England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 May 2004

Mr Justice Silber:

I Introduction

1. Jennifer Campbell ("the claimant") gave birth to a son Michael Boyle on 7 December 1998. Sadly, he suffers from hydrocephalus. In 1999, Michael was a patient of Dr. Nigel Birkin, who is and was a consultant paediatrician employed at Noble's Hospital, Isle of Man.
2. A charge of serious professional misconduct was brought by the General Medical Council against Dr. Birkin arising out of his acts and omissions while he was acting as the paediatrician for Michael and another child, Amy Tasker. On 2 October 2003, after a hearing lasting four days the Professional Conduct Committee of the General Medical Council ("the PCC") dismissed the charge of serious professional misconduct. The claimant seeks to judicially review that decision. Beatson J gave permission to the claimant to pursue this claim, which is opposed by the General Medical Council ("the GMC") and Dr. Birkin, both of whom have been represented by counsel.
3. This application relates to the way in which the PCC determined the issue of whether the professional misconduct of Dr. Birkin amounted to "serious professional misconduct" including how the PCC should have dealt with the issue in its decision.

II The Challenge

4. No criticism is made by the claimant concerning the PCC's fact-finding in relation to the complaints which formed the subject of the charge of serious professional misconduct against Dr. Birkin. The basis of her challenge is that the PCC misdirected itself or acted irrationally in finding that Dr. Birkin was not guilty of "serious professional misconduct".
5. Mr. David Wolfe, counsel for the claimant, contends that the decision of the PCC that Dr. Birkin was not guilty of serious professional misconduct should be quashed because the PCC:-

(i) failed to assess and consider properly (a) the seriousness of the matters found proved against Dr. Birkin and (b) the close similarity between the matters found proved in respect of the treatment of Amy and of Michael in order to determine if the serious professional misconduct charge had been substantiated ("the Failure to Assess Point");

(ii) was perverse in describing that the protracted sub-standard treatment of Michael and Amy as "isolated incidents" ("The Isolated Incidents Point") and

(iii) was perverse in attaching importance to the "medical isolation" of Dr. Birkin's practice on the Isle of Man ("The Medical Isolation Point").

III The Law

6. Under section 36 of the Medical Act 1983, it is provided, insofar as is material to the present application, that:-

"(1) where a fully registered person ..

(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct .. the Committee may, if they think fit impose certain penalties".

7. In this case, Dr. Birkin was a "fully registered person" and thus the PCC had jurisdiction to deal with him. It is common ground that first the claimant has standing to make this application and second that the present challenge can only succeed if the decision of the GMC can be impugned on traditional judicial review grounds.
8. The task for the PCC was to determine whether Dr. Birkin was guilty of "serious professional misconduct". It is settled law that:-

(a) "Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances" (per Lord Clyde in Roylance v. General Medical Council [1999] Lloyd's Rep. Med. 139 at 149);

(b) It is necessary to bear in mind that "the [word] misconduct is qualified by the word "serious". It is not any professional misconduct which will qualify. The professional misconduct must be serious" (ibid);

(c) "It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence" (per Lord Cooke of Thorndon in Preiss v. General Dental Council [2001] 1 WLR 1926, 1936C [28]).

(d) even a single incident can amount to serious professional misconduct (McCoan v. General Medical Council [1964] 3 All ER 143).

IV The Decision and Reasoning of the PCC

9. The PCC heard evidence relating to the seriousness of the errors of Dr. Birkin from an eminent consultant paediatrician, Dr. Fraser Alexander, who was very critical of Dr. Birkin referring to his "very inadequate referral letter", his basic omission and his "very dangerous practice". Evidence was also given to the PCC by Dr. Birkin and others.
10. The findings of the PCC in respect of Dr. Birkin's treatment of Michael were that:-

(i) between 13 March 1999 and 12 April 1999, Dr. Birkin failed to keep proper growth charts which would have shown a weight gain of only 105 grams in two weeks, which was slower than the expected gain of 300 grams;

(ii) he failed to carry out a full examination of Michael and make a note of his head circumference measurement when he was seen by him on 12 April 1999;

(iii) he omitted to arrange regular weekly recordings of Michael's head circumference and to carry out weekly ultrasound scans between 6 April 1999 and 29 April 1999;

(iv) he failed to admit Michael for medical assessment and treatment in hospital after he had been seen by Dr. Birkin in his clinic on 26 April 1999 on which occasion it was noted that there was clear evidence of a rapidly increasing head circumference;

