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
		8th December 2005

Thursday, 8th December 2005

1. MR JUSTICE SULLIVAN: This is an appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 ("the Act") against a decision of the first respondent's Fitness to Practise Panel ("the Panel"), dated 13th May 2005, in respect of a charge brought by the first respondent against the second respondent.
2. Since I have concluded that the case must be remitted to the Panel under section 29(8)(d) with appropriate directions (to which I will refer in due course) it is desirable that I should say as little as possible about the merits of the case. I shall therefore summarise the facts only to the extent that it is essential to do so in order to explain the basis for my decision.
3. The charge against the second respondent related to his examinations of two patients, Miss S on 6th October 2003, and Miss B on 29th December 2003. The charge alleged that he examined their breasts and that inter alia his examinations were not medically justified, were inappropriately carried out, and were inadequately recorded. The charge did not allege that the second respondent's conduct was sexually motivated and/or indecent. Counsel for the first respondent told the Panel that no improper motivation was being suggested. In summary what was being alleged was incompetent and/or inappropriate behaviour but not indecency.
4. The Panel found some of the complaints within the charge proved. It is unnecessary to rehearse the details, but it should be noted that the Panel concluded that the second respondent had not conducted a breast examination of Miss B but an examination of the area beneath her breasts. The Panel concluded that the matters which were admitted and/or proved did constitute serious professional misconduct and that conditions should be placed upon the second respondent's registration for 18 months, after which consideration of his case would be resumed.
5. On behalf of the appellant Mr Jay QC contended, and it was not disputed, that if the Panel had concluded that the second respondent's conduct was not simply incompetent and/or inappropriate but indecent and/or sexually motivated, then that sanction would have been unduly lenient.
6. Section 29(4)(a) provides, so far as relevant for present purposes, that where the appellant considers that a panel decision:

"... has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both...

...

And that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court."

7. In a nutshell, the appellant's case is that the first respondent 'undercharged' the case against the second respondent. The first respondent should have alleged that the second respondent's conduct was sexually motivated and/or indecent and not simply incompetent and/or inappropriate.
8. Before the Panel, counsel for the GMC (not Mr Englehart QC who appeared on their behalf before me today) was not asked to and did not give any explanation as to why sexual motivation and/or indecency was not alleged. When the appellant asked the first respondent for an explanation the first respondent was not able to offer any explanation and agreed that it should have included such an allegation in the charge against the second respondent. Mr Englehart confirmed that the first respondent agreed that the appeal should be allowed upon this basis.
9. Although there is an issue between the appellant and the first respondent as to whether an allegation of sexual and/or indecent motivation should have been made from the outset, that is to say, when the charge was being formulated by the first respondent's Preliminary Proceedings Committee under Rule 11 of the GMC Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 ("the Rules"), or when the charge was specified in the Notice of Inquiry under Rule 17, it is unnecessary to resolve that issue because, at least as between the appellant and the first respondent, it is agreed that in late October or early December 2004, well before the date of the hearing in May 2005, the first respondent had received sufficient information (in the form of two witness statements from Ms S and Ms B) to warrant the inclusion of such an allegation in the charge by way of an amendment. The Rules provide that this can be done subject, always, to considerations of fairness, either in advance of the hearing by the chairman of the PPC (see Rule 22(1)), or at any stage during the hearing by the panel itself (see Rule 24(4)).
10. For whatever reason it is clear that the question whether indecency and/or a sexual motivation should be included in the charge by way of amendment was not addressed by the GMC following receipt of the two witness statements.
11. Whatever consideration there might have been by the PCC (of which those presenting the case on behalf of the GMC before the Panel would not have been aware) there was no consideration of the issue by the latter and the GMC rightly concedes that there should have been such consideration. Despite Mr Coonan QC's valiant attempts to persuade me to the contrary, I am satisfied that whatever the evidential position may have been prior to the receipt of the two witness statements, once those two witness statements had been obtained any reasonable assessment of the totality of the available evidence could have led to only one conclusion; that it was appropriate to allege a sexual and/or indecent motivation by way of amendment. I emphasise the word "allege" as it is only fair to emphasise that the second respondent has consistently denied that he had any such motivation. However, the only proper course for the GMC was to put Ms S and Ms B's allegations and the second respondent's denial before the Panel for its consideration.

