England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		19th February 2004

Thursday, 19th February 2004

1. MR JUSTICE McCOMBE: I have before me an appeal by Dr K Shanker against a decision of a Committee of the General Medical Council of 22nd August 2003, whereby that Committee directed the Claimant, Dr Shanker's, suspension from practise for a further period of six months. Such suspensions had been ordered previously at hearings in November 2001 and August 2002. Four points have been argued before me by Dr Shanker.
2. First, it is said that he was not given the appropriate period of notice of the resumed hearing of the Committee that took place in August 2003.
3. Secondly, it is argued, apparently in writing, although it was not pursued orally, that there was no jurisdiction for the Committee to order a further assessment of the doctor as part of its order for suspension.
4. Thirdly, he argues that the Committee was not properly constituted in that, in particular, the Chairman of the Committee on the third occasion, a Professor Hatch, had been a member of the Committee that had considered this matter on an earlier occasion.
5. Finally, it is submitted that the Committee was wrong to rely, as part of their grounds for decision, that a witness for Dr Shanker, Dr Norris, said at the resumed Committee hearing that he had not seen an assessment report of the doctor's practise, and therefore had changed his opinion.
6. I can deal with each of those points in turn. First of all, the argument that Dr Shanker did not have appropriate notice of the hearing is founded upon the provisions of Rule 12(3) of the General Medical Council (Professional Performance) Rules Order of Council 1997 which provides in its material terms as follows:

"Where the Committee are to hold a resumed hearing, the Registrar shall -

(a) not later than 28 days before the day fixed for the resumed hearing, send to the practitioner, with a copy of these Rules, a notice which shall ..." set out certain material.

7. The Rules provide that the relevant address is the registered or last known address of the Respondent to the proceedings. Evidence has been produced to me that a letter was sent to Dr Shanker's registered address on 16th July 2003, giving notice of the resumed hearing on 21st August 2003. It appears from records obtained from the Post Office that the letter was delivered and signed for at about 12 noon on 18th July, ie, within the requisite period. Dr Shanker tells me, and I accept, that he personally did not sign for or receive that document at the time of its delivery, but I am quite satisfied that such delivery by the postal service was entirely appropriate in the context of the Rules. I therefore find that adequate notice was given of the hearing.
8. Moreover, Dr Shanker was represented by counsel at the resumed hearing on 23rd August. No application was made for an adjournment, either at the outset or at any later stage because of any actual or perceived prejudice to the doctor arising out of late receipt of documents. In my view nothing arises, therefore, on this point.
9. The second objection is that the Committee were at fault in directing, as part of their ruling of 21st August 2003, that the doctor should undergo a further assessment in the period of suspension should he wish, presumably, to resume practice thereafter. It is argued that there is no jurisdiction to order such further assessment.
10. I have been shown Rules 11 and 27 of the same Rules to which I have already referred, which make it entirely clear that it is well within the power of a Professional Performance Committee to order such assessments, should they wish to do so. This point, therefore, also is of no substance.
11. The third point is the question of the participation of Dr Hatch, and there may be other doctors who fell within the same category of persons who were, Dr Shanker submits, disqualified from sitting on the resumed hearing. This argument is based upon the provisions of the General Medical Council (Constitution of Fitness to Practise Committees) (Traditional Arrangements) Rules Order of Council 2003, which came into force on 1st July 2003, as provided by those Rules. The point arises in this way: Dr Shanker points to the provisions of Rule 6 of those Rules, which is in the following terms:

"No person may sit as a member of a Fitness to Practise Committee for the hearing of any case if he has previously sat as a member of any other Fitness to Practise Committee that has considered that case or has adjudicated on it elsewhere in any other capacity".

