COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION - ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE NEWMAN
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE WALL
| Robert Phipps
|- and -
|The General Medical Council
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Dinah Rose (instructed by Field Fisher Waterhouse - Solicitors) for the Respondent
Crown Copyright ©
Lord Justice Wall :
"Where an appeal is made to …. the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that –
(a) the appeal would raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it."
The case under AJA 1999 section 55(1) and CPR Rule 52.13
"Those misrepresentations were found to be in some respects inappropriate and unprofessional, because he had failed to check the facts and to ensure that he gave accurate information to the SAC, and in other respects dishonest, and intended to mislead.
The PCC and the High Court have both found that the SAC's decision to recommend accreditation was influenced by the dishonest and unprofessional misrepresentations made by the Appellant on his record card, and that his accreditation was accordingly obtained illegitimately."
"41. Parliament is responsible for controlling the expenditure of public resources on the administration of justice (whether in relation to the direct costs of the courts, in including the cost of the judiciary, or in relation to expenditure on what used to be called legal aid). It has now made it clear that it is only in an exceptional case that a second appeal may be sanctioned. …. "
Having set out AJA section 55(1), Brooke LJ continued:
"42. This reform introduces a major change to our appeal procedures. It will no longer be possible to pursue a second appeal to the Court of Appeal merely because the appeal is 'properly arguable' or 'because it has a real prospect of success'. The tougher rules introduced by a recent Court of Appeal Practice Direction for 'second tier appeals' related only to cases where a would-be appellant had already lost twice in the courts below ….. The new statutory provision is even tougher—the relevant point of principle or practice must be an important one—and it has effect even if the would-be appellant won in the lower court before losing in the appeal court. The decision of the first appeal court is now to be given primacy unless the Court of Appeal itself considers that the appeal would raise an important point of principle or practice, or that there is some other compelling reason for it to hear this second appeal…… "
"Further, this Honourable Court might not condone the persecution of an otherwise internationally respected Consultant Breast Surgeon who had the integrity to stand up and complain about his employers' serious faults and, in those circumstances, this Honourable Court might consider that a compelling reason to afford the Appellant a further opportunity to reclaim his good name and career."
"You have placed great emphasis throughout this hearing on what you consider to be a conspiracy against you both in the United Kingdom and Australasia. Even if such a conspiracy were to exist, it would not affect your responsibility for your own conduct, nor alter the gravity of that conduct, and therefore it is unnecessary to reach any conclusions in that regard in deciding whether you have been guilty of serious professional misconduct. "
"The court (the Outer House) was not considering the question whether the appellant had made dishonest misrepresentations in his application. The Tribunal's decision (i.e. the Council of the Royal College of Surgeons of Edinburgh) had not involved consideration of that issue. This court is concerned with the GMC proceedings where that issue was resolved."
The merits: the applicant's first ground of appeal
"The Learned Judge failed to give sufficient consideration and due weight to the fact that the Respondent's Professional Conduct Committee misdirected themselves as to whether the Appellant had undertaken a course of training sufficient to entitle him to be accredited with the Certificate of Higher Surgical Training: such that their findings were based upon a misunderstanding of an important factual issue and/or they took into account an irrelevant factor."
"(1.1) the PCC and the learned judge fell into an important error of fact when they erroneously found that the appellant was not entitled to be accredited;
(1.2) that error of fact led them into an error of law by concluding that errors contained within the documents submitted by the appellant were relied upon and so material errors so that the same amount to misrepresentations when they were not;
(1.3) that error of fact also led them into an error of law when they concluded that some of the "misrepresentations" were dishonest rather than innocent because that finding;
(a) was based upon a misunderstanding of an important factual issue in that they thought he obtained accreditation as a result of those misrepresentations when he was not entitled to the same, in other words his motivation was dishonest because he got something he was not entitled to (when he was), and or;
(b) they took into account an irrelevant factor, namely that the appellant was not entitled to be accredited. It being irrelevant because it was wrong and the appellant was entitled to be accredited".
"(i) that any misrepresentations did not influence the SAC in their decision to grant the Appellant accreditation; and
(ii) that the PCC wrongly concluded that the Appellant was not accredited upon the basis of the "concession" and he was, therefore, not entitled to accreditation. This misunderstanding of an important factual issue, in believing the Appellant received a pecuniary advantage he was not entitled to, tainted the PCC's finding that the Appellant made dishonest misrepresentations rather than innocent misrepresentations."
