Grabinar, R (on the application of) v General Medical Council [2013] EWHC 4480 (Admin)

Case No CO/1853/2013[2013] EWHC 4480 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue Manchester, Greater ManchesterDate Wednesday, 18th December 2013
M60 9DJ
B e f o r e:
MR JUSTICE BLAKE
Between
THE QUEEN ON THE APPLICATION OF JOHN GRABINARClaimantv
Between
GENERAL MEDICAL COUNCILDefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Hockton appeared for ClaimantMr Hare appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BLAKE: In this application for judicial review the claimant, Dr John Grabinar, seeks to quash a decision of the General Medical Council, made through its Assistant Registrar on 20th November 2012, to waive the five year time limit on an investigation into fitness to practise. Information raising an issue about the claimant’s fitness to practise were first communicated to the General Medical Council in August 2012.[2]Permission to bring this challenge was granted by His Honour Judge Pelling, sitting as a Deputy High Court Judge on 18th September 2013. The defendant Council has not filed an AOS but has helpfully indicated, in a skeleton for today's hearing, that it does not oppose relief quashing the decisions. There has been a continuing exchange between the parties as to whether further relief should be granted by the court. At one stage it was contended that this is a case in which this court should make the decision itself as to whether there was exceptional circumstances within the meaning of rule 4(5) of the General Medical Council Fitness to Practise Rules, which would justify a case proceeding outside the five year time limit in the public interest.[3]The background facts are as follows. C is a registered medical practitioner who, at least in 1996 and until some time in 2003, according to what he contends in his pre-action protocol letter, was part of a GP's practice operating at Torridon Road, Lewisham, South West London. Certainly between 1996 and 1999 he appeared to be the senior practice partner or at least one of them. No proper witness statement has been filed setting out full information about the periods of his connection with and responsibility for the practice.[4]At some point before September 1996 the claimant and another doctor at the practice, Dr Mansfield, were made aware by a complaint of an allegation of inappropriate touching of a child F by another doctor at the practice, Dr Ragupathy, and that was said to have occurred on 2nd July 1996. The following year, on 1st October 1997, the claimant was also made aware by a written complaint by a patient of an inappropriate sexual touching by Dr Ragupathy of an adult woman patient. On 3rd June 1999 the claimant was also made aware by another written complaint of another allegation of inappropriate touching of a further adult woman by the same doctor. It is also apparent that other allegations were being made of sexual misconduct to other doctors or members of staff at the practice and those continued right through from 1999 to 2010.[5]In June 2007 a patient complained to the police about a sexual assault on her by Dr Ragupathy and that resulted in a criminal investigation by the police and a prosecution. The doctor was acquitted in March 2008. Thais prosecution at least served to alert the Local Primary Care Trust as to the background and they commissioned their own investigation. It should be pointed out that if, as I assume to be the case for the purpose of this application, the claimant had left the practice and severed all connections at some point in 2003, then anything that happened after he left the practice would not necessarily have come to his attention and his obligations as a member of the practice towards a fellow doctor in the practice would no longer subsist. There may however still be continuing obligations as a registered medical practitioner.[6]It appears that between October 2009 and July 2010 a number of witness statements were taken from patients, medical staff and doctors at the practice, including a medical statement taken from the claimant on 13th April 2010. These however were taken by the Primary Care Trust or investigators on their behalf.[7]Whilst this investigation was continuing in January 2010, yet another young woman complained to the police about a sexual assault by the same doctor who had been the subject of the previous allegations. This led to a further criminal investigation in which the police had access to and appeared to rely upon the information gathered by the PCT inquiry. As a result in April 2012 the doctor was convicted of a sequence of nine sexual offences and received a sentence of two years' imprisonment with ancillary orders.[8]It is pertinent to note at this stage that the PCT had informed the General Medical Council of the allegations made against Doctor Ragupathy of sexual misconduct, it appears in June 2010. The General Medical Council was invited by the PCT to waive the five year rule in his case, which it did.[9]On 6th December 2010 a report that had been commissioned by the PCT had been prepared by a Dr Calit. She gathered together the information about the whole of the allegations made against Dr Ragupathy and unsurprisingly concluded that on the occasions mentioned and others he had behaved in breach of medical rules and conduct. In this conclusion of the report she was also critical of the conduct of other doctors at the practice including the claimant in failing to properly investigate the complaints made against Dr Ragupathy or report the allegations of sexual misconduct to the Primary Care Trust, at least until 2007. Those matters are spelt out at internal pages 25 and 26 of the report. However, those criticisms were made generally of GP's at the practice without distinguishing particular levels of responsibility and culpability and without enquiring into precisely when any other GP was a member of the practice.