QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MAHFOUZ||(CLAIMANT)|
|PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL||(DEFENDANT)|
|THE GENERAL MEDICAL COUNCIL||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR ENGLEHART QC and MR CLARKE appeared on behalf of the DEFENDANT
The INTERESTED PARTY did not attend and were not represented
Crown Copyright ©
"That being registered under the Medical Act,
1. On a number of occasions between 6 June 2000 and 17 October 2001, [Mr R] consulted you about the removal of his tattoo.
a. You failed to make an adequate assessment of his condition,
b. You made inappropriate and inaccurate claims about the likely efficacy of the treatment,
c. You failed to provide him with sufficient pre-operative information to enable him to give properly informed consent,
d. You provided inadequate and inappropriate treatment,
e. You failed to provide adequate and/or appropriate post-operative care,
f. You failed to keep adequate records;
2. On 5 January 2000, Miss A consulted you about the pigmentation marks on her legs ..."
And again, a number of particulars of the alleged failures to give appropriate treatment are then given.
"3. On 5 January 2000 Mrs B consulted you about having the swelling around her eyes and the lines around her mouth removed by laser surgery".
In that case it is alleged that Dr Mahfouz "made inappropriate and inaccurate claims about the likely efficacy of the treatment" and "failed to provide her with sufficient pre-operative information to enable her to give proper informed consent".
"4. On 10 January 2000, Mrs B attended for treatment".
It is alleged that Dr Mahfouz "acted in a brusque and inappropriate manner ... did not allow sufficient time for the anaesthesia to take effect before treatment commenced ... failed to carry out the procedure with a sufficient degree of care and skill ... failed to provide adequate and/or appropriate post-operative care [and] failed to respond to a written complaint from [the lady] regarding her treatment".
"5. On 10 January 2000, Mrs C consulted you about laser treatment for scars and lines on her face."
It is alleged, by way of particularisation, that he "failed to make an adequate assessment of her condition ... failed to provide her with sufficient pre-operative information to enable her to give properly informed consent ... administered a local anaesthetic, but failed to wait for it to take effect, before starting the laser treatment ... failed to carry out the procedure with a sufficient degree of care and skill ... after the treatment failed to provide adequate and/or appropriate post-operative care ... failed to respond appropriately and professionally to an inquiry from [the individual] regarding her treatment".
"And that in relation to the facts alleged you have been guilty of serious professional misconduct."
"Dr Mahfouz was struck off in 1987 when working as a GP's assistant and failed to refer a patient he knew to be in a critical condition to hospital."
It then said, "The hearing continues". That was the article. It should be added that it is accepted as factually accurate that Dr Mahfouz had been struck off in 1987 in the circumstances as asserted in that article.
"Dr Fayez Abu Mahfouz, who claimed to be the only man in Europe able to turn a black person white, was exposed by BBC investigative reporter Paul Kenyon, the General Medical Council was told."
I would add that Dr Mahfouz strongly denies that he had ever said words to the effect that he was able to turn a black person white. The article went on to make a reference to Dr Mahfouz having been "struck off once before".
"Dr Abu Mahfouz was struck off the register in 1987 when he was working as a GP's assistant and failed to refer a patient he knew to be in a critical condition to hospital. The GMC accused him of a 'lamentable standard of professional care and attention'. He was reinstated 1992."
Again those particular matters are accepted as being factually accurate. It is not necessary for me to read out here other aspects of the various articles, although I have borne their precise terms carefully in mind.
'In the circumstances of this case, would those circumstances lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased (consciously or unconsciously)?'
'Real' means 'not without substance'
'Is there in fact a real possibility that the matters relied upon by the practitioner in his application could have a prejudicial effect on the minds of the Committee unconsciously and thus insidiously?'"
"Ms O Rourke
"The Committee have given careful consideration to all the submissions made by you on behalf of the doctor and by Ms Plaschkes for the GMC in respect of your application that this Committee discharge themselves and have the matter heard afresh at a later date.
