the interests of any patient concerned; (c) whether a public hearing would adversely affect the health of the practitioner; and (d) all the circumstances, including the public interest.”
[16]In R v General Medical Council ex parte Toth [2000] 1 WLR 2209 Lightman J said, in the context of a judicial review challenge to a screener’s decision not to refer a complaint to the defendant’s professional conduct committee, at 2218F:
“The general principles underlying the Act and Rules are that (a) the public have an interest in the maintenance of standards and the investigation of complaints of serious professional misconduct against practitioners; (b) public confidence in the GMC and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special and sufficient reason) will be publicly investigated by the PCC; and (c) justice should in such cases be seen to be done. This must particularly be the case where the practitioner continues to be registered and to practise.”

The permission application

[17]The Claimant challenged this second decision on six grounds. Ms Elizabeth Laing QC, sitting as a deputy judge of the High Court, granted permission on four grounds. Ground 3 is that the Panel misdirected itself as to the balancing exercise that it should undertake when weighing the public interest in placing the details of the Claimant’s condition and prognosis in the public domain against the private and public interests in respecting his privacy. Ground 4 is that the Panel came to an irrational decision in respect of this balancing exercise. Ground 5 is that the Panel failed to give adequate reasons for its decision. Ground 6 is that the decision to place details of the Claimant’s condition and prognosis in the public domain violates his rights under Article 8 of the European Convention on Human Rights.

The parties’ submissions

[18]Mr Forde emphasised at the outset of his submissions the nature and extent of the Claimant’s consent to disclosure of his medical condition. It is accepted that the Claimant consented, as part of his application for voluntary erasure, for details of his medical condition to be disclosed by his representatives and the expert medical witnesses to the Defendant and the FTP Panel. However the Claimant did not, at any stage, consent to this information being placed in the public domain. Mr Forde refers to the Defendant’s own Confidentiality Guidance which stresses the importance of obtaining fully informed, express consent when disclosing medical information about an identifiable person other than for clinical purposes. The Panel neither referred to nor considered the Claimant’s lack of consent to publication, his private interest in having this respected, and the general public interest in maintaining confidence in patient-doctor confidentiality. In these respects Mr Forde submits the Panel failed to have regard to relevant considerations that weighed against publication.[19]Mr Forde and Ms Catherine Callaghan, for the Defendant, agree that the relevant public interest at stake in the present case is the public interest in favour of or militating against hearing the voluntary erasure application in public. More specifically, the relevant public interest is the public interest in favour or militating against placing into the public domain the specific nature of the Claimant’s health condition and prognosis.[20]At the forefront of Mr Forde’s oral submissions was the submission that the Panel misdirected itself as to the balancing exercise that it should undertake when weighing the public interest in placing the details of the Claimant’s condition and prognosis in the public domain against the private and public interest in respecting his privacy (Ground 3). Further Mr Forde submitted that the Panel came to an irrational decision in respect of this balancing exercise (Ground 4). Mr Forde made no discrete submissions on Grounds 5 and 6.[21]Mr Forde submits that when reconsidering its decision on the basis of the medical evidence it was incumbent upon the Panel to consider that evidence in its entirety, which the Panel failed to do. The evidence of Dr Hirons and Dr Pandita-Gunawardena so viewed was to the effect that reference to the nature and extent of the Claimant’s ill health and prognosis would pose a significant risk of affecting his health adversely.[22]Further, he submits, the Panel failed properly to identify the public interest in favour of publication of medical information. Matters to which the Panel referred such as the avoidance of scrutiny of the allegations made against the Claimant, the large number of patients involved in the case, the protracted period of time that the case spans, and the seriousness of the allegations against the Claimant are relevant to whether or not to allow the voluntary erasure application, but they are irrelevant as to whether or not the application should be heard in public.[23]Ms Callaghan submits that the Panel was entitled on the evidence to prefer the evidence of Dr Hirons to the evidence of Dr Pandita-Gunawardena and to find that disclosure into the public domain of reference to the Claimant’s health condition and prognosis in the terms it proposed would not pose a significant risk of affecting his health adversely.[24]Ms Callaghan further submitted that complainants, patients and the public have a legitimate interest in understanding why the Claimant was suggesting the complaint against him should not be ventilated in public or at all. Mere reference to the Claimant being “unwell” or having some unspecified “medical condition” would not explain properly why he was seeking to avoid a fitness to practise hearing. A voluntary erasure application, if successful, would have the consequence that there will be no public scrutiny of any of the substantive allegations against a practitioner. The Panel was entitled to take into account the large number of patients involved, the protracted period of time this case spans and the seriousness of the allegations. As a specialist tribunal the Panel is to be accorded a considerable margin of discretion in determining what considerations are relevant in deciding whether to hear a voluntary erasure application in public. (In re Findlay [1985] AC 318 HL, at 333-334, per Lord Scarman; and R v Secretary of State for Transport ex p. Richmond LBC [1994] 1 WLR 76 at 95).[25]Ms Callaghan accepted that there is a public interest in maintaining patient confidentiality and a public interest in practitioners disclosing as much medical information as possible to medical examiners for the purpose of fitness to practise proceedings. Whilst relevant these considerations were not, she submits, central to the Claimant’s application which was based on Rule 41(6)(c), namely that a public hearing of the voluntary erasure application would adversely affect the Claimant’s health. In any event, albeit not expressly referred to in the Panel’s determination, there is no reason, she submits, for thinking that they were not taken into account by the Panel in reaching its decision, in the light of the submissions that were made by Counsel.