[10]This is clearly relevant to the question that is the substance of this claim, because if indeed the claimant had left the practice in 2003, as already noted, he may not have been aware of and certainly may not be responsible as a member of the practice of any response to a complaint made after that date, including the allegations which led to police inquiry in 2007 and 2010 that he would be unaware. Indeed Dr Calit suggests there was an allegation in 2005 that had been notified to the PCT itself and was critical of their failure to investigate.[11]On 28th June 2012 the PCT wrote to the claimant informing him of the outcome of the criminal investigation and thanking him for his assistance and the fact that the General Medical Council was reviewing the registration of Dr Ragupathy. However, two months later, on 13th August, it wrote again to the claimant, this time informing him of the concerns that the professional colleagues of that Dr Ragupathy, including the claimant, may have failed in their professional obligations to act quickly to protect the patients from risk. That is the essential nub of the allegation contained in Dr Calit's report of December 2010. A copy of that report had not sent to the claimant by the PCT and no particulars were given of the dates of failures by him personally that were of concern.[12]On the same date, 13th August 2012, the PCT wrote to the General Medical Council expressing the concerns already indicated summarised in the Calit Report. On 5th September the General Medical Council pointed out the terms of rule 5 that have already been summarised and 26th September the PCT responded.[13]It is said as follows, in page 2 of its letter:
"The PCT was concerned that it should not take any action that might prejudice the criminal investigations. In June 2011 the police formally confirmed that if regulatory offences were pursued against Dr R [that is to say Dr Ragupathy] prior to the conclusion of the criminal prosecution, there was a real prospect that the regulatory proceedings might prejudice the criminal prosecution. In response, the PCT put its own procedures on hold pending the outcome of the criminal trial."
[14]The PCT also submitted that the General Medical Council had waived the 5-year rule against Dr Ragupathy in June 2010 and invited consideration of the same course against the other practitioners including this claimant. This was because:(i) There was significant delay between the incidents occurring and the PCT becoming aware of the complaints.(ii) The delay in the PCT learning of the complaints is the subject of the PCT referral.(iii) A delay in making referral to the General Medical Council occurred with the aim of reducing potential for prejudice to a criminal prosecution.(iv) The allegation of non reporting is particularly serious. 15. The Deputy Registrar then made the decision on the 20th November, without seeking further information from the PCT, by way of the detailed witness statements referred to in the Calit Report, or without seeking any observations from the claimant. He at least was aware that the PCT's reasons for not reporting to the General Medical Council were flawed because if there was to be any delay to avoid prejudice, that was a matter that the General Medical Council could manage once the matter had been reported to them rather than a reason to prevent the PCT reporting this matter to the General Medical Council. 16. Indeed, in my judgment, looking at the information before the court today, there appears to be a stronger point. First, the police were only inviting the PCT not to jeopardise the criminal prosecution of Dr Ragupathy by proceeding with the inquiry into his underlined activities and nothing could have resulted in a prejudice to a criminal prosecution of Dr Ragupathy by the fact of reporting the claimant and his colleagues to the General Medical Council for failing to investigate or notify others of the allegations made against Dr Ragupathy since the guilt or innocent of Dr Ragupathy on those allegations was irrelevant to that alleged failure of professional duty. Second, it is significant that the PCT had reported Dr Ragupathy to the GMC in June 2010 and yet relied upon prejudice to the investigation for a reason to delay reporting the other doctors for some 26 months thereafter. 17. As already indicated, the parties are agreed that the Deputy Registrar's decision was procedurally flawed and should be quashed. There are, in addition to the procedural failures to enquire precisely when the claimant may have last acted in a way alleged to be in breach of his professional obligations a number of other features of some concern in the defendant’s Decision Letter. Some of these features of course may not reappear if the matter is re-examined by the General Medical Council but I mention them in case they were to be considered relevant in the future. 18. First, if it is indeed the case that the claimant's responsibility is primarily as a member of the practice and he left the practice at some point in 2003, the period of delay between the last relevant act as a member of the practice and the reporting in August 2012 is far longer than the two months that the Deputy Registrar thought was the period of extension needed above the five year rule but would be something more closer to four years. 