England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON MR JUSTICE BLAKE
CO/11559/07, [2009] EWHC 1155 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/05/2010

Lord Justice Leveson :

1. In the judgment of the court handed down on 20 April 2010, 2010] EWCA Civ 407 , written submissions were invited from the parties as to the appropriate order in relation to the charges relating to Mrs M. Sequentially, both sides have submitted two sets of submissions.

The Appropriate Orders

2. For the GMC, Ms Carrs-Frisk argued that Mrs M's complaint should be remitted to the panel for amplification of reasons. Given that the court rejected the complaint that the findings of the panel were perverse, the approach in cases such as Barke v Seetec Business Technology Centre Ltd [2005] EWCA Civ 578 and Adami v The Ethical Standards Officer of the Standards Board for England [2005] EWCA Civ 1754, while leaving open the option of quashing the decision, approved the practice of remitting to the same tribunal for it to reconsider the matter and reformulate and adequately express its reasons for decision. She argues that paragraphs 60 and 61 of the judgment merely raise a question mark about impermissible influence and that the panel should have the opportunity of dealing with that issue.
3. Ms O'Rourke, for Dr Southall, besides challenging the mechanism whereby such an outcome might be achieved, submitted that the mind of the panel had been set by reference to issues which did not fall within the charge as formulated and that there would be a real risk that it would tailor its answers to meet the concerns expressed in the judgment, rather than reconsider the matter in an open and fair way. Indeed, the questions posed by Ms Carss-Frisk postulate merely the provision of further and better reasons without raising the possibility that the facts may have been approached on an impermissible basis.
4. I have no doubt that, in an appropriate case, this court has the jurisdiction to remit a decision to a panel for further reasons but I am equally clear that, in the circumstances of this case, it would not be right to do so. Given the issues between the parties, the process of reaching a decision – the reasoning – is itself important and although I recognise that there was material upon which the panel could reach the decision that it did, that is not the same as saying that, if approached from the correct analytical position, it would necessarily have done so.
5. This proposition can be illustrated by reference to one of the questions postulated by the GMC that the panel might address. It is:

"Bearing in mind the comments made in paragraphs 60 and 61 of the judgment, to what extent, if any, were you influenced, when reaching your determination of the facts by (i) your extreme concern that Dr Southall formed the belief that the circumstances of M1's death needed to be investigated by him; or (ii) the submission made to you by the GMC that Dr Southall and Ms Salem both had a 'mindset' which concentrated on the risk of harm to M1 at the hands of Mrs M before, during and immediately after the 27 April 1998 interview?"

For my part, I find it very difficult to see how that question can be answered satisfactorily. The fact is that when dealing with sanction, the panel expressed extreme concern that Dr Southall had undertaken this exercise: without expert evidence, they accepted submissions to that effect. If the panel answers "not at all", on what basis does it appear in the sanction remarks? If they answer (as I say it is not fanciful to suggest) that his concern made it more likely that he would ask the direct question (as opposed to asking questions that created that perception), the reasoning is not based on evidence and flawed.

6. As an alternative submission, the GMC submit that the complaints made by Mrs M should be re-heard if the public interest in the regulation of the medical profession is to be served. It is said that the case is of profound importance to Mrs M and Dr Southall and has attracted the close attention of the profession. Ms Carss-Frisk also submits that it could be re-heard by the same panel. Ms O'Rourke argued that 'enough is enough': 12 years have passed, it would be difficult to find a panel that had not been affected by subsequent events and Dr Southall was both subject to a wrongful suspension for 5 months (which led to his resignation from NHS employment) and, for over 11 months since the decision of Blake J, has been erased from the register.
7. I recognise that there is serious public concern about the investigation of issues surrounding alleged child abuse but underline that, at the hearing, Ms Carss-Frisk made the point that the issue raised by prominent paediatricians (and others) did not arise because the case turned upon a straightforward issue of fact i.e. whether Dr Southall had expressly accused Mrs M of drugging and then murdering M1 by hanging him, it not being suggested that if Dr Southall had done so, he was not guilty of serious professional misconduct. In the light of the way in which the charges had been formulated, the wider issues did not arise and the panel did not have to grapple with the question how far it is appropriate for a consultant paediatrician to go when investigating these issues or, to put the question more bluntly, whether it is appropriate to question in such a way as raises the perception that the interviewee is being accused of murder and, if so, what material should be available to the paediatrician before he does so.
8. I am far from convinced that the public interest is truly served by a rehearing of the limited factual allegation that was made in this case, turning on the precise language used 12 years ago. Having said that, however, protection of the public interest is primarily for the GMC and I do not consider it appropriate to remove the responsibility for making this decision from them. I would quash the findings of the panel in relation to Mrs M (including the sanction) and remit the matter for the GMC to determine whether or not, in the light of all the circumstances and these observations, it is appropriate to pursue the complaint of Mrs M to a fresh panel. If there is to be a re-hearing, I do not accept that it would be right for it to be conducted before the same panel; fresh minds should be brought to the issues in the case.
9. As for the Dinwiddie and SC files, I reject Ms O'Rourke's submission that the sanction hearing should necessarily be before a different panel or that the minds of the original panel will be 'closed' because of the allegations concerning Mrs M; I have no doubt that the panel is sufficiently professional to be able to focus only on the issues that fall to be sentenced and I reject the concern of appearance of bias. Further, although Ms Carss-Frisk argues that if the complaint by Mrs M is to be remitted to the same or another panel, the appropriate course would be for further consideration of these complaints to await the final outcome of Mrs M's complaint, for my part, I do not understand why that course is necessary. The complaints are distinct and were linked with the Mrs M complaints only because it was convenient that they be heard together. Dr Southall is entitled to finality on these charges and I would remit them to the original panel for a sanction hearing.

Permission to Appeal

10. Ms Carss-Frisk seeks permission to appeal to the Supreme Court and suggests that this case raises an important principle as to the duty to give reasons; although the function of hearing cases such as this will be transferred to the Office of Health Professions Adjudicator, it is argued that it would be of value for the common law principles to be authoritatively settled. For my part, however, this case did no more than identify an exceptional circumstance where the principle of fairness requires reasons to be given "even on matters of fact": see Gupta v General Medical Council [2002] 1 WLR 1691 at [14]. I would refuse permission to appeal.

Costs

11. It is unnecessary to outline the various contentions of the parties. To reflect the substantial (but not total) success of Dr Southall in this court, I would order the GMC to pay 60% of his costs. As for the costs in the Administrative Court, which concerned challenges to each of the decisions of the panel (in relation to the Dinwiddie and SC files not being repeated to this court), I would reduce the order made by Blake J so that Dr Southall pays 75% of the costs of the GMC. In each case, the costs are to be agreed or assessed on the standard basis.
12. The parties should agree and lodge a minute of order.

Sir John Dyson SCJ :

13. I agree.

Lord Justice Waller :

14. I also agree.