What is the consequence of this procedural failure?

12. In his skeleton argument, on behalf of the second respondent, Mr Coonan referred to the terms of section 29(4) and submitted that the court had to ask the question: if indecent conduct had been alleged in the Notice of Inquiry in relation to both Ms S and Ms B, would the omission of such an allegation necessarily render the Panel's determination on sanction unduly lenient? He submitted that that question could be answered only by reference to an enquiry as to whether in either or both cases the Panel would have found indecency proved.
13. In my judgment that would be an impossible task for the court to undertake since, by definition, as a result of the procedural failure in question, relevant questions may well not have been asked of witnesses, whether in their evidence in chief, in cross-examination or by the Panel itself, since the issue of improper motivation was not being addressed by the Panel. For example, it is fruitless to speculate as to what answers might or might not have been given by Ms B, Ms S or by the second respondent, if any of them had been cross-examined about this issue. Much less can one sensibly speculate about what the Panel's response to such answers might or might not have been.
14. It follows that the court is simply not in a position to say that the penalty imposed by the Panel was unduly lenient. All that the court can do is to say that the penalty imposed would have been unduly lenient if the issue of improper motivation had been considered by the Panel and resolved against the second respondent. In my judgment that does not prevent the court, faced with such an egregious procedural failure, from remitting the case to the Panel.
15. The leading case on the Act is the Court of Appeal's judgment in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo and Anr [2005] 1 WLR 717 [2004] EWCA Civ 1356. The facts of that case are not relevant for present purposes. The Court of Appeal considered the criteria to be considered on appeal beginning at paragraph 56 of the judgment of the court. Paragraphs 56 and 57 of the judgment set out the rival contentions; that is to say, that the High Court, on an appeal under section 29, was under an obligation to dismiss an appeal unless persuaded (i) that the decision under review was unduly lenient, and (ii) that it was desirable to interfere with a decision for the protection of members of the public; and, alternatively, that it was open to the High Court to make whatever order that it considered appropriate.
16. Having dealt with one aspect of the latter submission and concluded that it was based upon a false premise, the Court of Appeal examined the merits of the rival submissions by reference to a lengthy and detailed consideration of the scheme of section 29.
17. Against the background of that analysis the Court then dealt with "The approach of the High Court to a reference" asking itself in paragraph 69 the question: "Where a reference is made, what is the task of the court when considering the reference?" In paragraph 72 the Court said this:

"It may be that the court will find that there has been a serious procedural or other irregularity in the proceedings before the disciplinary tribunal. In those circumstances it may be unable to decide whether the decision as to penalty was appropriate or not. In such circumstances the court can allow the appeal and remit the case to the disciplinary tribunal with directions as to how to proceed, pursuant to CPR r 52.11(3)(b) and section 29(8)(d) of the Act."