(v) he was responsible for inadequate and unprofessional supervision of Michael on and after 4 May 1999 because he then failed to arrange for an immediate surgical referral. Instead, Dr. Birkin wrote to Mr. P. L. May, consultant paediatric neurosurgeon at Alder Hey Children's Hospital asking that Mr. May should see Michael "in the next week or ten days" and that

(vi) he was responsible for substandard treatment which was not in the best interests of Michael and which was likely to compromise Michael's safety after the admitting doctor at Noble's Hospital had made a diagnosis of marked hydrocephalus. Michael had only been readmitted to Noble's Hospital after his parents had telephoned Liverpool Women's Hospital and sought assistance directly.

11. The PCC also found that Dr. Birkin for a period between 6 February 1998 and 14 April 1998 had failed to look after Amy Tasker, who was born on 19 November 1997 in what was a strikingly similar way to the way in which he neglected Michael. The allegations against Dr. Birkin, which the PCC found proved in relation to his treatment of Amy, included allegations that Dr. Birkin (i) did not undertake full examination of Amy when seen by him on 6 February 1998, (ii) omitted to make adequate clinical notes when Amy was seen by him on 6 February 1998 and was responsible for seriously deficient record-keeping and an inaccurate letter to Amy's general practitioner, (iii) failed to undertake a clinical examination of Amy when he saw her on 20 February 1998 and 16 March 1998 or to make a medical note of his findings, (iv) failed to take weekly head circumference measurements supplemented by ultra sound scans weekly or as necessary and (v) delayed a referral to Alder Hey. The PCC considered Dr. Birkin's management of Amy's condition to be "seriously deficient" and concluded that it "fell below an acceptable level".
12. The PCC then turned their minds to the issue of whether the charge of serious professional misconduct had been substantiated. It is common ground that in the light of their criticisms of Dr. Birkin's treatment of Michael and Amy to which I have referred, the PCC must clearly and correctly have regarded Dr. Birkin as guilty of "professional misconduct". The next and critical issue for the PCC was therefore whether this conduct of Dr. Birkin had reached the threshold of being serious professional misconduct and they decided that it had not for the reasons which I will explain later.

V The Purpose of the PCC's Disciplinary Proceedings

13. As a backcloth to his specific challenges to the PCC's decision, Mr. Wolfe attaches great importance to the purpose of the disciplinary processes relating to doctors. He submits that the principal purpose of such disciplinary proceedings is to protect the public interest and the main aspect of that purpose is to retain public confidence in the medical profession. Mr. Wolfe says that it is not the purpose of disciplinary proceedings to protect the fortunes of individual doctors. He also contends that the protection of the public and enforcement of standards of conduct are important public interest factors, which must be borne in mind at all times
14. Mr. Wolfe points out that in the words of Lord Bingham MR in Bolton v. The Law Society [1994] 1 WLR 512 at 519E which were adopted by the Privy Council in Gupta v. GMC [2002] Lloyd's List Reports (Medical) 82 at 86 [10]:-

"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price".

15. In Bolton's case (supra at page 519 B-D), Lord Bingham had also explained, with my italicisation added, in respect of disciplinary proceedings against solicitors that:-

"Because orders made by the tribunal are not primarily punitive, considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that solicitors appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learnt his lesson and will not offend again. On applying for restoration after striking off, all these points made be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness".

16. I agree with Mr. Wolfe first that those principles apply with equal force to disciplinary proceedings before the GMC and secondly that in considering any decision by the GMC it is necessary to bear in mind "the essential issue" as described by Lord Bingham. Indeed, I did not understand Mr. Gerard Clarke, Counsel for the defendant or Mr. Andrew Kennedy, Counsel for Dr. Birkin to challenge these submissions, which constitute the starting point of my consideration of Mr. Wolfe's complaint and which I will bear in mind when determining this application. It is noteworthy that the Legal Assessor in his oral advice to the PCC stressed the importance of them bearing these matters in mind.

VI The Failure to Assess Point

17. Mr. Wolfe contends that the PCC failed to assess and consider properly the seriousness of the professional misconduct found proved against Dr. Birkin when it came to ascertain if the serious professional misconduct charge had been substantiated. He submits that the PCC also failed to take into account the close similarity between the groups of complaints relating to Dr. Birkin's treatment of Michael and those concerning Amy, which he contends constituted an aggravating feature. Mr. Wolfe also contends that:-

"Nowhere in the concluding paragraphs of the Committee's decision is there any indication that the seriousness of Dr. Birkin's failure in relation to Michael and Amy was weighed in the balance when deciding whether those failures amounted to serious professional misconduct".