Discussion

[26]When assessing the nature and extent of the risk to the Claimant by disclosure of his health condition and prognosis in public it is plainly necessary to consider the evidence of Dr Hirons and Dr Pandita-Gunawardena with care.[27]Mr Forde and Miss Callaghan have referred me to the transcript of their evidence before the Panel in June 2010 (Day 2/1-30).[28]First, the evidence of Dr Hirons. She did say that reference to depression being severe and the prognosis of it would not worsen the Claimant’s condition (Day 2/11F-G. See also Day 2/12C-D). However she did have concerns about the Claimant being a suicide risk (Day 2/8H and 12B-C). She said that she was “not sure that he would be necessarily adversely affected by the illness being described as depression” (Day 2/15G-H). He accepts that he does have a “health problem” (Day 2/11F-G).[29]The Panel (Dr Baker) asked Dr Hirons if the only matters disclosed in public were diagnosis, severity of condition and prognosis, how would these matters affect the Claimant’s health: “Q. So, if it were possible when dealing simply with matters relating to the circumstances of his wife’s conduct and his daughter’s relationship to go into private when that is discussed but to come out of private session and have heard in public matters relating simply to diagnosis, severity of condition and prognosis, if those matters only were made public, diagnosis, severity and prognosis, how would that affect the doctor’s mental condition.” “A. I do not think that it would but psychiatry is not something with a simple diagnosis like appendicitis and the diagnosis is always attendant on the background factors that cause such a diagnosis. Q. Yes, of course; we would be well aware of that. It is just that it is possible that the only reporting could be in terms of what I said and leaving out the background circumstances. So if I am right in understanding what you are saying, if only those matters, if only the doctor’s diagnosis, severity of condition and prognosis were made public, I think you said that would have little impact on his condition. Is that right? A. Yes, if that was so I do not think it would have a terrible effect on him.” (See Day 2/10F-11A).[30]Turning to Dr Pandita-Gunawardena’s evidence, she said that she did not think that if it became public that the Claimant suffered from “a severe health problem which is unlikely to get better in the short term” it would be likely to have an adverse effect upon his health (Day 2/21B-C). Mr Ozin, on behalf of the GMC, then asked: “Q. If the information went a little further and referred to the illness as depression, would that make a difference? A. I do not think so. I mean, if it is just a statement, you know, probably not.” (Day 2/21C-D). However following cross-examination by Mr Forde when Dr Pandita-Gunawardena gave answers which gave the Committee the impression that she had given the opposite answer to the same question that Mr Ozin had put to her, the Committee asked for clarification. Dr Pandita-Gunawardena responded: “…I think if it is just ‘illness’, yes, that is okay; but if it is depression, if the word ‘depression’ comes out, it will definitely have an effect on him.” (Day 2/24C-D). Dr Pandita-Gunawardena was pressed further by Dr Baker: “Q. I am not questioning your opinion; I just want to be clear about what you are saying because you appear to be giving contrary answers to different questions. So in relation to the question which goes a little bit further, if a diagnosis was given in public as mental health diagnosis, in other words depression which was of such a severity it was not likely to improve in the short term, I’m not sure what you are saying as to how that will affect the doctor’s health because you have given two opposite answers to different people. What is your opinion? A. If it is mental health? Q. If a diagnosis is given, for instance, as moderately severe or severe, or whatever the opinion is subsequently found to be, depression of such a degree that it is unlikely to resolve within a reasonable period of time, would that in your opinion adversely affect the doctor’s health if it was made public? A. Yes, I think so.” (Day 2/25G-26B).[31]The Panel made the decision it did, preferring the evidence of Dr Hirons to that of Dr Pandita-Gunawardena:
“Dr Hirons specifically told the Panel that, in her view, disclosure into the public domain of reference to ‘severe depression not likely to be resolved in the near future’ would not pose a significant risk of affecting The Claimant’s health adversely. When asked the same question, Dr Pandita-Gunawardena, gave answers on this specific point that were inconsistent. …”
[32]However, in my view, by focussing on the answers given by Dr Hirons and Dr Pandita-Gunawardena to a specific question the Panel failed to have proper regard to the evidence of the two medical examiners as a whole. Both Dr Hirons and Dr Pandita-Gunawardena considered that publicity would adversely affect the Claimant’s mental health (Day 2/3E). They both had concerns about the potential risk of suicide. They also both did not think that it was feasible to separate out the Claimant’s family from his illness because, as Dr Hirons said, “his depression was… clearly majorly caused by the situation within his marriage… so … it would be very difficult to have any meaningful discussion without reference to his family” (Day 2/5B-C). Despite this firm view of the two experts, the Panel pressed them as to their opinion of the adverse consequences on the Claimant’s health if the matters relating to his wife’s circumstances and those of his daughters were not made public. Dr Hirons repeated that she found it very difficult to see how reference could be made to diagnosis, severity of condition and prognosis without reference also being made to the background factors. (Day 2/10D-E). Pressed still further she