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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Woods v General Medical Council [2002] EWHC 1484 (Admin) (18 July 2002)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1484.html
Cite as: [2002] EWHC 1484 (Admin)
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Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
| CHRISTINE WOODS | ||
| - and - | ||
| THE GENERAL MEDICAL COUNCIL |
____________________
Miss Dinah Rose (instructed by Field Fisher Waterhouse) for the Defendant
Hearing dates : 17 and 18 June 2002
____________________
Crown Copyright ©
- The Claimant, Christine Woods, is the mother of a baby boy, who was born on 30 September 1989 and died the following day. His body was transferred to Alder Hey Children’s Hospital on 4 October 1989. A post mortem was performed on 9 October 1989. Ten years later the Claimant was informed, as many other parents similarly learned, that a number of her baby’s organs had been removed and retained without her consent. In this application she has been represented by Richard Gordon QC and Scott Donovan.
- On 3 December 1999 Lord Hunt, the Parliamentary Under-Secretary of State for Health, established an independent and confidential inquiry under s2 of the National Health Service Act 1977, to investigate the removal, retention and disposal of human organs and tissues following post mortem examinations at the Alder Hey Hospital, operated by the Royal Liverpool Children’s NHS Trust.
- The terms of reference of the inquiry, which was chaired by Michael Redfern QC, included the following:
- To inquire into the circumstances leading to the removal, retention and disposal of human tissue, including organs of the body, from children at [Alder Hey] who have undergone post mortem.
- To inquire into the extent to which the Human Tissue Act 1961 has been complied with.
- To examine professional practice and management action and systems, including what information, and in what form, was given to the children’s parents, or, where relevant, other family members, in respect of the removal, retention and disposal of tissue.
- To examine the role of the NHS and other persons or bodies involved.
- The Report was published on 30 January 2001. A copy of it was passed to the General Medical Council (“GMC”) on the day it was published, and it was reported at the time that Professor Sir Liam Donaldson, the Government Chief Medical Officer, had referred it to the GMC for consideration of disciplinary proceedings against doctors named in the Report. In any event, the GMC proceeded to consider whether the Report raised any issues of serious professional misconduct about doctors registered with the GMC which required further investigation by the GMC. Specifically the position of thirteen doctors was considered.
- The provisions of the GMC for considering issues of serious professional misconduct is laid down both by statute and in rules which are the subject of an Order in Council. They have been the subject of recent judicial consideration in the Administrative Court by Lightman J in R v GMC ex parte Toth [2000] 1 WLR 2209, by Sullivan J in R (on the application of Richards) v GMC (CO/2430/2000 18 December 2000 unreported) and by Ouseley J in R (on the application of Holmes and Others) v GMC (CO/3933/2000 27 April 2001 unreported). In all those three cases the rules under consideration are not in precisely the same form as they are now since an amendment effective August 2000, and that, as will be seen, has some significance.
- As will be clear when I set out the Rules as they now stand, there are three ‘filtering’ mechanisms before a charge of serious professional misconduct is considered by the GMC’s Professional Conduct Committee (“PCC”).
- Toth was addressed to the position of the screeners (although Lightman J dealt obiter with the position of the PCC); Richards and Holmes addressed the position of both screeners and PPC.
- I shall set out the material parts of the relevant provisions. Most such matters are brought to the attention of the GMC by virtue of complaints from individuals, but there is provision for matters to be referred, as they were in this case, by a “person acting in a public capacity” (see Rule 6(2)). The relevant rules are the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 as amended (“the Rules”). I deal with each of the three filtering mechanisms:
- The principles which underline these provisions have been explained (by reference to the pre-August 2000 Rules) in the three cases to which I have referred and can be summarised as follows:
- Before I turn to further consideration of the role and function of the screeners and the PPC, I must deal with submissions by Mr Gordon QC, which formed a considerable part of his written submissions, although they received substantially less emphasis in his oral submissions, that there was a “heightened” requirement or obligation upon the GMC and/or the Court in this case, for the following reasons:
- I am not in the event persuaded that any of this adds anything to the obligations, approaches and procedures laid down by the Rules themselves, as interpreted and analysed in the cases to which I have referred:
- What occurred is that of the thirteen doctors considered by the GMC two, including Professor van Velzen, the main target of the Report’s criticism and condemnation, were referred to the PCC. Of the remaining eleven:
- The solicitors acting for the Claimant sought explanation, and a letter was sent by the GMC, undated but received on or about 16 August 2001. This letter (“the 16th August letter”) gave the information as to those who were referred to the PCC, but, without any detail, simply announced the conclusion that “the Report did not raise issues of serious professional [mis]conduct about the other doctors named in the Report”. Further detail was given in the GMC’s letter dated 11 October 2001 and its enclosures. The Claimant has brought proceedings by way of judicial review against the GMC, for whom Miss Rose has appeared, challenging the decisions of the GMC in respect of the screeners as to the two, and in respect of the PPC as to the nine. In the evidence before me I have been able to consider:
- I turn to the two processes:
- Mr Gordon QC’s primary submissions are that the GMC, by its screeners and/or the PPC, did not apply the right test and/or was Wednesbury (or, by virtue of his “heightened requirement” super-Wednesbury) unreasonable. But he makes certain other specific criticisms, countered by Miss Rose, with which I should deal:
- In the course of the hearing, and by written confirmation thereafter, Mr Gordon QC abandoned his case in respect of four of the doctors, Dr Cudmore, Professor Carty, Dr McDowell and Dr Howard. There therefore remain for consideration the following cases:
- The position must then be considered separately in respect of each of the doctors. I am satisfied that in so doing the following must be borne in mind:
- Miss Rose relies on the opinion of the Privy Council as delivered by Lord Clyde in Roylance v GMC (No 2) [2000] 1 AC 311, at 330H: “the [PCC] is well placed in the light of their own experience, whether lay or professional, to decide where precisely the line falls to be drawn in the circumstances of particular cases, and their skill and knowledge requires to be respected”. Sullivan J at para 59 of Richards said (and I agree) that “in proceedings for judicial review the court will always have regard to the expertise of the tribunal in question. This applies with particular force to decisions of the PPC which has both a medical and a lay membership”. Although the ultimate consideration of the conduct by the PCC, if it had occurred, would obviously have been a fuller one, the consideration, and the judgment, even at what might be called the interlocutory or “strike-out” stage, must be that of the doctors’ own professional body.