18. There are four main reasons why I am unable to accept these submissions, even after taking into account the significance of professional conduct proceedings against doctors for the reasons which I have explained in Section V above. First, there was first a clear finding of the PCC that the matters proved against Dr. Birkin in relation to his treatment of Michael and Amy were sufficiently serious to be capable of constituting serious professional misconduct and second the PCC made a number of specific findings relating to Dr. Birkin's treatment of Michael and Amy. As I have explained, the PCC had initially made findings of professional misconduct against Dr. Birkin in relation to his treatment of Michael and Amy and which I have summarised in paragraphs 10 and 11 above. The PCC had then to:-

"… consider as a separate issue whether this amounted to serious professional misconduct" (Silver v. General Medical Council [2003] UKPC 33 [20] per Sir Philip Otton with my italicisation added).

19. This is precisely what the PCC did because they then stated in the light of their findings which I have summarised in paragraphs 10 and 11 above that:-

"Having reached these findings on the facts, the Committee then considered whether the facts found admitted and the facts proved would be insufficient to support a finding of serious professional misconduct. The Committee concluded that they would not be insufficient".

20. This constitutes a finding that Dr. Birkin's treatment of Michael and Amy was capable of constituting "serious" professional misconduct. To my mind, that shows clearly that the PCC had considered properly the seriousness of Dr. Birkin's misconduct in treating Michael and Amy and it had then concluded that this professional misconduct of Dr. Birkin reached the threshold of being "serious professional misconduct" subject to any mitigating evidence and submissions which it then proceeded to hear. Furthermore, the PCC set out detailed criticisms of Dr. Birkin's treatment of Michael and of Amy. It used phrases such as "inadequate and unprofessional in the circumstances", "sub-standard" and "not in the best interests of the patient and likely to compromise patient safety" in respect of the treatment of Michael. The PCC was also similarly critical of the treatment of Amy describing it as "seriously deficient" and falling "below an acceptable level". The similarity of the charges relating to the treatment of Amy and of Michael would have been clear to the PCC and I have no reason to believe that they did not so regard it. As I will explain, there was no reason for the PCC to expressly state this fact as it was implicit on any reading of the passage, which I have quoted in paragraph 19 above.
21. The second reason why I am unable to accept Mr. Wolfe's submissions is that there was no need for the PCC to assess as a discreet issue the seriousness of the charges found proved against Dr. Birkin because the PCC were not entitled to make a finding of serious professional misconduct against Dr. Birkin unless they had also taken into account not only the nature and the seriousness of Dr. Birkin's serious errors in treating Michael and Amy, but also all other relevant circumstances including any mitigating factors.
22. This approach is required of the PCC in the light of the decision of the Judicial Committee in Silver's case in which Sir Philip Otton giving the judgment of the Judicial Committee referred to a passage in the decision of the PCC in that case in which the PCC had said to Dr. Silver that:-

"The Committee therefore finds you guilty of serious professional misconduct. However, we note that you work in a deprived area where it is difficult to get staff and medical assistance. You have a large list of patients who you have served for 40 years as a sole practitioner. The Committee are aware this is the only complaint recorded against you having read carefully the testimonials submitted on your behalf" [16].

23. Thus, in Silver's case, the PCC had made a finding of serious professional misconduct in the light of the deficient treatment accorded by Dr. Silver but without having also considered at that point the doctor's record as a practitioner. The Judicial Committee did not approve of this approach because it explained that:-

"It is axiomatic that after the findings of fact all the relevant circumstances must be considered before a finding of serious misconduct can be arrived at. The matters set out in the paragraph immediately following the announcement of serious professional misconduct [which are summarised in paragraph 22 above] were, in their Lordships' view relevant to, and should have been taken into consideration when arriving at, the decision of serious professional misconduct and not merely as a consideration as to the appropriate sanction and conditions the Committee were minded to impose" [17].

