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
		15 November 2005

1. MR JUSTICE MCCOMBE: This is an appeal brought by Ms Sian Mair Caiach against a decision of the Fitness to Practise Panel of the General Medical Council, sitting as a Committee on Professional Conduct on 26 April of this year. The result of the decision appealed against was that the Panel decided that Ms Caiach's registration should be subject to various conditions, related principally to education and supervision, for a period of 18 months. I will return in due course to those conditions.
2. The broad history of the matter is this. In about December 1994 the Carmarthenshire Health Service Trust had Ms Caiach in their employ as a consultant orthopaedic surgeon working in a hospital in Llanelli. There was, she tells me, some dissension within the ranks of the hospital owing to certain complaints she had made herself about the conduct of other practitioners in the hospital. She felt that she had become the object of a degree of what might, in short, be called victimisation at the hands of some of her colleagues. She assesses one of the results of that was that, in about April 2000, one of her colleagues made a complaint about her skills in surgery and suggested that they were not adequate. This led to a review being conducted by inspectors from the Royal College of Surgeons, and they reported at the end of 2000 that Ms Caiach should not perform joint replacement operations until she had undergone further training.
3. For various reasons, which it is not necessary to go into, the training requirements did not go well. For various reasons, either inability to attend them or perhaps because of ill-health, she was unable, or as suggested by the GMC, perhaps unwilling, to attend the training programme as required. For whatever reason, at the beginning of 2003 the training programme ceased. At that stage the Health Service Trust suspended Ms Caiach from her role as consultant orthopaedic surgeon and the matter was referred to the General Medical Council to consider whether any questions of conduct or professional performance arose.
4. As a result of that reference, an Assessment Panel was constituted, and in accordance with the rules required of them they had to decide whether or not Ms Caiach's practise competences were demonstrated as being acceptable or perhaps giving rise to concern -- or unacceptable, to use the terms which prevail in the relevant regulations.
5. In an assessment conducted by that Panel, the result was -- and I do not propose to go at great length at this stage into the reasons for it -- Ms Caiach's practise was unacceptable in two areas, namely the providing or arranging of treatment for patients, and secondly in relation to educational activities.
6. In relation to the second part of the assessment, a surgical general knowledge core test was conducted in which Ms Caiach scored 80.53 per cent, rather than what the Assessment Panel's criteria required, a minimum acceptable score of 85 per cent.
7. As a result of that assessment, the matter came before the Panel, which I have mentioned, and at a hearing on 25 and 26 April the Panel made the determination to which I have already referred. Before considering the evidence, the Panel had to consider the procedural problem that arose out of Ms Caiach's failure to attend the Panel hearing. A previous adjournment had, I understand, been given in view of Ms Caiach's health. It was understood that she required a further adjournment, or was asking for a further adjournment. She was invited to supply reasons in writing. There was material before the Panel which they considered on the question whether or not to adjourn the case yet further without formal written application for adjournment being made, but on material that was already available to them. They treated her non-attendance, in effect, as being an application for a further adjournment.
8. I have had before me the full transcript of proceedings before the Panel, which I have read and considered in detail. It seems to me that the Panel rightly took the application for adjournment to have been made on two grounds, namely on compassionate grounds because of the illness of a relative, and secondly because of her own ill-health. The relevant material was referred to when the question of adjournment was considered. The Panel concluded that, with regard to the application on compassionate grounds, it could not succeed because it had had no material on which to judge the claim that Ms Caiach's father was so ill that she should be excused from attendance to, or attendance, at the proceedings before the Tribunal. Its conclusion, expressed at page 10 of the first volume of the transcript, was this:

"The Panel notes that by letter received on 19 April 2005, Ms Caiach asked the GMC for the hearing to be adjourned on compassionate grounds due to her father's ill health. The Panel has considered this factor very carefully and has concluded that in the absence of any substantive evidence with regard to her father's illness, an adjournment should not be granted in this case on the grounds of compassion."

9. As far as the medical evidence pertaining to her was concerned, the Panel considered certain psychiatric reports available to it in relation to mental illness, or possible mental illness, suffered by Ms Caiach at the time. The evidence was to some degree out of date because the two practitioners had not seen her for some time. Some of the material is alluded to at page 4 of the transcript in the opening remarks of Mr Kitching, who took the Panel through the material that was available to them. The Panel reached the following conclusion on that matter:

"The Panel has also carefully considered the medical evidence, which has been placed before it in relation to Ms Caiach's medical condition. Ms Caiach has contended that she cannot reasonably attend the hearing and state her case given the nature of her illness and the added stress that this would cause. The Panel notes that neither of the two psychiatrists who have reported on Miss Caiach have stated that she should not attend on grounds of her mental health. Moreover, they each suggest that it would be more beneficial in terms of her health for the matters to be considered sooner rather than later."

10. The Panel went on, considering the question of adjournment in the round, to say this:

"The burden of establishing a proper ground for an adjournment rests on Ms Caiach. The Panel is satisfied that Ms Caiach is, and has been, aware of the need to adduce persuasive evidence in support of any such application. This she has not done. The Panel concludes that her absence today is voluntary and not based upon her own mental health or any other justifiable reason."