- I turn then to consider the application for judicial review of the individual decisions, and deal first with the “screening out” by the screeners of Dr Khine.
- Dr Khine, who was of Senior Registrar status, was described in the Report (at pp 196-7) as “Professor van Velzen’s clinical ‘dogsbody’” and as bearing “the brunt of the work” in respect of clinical sessions. The clinical practices of Professor van Velzen feature considerably in the Report. At pp 155 to 156, it is recorded that within a week of taking up his Chair he issued an instruction in the Unit that there was to be no disposal of human material: the store of material began to grow, involving whole organs. “Professor van Velzen removed every organ in every case and retained every organ in every case … This was the protocol that he laid down.” The Report at page 91 records Dr Khine as stating that “in Alder Hey if a child had died of congenital heart disease then it was expected that one would retain the heart and lungs … It would have taken a very brave person not to have sent those specimens through.”
- The Claimant in her detailed grounds, particularising the alleged irrationality of the screeners in respect of Dr Khine, summarises the case on the basis that “on her own evidence Dr Khine was engaged in the unethical retention of organs. This by itself is inconsistent with the screeners’ view that in her case there was no question of serious professional misconduct”.
- No charge was of course ever formulated against Dr Khine, because her case did not get past the screeners. It is not for me now to speculate how any charge might be formulated, nor certainly to second-guess a conclusion by the screeners or to substitute my own judgment, not only because this is judicial review, but also because the judgment, as I have already pointed out, must be that of the profession (in this case of an experienced medical screener with whom a lay screener agreed).
- The evidence as to the screening is as follows:
- What emerges from the above is that, after their discussions, both screeners were agreed that Dr Khine’s conduct did not raise a potential issue of serious professional misconduct, which is a sufficiently close paraphrase of the test set out in Rule 6(3)(a).
- There was therefore a disagreement between the screeners. There was nothing wrong or unusual about that, indeed it might well be expected if two independent-minded screeners are engaged on the same process; and it was resolved by them both agreeing – though on balance.
- There was, and is, of course, no Aide Memoire to inform the approach of the screeners. Dr Lewis explained the approach adopted, in the earlier paragraphs (13-15) of his witness statement:
- In the light of what I have set out from Dr Lewis’s evidence, I remain unconvinced by the submission of Miss Rose that the screeners applied the correct test:
- It seems to me clear therefore that the screeners were operating, and addressing their minds to, the old rules. Albeit a narrow test, they may be said to allow for an element of subjectivity or proportionality, as opposed to the more straightforward new test of, effectively, no arguable case. Given that I cannot be satisfied that the correct rules were followed, or the correct test applied, I also cannot be satisfied that, had the correct test been applied and/or the correct rules been adopted, Dr Lewis would necessarily have reached the same conclusion, certainly when the considered discussion between the two screeners resulted in an agreement on balance, albeit one which led them to be convinced that the proper outcome was not to refer the matter to the PPC. I cannot be satisfied that the same agreement or joint conclusion would have been reached.
- It may be that, on reconsideration, the GMC’s medical and lay screeners will, having applied the correct rule, decide that there is no arguable case against Dr Khine, or that no question of serious professional misconduct in her case arises. But I conclude, not on the ground of irrationality, but on grounds that I am not satisfied that the correct rule and test were applied or that, on the application of the ‘no difference’ rule, the same outcome would have resulted had the correct rule and test been adopted, the decision in relation to Dr Khine should be quashed, and I direct that her case be reconsidered by the screeners pursuant to Rule 6(3) to (6), as amended.
- I now deal with the doctors screened out by the PPC in respect of whom the Claimant’s challenge remains. I shall consider them in three groups: first Professors Harris, Lloyd and Cooke, successive Heads of the Department of Child Health: then Professor Orme, Dean of the Faculty of Medicine from August 1991 to July 1996 and Mr Roger Franks, a Consultant since 1989: and finally Dr David Davidson, a Consultant since 1976 and Medical Director since 1997.
- Professor Harris CBE was Professor of Child Health and Head of the Department of Child Health at the University of Liverpool between October 1974 and December 1989, and Dean of the Faculty of Medicine between September 1985 and 1988. There were two charges put before the PPC against him:
- Professor Lloyd has been since August 1988 Professor of Paediatric Surgery at the University of Liverpool with an honorary consultant post at Alder Hey, and was for a period in 1990 acting Head of the Institute of Child Health. One charge was put before the PPC, namely similar to the second charge laid against Professor Harris, a failure to implement a Code of Practice regarding the retention of foetal material in accordance with the Polkinghorne Report.
- Professor Cooke has been Professor of Neo-Natal Medicine at the University of Liverpool since 1988 and Head of the Department of Child Health since 1990. Although two charges were placed before the PPC, both of which were ‘screened out’, the Claimant only maintained a challenge in respect of one of them, being one to a similar intent as the second against Professor Harris and the only one against Professor Lloyd, namely a failure to implement a Code of Practice in accordance with the Polkinghorne Report.
- The Polkinghorne Report: The Inquiry Report referred to Polkinghorne, explaining that it was published in 1989 and subsequently accepted as proper practice by the Department of Health: its main recommendation was that explicit written consent of the mother should be required for foetal research. Mr Gordon QC referred primarily to two passages in the Inquiry Report in relation to these three doctors. The first is at pages 102-103, which records a query sent by a Dr Smith, after the introduction of the new Anatomy Regulations in 1988, to Professor Harris which was never followed through properly and which Professor Harris could not recall, and which Professor Cooke, the subsequent and present Head of Department assumed had been dealt with; and which further records the surprise of the present Dean at the failure of Professors Lloyd and Cooke to be aware of, and act upon, the Polkinghorne Report. The Report concluded that ‘the failure to comply with the Code of Practice established by the Polkinghorne Report emphasises the lack of proper management systems and accountability within the [Institute of Child Health] on the part of the University’. At pages 172-173 of the Inquiry Report further reference is made to the failure of the successive Heads of the Institute to act upon the Polkinghorne Report.