24. It follows that "before a finding of serious misconduct can be determined", the PCC should first consider "all the relevant circumstances". Thus, in this case, the PCC were required to take into account all the factors (including mitigating factors) and only then were they to make a global decision on whether Dr. Birkin was guilty of serious professional misconduct. It must not be forgotten that the PCC set out detailed criticisms of Dr. Birkin's treatment of Michael and of Amy. It used phrases such as "inadequate and unprofessional in the circumstances", "sub-standard" and "not in the best interests of the patient and likely to compromise patient safety" in respect of the treatment of Michael. The PCC was also similarly critical of the treatment of Amy describing it as "seriously deficient" and falling "below an acceptable level". In the particular circumstances of this case and in the light of what was said in Silver, the PCC were not obliged to assess in isolation any further than it did in this case, the seriousness of Dr. Birkin's failures in his treatment, but merely to regard it as a very important factor in determining whether the charge of "serious professional misconduct" has been established.
25. The third reason why I am unable to agree with Mr. Wolfe's submissions is that on any reading of the PCC's reasons, it is clear that they took into account their very serious criticisms of Dr. Birkin. Mr. Wolfe attaches importance to the words used by the PCC which were, with my paragraph numbers and my italicisation added, that:-

1. "The Committee have had to address the question of whether your actions amounted to serious professional misconduct. In their deliberations the Committee have listened carefully to the submissions made on your behalf in this respect and have taken careful account of the advice of their Legal Assessor on the meaning of serious professional misconduct.

2. The Committee were referred to the case of Silver v. The General Medical Council (Privy Council Appeal No. 66 of 2002) in which it was stated that all relevant matters must be considered before a finding of serious professional misconduct is reached and not merely in mitigation as to the sanction imposed.

3. The Committee have noted that from 1982 you have single-handedly built up the paediatric service in the Isle of Man with its relative medical isolation. You also ran the neonatal unit single-handedly for 15 years. The Committee consider that the two cases about which it has heard evidence appear to be isolated incidents against a background of otherwise unblemished medical practice of over 30 years.

4. They have also considered the outstanding testimonials that have been submitted on your behalf, both in person and in writing, by your patients and colleagues, all of whom state that you are a highly committed, caring and professional doctor who cares deeply about your patients.

5. In all these circumstance, the Committee have concluded that you are not guilty of serious professional misconduct. That concludes the case".

26. It must be stressed that this reasoning follows on immediately after the PCC's detailed findings of professional misconduct, which I have summarised in paragraphs 10 and 11 above. In my view, it is totally unrealistic to consider that the PCC did not bear those matters in mind, especially as they had shortly before explained first that these matters were capable of supporting a charge of "serious professional misconduct" and second, that they were very blameworthy errors, in which the PCC had just used words such as "sub-standard treatment", as well as "inadequate and unprofessional supervision" to describe the way in which Dr. Birkin had purported to treat Michael and Amy.
27. After I had reached my conclusions on all issues in this case, I came across a comment by Hooper J (as he then was), which fortifies this point and explains why the claimant should not succeed on the failure to assess point. After having referred to some comments of Lord Bingham CJ in R v. The Parole Board and Others ex parte Oyston (unreported 1 March 2000 CA), Hooper J said:-

"It is well established that a court when considering reasons given by a decision maker, must be careful not to construe them "in a pedantic and nit-picking spirit". The court should careful "not to seize on occasional omission and infelicities" as a ground for granting judicial review or allowing an appeal (see Lord Bingham CJ also in para 46 of Oyston)" (R (On the application of M) v. Criminal Injuries Compensation Panel [2001] EWHC Admin 720 [44].

28. The fourth reason why I do not accept Mr. Wolfe's submissions is that there was no need for the PCC to give detailed reasons for their decision or to do anything other than to give a general explanation for their decision. It is clear that the PCC are not expected to give detailed reasons as:-

"A general explanation of the basis for their determination on the question of serious professional misconduct … will be sufficient in most cases" (per Lord Hope of Craighead in Selvanathan v. General Medical Council [2001] 1 Lloyds' Rep. Med. 17).

29. Subsequently, Newman J explained in Needham v. The Nursing and Midwifery Council [2003] EWHC 1141 (Admin) that the reasons in professional misconduct hearings "need not be elaborate nor be lengthy but should be such as to tell the parties in broad terms why the decision was reached" [11].
30. More recently, Elias J summarised the position by saying that:-

"If it is plain from the conclusion of the panel, when considered in the light of the transcript of the evidence, what the basis of the decision is, then that suffices as adequate reasons" (R (Sandeep Luthra) v. General Dental Council [2004] EWHC 458 (Admin) [27]).

