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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khazne, R (on the application of) v General Medical Council [2006] EWHC 3432 (Admin) (19 July 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3432.html
Cite as: [2006] EWHC 3432 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
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| THE QUEEN ON THE APPLICATION OF KHAZNE | Claimant | |
| v | ||
| GENERAL MEDICAL COUNCIL | Defendant |
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Mr D Pievsky (instructed by GMC Legal) appeared on behalf of the Defendant
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- MR JUSTICE CHARLES: I have before me an application made in this appeal brought by Dr Khazne against a decision of the GMC. The relevant decision is one that was made in January 2006. There had been an earlier decision in January 2005 to suspend the appellant, and he, in light of that decision, remains suspended. He referred me to an earlier decision in July 2004. The transcript is in the bundle. That decision shows that, at that stage, there had been a complaint or issues raised to be considered both by a Primary Care Trust and, following that, within a report by the NCAA.
- The Committee, in the light of robust submissions made about the PCT documents, asserted that they had attached little weight to them. As I understand it, what the doctor was asserting then, and certainly what he was asserting to me, was that those were allegations taken on by the PCT, fuelled by reference to what I would describe as a "turf war" as to who should be conducting a particular practice, and he says, I know not whether he says rightly or wrongly, that they were false allegations and falsely based.
- He then goes on to say that the results and the conclusion of the assessment carried out by the NCAA were based on false premises by reference to questions and answers as to his knowledge, in which he says the answers he gave were in fact correct, although treated as wrong. He also, as I understand him, says that the assessment by the NCAA was infected or affected by the PCT assessments, as to which little weight was attached by the GMC. Those are issues upon which I cannot reach a determination.
- I should have said that, later on in the January 2005 decision, as I understand it, the GMC decided by reference to the history and the conclusions in July 2004, as to which the doctor was directed to submit himself to an assessment, that he should be suspended because he had not submitted himself to the assessment. It is said, and I see some force in this, that the answer is simple for this doctor: he should simply submit himself to the assessment. It is also said that now, as time has passed, the only realistic way in which it can be determined whether he is competent to practise is to submit himself to an assessment. As I have said, there is force in that, but there is equally a point to be made that if the trigger to the decision to say that a professional man should have an assessment is sufficiently flawed, that trigger does not exist, so why should he have the assessment?; which is, I think, the point that the doctor is advancing, albeit it seems to me that he should face up full square to the issue I have pointed out, that given the time that has now passed, it is difficult to see how the GMC will ever reach a decision as to his competence to practise without him submitting to an assessment.
- As I understand it, part of his point is that he would not wish to submit himself to an assessment on the basis that he was accepting or admitting that that assessment was warranted. That is a matter which, it seems to me, could be sorted out simply by making it clear that he was submitting himself to an assessment on a purely without prejudice basis. But I make those points simply so that the parties can consider them because it may be the appropriate way out of this impasse.
- So far as the present appeal is concerned, it is put essentially that the GMC, in its review, erred in its approach by failing to itself adjourn to obtain documents to consider the underlying complaints made by the doctor. The doctor was in person and he did not make an application for an adjournment. It seems to me that that is an arguable ground, albeit I accept that there are difficulties in it.
- It is also said that the GMC took an incorrect approach in conflating the issues as to the failure of the doctor to submit himself to a new assessment, and the point he was making that the trigger to that assessment was flawed. Again, it seems to me there are arguable points as to that; whether they succeed or not is a different matter.
- In the context of those arguments, it may be that the underlying documents that the doctor is seeking will not become centrally relevant because the Appeal Court may determine the case simply on the allegations as to the failure to adopt a fair and proper procedure or error of approach and remit the matter to the GMC. I raised that point; counsel for the GMC faced up to it and thought that that would probably be the result: the doctor would be asking the court to make a different determination.
- What troubled me in that exchange was that if, as in any event will take place, there will be a further review, what the stance of the GMC would be on that review. What it seems to me is likely is that if the stance remained as it was on the first occasion, we would all be back here in a year or so's time dealing with precisely the same issues. I therefore conclude it is much better to face up to and deal with these issues in the context of the present proceedings, whether they be good or bad.
- I was helpfully taken through the timetable, and I have to say that, in his explanation of the timetable, I found some of Dr Khazne's answers to be somewhat disingenuous and some of them thoroughly unsatisfactory as to what he was asserting had happened. The position, however, is that he was a litigant in person. He is suspended, therefore there is no risk to the public by him practising. The GMC explanatory document does not inform him that he is to serve his notice of appeal, only that he is to lodge it. The thoroughly unsatisfactory part of Dr Khazne's explanation related to an assertion made in correspondence that he had actually served a notice of appeal. His explanation was that that was a document written by, I think, the Citizens' Advice Bureau, although signed by him. He accepts in fact that no notice was served until 3 July. I accept his evidence that over that period he was seeking advice pro bono, and that he has recently received that advice.
- It seems to me that, going through the points -- the interests of the administration of justice -- it was asserted that that is something that favoured refusal of an extension of time. It seems to me that interests of justice are a two-way street. It is not simply to do everything in the time limits as provided by the rules. I would have seen the argument as being compelling in the context of this case if there had been an issue as to this doctor's suspension. There was no such issue. In my judgment, that ground actually points in the other direction to ensure that these assertions of unfair process are addressed by the court properly.