18. In my judgment this case falls squarely within paragraph 72 of the Court of Appeal's judgment. There has been a serious procedural irregularity. There is no doubt that the GMC should have amended the charge so as to allege indecency and/or a sexual motivation, but it simply failed to give any consideration to that issue. As a result, that issue was not considered by the Panel.
19. It is plain from paragraph 81 of the Court of Appeal's judgment that procedural irregularity may include a case which has been "under prosecuted". Moreover, it is also clear that since the issue of improper motivation was not considered by the Panel, the Panel has not "properly performed [its] task" (see paragraph 73 of the court's judgment).
20. For the reasons set out above, the consequence of this particular procedural irregularity is that the Court is simply unable to decide whether the Panel's decision as to penalty was appropriate or not. In my judgment, the Court of Appeal, in referring in paragraph 72 to whether or not a "decision as to penalty was appropriate", was referring back to the question whether the penalty imposed by a Panel was unduly lenient.
21. The appropriate course, therefore, is to allow the appeal and to remit the case to the first respondent with a direction to amend the charge so as to allege that the second respondent's conduct, as described in the charge, was sexually motivated and/or indecent, and for the matter then to be considered by a differently constituted panel.
22. I express some regret at having to remit the matter because I appreciate that there is double jeopardy and, inevitably, there will be further stress upon the second respondent and indeed upon those other witnesses who have to give evidence at the remitted hearing before the Panel. However, the Court of Appeal in Ruscillo made it clear that in cases such as this double jeopardy is necessarily inherent in the scheme and the objections to it have to take second place to the overall object of the scheme, namely the protection of the public.
23. Notwithstanding the adverse consequences in terms of double jeopardy from the point of view of the second respondent, I am satisfied that it would not be right to allow such a serious procedural error to stand uncorrected. So the matter must be remitted upon the basis that I have set out above.
24. Mr Jay, is there any problem about the detailed terms of the directions? Essentially, it is charging the proper motivation. Also, I think it really ought to go back in front of a different panel.
25. MR JAY: Certainly a different Fitness to Practise Panel. My Lord, it could happen in one of two ways, either it could go to the chair of the PPC under Rule 22(1) to amend the charges in the light of your Lordship's judgment and directions, or it could go to a differently constituted Fitness to Practise Panel under Rule 24(4). My Lord, it is probably better, subject to what others think, that it goes under Rule 22(1) to the chair of the PPC so that the Fitness to Practise Panel does not actually see your Lordship's judgment and have to consider it.
26. MR ENGLEHART: Not only for that reason, I think also, technically, it should do that. My learned friend is right because the amendment under 24(4) -- could I just say I think your Lordship had a slip of the tongue about that, it was 24(4) -- only can take place after the inquiry has started. So it should go back to the chairman of the PPC.
27. MR JUSTICE SULLIVAN: So when I should have referred to 24(4). I said 22(4) did I? I will correct that and rewrite history. Mr Coonan?
28. MR COONAN: Yes, my Lord, I agree with that proposal. I think that is a sensible way of dealing with it.
29. MR JUSTICE SULLIVAN: What I ought to be directing then is the matter is remitted to the chairman of the PPC with the direction that he amends the charge so as to include, I will use a shorthand, "improper motivation". I make it absolutely clear, for the record, that I do not intend to be prescriptive about the precise wording used. Provided the issue of improper motivation is alleged, it is a matter for the chairman of the PPC to decide the most appropriate terminology.
30. Right. I remit it then to the chairman of the PPC to amend the charge so as to include the allegation of improper motivation and further direct that the charges, as amended, shall be considered by a differently constituted panel.
31. MR ENGLEHART: Charge, my Lord. It is a technical point, it does not matter.
