COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE DAVIS
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE CARNWATH
| THE QUEEN ON THE APPLICATION OF MAHFOUZ
|- and -
|THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL
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Mr R Englehart, QC and Mr G Clarke (instructed by The General Medical Council) for the Respondent
Crown Copyright ©
Lord Justice Carnwath :
"That being registered under the Medical Act,
1. On a number of occasions between 6 June 2000 and 17 October 2001, [Mr R] consulted you about the removal of his tattoo.
a. You failed to make an adequate assessment of his condition,b. You made inappropriate and inaccurate claims about the likely efficacy of the treatment,c. You failed to provide him with sufficient pre-operative information to enable him to give properly informed consent,d. You provided inadequate and inappropriate treatment,e. You failed to provide adequate and/or appropriate post-operative care,f. You failed to keep adequate records;"
There were similar charges relating to three other patients, arising from advice given in respect of cosmetic surgery in early 2000. A further head of charge arose out of advice given in December 2000 to a BBC reporter, Mr Kenyon, who for the purposes of an investigation pretended to be interested in receiving treatment, and made a video recording.
The newspaper articles
"(Dr Mahfouz)… who has already been struck off once, is facing claims that he sweet-talked patients into signing up for expensive treatment which left their faces covered in burning sores."
The article concluded:
"Dr Mahfouz was struck off in 1987 when working as a GP's assistant and failed to refer a patient he knew to be in a critical condition to hospital. The hearing continues."
Although the facts of the 1987 "erasure" are not disputed, it is common ground that information about that event would not have been regarded as relevant or admissible at the PCC hearing, and would not otherwise have been referred to in evidence.
"(Dr Mahfouz), who claimed to be the only man in Europe able to turn a black person white, was exposed by BBC investigative reporter Paul Kenyon, the General Medical Council was told."
Dr Mahfouz strongly denies having made any such claim, and that allegation did not form any part of the GMC case against him (although, as I have said, other aspects of the Kenyon investigation were the subject of the charges). Again, it would not otherwise have come to the attention of the Committee.
"Dr Abu Mahfouz was struck off the register in 1987 when he was working as a GP's assistant and failed to refer a patient he knew to be in a critical condition to hospital. The GMC accused him of a 'lamentable standard of professional care and attention'. He was reinstated 1992."
Again, the facts of the striking off and subsequent reinstatement are not in dispute, but they would not have been referred to at the hearing.
The application to discharge
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased."
Following the oral argument, the legal assessor formulated two questions for the Committee, which were disclosed to the parties:
'In the circumstances of this case, would those circumstances lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased (consciously or unconsciously)?'
'Real' means 'not without substance'
'Is there in fact a real possibility that the matters relied upon by the practitioner in his application could have a prejudicial effect on the minds of the Committee unconsciously and thus insidiously?'"
"…by the word 'unconsciously' in question one means 'prejudice having some play without the member or members concerned being aware of it.'"
"The Committee's first task was to decide the appropriate test or tests which should be applied in relation to the application. The Committee carefully considered the advice provided by the Legal Assessor and the submissions made by both Counsel. The Committee determined that the correct test to be applied is whether or not 'in the circumstances of this case, would those circumstances lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased?' The Committee felt that this test, as so formulated, should not be re-expressed or glossed in any way. In deciding on the appropriate test the Committee paid particular regard to the House of Lords case in Porter v Magill  2 AC 357 and Subramanian v The General Medical Council Privy Council Appeal No 16 of 2002.
In doing so, the Committee had regard to all the circumstances of the case, which included the assessment that a fair minded and informed observer would make of the following matters:
The aspects of the newspaper articles put before the Committee;
The length of time that has elapsed since the previous finding of serious professional misconduct and consequent erasure;
The different and unrelated nature of the previous case;
Danger of prejudice to the doctor;
The experience and training of the Committee for the task in hand;
The Committee's ability to distinguish between admissible and inadmissible evidence;
The procedures of the hearing and the impact that seeing and hearing the witnesses will have on the Committee;
The advice which the Legal Assessor has indicated he will give if the case proceeds.
