ON APPEAL FROM QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE GILBART QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE TOMLINSON
| General Medical Council
|- and -
R ( Zia )
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Lord Justice Jackson:
Part 2 The Facts,
Part 3 The Present Proceedings,
Part 4 The Appeal to the CourtáofáAppeal.This is an appeal by the General Medical Council against an order of the HigháCourt quashing a direction made by the Fitness to Practise Panel of the General MedicaláCouncil. The respondent to this appeal is DráSaidáAhmedáZia.
"The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public"
"(1) This section applies where an allegation is made to the General Council against -
(a) a fully registered person; or
(b) a person who is provisionally registered,
that his fitness to practise is impaired.
(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of -
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.
(3)áThis section is not prevented from applying because the allegation is based on a matter alleged to have occurred Ś
(a) outside the United Kingdom, or
(b) at a time when the person was not registered;
(4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel.
(5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel -
(a) they shall give a direction to that effect to the Registrar;
(b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and
(c) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any).
(6) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, they may give a warning to the person who is the subject of the allegation regarding his future conduct or performance.
(7) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, but that no warning should be given under subsection (6) above -
(a) they shall give a direction to that effect to the Registrar; and
(b) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any).
(8) If the Investigation Committee are of the opinion that an Interim Orders Panel or a Fitness to Practise Panel should consider making an order for interim suspension or interim conditional registration under section 41A below in relation to the person who is the subject of the allegation -
(a) they shall give a direction to that effect to the Registrar;
(b) the Registrar shall refer the matter to an Interim Orders Panel or a Fitness to Practise Panel for the Panel to decide whether to make such an order; and
(c) the Registrar shall serve notification of the decision on the person who is the subject of the allegation and the person making the allegation (if any)."
"(1) Rules under paragraph 1 of Schedule 4 to this Act may make provision for -
(a) the Registrar; or
(b) any other officer of the General Council,
to exercise the functions of the Investigation Committee under section 35C above, whether generally or in relation to such classes of case as may be specified in the rules.
(2) Where, by virtue of subsection (1) above, rules provide for the Registrar to exercise the functions of the Investigation Committee under subsections (5), (7) and (8) of section 35C above, those subsections shall apply in relation to him as if paragraph (a) in each of them were omitted."
"(1) The Registrar may appoint -
(a) a panel of medical and lay performance assessors for the purposes of carrying out performance assessments in accordance with Schedule 1; and
(b) a panel of medical examiners for the purposes of carrying out health assessments in accordance with Schedule 2.
(2) The Registrar may appoint --
(a) a panel of specialist health advisers for the purposes of advising a FTP Panel in relation to medical issues regarding a practitioner's health which may arise at a hearing before the FTP Panel; and
(b) a panel of specialist performance advisers for the purposes of advising a FTP Panel in relation to medical issues regarding a practitioner's performance which may arise at a hearing before the FTP Panel."
"(1) An allegation shall initially be considered by the Registrar.
(2) Subject to paragraph (5) and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.
(3) Where -
(a) the Registrar considers that an allegation does not fall within section 35C(2) of the Act; or
(b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed, or
(c) the Registrar considers that an allegation should not proceed on grounds that it is vexatious,
he shall notify the practitioner and the maker of the allegation (if any) accordingly.
(4) The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of -
(a) whether or not the allegation falls within section 35C(2) of the Act;
(b) the practitioner's fitness to practise; or
(c) the matters outlined within paragraph (5) below.
(5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed."
"If, at any stage, the Registrar is of the opinion that an Interim Orders Panel should consider making an interim order in relation to a practitioner, he shall refer the allegation to an Interim Orders Panel accordingly."
"(1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner-
(a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired;
(b) providing him with copies of any documents received by the General Council in support of the allegation;
(c) inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and
(d) informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment.
(2) The Registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8.
(3) The Registrar may direct that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2.