"The submitted record card contained the following misrepresentations: -
(a) That starting in January 1986 for a period of 18 months, you were a research fellow / senior registrar at Queen Alexandra Hospital,
(b) That starting in August 1987 for a period of five months, you held the post of senior registrar at the Queen Alexandra Hospital, Portsmouth, and St. Mary's Hospital, Portsmouth,
(c) That starting in January 1988 for a period of five months, you held the post of senior registrar at St. Helier Hospital, London,
(d) Between May 1988 and May 1990 you held the position of senior registrar at the Royal Marsden Hospital, London, implying that it was a substantive post."
"The regulations further state that a remaining year can be spent in a post approved at registrar level provided it is held in a post fellowship period. This I believe can be applied to the position of surgical registrar of St Thomas's rotation which I held for two years. I was also a senior surgical registrar at Royal Marsden Hospital for a further two years. (Emphasis supplied)."
"Locum Senior Registrar, St Helier Hospital, London, January 1988-May 1988.
Senior Registrar, The Royal Marsden Hospital, Fulham Road, London, May 1988 –May 1990. It was during these two years that my interest and experience in early detection of breast cancer was gained. We ran an early diagnostic unit. It was during this time that I learnt the techniques of the immediate and delayed breast construction. The other aspect of surgical oncology involved colorectal disease. As you are aware, the Royal Marsden was a tertiary referral centre."
"Thank you for your letter of 4 June and for sending me your CV.
I must make it clear that time spent as a Consultant cannot be counted towards accreditation. A Consultant would not be regarded by this Joint Committee as equivalent to a trainee for this purpose. You would therefore have to rely on your time in the training grades of Registrar and Senior Registrar.
I shall therefore ask the Chairman of the (SAC) in General Surgery if your application could in principle be considered on that basis.
However, I must add that Accreditation is not only a matter of completing so many years of training. It has always been the rule that the training must have been completed to the satisfaction of the Consultants with whom the trainee has worked. This means that the SAC would be obliged to seek reports from those with whom you worked as a Senior Registrar. The SAC would also wish to be assured that your post at the Royal Marsden Hospital was a recognised and substantive Senior Registrar post obtained after advertisement and in open competition.
I shall be in touch with you again when I have heard from my Chairman."
(Emphasis supplied in both cases)
"He did not apply for enrolment when he was a Senior Registrar at the Royal Marsden Hospital. I would be glad of your advice on whether or not I should now invite him to apply for Accreditation if he can confirm that his time there was in a recognised post." (Emphasis supplied)
"Wilfred, yes, please check the facts. He has two years post fellowship career Registrar. Two years Senior Registrar (if it was a substantive post). Therefore he needs another year. Is the locum SR on the same Rotation @ Marsden or St Helier? Did the breast research post include clinical work and could count as half clinical. When all details available I will make a decision with the help of another SAC member".
"In my letter of 14 June, I mentioned that I would be seeking advice from the Chairman of the SAC regarding your request for Accreditation. He confirms that the crucial issue will be the standing of the Senior Registrar post you held at the Royal Marsden Hospital . He also points out, as indicated in my letter of 26 November 1992 that three of the four years of higher training need to be at Senior Registrar level.
If therefore your two years at the Royal Marsden Hospital were in a substantive post, the question will be how to find a third acceptable Senior Registrar year. The Chairman has suggested that your five months as a locum Senior Registrar at St Helier hospital could be counted if the post you held as a locum formed part of a rotation with the Royal Marsden Hospital It would also be helpful if you could let me know how much, if any, of your time as a Research Fellow (January 1986 – January 1988 was spent in clinical work.
We therefore need to establish the facts before deciding whether or not we can take the matter further.
I look forward to hearing from you again soon."
"During my research period at Portsmouth I spent a proportion of my time in clinical work.. This consisted of ward rounds with the consultant as well as a regular breast clinic. The then "soft money" for this position ran out at eighteen months and for the remaining six months while writing my thesis I filled in as a locum senior registrar (part of the St Thomas's rotation) both in the Queen Alexandra and St. Mary's Hospital, Portsmouth. I would also point out that during the research position I also filled in for holidays and study leave for the senior registrar which I believe counts for a further two months in all. It is not unusual for research fellows to occupy senior registrar locums. Following my research I moved on as locum senior registrar at St Helier's Hospital for five months which is also part of the St Thomas's surgical rotation and then on to the Royal Marsden for a further two years.