12. The objection is that that seems to preclude the participation of any member of the Committee if they had earlier sat on the same Professional Performance Committee. I found the Rule rather surprising when I first read it. It seemed to lend some support to the suggestion that Dr Shanker was making. However, when one looks at the definition of "Fitness to Practise Committees", contained in Rule 1 of the same Rules, they are defined as the Preliminary Proceedings Committee, the Professional Conduct Committee, the Health Committee, the Assessment Referral Committee, the Committee on Professional Performance and the Interim Orders Committee; accordingly, a series of committees within the organisation of the General Medical Council.
13. It is therefore submitted by Mr Stern for the Council that where Rule 6 refers to any "other" Fitness to Practise Committee, it is not referring to the very Fitness to Practise Committee that is considering the particular matter in hand, but to some other category of committee that might be seised of another matter relating to the same case. I think that that is the obvious common sense of the matter, although the drafting, as I have ventured to suggest in argument, is far from happy.
14. To my mind, the intention of the Rules is, in the end, clear and there was no objection in this case or in any other case to Dr Hatch being a member of the resumed Committee hearing on 23rd August. It obviously has common sense that the Rules should work that way, quite apart from the natural construction of the language. First of all, there requires to be a degree of continuity in committees of the type with which we are here concerned, but there again, rules of fairness and natural justice may dictate that a committee considering one aspect of a practitioner's matter should not then sit on an entirely separate subject matter relating to the same doctor. Therefore, that is probably the reason, I venture to suggest, that the Rules are drafted as they are, but it seems to me, however, that there might be some force in reconsideration of the drafting to make the matter somewhat more clear.
15. The final point arises out of a finding by the Committee on 23rd August. This is a rather complex and convoluted point, but is reasonably straight forward at the end of the day. At the Committee Meeting of 23rd August, one of the witnesses called by Dr Shanker on his behalf was a Dr Norris, who was an experienced, although possibly relatively elderly, general practitioner, who had expressed the view, or was willing to espouse the cause, that Dr Shanker should be restored to practise on conditions, rather than have his suspension continued.
16. When Dr Norris was cross-examined, he was shown by counsel for the General Medical Council a formal assessment report that had been produced and led to one or other of the suspensions of Dr Shanker. He was obviously going to be asked in relation to that document, given the contents of that report, was his own opinion one that he could reasonably justify? On seeing it, the witness, Dr Norris, said that he had not seen it before. He was pushed by counsel to consider whether he had or not, but was firmly of the view that he had not seen the document before. The Committee adjourned for a while for the doctor to read that report and to consider it. When the Committee reconvened, Dr Norris was asked more questions about the assessment report and in the end concluded in his evidence that, had he seen it, he would have taken a rather different view, and that he had indeed changed his view as to what the correct outcome of the Committee determination should be.
17. In the determination, pronounced by the Chairman, the Chairman expressed himself in the following way:

"However, the Committee are concerned that you failed to show the report of the assessment panel to Dr Norris in accordance with the recommendation made in the determination of this Committee in November 2001 and reinforced in August 2002. This omission has contributed to the fact that your educational programme has not been completely focused on addressing the serious deficiencies in your performance. You have stated that you have recently accepted that your performance has been seriously deficient. Hitherto you have failed to accept this", and the determination continues.