- The PPC: The relevant extract from the minutes of the PPC records in relation to each of the doctors as follows:
- The Claimant’s Detailed Grounds. As against each of the three doctors the Claimant makes a similar series of allegations, namely:
- The Approach of the PPC: This is explained by the two experienced chairmen, Mr Nicholls CBE and Dr Goss:
- It is, in my judgment, clear that in respect of these doctors the Claimant’s case also does not reach the threshold, for judicial review. Notwithstanding the written comments and critique of the Claimant’s advisers and the cogent submissions of Mr Gordon QC, I am entirely clear that there is no question that this decision was one which no reasonable PPC properly directed could arrive at. A body of the doctors’ profession, to whom the Report and its conclusions were referred for consideration of the position of the individual doctors, considered such individual positions very carefully, being entitled, provided it applied the correct tests and approaches, as I am satisfied it did, to exercise its own judgment, and it reached considered conclusions, without need to resort to Rule 13, for which it gave adequate reasons.
- Professor Orme was Dean of the Faculty of Medicine at the University of Liverpool between August 1991 and July 1996. The only charge laid before the PPC in respect of which Mr Gordon QC addressed any submissions was that Professor Orme was aware that Professor van Velzen was not fulfilling his clinical commitments and failed adequately to address the problem.
- Roger Franks has been Consultant Cardio-Thoracic Surgeon at Alder Hey since 1989. The charge against him alleged that following the death of a baby called Simone, he used the threat of a coroner’s post mortem to induce her mother to consent to a hospital post mortem being performed.
- The Inquiry Report: There were various references in the Report to the effect that Professor Orme knew or may have known that Professor van Velzen was not providing his six clinical sessions. As to Mr Franks, the relevant passage is at page 58 of the Report, in which Simone’s mother’s account is set out, coupled with Mr Franks’ denial that he would have made any reference to a coroner’s post mortem examination. The Inquiry preferred the mother’s recollection and concluded that the nature of the discussion was inappropriate.
- The PPC: The minutes read as follows:
- The Detailed Grounds. With regard to Professor Orme, similar general allegations were made against the PPC as are set out in paragraph 36 above. With regard to Mr Franks, in addition to making those general allegations, the Claimant made the complaint that the PPC reached its conclusion on a conflict of evidence without hearing any live evidence. While Mr Gordon QC pointed to what Lightman J said about this in Toth, Miss Rose pointed out the view of Sullivan J in Richards, approved by Ouseley J in Holmes, which I prefer, that there is no bar on resolving such a conflict at the ‘strike-out’ stage, if otherwise appropriate. In any event Miss Rose submits that, at the end of the day, this is not primarily a question of resolution of a conflict, but of a conclusion that there was inadequate evidence upon which to base a case for the PCC. Additionally in oral submissions Mr Gordon QC submitted, by reference to paragraph 3(5) of the Aide Memoire, that the PPC cannot have exercised the particular or utmost caution required to halt a complaint when the decision may be perceived as inconsistent with a decision made by another public body in relation to the same or substantially the same facts, by virtue of the preferred view of the Inquiry Report, referred to in paragraph 41 above.
- The Approach of the PPC. I have already set out the approach taken by Mr Nicholls and his panel in paragraph 37 above. So far as Professor Orme is concerned, Mr Nicholls recounts that, applying that approach, the PPC considered that “even if found proved, the allegations against Professor Orme that he had not been sufficiently interventionist, taking into account prevailing practice at the time, would not reach the threshold of serious professional misconduct”. So far as Mr Franks is concerned, there too, although, as appears from the minutes, by a majority, the Panel, applying the same approach, concluded that “there was no reasonable prospect of establishing serious professional misconduct”.
- For the same reasons as are set out in paragraph 38 above, I am satisfied that there is no ground here for judicial review. Whereas it is apparent that some might have disagreed with the result in relation to Mr Franks (as indeed did two of the Panel) I am entirely satisfied that this was a conclusion at which a reasonable panel was entitled to arrive, and that it did so after applying the correct tests and approaches. I have no reason to doubt that it exercised the particular caution, resulting from the decisions particularly in Toth and Richards, and enshrined in the Aide Memoire in particular at paragraphs 3(3), 3(4) and 3(5), and indeed, in relation to Mr Franks, 3(6), which I have recited in paragraph 14(ii) above. I dismiss the application in relation to these doctors.
- Dr Davidson has been a consultant paediatrician at Alder Hey since 1976 and Medical Director since 1997. He was also, in the 1990’s, Chairman of the Ethics Committee. A charge against him also was put before the PPC in respect of inadequate steps to alert clinicians or management to the Polkinghorne Report. However, although some comment was made on this in the detailed grounds, Mr Gordon QC did not address any particular oral submission in this regard, and, for similar reasons to those which I have addressed in respect of the three professors who were at various times Head of the Institute of Child Health, the PPC (recording that he ‘did not have primary responsibility for implementing a Code of Practice regarding consent’) concluded, and on the same basis, and I judge that they concluded reasonably in doing so, that there was no issue raised in his case of serious professional misconduct in this regard. The charge to which Mr Gordon QC addressed his submissions was that Dr Davidson was present at a meeting which sanctioned the issue on 6 October 1999 of a press release, when he knew or should have known that the contents of it could not be substantiated and/or failed adequately to check its accuracy. The press release stated:
- The Inquiry Report: At page 34 of the Report it is simply recorded that Dr Davidson was present at the meeting that sanctioned the press release: and that there is no evidence that he took instructions from the clinical directors as to the contents of the press release before it was issued: nor did he check the accuracy of the statement for himself.
- The PPC: “The PPC was concerned that Dr Davidson, as a Medical Director, appeared to have sanctioned a press release that may have been misleading, possibly without referring to relevant colleagues. However, from the material available, the PPC felt that there was little prospect of obtaining sufficient proof to support the charge that Dr Davidson deliberately intended to mislead the public.” This was explained further in the annexure to the 11th October letter as follows:
- Mr Nicholls expounds further in his witness statement, stating that this allegation did cause the PPC concern. The PPC concluded that there was no real prospect of obtaining sufficient evidence to support the charge either of deliberately misleading or of recklessness.