The basis for the scheme of Higher Surgical Training is the evolution and recognition of higher training programmes lasting from three to four years in each of the major surgical specialities after the pre fellowship period with the object of accrediting the completion of surgical training in the speciality for those who will normally be seeking consultant appointments. My post fellowship training has been
1. two years St Thomas's surgical rotation
2. eighteen months research fellowship plus six months senior registrar locums
3. five months senior registrar locum St Helier Hospital (St Thomas's rotation)
4. two years senior registrar at the Royal Marsden."
"I feel that my years in post fellowship training October 1983 to May 1990 should be sufficient along with the three years spent as a consultant surgeon at a university teaching hospital should satisfy the committee. Bearing in mind that the J Pack committee considered me as suitable for a consultant position."
"I enclose a copy of the latest letter …. from Mr. Phipps. You will have copies of the previous correspondence. He has no more than two years as a substantive Senior Registrar but was appointed to that post in May 1988, having obtained his FRCS in 1983. It may be possible therefore for him to qualify for the concession that would allow him two years of retrospective training.
If you think his case is strong enough, I shall ask him to complete the usual Record Card and seek reports from the Consultants with whom he worked at the Royal Marsden Hospital."
"Page 4 of the card should be completed and signed by the Consultants with whom you worked during your time as a Senior Registrar at the Royal Marsden Hospital. To save time I could arrange that from this end, but for this to happen I must ask you to let me have the names of the consultants concerned."
(1) Mr. Phipps knew from the correspondence that a locum Senior Registrar's post was not a substantive post, and that the qualification which was required for accreditation was a substantive Senior Registrar's post;
(2) the post occupied by Mr. Phipps at the Royal Marsden was not a substantive post;
(3) the Royal Marsden Senior Registrar numbered post was held by one Mr. Montogmery, who was on secondment to another hospital and that Mr. Phipps was in post as locum in his absence having replaced a previous locum and in response to an advertisement for a locum;
(4) It was obvious that there can be but one incumbent of an SAC approved numbered post, and Mr. Phipps could not have thought otherwise;
(5) Mr. Phipps' statement to the court that:-
"In consequence of being awarded a J PAC number my post as a Senior Registrar at the Royal Marsden was converted to a permanent position,"
was a deliberate piece of obfuscation.
"The appellant has from the outset of these proceedings attempted to counter and qualify clear facts stated by him in the record card by mounting a series of arguments to the effect that, despite clear inaccuracies and misstatements on the card, he had nevertheless completed training which met criteria for accreditation laid down by the JCHST. He has demonstrated a high degree of ingenuity and mental agility in shifting the argument to meet the various responses to which his arguments have given rise but, in reality, the statements on the record card are there and speak for themselves. He did not refer to the locum status of his post at the Royal Marsden. He did not refer to the locum status of his posts at the Queen Alexandra and St Helier Hospitals. He misstated the periods in which he had acted as locum senior registrar at each of these hospitals. There is overwhelming evidence to support the conclusion that he knew they were locum posts. Had he wished to claim, at the time, as he had subsequently, that, although locum, they were not to be regarded as such or that, retrospectively, any one of them was made "substantive" it is clear that he spectacularly failed go state that on the record card or in any document qualifying the statements in the card. The essence of the disciplinary case is that his professional duty required candour and full disclosure and in my judgment as the PCC found, he plainly failed to exercise any, even on his own case."
The second ground of appeal: the alleged failure on the part of the PCC to give reasons
(1) The issue in this appeal
"The Learned Judge failed to give any, or sufficient weight to the fact that the PCC did not give any, or sufficient, reasons for their decisions and the extent to which that would prejudice the Appellant in his appeal and make the same impractical."
"….. in the context of the earlier correspondence, you clearly implied that it was a substantive post. You did not, and could not have, filled this post substantively because the numbered post was still held by another doctor. Whilst you had a CR number, this did not entitle you to fill the post substantively and you were not appointed by open competition, following advertisement and interview by a properly constituted committee. Furthermore, the training being given to you was not part of a recognised and supervised programme. We do not accept that any change of contract altered this position, but even if this were the case the duration of the period at the Royal Marsden Hospital after such alteration would have been less than two years."