11. The Panel also heard material that Ms Caiach was a nominated candidate for the Plaid Cymru party in the then forthcoming election. A suggestion was obviously being made that perhaps she was in rather better health than might otherwise appear to be the case. During a short period of adjournment, the candidature of Ms Caiach for that party was confirmed. But the Panel in its decision said this:

"The Panel has reached this conclusion [ie not to adjourn] independently of information presented today which suggests that Ms Caiach is standing as a Parliamentary candidate in the forthcoming General Election. However, that information provides further support for that conclusion."

12. The legal assessor advised the Panel on the principles that they should apply in relation to the question of adjournment. It seems entirely clear to me that the legal assessor's advice was accurate and satisfactory and the Panel were accordingly properly directed. Having regard to the evidence which was before it on this point, it seems to me that it was entirely open to the Panel, in the light of principles explained to them, to reach the decision that they did. It is not possible for this court, on reviewing on appeal the exercise of a discretion, to substitute its own judgment of the material before any particular inferior Tribunal, said with respect, on the basis of what the court might itself have decided. It has to look at the question as a matter of principle. I can detect no error of principle applied by the Panel in making the decision on the question of adjournment.
13. On the question of the merits of the application before the Tribunal, Ms Caiach has referred to various matters in the history of the proceedings, demonstrating what she contends to have been errors on the part of either the Royal College of Surgeons Review Panel or on the part of the Assessment Committee. However, the Panel had before it the evidence of the Assessment Panel. It heard evidence from two of its members and did not have the benefit of any challenge by way of cross-examination or otherwise of those witnesses. It seems to me that the Panel was entitled to find that the Assessment Panel's report, together with the explanations given by the witnesses, both in chief and by way of questioning from Panel members, justified a decision to make the order that in the end they made. There is nothing that has been said to me by Ms Caiach today to suggest, on the basis of that evidence, that the Panel was not justified in taking the decision that it did, in the light of the conclusions that I have already recited.
14. There is one other matter. Ms Caiach complains that certain of the material before the Panel was in fact excluded, which she would have liked the Panel to consider. It is pointed out by Mr Thomas, on behalf of the GMC, that the material to which she alludes was in fact documentary material produced by the GMC, upon which Ms Caiach had earlier indicated she had wished to cross-examine the relevant authors. In view of the information that came to hand fairly late in the preceding week before the hearing, it became apparent that Ms Caiach was not going to attend. Therefore, the desire to cross-examine them fell by the wayside. Not unsurprisingly, the GMC seems to have informed those potential witnesses that they need no longer attend. It was thought before the Panel that as Ms Caiach was unable to cross-examine on the material of which those witnesses were authors, it would be wrong for the Panel to rely on the material, and then thinking that they were acting in her interests rather than against it, the Panel decided to excise those documents from their consideration. That may have been a misunderstanding of what Ms Caiach wanted to happen in view of those documents, but, to my mind, in the light of the history to which have I have related, it is entirely understandable and I can find no error in the Panel's decision as to how to treat that material.
15. As will appear, I have considered this matter on the merits of Ms Caiach's two main points, namely that she should have been granted the adjournment, which by implication or non-attendance indicated was required; and secondly that for various reasons which, with respect to her, were very diverse and not greatly focused, the decision was wrong. That leads me to the question of the order that is made, which Ms Caiach said is really addressed to a view that she might wish to continue in practise as a general orthopaedic surgeon. However, as Mr Thomas has pointed out to me, the conditions were that her registration should be subject to condition of either retraining in orthopaedic surgery or in an alternative field of medicine in quite general terms; therefore that appropriate training arrangements could no doubt be put in place to enable her to do that.
16. It seems to me, therefore, that the decision of the Panel was not only understandable but unimpeachable in any sensible manner. As I say, I have dealt with this matter on its merits. However, the initial objection was taken by the Council that this appeal was out of time, the timetable being this: the decision was pronounced on 26 April 2005 and accordingly within a period of, I think, 28 days the appeal should have been lodged. It appears that in fact Ms Caiach did submit to the Administrative Court office a notice of appeal, which failed to be presented in the correct form, and did not submit the relevant fee. She tells me, and I accept from her, that she did not hear for some two weeks that those documents were erroneous and not in the correct form, and that she did not know that she had failed to comply with the rules. Indeed, she says it was when she presented her skeleton argument in supplement to the notice of appeal that someone telephoned her to tell her that the original documents were not in correct form and the documents were returned to her.