- The Detailed Grounds: The Claimants suggested that the PPC can only have reached its conclusion by itself resolving conflicts of evidence which it was not entitled to do. It was further submitted that Dr Davidson could be guilty of serious professional misconduct if he made a public statement which, self-evidently, he expected the public to rely upon, whilst being reckless as to its accuracy. In oral submissions Mr Gordon QC suggested that it could also be serious professional misconduct if he simply failed to check the accuracy of the press release, but in my judgment this goes too far, and indeed further than his own written submissions, and that in any event a panel of Dr Davidson’s peers was entitled to conclude that it was not arguable that the conduct could amount to serious professional misconduct unless it was at least reckless.
- The Approach of the PPC: Again this was a decision of the Panel chaired by Mr Nicholls, whose correct approach, by reference to the Aide Memoire and the statutory regulations and rules and decisions of the court, I have set out at paragraph 37 above. Mr Nicholls records how, having applied those tests, the PPC concluded that there was no reasonable prospect of establishing serious professional misconduct. He explains his position and that of the PPC which he chaired more fully in his general conclusions (particularly in paragraphs 18-19, which I recite):
- Like the PPC itself, I have felt concern about this particular case. However, after careful consideration, I conclude that for the same reasons as in relation to all the other doctors whose cases were considered by the PPC, there is no ground in law for my interfering with its reasoned conclusions.
- The application for permission was adjourned by Scott Baker J on 13 March 2002 to be heard in open court with the substantive application to follow if permission were granted. In the light of my judgment, I grant permission but I dismiss the application save in respect of the case of Dr Khine, which I direct should be reconsidered by the screeners.
Mr Justice Burton:
i) The first is what was described by Lightman J (Toth at para 11) as the “ministerial role” of the Registrar (Rule 6(1) set out below).
ii) The second involves the role of the screeners, one medical and one lay, pursuant to Rule 6(3) – 6(6) below.
iii) The third involves the role of the Preliminary Proceedings Committee (“PPC”), pursuant to s42 of the Medical Act 1983 (“the 1983 Act”) and Rules 11 – 16 below.
i) Registrar
ii)
Rule 6(1): Where a complaint in writing or information in writing is received by the Registrar and it appears to him that a question arises whether conduct of a practitioner constitutes serious professional misconduct the Registrar shall submit the matter to a medical screener.
iii)
iv)
v) Screeners
Rule 6(3): The medical screener shall refer to the [PPC] every case submitted to him under this Rule unless –
a) He decides that a question as to whether the practitioner’s conduct constitutes serious professional misconduct does not arise and a lay member appointed under Rule 4(5) agrees …
b)
Rule 6(4): Where the medical screener refers a case to the [PPC] under this rule he shall direct the Registrar to give written notice to the practitioner –
(a) notifying him of the receipt of a complaint or information and stating the matters which appear to raise a question as to whether the conduct of the practitioner constitutes serious professional misconduct …
(c) Inviting the practitioner to submit any explanation which he may have to offer.
Rule 6(6): In any case where the medical screener decides not to refer a case to the [PPC] the practitioner and the person from whom the complaint or information was received shall be informed but shall have no right of access to any document relating to the case submitted to the Council by any other person.
vi) PPC
vii)
Section 42 (of the Act): …
(2) It shall be the duty of the [PPC] to decide whether any case referred to them for consideration in which a practitioner is alleged to be liable to have his name erased … or his registration suspended or made subject to conditions … ought to be referred for inquiry by the [PCC] …
Rule 11(1): The [PPC] shall consider any case referred to them … and … determine
(a) that the case shall be referred to the [PCC] for inquiry, or …
that the case shall not be referred …
Rule 13(1): Before coming to a determination under Rule 11(1) the [PPC] may if they think fit cause to be made such further investigations, or obtain such advice or assistance from the Solicitor as they may consider requisite.
Rule 15: The [PPC] shall meet in private [contrast Rule 48 which provides that, with certain exceptions, all proceedings before the PCC shall be held in public]
Rule 16: Where the [PPC] has decided not to refer a case for inquiry no complainant, informant or practitioner shall have any right of access to any document relating to the case submitted to the Council by any other person, nor shall the Committee be required by a complainant, informant or practitioner to state reasons for their decision.
i) They constitute a fine balance between three competing desirables:
a) The protection of the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practice, and the maintenance of standards.
b) The maintenance of the reputation of, and public confidence in, the medical profession, and the legitimate expectation of the public, and of complainants in particular, that complaints of serious professional misconduct will be fully and fairly investigated.
c) The need for legitimate safeguards for the practitioner, who as a professional person may be considered particularly vulnerable to, and damaged by, unwarranted charges against him.
These are articulated in particular by Lightman J in paragraphs 10 and 14 of his judgment in Toth.
ii) The filtering exercise is especially required in pursuit of the last of these three principles. It is necessary in order to ensure, given the sensitive and high profile role of doctors and the ease of, and the understandable but often misguided resort to, making complaints against them, with all the time-consuming and damaging consequences for the doctor of such an investigation, that only those cases are taken forward in which there is a real prospect of the complaint succeeding. On the other hand, because of the importance of the other two principles, it is necessary for these filtering exercises not to be ratcheted to too high a level, and that caution should be exercised before filtering out a complaint, so that if there is doubt it must be resolved in favour of referring the matter on for investigation.
iii) When the rules were considered by Lightman J, there was no provision for the involvement of a complainant in the filtering process. A statement was made by the GMC to the court, which is incorporated in his judgment (para 15), whereby after 1 July 2000 any material submitted by the doctor to the screener, before the screener made his final decision, would be copied to the complainant, unless the screener considered there were exceptional circumstances (largely by reference to confidentiality) which ought properly to preclude this. Although it was originally argued by Mr Gordon QC, he did not in the event pursue the submission that something similar ought to have been carried out in this case, where there is no complainant. It is obviously inappropriate and impractical, where the reference is by, e.g., the Government Chief Medical Officer, for the GMC to supply, directly or indirectly, such information for comment to someone who may be said to be in the position of a complainant, though not a complainant, or who might be said to be an interested party, and Mr Gordon QC so accepted. It is rather now his submission, and Miss Rose on behalf of the GMC did not in the event vigorously dissent, that this very absence of opportunity for comment or reaction by an outside party, this “one-sidedness”, in the early stage of the process, requires the greater caution by the screeners and the PPC.