31. In this case, a fair reading of the PCC's reasons shows that it complied with these obligations to give its reasons (i) by finding and stating that Dr. Birkin had committed serious breaches of duty summarised in paragraphs 10, 11 and 18 above, (ii) by stating that these breaches were capable of constituting serious professional misconduct, (iii) by setting out his personal mitigation before (iv) concluding that the charge of serious professional misconduct against Dr. Birkin was not made out. There is no reason why the PCC had to make any more detailed findings on the seriousness of Dr. Birkin's errors in the light of its need to give a general explanation of the basis of its decision.
32. In rejecting Mr. Wolfe's submissions on this issue, I have not overlooked his reliance on the statement of Beatson J, who wrote when granting permission on a paper application in this case that the determination of the PCC "does not address the severity of the matters which if found was substandard, inadequate or unprofessional". The task of a judge when considering a permission application is to see if there is an arguable case and this is precisely what the learned judge did. I respectfully agree with the learned judge that this was a suitable case in which permission should have been granted as an arguable case had been established, but he clearly was not indicating whether the claimant would or should ultimately succeed on this point.

VII The Isolated Incidents Point

33. Mr. Wolfe contends that the PCC were perverse in describing the protracted substandard treatment of Michael and Amy as "isolated incidents". As I explained in paragraph 25, when the PCC gave its reasons, it said in the paragraph, which I have numbered 3 that:-

"… the two cases about which it has heard evidence appear to be isolated incidents against the background of otherwise unblemished medical practice of over 30 years".

34. Mr. Wolfe stresses that the findings of the PCC established numerous culpable acts or omissions committed by Dr. Birkin while treating Michael between 30 March 1999 and 4 May 1999 and while treating Amy between 6 February 1998 and 14 April 1998. Counsel for the GMC and Dr. Birkin submit that the PCC's wording which Mr. Wolfe criticises and which I have just quoted, is justified because the PCC had received numerous very favourable references and had heard oral evidence extolling the way in which Dr. Birkin had otherwise performed his duties. These very favourable references came from over 50 patients, 19 fellow consultants and 26 management and nursing colleagues. I am unable to accept Mr. Wolfe's criticisms for three reasons.
35. First, on any view and after taking into account the purpose of the proceedings which I have explained in Section V above, this supporting evidence for Dr. Birkin shows that his heavily criticised treatment of Michael and Amy was exceptional and it was a sharp contrast with the very professional way in which he had apparently conducted his practice for 30 years of which 20 of these years he had been a consultant. Although it might have been better if the PCC had used the word "exceptional" to describe the seriously regrettable way in which Dr. Birkin had purported to care for Amy and Michael, I do not consider that serious exception can be taken to the use of the word "isolation".
36. The New Shorter Oxford English Dictionary explains that the word "isolation" can mean "separation from other things" or "the separation of a person or thing from the normal ..". In the light of that meaning, the protracted substandard treatment of Michael and Amy could well be described as "isolated incidents" set against the background of 30 years of professional medical treatment and the very many favourable references supplied showing the high professional standards which Dr. Birkin had otherwise attained. The PCC were entitled to describe it in that way and in any event it is not perverse to use the word "isolated" in that way. Dr. Birkin's misconduct in relation to his treatment of Michael and Amy was not in either case limited to one incident but a series of highly culpable errors as I have explained in paragraphs 10 and 11 above. Thus, the use of the words "isolated incidents" is strange and inept but I remain convinced that the PCC had in mind the totality of Dr. Birkin's misconduct to which it had just referred in very critical terms and to which I have referred in paragraphs 11 and 12 above.
37. Second, the PCC were well able to and did actually take account of the effect of their decision on professional confidence. The PCC's legal assessor explained this fact to the PCC in his advice and the PCC took account of it, even though there was no reason for it to expressly say so. I have no reason to doubt this. Third, the comment of Hooper J to which I have referred in paragraph 27 above constitutes a further reason for rejecting this point.

VIII The Medical Isolation Point

38. Mr. Wolfe contends that the decision of the PCC was also perverse in attaching importance to the isolated location of Dr. Birkin's practice on the Isle of Man, when it said in the paragraph numbered 3 of its decision (which is set out in full in paragraph 25 above) that:-

"The committee have noted that from 1982 you have single-handedly built up the paediatric service in the Isle of Man with its relative medical isolation".