17. It has to be noted that, even after that two-week period, there was some further delay in lodging documents in proper form, and then there was a further month's delay in failing to serve the appeal on the General Medical Council. Ms Caiach tells me that she did not understand that she had to serve the Council. It is perhaps surprising that anyone could take that view as the Council was obviously the party who was taking the view that the sanctions were appropriate. But, nonetheless, I accept from her that, given her state of distress or depression, she had not fully appreciated that these steps had to be taken. If that had been the sole matter, I would have been inclined to extend the time for Ms Caiach to make her appeal to this court. However, having considered the arguments on the merits, for the reasons that I have already given I find that those, when investigated, have really no substantial merit, in spite of the courtesy with which Ms Caiach's submissions were advanced.
18. Accordingly, what I would propose to do is to refuse the application for the extension sought, and, so far as is necessary, to dismiss the appeal.
19. In parting with the matter I should say this, that it is quite clear, as has been apparent to me throughout this hearing, Ms Caiach suffers a degree of substantial distress, which may -- and I am not qualified to judge -- have some medical origin. She complains that the conditions are too stringent for her ever to work in a relevant medical context again. I have no power to consider this question. But it seems to me that I can properly hope that the General Medical Council might consider, when she is of better health, an appropriate pattern of training in relation to any medical profession that she wishes to continue thereafter. I can make no order or make any decision that is binding on the Council in that way. But simply as a judge who has heard this case, I hope that sympathetic consideration will be given to any such application.
20. MR THOMAS: My Lord, that is a matter that is probably best dealt with outside the courtroom.
21. MR JUSTICE MCCOMBE: It is not a matter for now, but I thought that sometimes as juries add riders to their verdict, I would add that one to mine.
22. MR THOMAS: The GMC has noted the comment.
23. MR JUSTICE MCCOMBE: Thank you.
24. MR THOMAS: My Lord, in the light of your Lordship's judgment, I would ask for the GMC's costs. Hopefully the court has been provided with a costs schedule. But I can hand up a copy, if not.
25. MR JUSTICE MCCOMBE: Ms Caiach has a copy, has she?
26. MR THOMAS: Yes.
27. MR JUSTICE MCCOMBE: I hear the application. Two points, Ms Caiach: principle first. Do you resist an order that you pay the Council's costs? And secondly, what do you say about the individual items on it, insofar as you might wish to argue that they should not be recoverable?
28. CLAIMANT: I certainly would like to resist the costs.
29. MR JUSTICE MCCOMBE: First of all, the matter of principle. Shall I just set out the general rule, which I am sure you are well aware, that normally a party who is not successful on appeal has to pay the costs of it. That is the normal rule. Tell me why I should not apply that.
30. CLAIMANT: I think, firstly, the General Medical Council appear to have, in all respect to Mr Thomas, a very expensive --
31. MR JUSTICE MCCOMBE: That is quantification. What about the principle? Suppose they had spent 20 pence.
32. CLAIMANT: I would have no problem financially with 20 pence. On the principles, I feel that if the General Medical Council had given me better advice, for instance on filing the appeal, I would have saved you a great deal of trouble. Also, I feel that really the General Medical Council should have been able to sought this out in a better way. Although, as your Lordship says, there was no actual -- it happened because of the way the GMC is set together, apparently, that the only way I can change things is by arguing -- I do not really feel that that is fair.
33. MR JUSTICE MCCOMBE: I think what that boils down to is you are saying that they did not make adequate attempts to consider your offer to think of a way round the appeal rather than by coming to court. That is your point, is it not?
34. CLAIMANT: That is one of my points. I personally feel that it is a rather -- I do not know if I can say silly way of -- I am sorry, my Lord, I am very emotional, I do not think --
35. MR JUSTICE MCCOMBE: That is the principle. What about the amount?
36. CLAIMANT: The amount does seem to be very large. I do not honestly know how much barristers cost, but it certainly seems a large amount. I do not really know how these costs are dealt with.
37. MR JUSTICE MCCOMBE: That is going to have to be a matter for me. I think you are going to have to let me have a look at this and see if there is anything I think is out of the ordinary. Mr Thomas, will you forgive me for a moment? I think I owe it to Ms Caiach to look at the items and see if there is anything I should push you on.
38. MR THOMAS: Certainly, my Lord.
39. MR JUSTICE MCCOMBE: Mr Thomas, presumably the fee for yourself includes your written argument?
40. MR THOMAS: It includes the written argument and it also includes the work before the hearing as well, my Lord.
41. MR JUSTICE MCCOMBE: Sure, for the preparation for the hearing and the hearing itself.
42. MR THOMAS: And, my Lord, just to mention, the material that the GMC thought it unnecessary to trouble the court itself, did find its way to me.
43. MR JUSTICE MCCOMBE: Of course, you had to read it. Thank you. Right, well, I have considered those matters. It seems to me that Ms Caiach is unable to resist the making of the usual order that she do pay the General Medical Council's costs of this appeal, to be assessed. The question remains as to whether that assessment should be in the sum claimed or in some other sum. Ms Caiach's short point is: it seems very high. I would observe that it is nothing like as high as many such schedules I have seen in relation to appeals of this length, not necessarily in relation to the Council but in relation to other litigants.
44. However, as one can always know that if the matter were assessed on a detailed basis, the schedule might be whittled down to some rather less than is actually claimed, without disrespect to the person compiling the schedule. It seems to me that an appropriate order in this case would be to assess the costs in the sum of £4,750 in all.