Having considered all these issues at length the Committee concluded that in the circumstances of this case, a fair minded and informed observer would conclude that there was no real possibility that the Committee would be biased.
The Committee further decided that it was not necessary to address the second question suggested by the Legal Assessor.
The Committee have therefore rejected your application to discharge themselves and for this case to be adjourned."
"Having considered all the submissions the Committee have rejected your application. The reason for this decision is that in the interests of justice, which include both the interest of the public and that of the practitioner himself, it would be right to proceed with this inquiry without delay.
The Committee were helped by the knowledge that a refusal of this adjournment will not affect Dr Abu-Mahfouz's right to pursue his application for judicial review and, if so directed by the High Court, these proceedings would be halted."
The Judge's decision
The Issues on the Appeal
i) That in the circumstances a fair minded and informed observer would have perceived a real possibility of bias;
ii) That, in deciding otherwise, the Committee misdirected themselves by failing to consider unconscious bias;
iii) That a fair-minded and informed observer would think there was a real possibility that they failed to consider unconscious bias.
The second proposition reflects Miss O'Rourke's submission, as understood and rejected by the Judge (judgment para 25). The third reflects the submission as understood by Buxton LJ (para 15-16) when giving permission to appeal; the point was not that the Committee had actually ignored unconscious bias, but that they had given the appearance of doing so. Both ways of putting the case relied on the fact that the Committee, contrary to the legal assessor's formulation of the question, preferred a test which excluded the parenthesis "(consciously or unconsciously)".
"…the question whether we are entitled to intervene at all is not to be answered… by reference to Wednesbury principles… Rather the question has to be decided in accordance with the principles of fair procedure which have been developed over the years, and of which the courts are the author and sole judge…." (R v Panel on Takeovers and Mergers ex p Guinness plc  QB 146, 184 per Lloyd LJ).
Furthermore, the question whether there has been a breach of those principles is one of law, not fact (see e.g. Rose v Humbles  1 WLR 33).
"The common law test, which is applied where pre-trial publicity is relied upon in support of a plea of oppression, is whether the risk of prejudice is so grave that no direction by a trial judge however careful could reasonably be expected to remove it." ( 1AC at p 667E-F).
Later, having reviewed decisions of the European Court of Human Rights, he said:
"The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is a discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the one hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict…". (p 673H – 674A).
"would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
Such an observer would be assumed to have knowledge of the GMC's -
"long and well-established system with statutory backing, operated by those selected and elected to the task, and supported by a comprehensive appeal system…". (para 13-14)
"Their Lordships feel they can safely say that there was no danger here of any prejudice to the doctor: this was a well-established quasi-professional tribunal which had been directed in plain terms to pay no attention to the previous conviction because it would give them no assistance, a direction reinforced by the fact that it dealt with events more than 20 years before. The experience their Lordships have of the jury system is that juries are faithful to their oath and abide by the instructions they are given. There are rare circumstances (and this case is not one) where the judge feels that the direction he is considering giving (for example to ignore some exceptionally prejudicial piece of evidence which they knew) might involve the jury in such 'mental gymnastics' before they could accept what loyalty to their oath required of them that the risk could not be taken, and the jury would have to be discharged. But here it is difficult to see how the appellant's conduct of 20 years ago could affect the fundamental point of credibility the committee here had to consider." (para 21)
"Conscious and unconscious bias"
The legal assessor's role
"It shall be the duty of the legal assessor to inform the Committee forthwith of any irregularity in the conduct of proceedings before that Committee which may come to his knowledge and advise them of his own motion where it appears to him that, but for such advice, there is a possibility of a mistake of law being made."
Subject to certain qualifications, the advice must be given in the presence of the parties (rule 4); and, where the Committee does not accept the advice –
"… a record shall be made of the question referred to him, of the advice given and of the refusal to accept it (together with the reasons for such refusal)."
Adjournment for the High Court application
"Rather they should as a general rule proceed to their own final determination and leave a dissatisfied party to appeal to the Crown Court. That procedure was quite cheap and available locally. Proceedings before the Divisional Court were more expensive and necessarily took longer." (para 29).
Lord Justice Sedley
Lord Justice Waller