39. Mr. Wolfe attaches importance to the fact that in Silver, the PCC attached importance to the isolated location of Dr. Silver's practice, which made it difficult for him to recruit staff and that it was a relevant fact in the light of the allegation that he did not have in place an administrative system which meant that he failed to ensure that a patient was visited as requested.
40. Dr. Birkin's position is clearly different from that of Dr. Silver but it must not be forgotten that the Isle of Man is separated from the mainland by a substantial expanse of the North Sea and thus, it was isolated from neighbouring medical services. Dr. Birkin in his evidence also explained the difficulties of transporting seriously ill children to the mainland for treatment. To that extent, Dr. Birkin was isolated from other paediatricians and this might well have meant that he had greater pressures on him than would have been imposed on doctors who did not work "single-handedly" in populous locations. The PCC would have the specialist knowledge to know of the difficulties of single-handedly building up a practice which was separated from other medical practices. I am unable to conclude that there was anything wrong with the PCC's description of his service in the Isle of Man having "its relative medical isolation". In any event, it certainly was not perverse that the PCC used the word "isolation", especially in the light of the definition of it to which I already have referred. Hooper J's comment quoted in paragraph 27 above is also supportive of my conclusion.

IX Conclusion

41. Anybody who has read of Michael's condition will have great sympathy for him and for the claimant. The claimant genuinely believes that Michael has suffered irreparable damage as a result of Dr. Birkin's error. As I have indicated, my task is not to decide if I agree with the decision of the PCC, but to consider if it impugnable on public law grounds, but the reasons which I have sought to explain compel me to refuse this application. It might be some consolation for the claimant to know that her case could not have been more effectively pursued than the way it has been actually presented by her legal advisers on this application.
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MR JUSTICE SILBER: I am very grateful to counsel for all their comments. I have taken on board their amendments, and there will be a few more of my own, but for the reasons which have been set out in the draft judgment the application is dismissed.

MR CLARKE: My Lord, I understand that the claimant is legally aided, so I ask for the normal order in respect of a legally aided claimant. We are entitled to our costs, but obviously they should be subject to the usual order in respect of enforcement.

MR JUSTICE SILBER: Yes.

MR WOLFE: My Lord, I plainly cannot resist that. My Lord, I seek the usual order for a publicly funded claimant in relation to the public funding assessment of my costs.

MR JUSTICE SILBER: Of course. Is there a certificate?

MR WOLFE: I think there is.

THE COURT ASSOCIATE: I do not have the file yet, my Lord.

MR JUSTICE SILBER: Can I say upon --

MR KENNEDY: My Lord, I was going to associate myself with my learned friend's application.

MR JUSTICE SILBER: Yes, I had taken that for granted.

MR WOLFE: Take what for granted?

MR JUSTICE SILBER: I take for granted that Mr Kennedy would also be applying for --

MR WOLFE: He can apply, but I would resist it, my Lord.

MR JUSTICE SILBER: Can we deal with Mr Clarke first?

MR WOLFE: I cannot resist Mr Clarke's application for costs.

MR JUSTICE SILBER: Yes, so far as Mr Clarke is concerned, that is agreed subject to the usual football order terms.

MR WOLFE: Then, my Lord, that order, as my Lord indicated, would be subject to confirmation of the certificate.

MR JUSTICE SILBER: Yes, subject to a certificate being filed. Can I say it should be done -- we had better get this sorted out -- shall we say within 14 days?

MR WOLFE: My Lord, I am sure that is no problem.

MR JUSTICE SILBER: Did you say you were applying, Mr Kennedy?

MR KENNEDY: My Lord, I did.

MR WOLFE: My Lord, I do resist that. My Lord, it is most unusual for the court to order costs for a second defendant. Bolton, in the House of Lords case, makes that absolutely clear. The exception, and the only exception, is where the second defendant has come along and raised substantially different points or run a case that the main defendant would not have been able to run. That is not the case here. Mr Kennedy, indeed, was only involved really in the last day or two before the hearing. There is absolutely no basis, my Lord, for the court to order second costs in a case like this. He is in exactly the same position as the beneficiary, but if he comes along and gives his support that is at his own risk.

MR JUSTICE SILBER: What do you say about that?

MR KENNEDY: My Lord, I think the position is slightly different given that the doctor is entitled -- what is being asked for --

MR JUSTICE SILBER: This is a purely academic point, is it not, of no significance at all?

