England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		13th February 2007

1. MR JUSTICE COLLINS: This is an appeal against the decision of the Fitness to Practise Panel ("the Panel") of the General Medical Council ("the GMC"), holding a review of a previous order of suspension, which had been translated to an order imposing conditions on the doctor's registration. On this occasion the Panel decided that the doctor's fitness to practise was impaired and that the appropriate sanction was in the circumstances one of suspension for 12 months. As I say, it is against that decision that this appeal is brought.
2. The history of appearances before the Professional Conduct Committee, originally, and then the Fitness to Practise Panel is briefly as follows. In February 2003 Dr Otote was found to have been guilty of serious professional misconduct in relation to his behaviour to nurses and to patients. Specifically it was found proved that he had behaved inappropriately to five nurses and that he had failed to give a physical examination to three patients, and that in those respects his conduct fell below a reasonable professional standard.
3. The decision of the Committee was that Dr Otote should be suspended. He appealed against that decision to the Privy Council, which at that time was the appropriate court to hear appeals from decisions of the Professional Conduct Committee of the GMC. In a decision which was given on 21st October 2003, the Privy Council dismissed his appeal. What was said was this:

"17. Their Lordships have considered these matters with great care. [That is the submissions made by Dr Otote.] They have come to the conclusion that there is no substance in any of them. They are satisfied that there was ample evidence to justify the factual findings. The Committee saw and heard the witnesses and had the opportunity to assess their evidence. The appellant has misunderstood the standard of proof. The PCC were not required to make a finding that 'they were sure beyond all reasonable doubt'. They were required to be sure or satisfied beyond reasonable doubt (which is the same thing). The Legal Assessor correctly directed them on the standard of proof and it was clear that they applied it correctly. There was sufficient evidence to justify their finding that his conduct in respect of the patients fell below reasonable professional standards. There was no procedural irregularity."

4. The Privy Council went on to say that it was inevitable that he should be found guilty of serious professional misconduct, and he clearly had failed to behave properly as a medical practitioner. He had abused his position as a doctor by behaving inappropriately towards nursing staff, and thereby, in addition, brought the medical profession into disrepute. Accordingly, the decision of the Committee was upheld.
5. One point that was made, and has been repeated by Dr Otote in connection with the decision of the Panel against which this appeal is brought, is that by section 36(1) of the Medical Act the Committee is given power to impose various sanctions and they are in the alternative. Indeed, the Privy Council made it clear that that is in truth the position in law. Thus it would not be appropriate for the Panel to suspend and to impose conditions at the same time. What they can do, and what they did do back in 2003, was to indicate what steps the doctor should take before any resumed hearing to consider whether the suspension should be lifted, or whether it should continue. It is common practice for the relevant panel to give that sort of an indication, and it is, in my view, entirely sensible and indeed desirable that it should do so. It is designed to assist the practitioner so that he can understand how he can get himself back onto the register and avoid any further suspension, or indeed conditions if conditions are in issue.
6. On 21st October 2004 there was a review before the Professional Conduct Committee, and it was then decided that there was insufficient evidence of improvement to allow Dr Otote to resume unrestricted practice. But the view was taken that suspension did not need to continue, and so conditions were imposed for a period of 18 months. The matter came back on review in October 2005, this time before a Fitness to Practise Panel, and it was again decided that it was necessary for there to be conditions. Those related largely to supervision. The conditions were that he should work only in an NHS hospital post where his practice would be supervised by a clinician of consultant status, who would provide the GMC with regular reports on his progress; that he should not undertake locum posts outside the NHS or for less than one-month duration; that he should notify the GMC promptly of any professional appointment which he had accepted and the name of the doctor supervising him; that he should notify those conditions on his registration and the reasons for them in writing to all employers or potential employers; that he should allow the GMC to obtain information about the standard of his conduct and clinical performance from any supervising doctor; and that he should allow the GMC to exchange information about the standard of his practice and any remedial action that he had taken in relation to his performance with any person who may have assisted him in providing him with remedial help.
7. The doctor requested through solicitors an early resumed hearing to reconsider the conditions, largely because he was finding it difficult, if not impossible, to obtain any employment in compliance with those conditions. Certainly that was a matter raised back in March 2006 by his then solicitors on his behalf. It was then suggested, in March 2006, that he undergo a Phase II Performance Assessment. A reminder letter was sent in April, but he did not respond to those invitations.
8. In May the GMC reviewed Dr Otote's case and his request for an early resumed hearing, and it was referred for an early review. The hearing was listed for July. It was adjourned then until September. There are some complaints made by Dr Otote about that adjournment. But the reality is, as is clear from the record, that it was his application that led to that adjournment in July. The matter eventually came before the Panel on 14th September 2006. Dr Otote was then represented by a member of the Bar, a Mr Toms, who was acting on his behalf, I think pro bono. The GMC was, as is the normal practice, itself represented by an advocate.
9. At the commencement of the hearing Mr Toms applied on behalf of Dr Otote for a little extra time, and this was developed into a request that the hearing be adjourned until 2.00pm so that Dr Otote could obtain documents from his home which would or might support his case. As I understand it, he has complained about that, suggesting that there was some unfairness in requiring him to produce documents when there could have been, under the rules, an application made by the other side for production of any documents. I confess that that is a complaint that I find wholly extraordinary, because it is absolutely clear from the transcript that the application to enable Dr Otote to obtain the relevant documents was made on his behalf and in his interest by Mr Toms then representing him. It is quite impossible to suggest that there was anything wrong in the Panel agreeing to that request.
10. The real issue was whether Dr Otote had taken steps to keep his medical knowledge and skills up to date. The Panel was concerned with two matters, first, whether he had complied with conditions and, second, whether he had shown himself fit to practise.
11. So far as the former is concerned, the Panel was satisfied that he had complied with the conditions. Unfortunately — and this was one of the problems with the conditions — he had not found himself (subject to one matter, which was employment it seems in 2004 for a relatively short time) any appropriate employment which would conform with the conditions. There is an issue, and certainly was an issue before the Panel, as to whether he had taken appropriate steps to obtain the necessary employment. The Panel records that he had provided no evidence that he had applied for any post at senior house officer or registrar grade, where supervision was the norm. Dr Otote has submitted that that is simply wrong. He says he had produced a letter which showed he had made such an application, and he has also put in his bundle further indications of applications for such posts.
12. So far as the further applications are concerned, Mr Thomas tells me, and indeed it appears to be the case, that those were not actually put before the Panel, so obviously they cannot be taken into account. So far as the application that was relied on is concerned, it is apparent that that does not, on the face of it, indicate a post where supervision was the norm. That was the test that the Panel was applying.
13. The fact is, for whatever reason, good or bad, Dr Otote had not been able, apart as I say for that one short period in 2004, to obtain any employment. He says that he had kept up his skills. He attended a number of courses. He did not accept that he was in any way deskilled or that there was a need for him to undergo any sort of performance assessment. That is precisely what worried the Panel. He had no insight, it decided, into the problems that he faced and into his professional skills. As the Panel said, it was concerned that he lacked insight into the reasons why his case remained before the Fitness to Practise Panel. What he had said when asked about whether he would accept an invitation to undergo a Phase II Performance Assessment (after failing to answer the question for some time, as the transcript makes clear), was that it would be against the public interest to require him to do so. Quite why it should be against the public interest is far from clear. However as Mr Thomas submits, and indeed as is clear, it is for the doctor himself to decide whether he is going to help his application by agreeing to undergo that assessment or not. So long as he refuses to do it, the Panel is likely to take the view (as it has) that he has not shown himself ready, willing and able to recognise that he may have shortcomings so far as his skills are concerned, and he should demonstrate that he does in fact have the appropriate skills. It seems to me that in those circumstances the Panel was entitled to conclude, as it did, that fitness to practise was impaired. What it said was this:

"Having considered all the evidence, and in the light of the original finding of serious professional misconduct and your limited insight into the need for you to demonstrate that your medical knowledge and skills are adequate, the Panel finds that your fitness to practise is impaired."

That finding, in my judgment, is one which the Panel was plainly entitled to form and the attacks upon it are not of any substance.

14. The Panel then turned to consider what sanction was appropriate. As the rules make clear, that is what they must do. They first of all have to consider whether there is an impairment of fitness to practise and, if they do reach the conclusion that there is, then they must go on, as a separate consideration, to decide on the appropriate sanction.
15. Dr Otote has complained that they erred in law in allowing the conditions to continue, notwithstanding that they had decided to suspend. He says that that is contrary to section 36, because they can either suspend or impose conditions but not both. The reality is that they did not do both. What they did in September was to decide to suspend, but that suspension need not immediately come into effect. Accordingly, the conditions would continue until the suspension came into effect, or if Dr Otote appealed, then the suspension would effectively itself be suspended pending that appeal. However, the Panel decided in due course that the suspension should be immediate and not deferred, and that took over from the conditions. As was indicated in a letter to Dr Otote, the conditions remained on the register, as it were, but had no effect so long as the suspension was in existence. Accordingly, there is no question of any breach of section 36.
16. Equally, Dr Otote has also submitted that he was not given the opportunity that the rules require him to be given to produce further evidence before the final conclusion was reached that his performance was impaired. He refers me to regulation 22 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004. This provides the procedure at a review hearing. Regulation 22(d) and (e) states:

"(d) the practitioner may present his case and may adduce evidence and call witnesses in support of it;

(e) the FTP Panel shall receive further evidence and hear any further submissions from the parties as to whether the fitness to practise of the practitioner is impaired or whether the practitioner has failed to comply with any requirement imposed upon him as a condition of registration; ..."