iv) Sullivan J added two caveats to the original analysis by Lightman J, which were approved also by Ouseley J, and are agreed between the parties before me:
a) Lightman J referred in his analysis to the need for the “utmost” caution (para 14(5)). However whereas it is accepted that both screeners and PPC in the course of the filtering process must act with caution, the need for greater or utmost caution is to be reserved for a situation, such as occurred in Richards, in which (para 58) “the PPC was disagreeing with conclusions of another body with medical expertise, that had been reached after a public hearing where oral evidence had been presented”.
b) Whereas Lightman J considered that, in relation to the PPC (and thus a fortiori the screeners) it is “not their role to resolve conflicts of evidence”, Sullivan J, with whom Ouseley J agreed, preferred to say (para 58) that the PPC “should not normally seek to resolve substantial conflicts of evidence: to do so would be to go beyond its screening role and to usurp the function of the PCC”.
i) The Alder Hey Inquiry was of high public profile and public interest: the practices that it had revealed required the fullest investigation, in the interest both of the public and of those parents whose children’s bodies had been so insulted: it was expected after the Inquiry that there would be a full and exhaustive follow up investigation in relation to individual doctors: the Hospital itself in its response to the Inquiry Report had agreed to “work in collaboration with professional bodies … to ensure matters are properly investigated” recognising “the need to rebuild public confidence”.
ii) Issues are said to arise by reference to Articles 3, 6 and 8 of the European Convention on Human Rights: the treatment of the body parts of the dead children without their parents’ consent or knowledge amounts to inhuman or degrading treatment of the parents, and/or invasion of their privacy, and/or there was a duty to investigate and a duty in consequence to apply fair procedures.
i) There is no specific Article 6 attack by Mr Gordon QC on the fairness of the procedures. There are certain criticisms made of the procedures, to which I refer below, which do not depend upon Article 6, and no attack upon the Rules has been made.
ii) There was an investigation, by virtue of the Inquiry itself (and also an earlier internal inquiry carried out in December 1999 at the instance of the Hospital by Dr Stephen Gould). There was no ground for the GMC’s disciplinary proceedings against the individual doctors to follow any other than their normal course.
iii) I am not clear that Articles 3 or 8 are in any event relevant, but they do not seem to me to add anything to the duties of the GMC in this case.
iv) The procedures of the GMC, as interpreted in particular by the Aide-Memoire, to which I refer below, themselves import and require a good deal of care and caution on the part of those investigating, and in particular those operating the filtering process, and there is no need for any specific “heightened” requirement; and in any event it is clear from the GMC’s witness statements that the screeners and the PPC panels were indeed conscious of the great care necessary in the circumstances to be taken.
i) Two, Dr Cudmore and Dr Khine, were ‘screened out’ by the screeners, i.e., their cases were not referred to the PPC.
ii) There were nine whose cases were referred by the screeners to the PPC, but who were ‘screened out’ by the PPC and not referred on to the PCC.
i) The reasons set out in the two letters, 16th August and 11th October 2001.
ii) The references to the relevant doctors in the Report.
iii) The evidence of Dr Malcolm Lewis, a medical screener and member of the GMC, who has screened more than 400 cases, and who was the medical screener with regard to the two (and whose evidence, according to Dr Lewis, has been reviewed and approved by the other, lay, screener, Provost Forbes).
iv) The evidence of the Chairmen of the two panels of the PPC who dealt with the nine, Robert Nicholls CBE, who has participated in more than 500 PPC decisions and is an experienced screener, and Dr Brian Goss, also an experienced member of the PPC.
v) The relevant extracts from the minutes of the PPC, setting out in greater detail than is recorded in the attachments to the letter of 11 October 2001, the grounds for the decisions made in relation to each of the nine.
i) Screening. It is in these circumstances relevant that the Rules have changed since the three cases to which I have referred. The old Rule 6 in relevant part read as follows:
“(3) Subject to Rule 6(4), unless it appears to [the screener] that the matter need not proceed further, he shall …
(4) Where it appears to [the screener] that a complaint need not proceed further … he shall direct …”
It can be seen from the new rule, which I have recited in paragraph 8 above, that the words “need to” (which thus formed some considerable part of the discussion of the screener’s role in the judgment of Lightman J, as approved by Sullivan and Ouseley JJ) have gone. At paragraph 14(4) of his judgment he emphasises, what is still on any basis the case, namely that “the role of the screener is a narrow one”: but the duty is there described by him as being to filter out “those which he is satisfied (for some sufficient and substantial reason) need not proceed further”, and there follows his discussion of what that need involves. The amended rule however provides that the screener shall refer to the PPC every case submitted unless he decides that a question as to whether the practitioner’s conduct constitutes serious professional misconduct does not arise. The new wording in the event is not that dissimilar to that provided in respect of the “ministerial role” of the Registrar; but this second filtering process manifestly requires something more. In the context of his consideration of the word need, Lightman J suggested circumstances in which the screener could halt what he called the normal course of the complaint to the PCC. He suggested (in para 14(4)) “the absence of any practical reason for the complaint so proceeding, and that for the complaint to proceed to the PCC would serve no useful purpose … because there is nothing which in law amounts to a complaint; because the formal verification is lacking; because the matters complained of (even if established) cannot amount to serious professional misconduct; because the complainant withdraws the complaint; or because the practitioner has already ceased to be registered”. It appears significant to me that the procedure leads in practice to the formulating of a charge or allegation by the screeners, or those working to their order, which is what is then sent for consideration by the PPC (the relevant charges as formulated here are set out in Annexe B to the letter of 11 October), so that the screener has to be satisfied that a charge can be laid. It seems to me that the decision may be at that stage simply whether there is no arguable case.
ii) The PPC: The GMC took the opportunity, after Lightman J’s judgment in Toth, to seek advice from two senior barristers, Robert Englehart QC and Mark Shaw, who formulated an Aide Memoire, to which the GMC now works. With one alteration, to sub paragraph 3(4), which is in my judgment necessitated by the fact that there is not necessarily (as there was not in this case) a complainant, so that I would substitute the word “a” for the “the”, I approve and commend the Aide Memoire in its entirety and set it out below:
“THE APPROACH TO BE APPLIED BY THE PPC IN CONDUCT CASES
AIDE MEMOIRE
1. In conduct cases the PPC’s task is to decide whether, in its opinion, there is a real prospect of serious professional misconduct being established before the PCC. Serious professional misconduct may be considered in the context of conduct so grave as potentially to call into question a practitioner’s registration whether indefinitely, temporarily or conditionally.