MR KENNEDY: My Lord, in terms of the costs it may be an academic point, but the doctor was entitled to be here. He had an interest --

MR JUSTICE SILBER: He is entitled to be here, but the Bolton case establishes that it is only if you put forward something additional. My recollection, although it was nice having you here, is that you did not say anything in addition to what Mr Clarke said.

MR KENNEDY: My Lord, that may be the case, but one is still entitled -- the doctor is still entitled to be heard in the event that something arises that is new which --

MR JUSTICE SILBER: I am not sure how I should deal with that, because we have really got to look at the Bolton case again, which I have not looked at for some time. But my recollection is that Mr Wolfe is right on this, and that you really have to say that it is something over and above it.

MR KENNEDY: Well, my Lord --

MR JUSTICE SILBER: Could I do it on this basis: that if you, on reflection, decide that you want to pursue this you can make an application to me in writing on this, and deal with it on that basis? What do you say, Mr Wolfe?

MR WOLFE: My Lord, that is fine from my point of view. I am just rapidly flicking through the White Book because I think it does somewhere set out Bolton. It may make my job slightly easier, I had not expected to face the application.

MR JUSTICE SILBER: My recollection is that normally, in fact, the interested party who just comes along for support is welcome by the court, but does not get their costs.

MR WOLFE: That is right, my Lord.

MR JUSTICE SILBER: I do not think, and do correct me if I am wrong, that you added anything to what Mr Clarke said?

MR KENNEDY: My Lord, forgive me.

MR JUSTICE SILBER: It was nice having you here, but I do not think you added anything to what Mr Clarke said.

MR KENNEDY: My Lord, no, apart from perhaps assisting the court in relation to some of the issues arising in relation to CRHP.

MR JUSTICE SILBER: The what?

MR KENNEDY: Council for the Regulation of Health Professionals. Your Lordship will recall that there was an interlude when we dealt with what powers they had. But I know Mr Clarke would have dealt with that had I not been here. My Lord, I am content to put my submissions in on paper.

MR JUSTICE SILBER: If you wish to pursue it, you have to put your submissions in in writing in 14 days. Mr Wolfe to respond within 14 days, and I will put my answer in writing. But you better bear in mind that I think you have a very uphill battle because my recollection is that you did not add anything, although it was nice to see you here.

MR CLARKE: He is much better looking than me.

MR JUSTICE SILBER: I will reserve judgment on that.

MR WOLFE: I was seeing if I could find Bolton to assist the court.

MR KENNEDY: My Lord, it is page 1292.

MR JUSTICE SILBER: The trouble is that they put a new volume of this book out about every three weeks and I am not sure we all have the same one. 1292, it does not look like it in mine, mine is "Transcripts or notes of evidence". But I have only got the 2003 version.

MR KENNEDY: Well, my Lord it is paragraph 48. My Lord, perhaps it is easier if I put it in in writing.

MR JUSTICE SILBER: Yes, but you might like to reflect --

MR KENNEDY: My Lord, I will.

MR JUSTICE SILBER: I suggest you reflect because my present view is that you have a very, very difficult task.

MR KENNEDY: My Lord, I take your Lordship's indication.

MR JUSTICE SILBER: Yes.

MR WOLFE: My Lord, I seek my Lord's permission to appeal against my Lord's judgment in relation -- well, it may be one point or it may be two points, but it is fundamentally the question of whether the Committee needed to make a discrete consideration and finding in relation to the severity of the charges if found proved as a step within the process of considering whether there was serious professional misconduct, having taken into account the other factors.

My Lord, there is a facet to that which may be a separate challenge, or my Lord may prefer to see it as one, which is that even if they had made such a consideration there is a failure to give proper or sufficient reasons in relation to it. In relation to the latter of those: the reasoned points, particularly the failure in the light of the public purpose, or the primary purpose, of the PCC process, and the need for there to be a public analysis and public understanding of the basis for the decision going perhaps beyond the normal position where it is simply as between the parties.

My Lord, in terms of the main of those points, the discrete severity point, I do place some great assistance, in my submission, from Beatson J's assessment on permission. My Lord has dealt with his position to some extent in my Lord's judgment, but, in my submission, Beatson J was clear on the need for there to be a discrete finding. The tentativeness expressed in his reasoning was as to whether there had in fact been a discrete finding. He was not saying: it is arguable there needs to be a finding, it is arguable there was not one.