- The other issues -- whether the application for relief was made promptly -- that was made reasonably promptly, on Dr Khazne's account, after being informed of the need to serve the notice of appeal. The failures thereafter to serve one are matters on which I think he merits criticism. The explanation for the failure that is offered (although, I confess, I take part of it with a pinch of salt) is that he did not know until a later stage as to the need to serve the notice of appeal. I accept his assertion that he got to know that in about March, which does still mean that it was still late. In that context, the failure thereafter was in one sense intentional because he was seeking to keep his powder dry from the GMC until he had legal advice as to what should be put in the grounds, as opposed to the grounds he himself had put in the document.
- Other points in 3.9 were gone through. I do not think I need to refer to them specifically in this context. I have already dealt with my view as to the merits of the appeal and whether or not it warrants a hearing. I was invited to say essentially that the appeal was hopeless. I do not agree with that. It seems to me that it is arguable. I hold out no expression of hope to the doctor that he is going to succeed on this appeal. However, it seems to me that there are powerful arguments, which the GMC have to defeat, that they did not err in their procedure, did not act unfairly and did not err in their approach. However, it seems to me sensible that, on the appeal, the judge who hears it should have the ability, if that judge thinks it appropriate, to look at the underlying dispute that exists in this regulatory process to, if that judge thinks it appropriate, deal with the matter there and then. I would hope that this would assist on the annual reviews which have to take place in the context of this doctor's ability to practise.
- I repeat the point I made that I invite Dr Khazne to think most carefully about volunteering himself for an assessment, because it does seem to me that the GMC will, at the very least, have to consider whether or not there should be an assessment.
- So far as the documents are concerned, the GMC say, and I accept, that they do not have them. It is plain that Dr Khazne has not been trained as an advocate because he started with a point relating to service of those documents based upon a typed-up order of the court, which did not reflect the handwritten order approved by the judge. On my reading of the handwritten order, it was plain that it was not ordered that the GMC should serve those documents but that they should serve a witness statement. The witness statement asserts that the GMC do not have those documents. I accept that. The GMC have indicated that they are prepared to write to the relevant bodies to get them. I will, in addition to assist in the search for those documents, give the GMC permission to issue a witness summons against a relevant officer of those two bodies to produce the documents. They can be told that initially in correspondence. I will leave it to the GMC. If an explanation given by them is a compelling one, the issue of a witness summons would be a waste of time. If, however, there is a need for the witness summons, they have the permission to serve it.
- It has now been served on you, has it, the notice of appeal?
- MR PIEVSKY: I believe the amended notice of appeal has now been served, but I think what we never had is the original notice of appeal, and I do not know, as a matter of form, we should at least have that so that we can see what the difference is.
- MR JUSTICE CHARLES: I shall direct that the original notice of appeal is to be provided to the GMC by the court from the court documents. That is the simplest way of ensuring you actually get it.
- The GMC have now received the amended notice of appeal and I extend time for service of that document up until the date that it was served on them. I think that is the appropriate course. The matter will then be listed in the normal way. Is there a need for a directions hearing in this case before the appeal comes on?
- MR PIEVSKY: My Lord, I am told it is not the normal approach on these appeals.
- MR JUSTICE CHARLES: No, but we have a litigant in person here, and it may be that it would be prudent to have a directions hearing. You are preparing for a day or half a day's appeal. How long do you think it will take, half a day?
- MR PIEVSKY: Yes, I would have thought so. As I understand it, the documents that have gone into court are the documents upon which --
- MR JUSTICE CHARLES: I will set it down with a time estimate of a day.
- MR PIEVSKY: Yes, but if it is the fact that, in fact, having got to this point, the notice of appeal, as the doctor wants it to be, is in its final form and the documents are in court, and what is needed to happen is simply a skeleton argument from the GMC, then it may be that a directions hearing --
- MR JUSTICE CHARLES: There is still this issue about these documents, and if you come back and say: "We simply cannot get them", I think the court may want to look at that to see where we get to. I am not very keen on having a documents issue arising as a preliminary issue on the hearing of the appeal. Shall I give you liberty to apply for further directions as to the production of those documents?
- MR PIEVSKY: Yes.
- MR JUSTICE CHARLES: That might be the simplest way of dealing with it, and given that he is likely to be in person, I think I will estimate it at a day. I am grateful to you; it was a helpful skeleton argument.
- MR PIEVSKY: My Lord, I am grateful. Just to clarify, did you say that there should be a directions hearing?
- MR JUSTICE CHARLES: No, I just give liberty to both parties to apply in the context of the documents. I am not going to put a directions hearing in. If the documents have not been produced, I am indicating that I think the GMC should seek a directions hearing so that the court is not having to deal with disclosure issues as a preliminary issue on the appeal. So I suppose I could say, if the documents are not produced, the GMC are to apply. You are going to have to have a production hearing, are you not, if you have a witness summons? I will leave it just as liberty to apply with that indication to the GMC. I think that is simplest, otherwise it gets too complicated.
- MR PIEVSKY: In terms of documents for the actual substantive appeal, it appears that we have everything we need, but the GMC will serve a skeleton in the normal way.
- MR JUSTICE CHARLES: I am grateful to you. Thank you.
Extension of time