"You stated that you had obtained accreditation for higher surgical training, and the career history as presented was consistent with that statement. However, you were not entitled to accreditation because this had been granted on the basis of wrong information supplied by you. You would not have obtained accreditation if the relevant bodies had known that the information you had supplied was wrong. Some of this information you supplied dishonestly. You must have known of its falsity and must therefore have realised that you had obtained accreditation to which you were not entitled. As to your period at the Royal Marsden, you ought to have ascertained your correct status."
(2) The judge's reference to Gupta v GMC
"99. There is no obligation on the PCC to give reasons for finding the facts in the charges proved (Gupta v GMC  1 WLR 1691 paras 10-14). The narrative form of the charges and the notice to the practitioner informs him or her of the facts in issue in connection with the chargers. But whilst the general rule is well established, this case demonstrates that a lack of specificity in the charges and consequently in the reasons can give rise to difficulty, in particular, in this court on appeal. The court has had to travel through the nine lever arch files to see whether unfairness had occurred."
(3) An analysis of Gupta v GMC
"In arguing that the committee's decision was bad for want of reasons, Ms Booth QC readily acknowledged that she was asking the Board to break new ground – or, as she put it, to take the next incremental step in a developing field."
"The position as to the duty of the Professional Conduct Committee to give reasons, as presently understood, is to be found in Selvanathan v General Medical Council. In that case the amended allegation against the practitioner was to the effect that he had knowingly given a false and misleading response to an inquiry by his local health authority in relation to a complaint by a patient. The evidence against the practitioner was all agreed and the committee's decision depended on the inferences drawn from that evidence and from the oral evidence given by the practitioner. After considering the evidence, the committee decided that particular heads of the charge had been proved. The committee gave no reasons for its decision. The practitioner appealed to this Board on the basis that the committee should have given its reasons for finding against the practitioner on the charge that he had known that his response to the health authority had been false and misleading. Giving the decision of the Board, Lord Hope of Craighead first drew attention to the nature and composition of the committee, comprising medical practitioners and lay members, acting with the legal advice of their assessor. The rules required the committee, as a committee, to reach a view on the matters for its determination and there was no provision for expressions of dissent. In these circumstances, said Lord Hope at p 7-
it is not to be expected of the committee that they should give detailed reasons for their findings of fact. A general explanation of the basis for their determination on the questions of serious professional misconduct and of penalty will be sufficient in most cases. In the present case the complaint is that reasons should have been given to explain the basis upon which the committee found against the appellant on the questions of fact raised by head 2(b). It was plain, however, from the outset that their decision on this point was going to depend upon inferences which it was open to them to make from agreed facts and on the committee's assessment of the appellant's credibility. The issue was a relatively simple one, and all the appellant needed to know in order to decide what to do next was the decision which the committee had reached upon it. There are no grounds for thinking that the appellant has suffered any prejudice due to the absence of reasons directed specifically to this finding. In these circumstances their Lordships do not consider that it was necessary for reasons for this part of the committee's decision to be given.
In that passage their Lordships affirmed the existence of a duty to give a general explanation for the committee's decisions on questions of serious professional misconduct and of penalty. By contrast, they rejected the existence of any such duty to give reasons for the committee's decision on the matters of fact in that case."
"To go further and to insist that in virtually all cases raising issues of credibility and reliability the committee should formally indicate which witnesses it accepted and which it rejected would be to require it to perform an essentially sterile exercise. "
"….. there is no general duty on the committee to give reasons for its decisions on matters of fact and, more particularly, that there is no duty to do so in a case like the present where, as the appellant's solicitor was at pains to emphasise to the committee, its decision depended essentially on resolving questions of the credibility of the witnesses led before it. The committee's decision on the individual heads of the charge, when considered in the light of the transcript of the evidence, reveals sufficiently clearly the reasons for its decision. Nothing more was required in this case. It so happens, however, that a further indication of the committee's reasons could be found in its indication to the appellant in person that it had found her evidence to be untruthful in many respects. That made the position even clearer."