18. Dr Shanker objects that this matter was an inadequate finding because the doctor had been shown this report and had probably forgotten it. However, it is quite clear that that is a matter that could clearly have been explored in re-examination, following the cross-examination to which I have just referred, by counsel then instructed for Dr Shanker. He did not conduct any such re-examination and the point seems to have fallen away, indeed if it ever arose at all in the context of the hearing.
19. It is not surprising, given the evidence by Dr Norris, that the Chairman should express himself in the way that he did. It seems to me entirely right that he should have done so. Moreover, whatever the position may have been in August 2002, Dr Norris, the witness called for Dr Shanker, whatever his view in the past, reached the clear view that his opinion, on the subject matter that the Committee had to decide, had changed. That was an important matter. He gave that evidence and the Committee was entitled, on that evidence and the other evidence before it, to come to the conclusion that it did.
20. In the end, it seems to me, with respect to Dr Shanker, that his points do not have substance and, accordingly, this appeal must be dismissed.
21. DR SHANKER: Can I request this Court for leave to move to the House of Lords?
22. MR JUSTICE McCOMBE: No, I do not consider that any further appeal will be sufficiently arguable to warrant the grant of any further leave to appeal.
23. I would add this in relation to the application. Insofar as I have been able to express with any clarity the points that have arisen on this appeal, it is only because of the helpful guidance given to me by counsel for the General Medical Council. The grounds of appeal and the skeleton argument presented in support of it were almost incoherent. While the Courts are always patient to listen to litigants in person with courtesy, as I have tried to do to Dr Shanker, I do not see why any other tribunal should be troubled with the incoherent sort of material that I have had to struggle with in this hearing. It is quite impossible that litigation should be conducted in this way and it is utterly unfair to litigants who have to face it that they should be expected to provide the Court with the material, such as it may be, for the Court to understand, or even begin to understand, the points that are sought to be made. This sort of fruitless litigation needs to be discouraged at every possible stage and I have not the slightest hesitation in refusing leave to appeal.
24. MR STERN: My Lord, I do make an application for costs.
25. MR JUSTICE McCOMBE: Yes. Indemnity costs?
26. MR STERN: I believe an assessment has been handed in.
27. MR JUSTICE McCOMBE: I have not seen it, I am afraid.
28. MR STERN: May I hand in another copy? (Handed).
29. MR JUSTICE McCOMBE: Has Dr Shanker seen a copy of this?
30. MR STERN: I had been informed that all parties had been served with it. Maybe, for whatever reason, it has not. Allow me to hand one to Dr Shanker. (Handed).
31. MR JUSTICE McCOMBE: The points having been taken about notice that they have, if there is any serious dispute, I would be inclined to order a detailed assessment because I do not want it to be said that Dr Shanker has not had a proper chance to consider the points made.
32. MR STERN: I think if you look at them, they are reasonable.
33. MR JUSTICE McCOMBE: Let us see. Dr Shanker, do you object to me making an order that you pay the costs of this appeal?
34. DR SHANKER: I am on benefit.
35. MR JUSTICE McCOMBE: That does not affect the principle. The question whether you can afford to pay it is one thing. The principle is should I make an order for costs and what the amount of those costs should be. Do you have anything to say about that? The normal rule is that if you lose you have to pay the other side's costs, but if you want to argue that you should not have to here, please say why.
36. DR SHANKER: Your Lordship, I said that I am not --
37. MR JUSTICE McCOMBE: You say the reason is you cannot afford them. Yes, I understand. But what about the amount? Do you see the amount there claimed? Essentially, the total sum claimed is £4,000. Part of it is VAT. If you look at it, it is £3,650, forgetting the VAT for a moment, being £1,650 for solicitors and £2,000 for counsel. Do you have anything to say about the quantum of that?
38. DR SHANKER: I cannot afford to pay any of it.
39. MR JUSTICE McCOMBE: Do you want to argue in any way that those costs are excessive or unwarranted on this appeal, or anything of that nature?
40. DR SHANKER: Cost-wise, I am not an expert so I cannot answer straight away.
41. MR JUSTICE McCOMBE: Let me have a look for a moment and see how it is built up. (Pause). Tell me, Mr Stern, is it permissible for an employed representative to charge at the same sort of rates as City firms or West End firms? I may be out of date.
42. MR STERN: I think your Lordship may, if I may say so respectfully.
43. MR JUSTICE McCOMBE: Just for a change!
44. MR STERN: I think double that figure, maybe. My Lord, the application is directed more towards the principle because, of course, those instructing me are aware of the realities of the situation.
45. MR JUSTICE McCOMBE: But if I am going to make an assessment, it must be based upon a sound footing that is reliable.
46. MR STERN: I do not have evidence, but certainly my understanding is that not many solicitors --
47. MR JUSTICE McCOMBE: You are probably right. I see that the hours involved do not seem to me to be out of order.
48. MR STERN: No, the hours are merely the compilation of documents and, of course, responding to the matter that needs to be responded to, chasing up and, of course, trying to find documents because we were not served with the skeleton argument at all, and had eventually to come and physically get it.
49. MR JUSTICE McCOMBE: In the light of my comments about your help, I can hardly quibble with that. I will make an order for costs and it will be in the sum claimed on the assessed schedule.
50. Mr Stern, thank you for your assistance. Dr Shanker, thank you for your courteous submissions, even if I had difficulty understanding them.