2. The “real prospect” test applies to both the factual allegations and the question whether, if established, the facts would amount to serious professional misconduct. It reflects not a probability but rather a genuine (not remote or fanciful) possibility. It is in no-one’s interest for cases to be referred to the PCC when they are bound to fail, and the PPC may properly decline to refer such cases. On the other hand, cases which raise a genuine issue of serious professional misconduct are for the PCC to decide.
3. The following does not purport to be an exhaustive list, but in performing its task the PPC:
(1) should bear in mind that the standard of proof before the PCC will be the criminal standard (beyond reasonable doubt);
(2) is entitled to assess the weight of the evidence;
(3) should not, however, normally seek to resolve substantial conflicts of evidence;
(4) should proceed with caution (given that, among other considerations, it is working from documents alone and does not generally have the benefit of [a] complainant’s response to any reply to the complaint submitted on behalf of the practitioner;
(5) should proceed with particular caution in reaching a decision to halt a complaint when the decision may be perceived as inconsistent with a decision made by another public body with medical personnel or input (for example, an NHS body, a Coroner or an Ombudsman) in relation to the same or substantially the same facts and, if it does reach such a decision, should give reasons for any apparent inconsistency;
(6) should be slower to halt a complaint against a practitioner who continues to practise than against one who does not;
(7) if in doubt, should consider invoking Rule 13 of the Procedure Rules and in any event should lean in favour of allowing the complaint to proceed to the PCC; and
(8) should bear in mind that, whilst there is a public interest in medical practitioners not being harassed by unfounded complaints, there is also a public interest in the ventilation before the PCC in public of complaints which do have a real prospect of establishing serious professional misconduct.”
i) The responses given by the doctors, whether to the screeners or to the PPC, have not been disclosed. They should have been put to the Claimant for her comment, by analogy to the undertaking given by the GMC in the Toth case. I have already dealt with this point in paragraph 9(iii) above, which indeed, as I have indicated, was effectively not pursued by Mr Gordon QC.
ii) The GMC was required to look beyond the Report, and/or there was a failure of the PPC to operate its powers under Rule 13 and seek further information. I agree with Miss Rose that this is a misconception of the role of the PPC at that stage. What had been referred to them was the Report, to see whether its contents and findings required further consideration of the position of any individual. It is plainly the case from 3(7) of the Aide Memoire that the PPC will consider the use of Rule 13 if in doubt. As to whether there be any doubt (which would ordinarily lead to a reference on to the PCC rather than to more detailed examination at the PPC stage), that should await my consideration below of the particular cases, but I am satisfied that there is no separate failure or defect capable of being alleged against the PPC.
iii) It is suggested that there was a failure to pursue or take into account any other complaints against the doctors. This too is, as Miss Rose submits, misconceived. The Claimant did, as it happens, make a separate complaint against Professor van Velzen and one other of the thirteen, but she did not pursue it. Had she pursued that complaint, and in any event insofar as there are other complaints by other complainants against any of the thirteen, or indeed any other doctors, they would be, and indeed, as I understand it, in the case of such others are being, pursued, but the issue here is action on the reference to the GMC of the Report, and not action upon any individual complainant.
iv) Finally there is a general complaint that by virtue of the ‘screening out’ there was a failure to investigate by the GMC. But this of course begs the question. Just as the Court is in an appropriate case entitled to strike out a claimant’s claim without giving him a full trial, so too the GMC is entitled, and indeed obliged, to screen out a complaint or reference against a doctor if it does not pass the appropriate filtering tests.
i) Screening stage: Dr Khine
ii) PPC Stage: Professor Orme, Mr Franks, Professor Harris, Professor Cooke, Professor Lloyd, Dr Davidson.
i) The nature of the filtering process, as analysed by the courts and, so far as the PPC is concerned, in accordance with the Aide Memoire.
ii) The three balancing principles, to which I have referred in paragraph 9(i) above, and the need for caution before a case is ‘screened out’. This must be set against the background, relied upon by Miss Rose, and which I accept, that the judgment being applied is not that of the court but of the profession, represented by the GMC, and by reference to the standards, particularly in relation to the construction of what amounts to serious professional misconduct, to be applied to and by the profession at the relevant time. Dr Goss said at paragraph 10 of his witness statement (upon which Mr Gordon QC made no specific comment, and which in any event I accept as appropriate):
“In considering the threshold in all the cases, the Panel was very aware that, not only had a decade elapsed between events and the hearing before the PPC, but the events of the Alder Hey Inquiry had themselves been a watershed in public and professional attitudes. The PPC therefore felt that the threshold issue that we were charged with considering must be understood in the light of attitudes prevailing at the time of the alleged offences, not in the light of attitudes prevailing after the event.”