19. Second, once clarity is obtained as to when he left the practice under what terms and what degree of knowledge, what was going on before he left the practice, the degree of alleged culpability in failing to investigate and report will become a little clearer and that is relevant in the assessment of the weight to be attached to the public interest. 20. Thirdly, in so far as the PCT's reasons for failing to report to the General Medical Council are relevant as one of the elements in the structured approach recommended by the 2010 aide memoire issued by the General Medical Council for the assistance of decision makers, the illogical reasons given by the PCT are capable of being an important factor against waiver. 21. Fourth, one of the reasons given by the Deputy Registrar appeared to concern the potential seriousness of the conduct involving suppression of information in a police inquiry, failure to co-operate with that inquiry and conduct of a high degree of gravity in respect of frustrating such an inquiry. On the basis of the allegations in the Calit Report and on the assumption that this claimant indeed left the practice in 2003 as he claimed, and before any police inquiry had begun into Dr Ragupathy, then none of these matters could have been weighed in the public interest part of the test as to whether the 5 year rule should be waived. Indeed, as the claimant is able to indicate, it was the case that he provided a witness statement in 2010, when asked to, and apparently was called as a witness in the trial of Dr Ragupathy. 22. For all those reasons, in my judgment, the decision must be quashed in so far as it relates to this claimant and the matter should be reconsidered. I am entirely satisfied that this court must leave to the Registrar the question of what response should be made to the decision in so far as it affects the claimant and for the purpose of clarity the decision is only quashed in so. It is not a decision which this court can exercise for itself: see CPR 54.19, applying the Senior Courts Act 1981, section 31(5) and (5) (a). It might have been open to the court in an appropriate case, either to refuse to remit to the Registrar or to issue mandamus directing a particular outcome of a decision but such an exercise of jurisdiction could only be made where there was only one outcome available to a properly self-directing Registrar. In a case where in particular the core facts are not yet fixed it would be inconceivable the court could exercise such a jurisdiction. Doubtless such a fresh decision will take into account the aide memoire guidance issued by the defendant on rule 4(5) issues and the consistent learning of the orders that "exceptional" means something other than routine and truly out of the ordinary. But the balance between the weight to be attached to the public interest and whether on the facts properly construed there is a sufficient case to meet that stringent test is one for the defendant properly directing itself after a fair inquiry. 23. Fairness requires that this claimant have all the information upon which the Deputy Registrar may act when applying the structured test commended in the aide memoire. It may be that all the material held by the General Medical Council has now been supplied but the PCT may hold material it may be able to supply to the GMC and, if it does so, the defendant should make any such material available to the claimant. Further, the claimant should have an opportunity to make representations to respond to all such material before a decision is taken. 24. The parties have agreed a schedule of matters that the defendant accepts it would have to take into account and the court is in agreement with those five sub-factors in that schedule but those factors have to be read in the light of the observations already made in this judgment. 25. For those reasons I propose: (i) to quash this decision. (ii) to remit it for reconsideration by the defendant in accordance with this judgment and the factors set out in the schedule; and (iii) for the reconsideration to take place after a structured timetable that would permit, first, any further disclosure that needs to be made by the defendant to the claimant and thereafter, a time period of 21 days for the claimant to make any representations on that disclosed material before consideration is given to a fresh decision. 26. MR HOCKTON: My Lord, can I mention two matters? Forgive me for not having spotted them earlier. I notice that in the letter to the General Medical Council behind tab 3, this is the referral letter, at page 4, the complainant to the General Medical Council does refer to these witness statements at paragraph 3 being sent to the General Medical Council in March 2011. We had not got that material. 27. MR JUSTICE BLAKE: I have said what I have said. Anything that is held and needs to be disclosed to you. 28. MR HOCKTON: I am grateful. The other matter, in the judgment your Lordship referred to the Deputy Registrar possibly reconsidering the decision and I wonder if for the sake of clarity it should be stated that an individual other than the original decision maker should reconsider. There are various Registrars I think and Assistant Registrars. 29. MR JUSTICE BLAKE: It is the defendant who has to reconsider. I will hear Mr Hare as to how he should do so in a moment. 30. MR HARE: We are perfectly happy for the order to say that it should go to a different Assistant Registrar. 31. MR JUSTICE BLAKE: Yes. So someone's going to have to draft up the order. I will take this as a starting point but. We can say quash the order, remit it for reconsideration by the defendant to a person other than the original decision maker. Is that sufficient? (correct follow on numbering) MR HOCKTON: My Lord yes.