MR JUSTICE SILBER: What do you say about the fact that they first considered whether it was capable of being --

MR WOLFE: In my submission that does not cross the threshold. It is rather like saying something is arguable. They asked a negative question. It is rather like saying: is there prima facie evidence? Having established the prima facie evidence you then need to go on to consider that evidence. In this case it is not quite directly the same.

So, in my submission, my Lord, they need to do it. It needs to be something over and above just saying it is capable of amounting to serious misconduct. There was not such a finding in this case, and nor was it properly expressed in reasons.

My Lord, in terms of that, whether my Lord analyses that as one or two grounds, I say I have a real prospect of success on that. Also, there is a compelling need; being the public interest in the appeal rather than in the substantive case, because what my Lord has done is identify an approach which the PCC can, and in subsequent cases no doubt will, take, which is to wrap the whole thing up compendiously and not analyse it, as we say it should be analysed, in stages.

So my Lord, regardless of the facts of this case, and whether I have a real prospect of success on the facts of this case, in my submission that is a point which will affect future cases and future conduct of matters before the PCC, and therefore needs to be considered properly before the Court of Appeal. On either of those limbs, and they are alternative bases for the court to grant permission, I do seek my Lord's permission to go to the Court of Appeal.

MR CLARKE: My Lord, I oppose that. In my submission there is no point of law in this case. My Lord has applied familiar principles to a particular scenario, and my learned friend's attempt to fragment or compartmentalise the process is precisely the sort of thing which my Lord in the judgment has indicated is not the correct approach, which is to tease out errors by, as I say, effectively seeking to compartmentalise or rigidly formalise the approach to the decision-making by this type of public body. To do so takes us in the direction of what Lord Wilberforce would have called (inaudible) in the exercise of the court by angels on heads of pins. That is not the correct approach, and my Lord, in my submission, has correctly applied well established principles of the court to the scenario. The Court of Appeal would be very unlikely to intervene and the court should not grant leave.

MR JUSTICE SILBER: Mr Kennedy?

MR KENNEDY: My Lord, I agree.

MR WOLFE: My Lord, in paragraph 24 of my Lord's judgment, my Lord has set out what is basically a straightforward proposition of law in the last five lines. It follows that, certainly in this case, that there is no reason to narrow it in that way to understand it properly:

"... the PCC were not obliged to assess in isolation... the seriousness of Dr Birkin's failures in his treatment, but merely to regard it as a very important factor..."

My Lord, in order to regard it as a factor it has to be assessed. My Lord, a situation where one has a number of material considerations or matters to put in the balance, one nonetheless has to identify and analyse each of them before undertaking the balancing exercise. But, my Lord, the message that will be drawn, in my submission, from that paragraph in subsequent cases will be --

MR JUSTICE SILBER: One of the things I was going to say was that in any event in this case they had made an assessment. There are two points I was going to put in there. One is the capability point and, secondly, the serious criticism that they had made in their findings.

MR WOLFE: My Lord, obviously my Lord's judgment is slightly different to the draft. That moves things on slightly, but, in my submission, it does not change things materially, because what my Lord has done is set out a statement of law and then gone on to apply it. The statement of law, in my submission, is at least arguably wrong, and a public interest point in clarifying that, because it will arise in all subsequent SPN cases -- that goes to the heart of the SPN analysis process -- and in relation to the subsequent conclusion, my Lord, I would simply say there is a real prospect of success, particularly given the absence of any evidence, according to Beatson J's indication, that that is not a sustainable finding.

So, my Lord, I do say that on either basis, and it only has to be one or the other, that the court should grant permission on that ground or grounds.

MR JUSTICE SILBER: Thank you. Mr Wolfe contends that permission to appeal should be given in this case because it was necessary for the PCC to make findings on the seriousness of the misconduct. He also contends that there was a failure to give reasons and that undermines the purpose of the disciplinary proceedings. He also relies on the comments made by Beatson J when giving permission.

In my view this case does not reach the arguability threshold or the public interest threshold. The PCC said that the conduct was sufficiently serious to be capable of professional misconduct. They also recorded their serious criticism that they made of Dr Birkin.

A further reason is that it is clearly stated by the Privy Council that a general explanation of the basis for the determination is sufficient in most cases. In this case it seems clear that that is what they said because they took those factors sufficiently into account. Therefore I refuse permission.

Thank you all very much for your help on this.