THE SCREENERS
i) In the 16th August letter the GMC stated (running together those doctors who had been screened out by the screeners and those by the PPC):
“In all cases, we considered that, as against the standards at the time, there are no issues raised in the Report which require further investigation under our Fitness to Practise Procedures.”
ii) In the 11th October letter it was stated:
“The screeners closed the case … of Dr Khine ... because they concluded that no question of [serious professional misconduct] arose from the Report’s findings.”
iii) Dr Lewis’s statement (approved by Provost Forbes) explains in more detail as follows:
“I noted that Dr Khine worked as Professor van Velzen’s junior and that her role was a heavy commitment to pathology services in difficult circumstances. She was an Honorary Registrar and Lecturer at Alder Hey between 1991 and 1995. I considered that potential allegations raised by the information about Dr Khine contained in the Inquiry Report related to her failure to exercise her professional responsibilities. However, having considered all the information, I decided that Dr Khine was not seriously implicated in the findings of the Inquiry. Her actions, or rather, inaction, in failing to act insubordinately by questioning the department’s policy did not, in my opinion, raise a potential issue of serious professional misconduct. I also noted that there was no issue of poor past performance raised by the information so as to give rise to an issue of Dr Khine’s serious deficient past performance. I therefore recommended that this case be closed … I discussed this case at some length with … Provost Forbes. Initially, the Lay Screener disagreed with my view that the case should be ‘screened out’, since, in his opinion, Dr Khine knew or should have known that informed consent was absent and there was no mention in the Report of her raising this with a colleague, or senior ... My discussion with the Lay Screener focussed mainly on what it was reasonable to expect a junior doctor to have done in Alder Hey at the material time i.e. between 1991 and 1995, in terms of ‘whistle-blowing’. The references in the Report to Dr Khine as a ‘clinical dogsbody’ supported the view that what she had in fact done was reasonable in the circumstances. In her position as a clinical lecturer, Dr Khine would have been very junior to Professor van Velzen. It would not be usual, or even expected in the culture at the time (her appointment was for three years from October 1991) to embark on an insubordinate course. It may be worth considering that Dr Khine’s evidence to the Inquiry was given many years later and that the [GMC’s] document ‘Good Medical Practice’ was not published until 1995 … On balance, and after considered discussion, the Lay Screener agreed with my opinion that no potential issue of serious professional misconduct was raised in relation to Dr Khine’s action. We agreed that the case should be closed … On the basis of reasonable contemporaneous expectations, I do not believe that Dr Khine’s acts or omissions would approach the threshold of what could be regarded as potentially serious professional misconduct. For these reasons, it was my decision to advise that the case against her be closed at the screening stage … I should make clear that both myself and the Lay Screener were aware, at the time our decisions were made, of the intense public interest in the events at Alder Hey and the need to deal with the allegations arising from the Inquiry Report in a sensitive and thorough manner. [The] decision was [not] taken lightly. There was a good deal of material in the Inquiry Report to consider …The case of Dr Khine in particular [was] discussed at length between the medical and lay screeners. The reason for these discussions was to clarify our individual thought processes in order to ensure consistency in our screening decisions. We did not attempt to persuade each other of our opinions or to influence each other’s decisions in any way. At the end of these discussions we were both convinced that the proper outcome … was not to refer the matter to the PPC.”
“13. Considering the totality of the material, the Screener decides whether to allow the complaint to proceed … to the PPC; see Rule 6(3). …
14. If … the Screener decides that the complaint need not proceed further, the file is referred to the lay screener to see whether he agrees. If he does, a letter is sent to the complainant, informing him of the decision: see Rule 6(4) …
15. The Screener, therefore, acts as a preliminary ‘filter’. The Screener’s role is to decide whether a ‘complaint need not proceed further’ (Rule 6(3)) because it appears to him that no question arises whether the conduct of the practitioner constitutes serious professional misconduct. Thus, complaints are screened out rather than in … Where the Screener is in doubt about the incidence of serious professional misconduct and the doubt cannot be resolved, the case is referred to the PPC.”
i) The test set out in the present rule, which was the relevant rule at the time, namely 6(4) of the Rules, as amended in August 2000, provides for a decision, by way of reversed onus, that a question as to serious professional misconduct does not arise – i.e. as was set out in the letter of 11th October (but not quite as set out in the 16th August letter).
ii) There is no reference, as can be seen, in the relevant Rules, to the word “need”, or in particular of it appearing to the screener that the matter need not proceed further. That is the old rule, and it is apparent that what is being cited in the above paragraphs of Dr Lewis’s witness statement are the old rules. There is the direct quotation from them in paragraph 15 (albeit followed by the words of the new rule). Further paragraph 14 contains, although no quotation marks are used, a direct quotation from what was then, but is not now, contained in Rule 6(4), and there is no inclusion in paragraph 14, after reciting the content of the old rule as being the task of the medical screener, of any reference to his correct task under the new rule.
THE PPC
Professor Harris
i) that he drew up proposals for the creation of a chair in foetal and infant pathology at Alder Hey between 1986 and 1987 (to which Professor van Velzen was subsequently appointed) and failed properly to assess the provision of resources for such chair.
ii) that he failed to implement any Code of Practice within the Institute of Child Heath regarding the retention of foetus and foetal material in accordance with the Anatomy Regulations 1988 and the findings of the Polkinghorne Report, published in 1989, being a review of guidance on the research use of foetus and foetal material.
Professor Lloyd
Professor Cooke
i) Professor Harris. “The PPC decided that Allegation 2 regarding funding, even if proved, would not reach the threshold for spm [serious professional misconduct] – the Committee noted that it is quite usual for a post to be offered before all the funding is confirmed. With regard to the Polkinghorne Report and the Anatomy Regulations 1988 the PPC felt that, as Dr Harris was not attached to Obstetrics or Pathology, it was reasonable that he should have delegated the implementation of the relevant codes of practice to other colleagues. Due to his lack of responsibility in this area [this] allegation did not raise an issue of SPM”. Dr Goss, the Chairman of the relevant panel of the PPC, expands upon this in his witness statement. It is in any event apparent that Professor Harris ceased to be Head of the Institute in 1989, the year of the Polkinghorne Report.
ii) Professor Lloyd: “the PPC noted that, although Dr Lloyd had not read the Polkinghorne Report, he stated that Dr Audrey Smith had made him aware of it, and he had believed that their consent forms met the relevant requirements. The PPC felt it was reasonable that Dr Lloyd should have trusted his colleagues in this respect. Whilst he did not have key responsibility for implementing the consent forms (this would have taken place in the maternity unit) he should have played a part in ensuring that the parties supplying foetal material to his Institute were complying with the current guidance on consent. The PPC noted Dr Lloyd’s admission that he could have done more in hindsight, but did not feel that his actions reached the threshold of spm”. This is expanded upon both in the annexe to the 11th October letter and in the written statement of Robert Nicholls, CBE, the Chairman of the relevant panel. It is pointed out that Professor Lloyd was acting Head of the Institute for twelve months pending the appointment of a successor to Professor Harris, and also continued his normal duties as a consultant paediatric surgeon in the meanwhile, such that his position as acting Head formed a small part of his day to day workload, and that he had neither a formal job description nor any management training for his ‘holding role’.