MR JUSTICE BLAKE: In accordance with this judgment and the schedule.

[16]MR HOCKTON: My Lord, I ask for the costs.[17]MR JUSTICE BLAKE: You can have your costs up until 12th December, is it? To be summarily assessed if not agreed. But are they agreed?[18]MR HOCKTON: I think there was a costs schedule.

MR JUSTICE BLAKE: Well, to be taxed or summarily assessed or taxed.

[20]MR HARE: We invite your Lordship to deal with it now on the summary assessment basis.[21]MR JUSTICE BLAKE: Okay. But that is the first part. Is that controversial that you should pay their costs up until to 12th December?[22]MR HARE: I have an overall proposal, which is because as your Lordship will have seen from our skeleton argument, we say that we should be entitled to our costs of today because all of the matters the claimant has obtained we had either consented to before or had invited the claimant to insert as further elements of the schedule and what the claimant said he wanted in addition, that is for the court to take the decision for the Registrar or stay the proceedings he has failed on. In the light of that, if that is right, just for the moment my Lord, what one has is in a situation in relation to the costs up to the date to when that clear offer was made.[23]MR JUSTICE BLAKE: I have that as the 12th. Is it made before that?[24]MR HARE: The agreement quashing and pay the claimant's cost was made in September, as we have seen. There was some wrangling over what should go in the schedule. The General Medical Council accepted everything they said about what should go in the schedule. I do not want to trouble the court about that. What the claimant claims in relation to matters before the matters leading to this hearing is, as I understand £7,505.40 pence. What the defendant claims in relation to attending the hearing today, which we say is unnecessary, is £6,520. In those circumstances we say the appropriate order would be no order as to costs. But if your Lordship is not with me on that then I would have some very short points to make about.

MR JUSTICE BLAKE: I am not with you on no order as to costs but I appreciate there may be...

[26]MR HARE: In relation to quantum that is sought by the claimant, does your Lordship have a copy of their statement of costs?

MR JUSTICE BLAKE: Yes. 30th December.

[28]MR HARE: If one looks at the first page of that, the 2nd January to 12th December 2013, we say one sees some very substantial periods of hours going in, attendance on client 8.5 hours, more than that, a total of almost 14 hours attendance on client. Attendance on others some 7.5 hours by the other solicitors and the partner. Work done on documents 14.5 hours.[29]Your Lordship has seen the extent of the documentation and indeed one of the complaints brought by the claimant is that they have not seen enough. What consideration of those documents led to was a production of grounds, detailed statement of facts and grounds for the claim, which runs to six pages and makes a very simple point, which the General Medical Council accepted before any other documents will be dealt with in due course. I say nothing about my learned friend's fee for drafting but we say that £7,500 in relation to those very limited documents is too high.

MR JUSTICE BLAKE: What do you say?

[31]MR HARE: We say it should be no more at the outside than all inclusive £5,000.

MR JUSTICE BLAKE: Plus VAT?

[33]MR HARE: Inclusive.

MR JUSTICE BLAKE: Can you do it exclusive and then we can add VAT?

[35]MR HARE: I will try. It is easier these days now that it is 20%.[36]MR JUSTICE BLAKE: Otherwise I do not know what I am dealing with it. That sounds like about £3800.[37]MR HARE: It does. £3800 exclusive.

MR JUSTICE BLAKE: I think that is a bit low. £5,000 exclusive may not be.

[39]MR HARE: That is what I have to say about that.

MR JUSTICE BLAKE: Thank you very much.

[41]What about but you think that you are entitled to some costs from 12th December. Are you pressing that? Are you making an application for costs?[42]MR HARE: I do apologise, I thought you were addressing my learned friend. Yes, as we indicated very clearly in our skeleton argument we say that the parties had agreed the essence, that the claimant was not going to get the additional relief they were seeking. We put them on notice that if they pursued this to a hearing we would seek our costs from the date of the consent order on an indemnity basis. We put that in paragraph 11.

MR JUSTICE BLAKE: I have seen it.

[44]MR HARE: We say there was no reason to have this hearing today. The court has been troubled with it but we do not see why the General Medical Council, as a charity, should pay for that. You have seen I hope the schedule of our costs.

MR JUSTICE BLAKE: No.