"The Committee's first task was to decide the appropriate test or tests which should be applied in relation to the application. The Committee carefully considered the advice provided by the Legal Assessor and the submissions made by both Counsel. The Committee determined that the correct test to be applied is whether or not 'in the circumstances of this case, would those circumstances lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased?' The Committee felt that this test, as so formulated, should not be re-expressed or glossed in any way. In deciding on the appropriate test the Committee paid particular regard to the House of Lords case in Porter and Magill  2 AC 357 and Subramanian v The General Medical Council Privy Council Appeal No 16 of 2002.
"In doing so, the Committee had regard to all the circumstances of the case, which included the assessment that a fair minded and informed observer would make of the following matters:
"The aspects of the newspaper articles put before the Committee;
"The length of time that has elapsed since the previous finding of serious professional misconduct and consequent erasure;
"The different and unrelated nature of the previous case;
"Danger of prejudice to the doctor;
"The experience and training of the Committee for the task in hand;
"The Committee's ability to distinguish between admissible and inadmissible evidence;
"The procedures of the hearing and the impact that seeing and hearing the witnesses will have on the Committee;
"The advice which the Legal Assessor has indicated he will give if the case proceeds.
"Having considered all these issues at length the Committee concluded that in the circumstances of this case, a fair minded and informed observer would conclude that there was no real possibility that the Committee would be biased.
"The Committee further decided that it was not necessary to address the second question suggested by the Legal Assessor.
"The Committee have therefore rejected your application to discharge themselves and for this case to be adjourned."
"Ms O Rourke
"The Committee have given careful consideration to all the submissions made by you on behalf of the doctor and by Ms Plaschkes for the GMC in respect of your application that this Committee adjourn this case until tomorrow afternoon to enable you to make an application before the High Court for interim relief.
"It is your submission that the Committee's decision yesterday declining to discharge themselves and to adjourn the inquiry was wrong in law. You have made representations that this Committee cannot fairly proceed at this time and that to do so would be a breach of Article 6 of the European Convention on Human Rights.
"Having considered all the submissions the Committee have rejected your application. The reason for this decision is that in the interests of justice, which include both the interest of the public and that of the practitioner himself, it would be right to proceed with this inquiry without delay.
"The Committee were helped by the knowledge that a refusal of this adjournment will not affect Dr Abu-Mahfouz's right to pursue his application for judicial review and, if so directed by the High Court, these proceedings would be halted."
"One essential element in a fair hearing is the requirement that the decision-maker should be impartial. But while the proposition is easy to state the analysis and the application of it is more difficult. Impartiality calls for a state of mind which is free from any influences extraneous to the merits of the particular case, which is capable of a dispassionate inquiry and an objective judgment, and which is not turned aside by any motivation to favour one side as against the other. But the actual state of a person's mind is not always readily discoverable and absolute perfection may not be readily attainable. More subtly the decision-maker may be influenced quite unconsciously in the one direction or the other by extraneous considerations in ways which may be evident to or suspected by others but of which he is unaware. The insidious nature of bias makes its identification elusive. The law does what it can by recognising that bias may be apparent as well as actual. Thus proof of an appearance of bias may be as fatal as proof of a state of mind which is actually partial."
He goes on a little later to say:
"The apparent position is then as important as the reality and may be effective regardless of the reality."
