QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF TOTH||(CLAIMANT)|
|GENERAL MEDICAL COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MS M O'ROURKE (instructed by Medical Defence Union, London) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
Friday, 27th June 2003
The statutory framework
"(1) Where a fully registered person -
(a) is found by the Professional Conduct Committee to have been convicted in the British Islands of a criminal offence, or to have been convicted elsewhere of an offence which, if committed in England and Wales, would constitute a criminal offence, whether while so registered or not;or
(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not;
the Committee may, if they think fit, direct -
(i) that his name shall be erased from the register;
(ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the committee think fit to impose for the protection of members of the public or in his interests."
"(1) Where the fitness to practice of a fully registered person is judged by the Health Committee to be seriously impaired by reason of his physical or mental condition the Committee may, if they think fit..."
and directs, in effect, the sanctions which are set out in section 36(1)(ii) and (iii) above. In other words, the Health Committee has similar powers to the PCC, save that it has no power to impose the most stringent sanction, namely to erase a practitioner's name from the register.
"Notwithstanding any other provisions in these rules, where in the course of an inquiry, at either the original or a resumed hearing, it appears to the Professional Conduct Committee that a practitioner's fitness to practise may be seriously impaired by reason of his physical or mental condition, the Committee may refer that question to the Health Committee for determination, and any such referral may be made whether or not the Professional Conduct Committee order in accordance with powers conferred by the Act that the practitioner's registration shall be conditional on his compliance with specified requirements."
The decision of the Committee
"1. The public interest in having a case of possible serious professional misconduct heard in public.
2. The desire of the complainant to have his complaint heard. The Committee have given weight to the submissions of Mr Pleming, QC, on behalf of the complainant, Mr Toth, the father of Wilfred. His wish to have this matter considered by the Committee in public is entirely understandable. But this is only part of the public interest issue that the Committee have to consider.
3. The further public interest in protecting patients from a doctor who may be unfit to practise. It is clear that the expert evidence shows that Dr Jarman's fitness to practise may be seriously impaired. The protection of patients is of primary concern to this Committee.
4. The strength of evidence of serious impairment of health. The Committee are satisfied that there is sufficient evidence to merit a referral. Dr Jarman suffers from Generalised Anxiety Disorder and possibly, depression and panic disorder. He suffers from acute anxiety attacks which may cause 'brain block' - an inability to function properly. This is a particular concern in situations where Dr Jarman would be required to make clinical decisions. The Committee are concerned that he would be unable to recognise the limits of his professional competence.
5. The prospects of Dr Jarman ever being able to attend a future hearing of the Professional Conduct Committee. This could only be resolved by a lengthy adjournment of these proceedings or be referral to the Health Committee.
6. The question of a fair hearing when Dr Jarman is not fit to attend to give evidence or to give instructions to his legal team. The Committee were of the view that there are sufficient safeguards to enable a fair hearing. These include, but are not limited to, submissions from the learned Legal Assessor and Counsel, the power to admit or exclude evidence and to give appropriate weight to evidence. The Committee also bear in mind the provisions of Rule 51(3) in this respect."
"Finally the Committee considered the option of adjourning this case under Rule 47 to allow Dr Jarman time to consider a course of treatment to assist him to overcome his Generalised Anxiety Disorder. The Committee note the view of Professor Weller that it is not possible to require Dr Jarman to receive treatment. There is potential risk to patients under this option. This would not, in the view of the Committee, be performing its preliminary duty to protect patients."
It appears that the PCC had failed to recognise in that paragraph that there need not be a risk to patients under this option of adjournment any more than under the option to refer the matter to the Health Committee. It would have been open to the Committee to refer the matter to the IOC, who could have taken such steps as were necessary to protect the public interest if the adjournment route had been chosen.
The legal principles
"The general principles underlying the Act and Rules are that (a) the public have an interest in the maintenance of standards and the investigation of complaints of serious professional misconduct against practitioners; (b) public confidence in the GMC and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special and sufficient reason) will be publicly investigated by the PCC; and (c) justice should in such cases be seen to be done. This must be most particularly the case where the practitioner continues to be registered and to practice."