32. MR JUSTICE SULLIVAN: The charge containing a number of complaints.
33. MR ENGLEHART: Yes, that is right.
34. MR JUSTICE SULLIVAN: The charge. Any more?
35. MR ENGLEHART: Would your Lordship -- presumably to start with one sets out the decision of the Panel --
36. MR JUSTICE SULLIVAN: Yes. The appeal is allowed, the decision of the Panel is quashed. Yes.
37. MR JAY: My Lord, quite shortly on costs. My Lord, I seek orders for costs against both respondents in this way. Your Lordship can briefly note the chronology: proceedings were issued by the Council on 6th July; the skeleton argument was served on 12th July; there had been a meeting on 28th June in which the GMC indicated that it would support the Council's appeal.
38. My Lord, the Council, through its solicitors, made offers on 19th July to both those instructing the first respondent and the second respondent that the GMC should pay all the costs including and up to 21 days after the date of service of our skeleton argument. My Lord, the reasoning behind that was to give the doctor, in particular, time to consider what the Council was saying. 21 days, we thought, was sufficient, and if the doctor agreed that the matter should be remitted then the primary cause of what happened here was the GMC's failure and it is right that the GMC should pay all the costs. But thereafter we thought that the doctor should be on risk as to costs.
39. My Lord, the position is that those instructing the second respondent obviously did not accept that offer. The GMC's position, and my learned friend doubtless will elaborate, is that they, having agreed on 28th June before the issue of proceedings that they would support the appeal, should not be on line for any of the costs. But, my Lord, I repeat the submission that it was through their procedural error that the matter has come before the court. In any event, proceedings had to be issued in order for the matter to be corrected.
40. MR JUSTICE SULLIVAN: I think, also, you do have to persuade the court as well; query the extent to which this all could simply have been dealt with by a consent order. Inevitably the stage of getting all the material together, putting in your claim form, setting out all your material, all of that, it seems to me, subject to what Mr Englehart may want to say, is entirely down to the GMC. If it was not for their error it would never have had to have happened. It is really just a question of where the cut-off point comes, where the GMC should stop being liable because inevitably, it seems to me, there may well have been some sort of hearing, even if it was a relatively short one. I do not know.
41. MR JAY: My client's concern is that there should not be a hole in the middle where they are incurring costs but nobody is paying them. There will come a point which we say is 21 days after -- I made a mistake that 19th July was the date we served our skeleton argument and we wrote the letters.
42. MR JUSTICE SULLIVAN: Sorry, so?
43. MR JAY: When I said 12th July that was a mistake.
44. MR JUSTICE SULLIVAN: I see. So skeleton arguments are all produced on 19th July?
45. MR JAY: Yes.
46. MR JUSTICE SULLIVAN: Right.
47. MR JAY: My Lord, the Council acted quickly. I think under the Rules it is 14 days after the notice of appeal and we were one day early, if my memory is correct. So, my Lord, it cannot be said that the Council delayed in any way. At the moment when your Lordship decides that it is no longer right that the GMC should pay, I would respectfully submit that the doctor has to pay, so that there is not any gap. But 21 days after 19th July is reasonable in my respectful submission.
48. MR JUSTICE SULLIVAN: What do you want to say, Mr Englehart?
49. MR ENGLEHART: My Lord, on the point that your Lordship raised, on the last one of these that I did, the judge went by consent -- considered it on the papers, and there was not any need for a hearing.
50. MR JUSTICE SULLIVAN: Yes. I imagine if there is agreement all round then --
51. MR ENGLEHART: Obviously the judge has to consider it, but, I do not think, my Lord, with respect, one would have to have a hearing.
52. MR JUSTICE SULLIVAN: Yes.
53. MR ENGLEHART: As your Lordship knows, on 28th June we agreed to the appeal being allowed. My Lord, in fact we wrote on 12th July, I have the letter here, saying we agreed to an order quashing the determination and remitting the case to the Panel. We agree that there should have been alleged that Dr Rajeshwar's conduct was indecent or sexually motivated. It concludes:

"In the light of the agreement made between our respective clients, we seek confirmation that our client's liability for CHRE's costs will cease as of 28 June 2005."

54. So, my Lord, I agree, of course, in the light of that, that we should pay the costs up until 28th June.
55. The response, and it is an open letter, is dated 19th July, as my learned friend says:

"Our client offers that your client's liability for payment of our client's costs should cease as of 21 days from the date of service of our client's skeleton argument but should include [and then there is important words in the brackets] (in the event that the parties agree settlement of the appeal subject to the court's approval and directions) the costs of and occasioned by disposal (including the costs of the disposal hearing if necessary)..."

56. My Lord, there is obviously room for debate about whether it should cease at 28th June or some short time thereafter, but I would invite your Lordship to say that as soon as this error was drawn to the GMC's attention we behaved quite properly in saying we agreed.
57. MR JUSTICE SULLIVAN: Yes, but inevitably, it seems to me -- I do not dispute that for a moment -- but the appellant has to come to the court and persuade the court that that is the right thing to do. On any basis, simply coming along waving a letter from the GMC saying "I agree" is not going to be enough, not least because the second respondent has to have somewhat, as it were, an explanation of why and so on and so forth. Effectively, the appellant and the first respondent have to disclose the position to the second respondents and say, "Look, there you are, the game is up". Until we reach the point when it should reasonably be obvious to the second respondent that the game is up, it can be said that really, inevitably, the costs are down to the GMC. It is a question, which seems to me, that is: when should that be?
58. MR ENGLEHART: When should that be. All I am saying, my Lord, is that it is one thing to do that and it is another thing to have a full-blown hearing with preparation, skeleton arguments, lengthy documents being prepared, bundles, this that and the other. I take your Lordship's point entirely, there is room for some sort of leeway, but I would invite your Lordship to say that, given the way they have behaved, I submit perfectly properly here, once the error was drawn to their attention, it is a case where their liability for costs should be shortly after 28th June. I do not have the dates in hand of when the claim form was issued... 6th July.
59. MR JUSTICE SULLIVAN: It seems to me that even if, on the hypothesis that the second respondent -- I assume that the second respondent was copied into these letters at some stage, 28th June/12th July? I imagine it was.
60. MR ENGLEHART: Yes, they were. It says "Cc Anne Green".
61. MR JUSTICE SULLIVAN: Yes. Just assume for a moment that the second respondent had concluded that, yes, the game was up, as it were, they ought to submit as well, it seems to me then, inevitably, the appellant would have had to go to the expense of putting in a claim form, putting in all the material to support the appeal and it may well be, of course, that -- well, actually, there has not been any evidence from the first respondent -- but it seems to me that inevitably, if the GMC makes a procedural error of this kind it has to be put right by way of an appeal to the High Court. However quickly the GMC agrees, the appellant is going to have to set out its stall, at least to some extent, it seems to me.
62. MR ENGLEHART: I do not quibble with that. It is the question of the extent.
63. MR JUSTICE SULLIVAN: Yes. It does seem to me that, at least up to 6th July when the claim is put in, query whether you go as far as having to consider skeleton arguments, that may be a moot point, but at the very least it seems to me the second respondent is entitled to see the claim and to take a decision as to whether, in the light of all the matters alleged in the claim, really the game is up.
64. MR ENGLEHART: If your Lordship was to say -- I would accept that, but if is a question of how far you go, I think my learned friend is saying we should pay for 21 days after service of his skeleton argument and I respectfully submit that is too long. The claim form I put my hands up to, just as your Lordship says, but -- well, your Lordship has the point.
65. MR JUSTICE SULLIVAN: Yes. What do you want to say, Mr Coonan?
66. MR COONAN: My Lord, quite apart from any debate between both my learned friends, what we say is this: your Lordship has described this as a very serious procedural failure and so it was, we would not dispute that for a minute, but it is precisely that failure that has led to the appearance of the doctor here today. The failure was both pre-trial and also during trial. It has been compounded by the failure to provide any explanation as to why this failure occurred. It is no secret, and indeed I have told your Lordship, that independent of the Council seeking an explanation -- they have given, in effect, to use my learned friend's expression, "hands up", as it were -- of the order of the day in relation to the Council by the General Medical Council. We independently sought to obtain details of this apparently simple "hands up".