said that she did not think it would affect his mental condition, but added “psychiatry is not something with a simple diagnosis like appendicitis and that diagnosis is always attendant on the background factors that caused such a diagnosis”. (Day 2/10G). In answer to the next question she said she did not think publication “would have a terrible effect on him” (Day 2/11A). Only having given these answers did Dr Hirons give the answer on which the Panel rely, namely that if reference was made to depression being severe and the prognosis of it, she did not think that would worsen his condition (Day 2/11F-G). Even then Dr Hirons said in answer to further cross-examination by Mr Forde “Obviously from [the Claimant’s] point of view it would be preferable if it was just referred to as ‘the illness’. I am not sure that he would be necessarily adversely affected by the illness being described as depression.” (Day 2/15F-G).[33]Dr Pandita-Gunawardena’s evidence plainly contained inconsistencies. However the Panel did not reject her evidence. They merely said that they preferred the evidence of Dr Hirons. Despite the answer she gave when examined by Mr Ozin (Day 2/21C-D), Dr Pandita-Gunawardena, when questioned by Mr Forde and the Panel, clearly stated that in her view reference in public to the Claimant having severe depression that is unlikely to resolve within a reasonable period of time would adversely affect his health.[34]I reject Mr Forde’s submission that the large number of patients involved in the case, the protracted period of time that the case spans and the seriousness of the allegations against the Claimant are only relevant to whether or not to grant the voluntary erasure application, and not to whether or not the application should be heard in public. I agree with Ms Callaghan that at the time the application is made, the outcome of the application cannot be known. If the decision is to grant the application, then if the hearing of the application was entirely in private, there would have been no public scrutiny of the serious complaints made against the Claimant. That being so Miss Callaghan submits that sufficient information should be disclosed so that the public would be able to understand why it was the Panel permitted the Claimant to avoid public scrutiny of the complaints. The public should be able to assess whether the Claimant advanced a legitimate reason for avoiding public scrutiny of the allegations and whether the Panel had a legitimate reason for permitting him to avoid such scrutiny. I accept that the public interest in maintaining confidence in the medical profession means that there is a public interest in the public knowing that there is a legitimate reason for the grant of a voluntary erasure application.[35]However, in my view, it does not follow that this public interest requires the specific nature of the Claimant’s illness to be disclosed. There is no reason to think that if the Panel state when granting the application for voluntary erasure, if they decide to do so, that the Claimant is suffering from “a severe health problem that is not likely to be resolved in the near future” that the public would not consider this to be a legitimate reason for the Panel’s decision. Further it is not clear that if the Panel stated that the Claimant was suffering from “severe depression” the public would consider that they had been provided with a more legitimate reason than if the Panel stated he was suffering from “a severe health problem” (or “a serious illness”).[36]The starting point for consideration of matters relating to the physical and mental health of the practitioner is that the Panel shall sit in private (Rule 41(3)). It is for this reason, as Mr Forde points out, that the nature and detail of the Claimant’s health problem are set out in Schedules to the Notice of Hearing in the health case, the contents of which are not disclosed in public. The allegations which are made public merely refer to the Claimant suffering from “a medical condition” or “medical conditions” and that “by reason of the matters set out above [the Claimant’s] fitness to practise is impaired by reason of [his] adverse physical and/or mental health”. There is a public interest in maintaining confidence in the principle of medical confidentiality and, as Ms Callaghan accepts, a public interest in practitioners disclosing as much medical information as possible to medical examiners for the purpose of fitness to practise proceedings which for this purpose includes voluntary erasure applications. The Claimant did not consent to this information being placed in the public domain.[37]In my judgment the Panel misdirected itself as to the balancing exercise it had to undertake. I bear in mind the limited duty on the Panel to give reasons (South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953 at para 36). However the reasons given by the Panel strongly suggest that they erred in law. In my view the Panel(1) failed to have proper regard to the evidence of Dr Hirons and Dr Pandita-Gunawardena as a whole when assessing the risk to the Claimant’s health of disclosing in public the nature, extent and prognosis of his condition and(2) failed properly to balance this risk against any assessment of how the public interest in knowing that an application for voluntary erasure would be granted for a legitimate reason would be advanced by disclosing that the Claimant suffered from “severe depression” rather than “a severe health problem” (or “a serious illness”).[38]For these reasons that part of the decision of the Panel that orders that there should be reference to the Claimant’s “severe depression not likely to be resolved in the near future” in public shall be quashed. The issue of whether any reference to the Claimant’s health condition and prognosis should be made in public will be remitted to the same Panel for consideration.