[46]MR HARE: Could I hand that up. It is limited, as I have said, to costs of this hearing save for limited to the costs of the skeleton argument for today and then my attendance today, attendance by my solicitor, Mr Choudhury, who sits behind me and you see very limited hours claimed in relation to those matters. We say that is proportionate sum in the circumstances.[47]MR JUSTICE BLAKE: Right. I think that is two matters. Yes. Now.[48]First of all your costs, up to what period, and what is reasonable?[49]MR HOCKTON: My Lord, we would ask for our costs up to and including today. So far as the offer that was made without prejudice offer that was made in September, attached to an e-mail, that simply referred to quashing the decision on the procedural grounds set out at 1 to 3 in the schedule, your Lordship sees. There having been no acknowledgement or response from the General Medical Council and no disclosure of any documentation which would assist the claimant in pursuing this application.[50]We say we were entitled to seek clarification from the court as to the basis upon which the decision should be quashed.[51]MR JUSTICE BLAKE: You could have agreed it. That is the problem. What one normally hopes to see in a consent order is set out in the practice statement where you can lodge, practice statement 54, an order, with the relief and explaining the reasons for the proposed relief. If 17(1):
"If the parties agree about a final order to be made in the claim for judicial review the claimant must file, signed by all the parties set out the terms of proposal together with a short statement of the matters relied upon as justified the enclosed agreement."
If you had done that and the even if there was some debate, then at least that might have saved the matter. As it is this court was not aware as to what you were agreed upon before it looked at the case today and I therefore, as you would have seen read into the papers. It may be you were not agreed on enough and in any event to have made that possible but that is what one would have expected.[52]MR HOCKTON: My Lord, there was a reply without prejudice offer and it is fair in that reply we made it clear that we were not content with the...[53]MR JUSTICE BLAKE: True, but if in your skeleton argument of 12th December you are asking for something which the court did not have jurisdiction to grant and for reasons I sought to explain would have been inappropriate, I cannot possibly see how you are entitled to any costs after that date.[54]MR HOCKTON: We made it clear that we would be content to proceed on the basis that it was accepted that there was no exceptional circumstances or public interest. I appreciate your Lordship has made no direction.[55]MR JUSTICE BLAKE: That is simply not possible upon this case, with all the evidential hiatuses it suffers from. So there we are.[56]MR HOCKTON: What we would rely on is, and I appreciate that there is an evidential hiatus, we accepted that throughout but we rely on the fact that the key hiatus results from failure on the part of the General Medical Council to provide the relevant evidence. Now, clearly

MR JUSTICE BLAKE: You have no more evidence from September to today, have you?

[58]MR HOCKTON: No we have not.[59]MR JUSTICE BLAKE: Then you have the relevant evidence, from which we have been able to do it. You can always ask a specific disclosure. I think your disclosure matters are a bit of a distraction.[60]MR HOCKTON: So be it. My Lord, in those circumstances so far as the costs up to including September are concerned, we say it is a reasonable schedule and we would invite your Lordship to order the costs as claimed. So far as the solicitor's work on document is concerned, it is not only looking at the documents and getting them from the General Medical Council but also, of course, putting them in bundle form.[61]MR JUSTICE BLAKE: I am not quite sure who the expert was but, if it is, we have not heard it from him and there we are.[62]MR HOCKTON: So far as the defendant's costs are concerned in fact, the offer --

MR JUSTICE BLAKE: I notice it is now 1 o'clock, are we able to wrap this up in the next 5 minutes?

[64]MR HOCKTON: I hope so.[65]MR JUSTICE BLAKE: So far as their costs are concerned the emails refer to ... I have not got all the background. I appreciate there has been an offer in September, there was an open offer that the court is aware of in December and change of skeletons, and at the moment, I am taking a 12th December absent any other date. You certainly have not progressed your case beyond the 12th December, have you.[66]MR HOCKTON: Not appreciably although your Lordship's judgment does go somewhat further than the agreement reached in the schedule. Your Lordship included a number of matters which will assist the Assistant Registrar or Registrar in reconsidering the case.[67]MR JUSTICE BLAKE: Can I cut you short? You have got a lot of ... I am conscious of the time. I think that absent a very clear consensus between the parties as to why things have gone wrong there probably was a need for a judgment, so the defendant has the benefit of any views from this court. However, I think I am therefore not minded to make you pay the defendant's costs of today on an indemnity or other basis although I suspect that these costs could have been avoided had there been a slightly more focussing of the minds. Instead I am proposing to make a reduction in the costs that are otherwise have awarded your team to make, and I think in the circumstances the only order of costs that I am minded to make is the defendant pay your costs in the sum of £5,000 plus VAT. There is a bit of judgment of Solomon in all that. Unless someone is feeling particularly sore and aggrieved by that, given that it is now 3 minutes past 1, that is where I am proposing to end to it.[68]Thank you very much, both of you, for your help. It is quite an interesting case actually.