67. I have alerted your Lordship to that correspondence. That correspondence ceased only on 17th November. We had a letter in August and one on 17th November. So if one is talking in terms of appreciation of when the game is up, 17th November seems the long stop. But even if one does not go as far as that, my learned friend Mr Englehart's skeleton argument was dated 4th November, where, for the first time, quite apart from the simple acceptance of an error given to the CHRE, to the Council, there was set out in detail why there was an error and why the appeal would not be opposed. That was only, as I say on 4th November, in a skeleton argument.
68. So, my Lord, very serious error. The nature of the error requires, we submit, some degree of scrutiny by the High Court where an error of this magnitude is committed by a public body, where it happens to be the doctor's regulatory body.
69. The further matter which, of course, impinges on any fact of quantum, is the fact that the second respondent now faces additional costs following the hearing. As your Lordship will know, none of these costs are recoverable in any event under the present regime. So he is going to be hit twice now for costs in any event. I say "he", of course, for these purposes he is to be treated as such even though he has been backed by the defence society, but the point is still the same.
70. So, my Lord, my submission is that this doctor, in this case, should not be required to pay costs at all, but if your Lordship were to consider that there ought to have been an appreciation earlier that his position was difficult if not untenable, if that is the view you take, then that should be a date not too long before this case came on for hearing.
71. MR JUSTICE SULLIVAN: Discussions about 21 days after skeleton arguments and so on and so forth, the GMC's skeleton argument, which explains so far as it is able to explain why it was taking the attitude it was, that is 4th November --
72. MR COONAN: 4th yes.
73. MR JUSTICE SULLIVAN: You were corresponding generally in November about that sort of time?
74. MR COONAN: Yes, and my skeleton was on 23rd.
75. MR JUSTICE SULLIVAN: Yes, thank you. Right. By all means -- are you rising to say something else, Mr Englehart?
76. MR ENGLEHART: I wonder if I might have a right to reply because it seems to be costs against me.
77. MR JUSTICE SULLIVAN: I do not think I am going to give the doctor's costs against the GMC. I did not think that was the application, or was it?
78. MR COONAN: I am not sure I can go as far as that.
79. MR JUSTICE SULLIVAN: I did not think you were, no.
80. MR COONAN: But it was to say there should be no order.
81. MR JUSTICE SULLIVAN: I thought that was the submission, yes.
82. MR JAY: Well, my Lord, my client's only concern is that we should not be left in the position whereby we do not get all our costs back. The fact remains we were quite entitled to bring this application and appeal. It has been successful. The GMC should pay for a period, we will leave it for your Lordship to decide for how long. As soon as the GMC comes off tab, as it were, the doctor comes on.
83. MR JUSTICE SULLIVAN: I am satisfied that the appellant ought to have its costs from someone. As to who that person should be: firstly, the GMC. Clearly it was their procedural error that led to the need for these proceedings. On any basis, the GMC should be liable for the costs up to and including the making of the appeal. However, there is a particular feature in this case; that is to say, that the procedural failing was not explained. It seems to me that it was not in the least unreasonable for the second respondent to wish to understand what had happened and why, if at all, what appeared to be a failure, had happened. The explanation, such as it is, was not provided until the GMC's skeleton argument on 4th November; the correspondence runs along a little after that, I realise.
84. In my judgment, therefore, the appropriate break point is up to and including service of the GMC's skeleton argument on 4th November. I do not intend to finesse matters by talking about numbers of days after that, but costs up to and including there should be borne by the GMC.
85. I have considered carefully whether there should be no order as Mr Coonan submits. However, it does seem to me that, in the light of the GMC's skeleton argument, it should have been appreciated by the second respondent, to use the colloquial phrase, that really the game was up and that therefore the appellant's costs thereafter should be paid by the second respondent and not the first respondent. Those costs, in fact, would primarily be for the hearing today because had there been agreement in writing from all three parties that the appeal should be allowed, then I am satisfied the court would have been able, most probably, to deal with the matter on the papers and a hearing would have been avoided. But, nevertheless, there would still have been a necessity to provide the background material for the court, but all that was available by 4th November. So, that is the way in which the costs should be divided.
86. I think they ought to go for detailed assessment.
87. MR JAY: My Lord, I was not going to ask your Lordship to assess the costs on a summary basis.
88. MR JUSTICE SULLIVAN: No, they ought to go for detailed assessment unless otherwise agreed. Is there anything else? Since this is an appeal then, in any event, it is not for me to decide.