"103. I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to 'a real danger'. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
"104. Turning to the facts, there are two points that need to be made at the outset. The first relates to the auditor's own assertion that he was not biased. The Divisional Court said, at p 174A-B, that it had had particular regard to his reasons for declining to recuse himself in reaching its conclusion that he had an open mind and was justified in continuing with the subsequent hearings. I would agree that the reasons that he gave were relevant, but an examination of them shows that they consisted largely of assertions that he was unbiased. Looking at the matter from the standpoint of the fair-minded and informed observer, protestations of that kind are unlikely to be helpful. I think that Schiemann LJ adopted the right approach in the Court of Appeal when he said that he would give no weight to the auditor's reasons: ante, p 400C. The second point relates to the emphasis which the respondents place on how the auditor's conduct appeared from the standpoint of the complainer. There is, as I have said, some support in the jurisprudence of the Strasbourg court for the proposition that the standpoint of the complainer is important. But in Hauschildt v Denmark 12 EHRR 266, 279, para 48 the court emphasised that what is decisive is whether any fears expressed by the complainer are objectively justified. The complainer's fears are clearly relevant at the initial stage when the court has to decided whether the complaint is one that should be investigated. But they lose their importance once the stage is reached of looking at the matter objectively.
"105. I think that it is plain, as the Divisional Court observed, at p 174B, that the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair-minded observer was that the purpose of this exercise was to attract publicity to himself, and perhaps also to his firm. It was an exercise in self-promotion in which he should not have indulged. But it is quite another matter to conclude from this that there was a real possibility that he was biased. Schiemann LJ said, at p 1457D-E, that there was room for a casual observer to form the view after the press conference that the auditor might be biased. Nevertheless he concluded, at p 1457H, having examined the facts more closely, that there was no real danger that this was so. I would take the same view. The question is what the fair-minded and informed observer would have thought, and whether his conclusion would have been that there was a real possibility of bias. The auditor's conduct must be seen in the context of the investigation which he was carrying out, which had generated a great deal of public interest. A statement as to his progress would not have been inappropriate. His error was to make it at a press conference. This created the risk of unfair reporting, but there was nothing in the words he used to indicate that there was a real possibility that he was biased. He was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point, as his subsequent conduct demonstrates. I would hold, looking at the matter objectively, that a real possibility that he was biased has not been demonstrated."
One point may be noted here. Lord Hope indicated that the complainer's fears were clearly relevant at the initial stage, when the court had to decide whether the complaint was one which should be investigated, but they lost their importance once the stage is reached of looking at the matter objectively. It seems to me, therefore, that while of course one has to have careful regard to Dr Mahfouz's initial concerns which, indeed, are concerns which plainly he still retains -- the assessment at the decision stage is one of looking at the matter objectively. Further, it is to be noted that Lord Hope's formulation is perhaps encapsulated in his statement:
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
"To the basic requirement of fair mindedness is added the need to be properly informed ..."
and he then went on to give illustrations of that. At paragraph 21, the conclusion was that the Privy Council felt that they could safely say that there was no danger there of any prejudice to the doctor. It was said:
"... this was a well-established quasi-professional tribunal which had been directed in plain terms to pay no attention to the previous conviction because it would give them no assistance, a direction reinforced by the fact that it dealt with events more than 20 years before."
Then Sir Denis Henry goes on to point out that frequently within the jury system jurors are given instructions which they can be expected to abide by to put out of their mind certain matters that may have come to their attention. Sir Denis Henry went on in this way:
"This is not a case of apparent bias. There was no abuse of process calling for the stay of the disciplinary proceedings before the committee. The committee are an independent and impartial tribunal, and there are no grounds for quashing the finding of serious professional misconduct on the basis that these proceedings should have been stopped or the determination set aside for abuse of process. The onus is on the appellant to establish a prima facie case of apparent bias, and in their Lordship's judgment he has failed to do so."
I think one can at least extract this from the Subramanian decision as an illustrative point: that it is not every article in a newspaper which might on one reading be taken as being adverse to an applicant appearing in front of the General Medical Council that should give rise to a well-founded case of apparent bias.
"Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach."
In his conclusions, Lord Steyn, at paragraph 19, referred to arguments advanced by counsel. During the course of that, it was suggested that the threshold was only a real possibility of unconscious bias. Having dealt with those arguments, Lord Steyn said this, at paragraph 21 one of his opinion:
"The principle to be applied is that stated in Porter v Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased?"