iii) Professor Cooke: “the PPC decided that the responsibility for implementing a Code of Practice regarding consent in the Hospital did not lie with Dr Cooke. However he had a part to play in ensuring that such a Code was facilitated properly in his Department and should be advised by the Report’s recommendations”. Expansion in the 11th October letter and Mr Nicholls’ witness statement makes clear that Professor Cooke had no knowledge of the Polkinghorne Report and that it was his belief that a suitable system for the retention of foetal material for teaching and research was already in place under the management of Dr Audrey Smith, and no concerns were raised with him by any clinician concerning compliance with the Polkinghorne Report. The PPC concluded that in the circumstances it was reasonable for Professor Cooke to have trusted his professional colleagues, and that at the time responsibilities for ensuring compliance with such guidance were not clear cut.
i) That in respect of the allegations the PPC has gone beyond its filtering role.
ii) That the PPC came to its own judgment as to where the line is to be drawn between poor management and serious professional misconduct.
iii) That it attached too little weight to the criticism of the doctors contained within the Report.
iv) That it reached a more favourable conclusion as to their conduct than did the Inquiry.
v) In relation to Professors Lloyd and Cooke that the PPC failed to take into account that they were still in practice.
In a more detailed critique in relation to each doctor the Claimant’s advisers conclude on her behalf in relation to each of them that the “PPC should have referred [the] case to the PCC because of the serious criticism set out in the grounds identified by the screeners”. Particular points are made in relation to the responsibilities of the successive Heads of Departments with relation to the Polkinghorne Report; and with regard to the criticism of Professor Harris’s role in relation to the establishment of the chair, it is argued that Professor Harris should have realised that it could never have been adequately resourced.
i) Mr Nicholls, who dealt with all the cases in issue in these proceedings save that of Professor Harris, explained as follows in paragraphs 12-15 of his witness statement:
“12. In addition I can confirm that the PPC is fully aware of the decisions in the cases of …Toth and Richards … I have read both decisions, and I always endeavour to follow the approach set out in them.
13. The framework assisting the PPC in conducting its review of cases also concludes [the] Aide Memoire … Although the Aide Memoire does not, of course, have the power of the Act or Rules so as to prescribe how the PPC should approach its decision-making, it does provide the PPC with very good guidance and is extremely helpful in assisting the members to maintain consistency in their approach. The Aide Memoire has been circulated to all PPC members …
14. Adopting this approach, in some cases the PPC determined that the alleged conduct would not amount to serious professional misconduct, even if proved, whilst in others the members determined there was no real prospect of serious professional misconduct being established, given the criminal standard of proof to be applied by the PCC.
15. The PPC considered the charges against each doctor very carefully and on their own individual merits, against the extant GMC guidance and standards at the time of the alleged offences. The Committee used the standard criteria to test each case, these being (1) whether the individual had a duty to act in a particular way; (2) whether that duty appeared to have been breached; (3) whether that breach of duty raises an issue of serious professional misconduct; (4) whether there was a real prospect of proving the breach had occurred.”
The Panel chaired by Mr Nicholls concluded that in respect of both Professors Cooke and Lloyd there was no reasonable prospect of establishing serious professional misconduct.
ii) Dr Goss confirms that he and his six colleagues on the PPC panel considered the case of Professor Harris in the light of the relevant statutory provisions, Toth, Richards and the Aide Memoire. They concluded that the allegations against Professor Harris would, even if proved, not reach the threshold for serious professional misconduct.
Professor Orme
Mr Franks
i) As to Professor Orme: “the PPC felt that, whilst Dr Orme could perhaps have been more pro-active as Dr van Velzen’s line manager, his actions did not reach the threshold for spm. He appears to have raised his concerns with the Vice-Chancellor. However the PPC was disappointed that a copy of his appraisal of Dr van Velzen could not be found. As Dr Orme’s role was related to the area of teaching and research, and our charges relate to Dr van Velzen’s clinical duties, Dr Orme [i.e. quae the University rather than quae the Trust] would not have been primarily responsible for monitoring this aspect of Dr van Velzen’s work. There was a failure in the overall management of Dr van Velzen, who had a dual role – neither manager seemed to bear ultimate responsibility for ensuring concerns about him were fully followed up”.
ii) Mr Franks: “The PPC observed that there was a serious conflict of evidence here and that there was no reasonable prospect of proving the allegations. The PPC noted that, whilst the Alder Hey Report appeared to support the mother’s version, the nurse’s statement added weight to the possibility that the incident may have been the result of a misunderstanding rather than a threat. It was agreed that the issue of performing a hospital versus a coroner’s post mortem in these situations is a grey area. Clinicians tend to prefer a hospital post mortem, as they do not have to apply for access and it can provide more detail. Whilst it is unclear whether Dr Franks lacked appropriate communication skills on this occasion or made a more serious threat, it appears to be a single episode, which, even if proved, would not raise an issue of spm. 5:2 majority”. Mr Nicholls in his witness statement supplemented this as follows:
“The PPC also took into account the fact that the alleged incident occurred a number of years ago and concluded that accordingly there was both insufficient evidence to give any real prospect of a case against Mr Franks being established, and no real prospect of further, sufficient evidence emerging after so much time had passed.”
Dr Davidson
“The Hospital is devastated to learn that so many organs have been retained for research without the knowledge of the Hospital, its doctors or the parents.”
“From the information available it was felt there was little prospect of obtaining sufficient evidence to support the suggestion that he in any way deliberately intended to mislead the public which would have required a charge of serious professional [mis]conduct to be tested.”
“18. The PPC, in each of these cases, applied the approach that I have described …The PPC concluded that … the actions of some of the doctors, even if proved, were not capable of amounting to serious professional misconduct, and, for others, that there was no real prospect of proving it.
19. As I have explained above, the PPC considered the “real prospects” of the information against each of the doctors being upheld, but only in the context of the correct statutory test. It is impossible for the PPC to do its job without reviewing the evidence/facts made available to it. But this does not meant that it makes ‘determinations’ of fact.”
CONCLUSION