"14. Their Lordships would add this. They have rejected the submission that there is a general duty to give reasons in cases where the essential issue is one of the credibility or reliability of the evidence in the case. Nonetheless, while bearing in mind the potential pitfalls highlighted by Lord Mustill, the committee can always give reasons, if it considers it appropriate to do so in a particular case. Their Lordships would go further: there may indeed be cases where the principle of fairness may require the committee to give reasons for their decision even on matters of fact. Nothing in Selvanathan is inconsistent with that approach, while the general reasoning in Wallace supports it. It is also in line with the observations of Lord Steyn giving the judgment of the Board in Rey v Government of Switzerland  1 AC 54,  3 WLR 1. That case concerned extradition proceedings in the Bahamas in which the magistrate had not given reasons for her decision on certain disputed matters of fact. The Board was not prepared to hold that there is a general implied duty on magistrates to give reasons in respect of all disputed issues of fact and law in extradition proceedings. Lord Steyn continued, however ( 1 AC 54 at 66,  3 WLR 1 at 10):
But their Lordships must enter a cautionary note: it is unnecessary in the present case to consider whether in the great diversity of cases which come before magistrates in extradition proceedings the principle of fairness may in particular circumstances require a magistrate to give reasons.
In the present case Mr Shaw, who appeared for the respondent council, accepted that in certain circumstances – which he said would be exceptional – there could indeed be a duty on the committee to give reasons for its decision on matters of fact. He gave examples of situations in which, he believed, such a duty might arise. He urged the Board to provide guidance to the committee on this matter. Their Lordships are satisfied that no duty to give reasons arose in this case. That being so, they prefer to leave the questions of the existence of any such exceptional duty to give reasons, and of its scope, to be determined in a case where the point is live."
(4) Discussion: the impact of English v Emery Reimbold
" We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost."
" As to the adequacy of reasons, as has been said many times, this depends on the nature of the case (see, for example, Flannery's case  1 All ER 373 at 378,  1 WLR 377 at 382). In Eagil Trust Co Ltd v Pigott-Brown  3 All ER 119 at 122, Griffiths LJ stated that there was no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case:
When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. It is sufficient if what he says shows the parties, and if need be, the Court of Appeal the basis on which he has acted … (see Sachs LJ in Knight v Clifton  2 AER 378 at 392–393,  Ch 700 at 721
In our judgment, the observations of Griffiths LJ apply to judgments of all descriptions."
" It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."
"Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law ... I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given."
The appellant's third ground: the absence of a fair trial
"The Learned Judge in the consideration as to whether the Appellant had received a fair trial gave too much weight to the exceptional circumstances in the case of Morris and Steel v The United Kingdom  All ER (D) 207 (Feb) and failed to consider the principles already established by the ECHR."
To this, by amendment, Mr. Pennock added: -
"The learned judge fell into an error of law when, having distinguished the case of Morris and Steel v The United Kingdom he failed to adequately consider the principles of the ECHR already established by the case of P, C and S v The United Kingdom, 16th July 2002, Application No 56547/00."
The fourth ground of appeal: the judge's alleged failure to give reasons
"The Appellant repeats his submissions in relation to ground 2 above and, although the Learned Judge saw fit to give guidance to the Respondent with regards to the reasons they ought to have given in their determination he did not give any, or adequate, reasons as to why the same should not result in the upholding of the appeal or the remittal of the matter back to the PCC for additional reasons. "
The application to amend the appellant's notice
"(1) Heads 1 to 4 of the charge of serious professional misconduct against the Appellant were not referred to the Professional Conduct Committee of the Respondent in accordance with the Statutory Procedure set down by the "General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Counsel 1988 ("the Procedure Rules"), so that the Professional Conduct Committees determination upon heads of charge 1 to 4 were outwith of their powers.
(2) That the professional conduct committee erred in Law in failing to uphold the Appellants submission relating to the "antiquity of the charges" in relation to the 1993 matters and by failing to consider Rule 6(7) of the Procedure Rules."
"Subject to paragraph (8), an allegation of misconduct in a case relating to conduct may not be referred to the Preliminary Proceedings Committee (PPC) under this rule if, at the time when the complaint was first made to the Council, more than five years had elapsed since the events giving rise to that allegation."
Lady Justice Arden
Sir Mark Potter P