(4) Where an assessment has been carried out in accordance with Schedule 1 or 2, the Registrar shall send a copy of the assessment report to the practitioner.
(5) Where an assessment has been carried out in accordance with Schedule 1, the Registrar shall send a copy of the assessment report to any person by whom the practitioner is employed to provide medical services or with whom he has an arrangement to do so.
(6) Where the Registrar receives information that-
(a) the practitioner has failed to submit to, or comply with, an assessment under Schedule 1 or 2; or
(b) having submitted to an assessment under Schedule 1, the practitioner has failed to comply with reasonable requirements imposed by the Assessment Team;
the Registrar may --
(i) refer the allegation for determination by a FTP Panel, and
(ii) in a case falling within sub-paragraph (b), refer the practitioner to a FTP Panel for the purposes of making a direction under paragraph 5A(3) of Schedule 4 to the Act."
"(1) An allegation referred by the Registrar under rule 4(2), 5(2), 12(6)(b) or 28(3)(c) shall be considered by the Case Examiners.
(2) Upon consideration of an allegation, the Case Examiners may unanimously decide-
(a) that the allegation should not proceed further;
(b) to issue a warning to the practitioner in accordance with rule 11(2);
(c) to refer the allegation to the Committee under rule 11(3) for determination under rule 11(6); or
(d) to refer the allegation for determination by a FTP Panel."
"For the purposes of sections 35A and 35B of the Act, the relevant date shall be the day on which the earliest of the following occurs-
(a) the decision of the Registrar to carry out investigations under rule 4(4)(a) and (b) or 7(2);
(b) the referral of an allegation to an Interim Orders Panel;
(c) the referral of an allegation for consideration by the Case Examiners under rule 8;
(d) the referral of an allegation to a FTP Panel; or
(e) the making of a direction that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2."
"The Assessment Team shall disclose to the practitioner any written information or opinion received by the Assessment Team which in their opinion may influence their assessment of the standard of his professional performance, and shall afford him a reasonable opportunity to respond."
From the 4áMarch to 23áMayá2008 DráZia was employed by the Cardiff and ValeáNHSáTrust ("the Trust") as a locum paediatric registrar. On 23áMayá2008 the Trust decided to suspend DráZia. However, he resigned on the same day. By letter dated 17 Juneá2008 the Trust made an allegation to the GMC about the low standard of DráZia's clinical performance, specifically as regards three children, referred to as child A, child B and child C. The Trust also expressed concern that whilst employed by the Trust DráZia failed to recognize and act within the limits of his competence. The letter also expressed the Trust's extreme concerns about patient safety and expressed the view that a GMC review of DráZia's performance was required, enclosing supporting documents.
1) The 2004 Rules constitute a code which contains important safeguards for a doctor against whom allegations are made.
2) One of the safeguards is that the doctor has the right to have his case considered at two stages before it proceeds to the Investigation Committee or the panel. The first stage is consideration by the Registrar. The second stage is consideration by two case examiners, one medical and one lay.
3) It is necessary to adopt a purposive construction of rule 7. In particular, the provisions of rule 7 cannot be used to bypass the second stage of consideration, namely consideration by case examiners.
4) The Registrar's powers under rule 7(3) can only be used to provide information to assist the case examiners in their consideration of the matter under Ruleá8.
5) In this case contrary to ruleá4(2) the Registrar failed to refer the allegation to case examiners. Furthermore, the Registrar used rules 7(3) and 7(6) in an impermissible manner, whereby he referred the Trust's allegations to the panel without any intervening examination by case examiners.
6) The contention that DráZia's only remedy was a judicial review challenge at an early stage was rejected.
By a notice of appeal issued on 14áDecemberá2010 the GMC appeals against the judge's decision on two grounds. First, it is said that the judge erred in his construction of the 2004 Rules. Secondly and alternatively, it is said that DráZia's only remedy was a judicial review challenge before the start of the hearing before the panel.
Lord Justice Tomlinson:
Sir Anthony May:
Order: Appeal allowed