"16. The referring of the case to the Health Committee may, therefore, be done by the medical screener, the Preliminary Proceedings Committee or the PCC. The power to refer arises where the opinion has been formed that the practitioner's fitness to practise may be seriously impaired by reason of a physical or mental condition. The forming of the requisite decision does not, however, require the case to be referred to the Health Committee. The power to refer is a discretionary one. Mr Jenkins pointed out that no guidance is given in the Rules, or in the Act, as to the criteria which should govern the exercise of the power. That is so. It is not, however, hard to conclude that in considering whether or not to exercise the power, the committee in question, or the medical screener, as the case may be, should take into account all the circumstances of the case including the scope of the powers available to the Health Committee.
17. The Health Committee's powers are set out in section 37 of the Act. They are probably set out also in the Health Committee (Procedure) Rules but their Lordships were not referred to those Rules. It appears from section 37 that the Health Committee has the same powers as the PCC to direct suspension of registration or to direct that registration be conditional. But, unlike the PCC, the Health Committee has no power to direct erasure, whether as an initial direction or as a direction consequent upon the practitioner's failure to comply with conditions. In the event of a failure to comply with conditions, the Health Committee can do no more than direct a suspension of registration for a period not exceeding twelve months (section 37(2)), with the possibility of a further twelve month suspension, or an indefinite suspension, to follow (section 37(3) and (3A)).
18. Accordingly, in their Lordships' view, if the case is one in which erasure is a serious possibility, neither the medical screener nor the Preliminary Proceedings Committee should refer the case to the Health Committee notwithstanding that it may be one where the fitness to practise of the practitioner in question appears to be seriously impaired by reason of his or her physical or mental condition.
19. As to the PCC, the question whether the PCC should exercise its rule 51 power to refer the case to the Health Committee should be considered in conjunction with the question whether the case is or may be one which calls for a direction of erasure. The PCC should not, in their Lordships' view, refer a case to the Health Committee unless and until satisfied that a direction of erasure would not be the right direction to make. And once the PCC has decided that a direction of erasure is the right direction to make, the question whether the case should be referred to the Health Committee has received its answer.
20. It follows that in the present case the first and main question is whether the direction of erasure was justified. If it was, there is nothing left in the submission that the PCC should have referred the case to the Health Committee."
"17. The functions of the Professional Conduct Committee and the Health Committee, though complementary, are distinct. The Professional Conduct Committee is concerned to maintain professional standards of integrity and competence and the reputation of the medical profession. Its function is disciplinary. If it finds that a practitioner has been guilty of serious professional misconduct, it must consider whether the safety of the public and the reputation of the profession require that his name be erased from the register so that he cannot carry on a medical practice even if medically fit to do so; or whether some lesser penalty such as conditional registration or suspension for a limited period would be sufficient. The functions of the Health Committee are not disciplinary. It is concerned to protect the public (and the practitioner himself) from the dangers of a practitioner being allowed to carry on practice while he is medically unfit to do so, whether or not he has committed a disciplinary offence. It cannot order the practitioner's name to be erased from the register. The most it can do in an appropriate case is to order indefinite suspension, and such an order is reviewable at any time. If the Health Committee is satisfied that the practitioner has recovered sufficiently to be allowed to resume practice, it will terminate his suspension.
18. But these safeguards are unnecessary if the practitioner's name is to be erased from the register so that he cannot practise even if medically fit to do so. They are necessary only where his name is not to be erased from the register, either because the Professional Conduct Committee has found the charges to be unfounded or because it considers that some lesser penalty is appropriate. That is why in Crabbie v General Medical Council (unreported) Privy Council Appeal No 7 of 2002, 23rd September 2002; their Lordships held that the Professional Conduct Committee should not refer a case to the Health Committee unless it was satisfied that an order directing the erasure of the practitioner's name from the register was not appropriate. In giving the judgment of the Board Lord Scott of Foscote said:
'... the question whether the [Professional Conduct Committee] should exercise its rule 51 power to refer the case to the Health Committee should be considered in conjunction with the question whether the case is or may be one which calls for a direction of erasure. The [Professional Conduct Committee] should not, in their Lordships view, refer a case to the Health Committee unless and until satisfied that a direction of erasure would not be the right direction to make. And once the [Professional Conduct Committee] has decided that a direction of erasure is the right direction to make, the question whether the case should be referred to the Health Committee has received its answer.'
19. The first ground of challenge therefore fails. The possibility of erasure could not be excluded at the time of the application; and it is still open today if the Professional Conduct Committee is to be directed to reconsider the question of penalty."
The grounds for appeal