17. Dr Otote takes two points. First, he submits that regulation 22(d) and (e) presupposes two stages in the giving of evidence. That is plainly wrong. What regulation 22(e) does is to make it clear that the Panel must receive further evidence in relation to fitness to practise being impaired or failure to comply with any requirement. It is able to hear, of course, any other evidence as well, but regulation 22(e) makes it plain that it must listen to such evidence. It is not a second stage, as it were, of the giving of evidence.
18. Dr Otote also submits that the word "or" in regulation 22(e) means that they cannot consider both impairment and failure to comply. That, with respect, is nonsense. The word "or" is there because it recognises that one or other or both may be material, and therefore it has to cover the possibility of considering one or other or both. So there are no technical problems in relation to the approach adopted by the Panel.
19. When it came to the decision on the appropriate sanction, the Panel decided, as I have already indicated, that there should be a suspension. The reason given for that was set out on day 3 of the hearing, page 5E of the transcript, where the Panel said this:

"Having considered all this information, the Panel has determined that it cannot formulate conditions that are appropriate, proportionate, workable and measurable. It has therefore decided that it is necessary for the protection of members of the public and in the public interest to suspend Dr Otote's registration for a period of 12 months. The Panel considers that such a direction is appropriate and proportionate."

20. The Panel had reviewed Dr Otote's approach to whether he had sufficient skills, made the point that good medical practice stated that it was incumbent upon any doctor to keep his knowledge and skills up to date, and formed the view that Dr Otote had not demonstrated that he had kept his medical knowledge and skills up to date and adequate for safe clinical practice. They were concerned, as I have indicated earlier in this judgment, at his lack of insight into the need to demonstrate that his medical knowledge and skills were adequate for safe clinical practice. At page 6B they said this:

"If Dr Otote wishes to return to safe clinical practice, the Panel considers that it would be appropriate for him to undergo a Phase 2 Performance Assessment prior to the review hearing. Without a satisfactory Performance Assessment Report, it is difficult to see how any review Panel could be satisfied that it would be safe to allow him to resume clinical practice, even subject to conditions. For the avoidance of misunderstanding, the matter now rests with Dr Otote as to whether he wishes to apply for, and undergo, a Phase 2 Performance Assessment."

21. That is not the imposition of conditions concurrent with the suspension. It is an indication (a course which the Privy Council approved) that a particular course of action should be taken by Dr Otote if he wanted to smooth the way to being able to go back into practice. Again, the Panel pointed out that what would be needed on any review was a Performance Assessment Report, documentary evidence of courses or seminars Dr Otote had attended, a list of medical reading, documentary evidence relating to clinical attachments, and all steps he had taken to keep his medical knowledge up to date.
22. Dr Otote tells me that he has taken some steps. Indeed, it was sought on his behalf in November to put in material which indicated that he had taken, since the September hearing, various steps to try to obtain supervised posts. The Panel decided that they would not consider that material, largely because they had already gone into closed session before the end of the hearing on 15th September to decide on sanction. But in any event, that material could not conceivably have been of any assistance to Dr Otote or to the Panel, because they were steps that should have been taken before September, and in September the Panel had made clear that it was concerned that no such steps had properly been taken.
23. I have, I hope, dealt with what I perceive to be the main points made by Dr Otote in seeking to challenge the decision. He has raised a large number of other matters in a diffuse and very difficult to follow series of submissions. It is plain, in my judgment, that none of those have any validity whatever. In those circumstances, this appeal is dismissed.
24. Dr Otote you had better have that back, which is your Privy Council transcript.
25. MR THOMAS: My Lord, just one small matter of housekeeping at the end. Your Lordship said "this appeal", there are two appeals before your Lordship.
26. MR JUSTICE COLLINS: Sorry, these appeals, yes. Well I thought they were both subsumed in the November decision.
27. MR THOMAS: My Lord, we thought that and said as much in a letter, and we are accused of misleading the court by Dr Otote. I merely make the point that Dr Otote takes the view there are two appeal.
28. MR JUSTICE COLLINS: I do not think there are strictly, but if there are they are both dismissed.
29. MR THOMAS: My Lord, yes. Other than that my Lord, I would ask for the GMC's costs to be summarily assessed in the amount of the costs schedule.
30. MR JUSTICE COLLINS: Dr Otote, can you resist the order for costs?
31. DR OTOTE: Sir, I have just told you that, my Lord, I am someone, maybe you didn't get it, I am actually working now, through this intensive activity programme organised by the Secretary of State.
32. MR JUSTICE COLLINS: Good, in that case you can obviously make use of that when you come to apply to remove your suspension.
33. DR OTOTE: No, that work is not paid as money, which you didn't get. I was trying to tell you I am on New Deal, it is (inaudible).
34. MR JUSTICE COLLINS: Yes, I am sorry I did not deal with New Deal. I should. It is wholly irrelevant. Dr Otote says that he is on what is called a "New Deal" with the Job Centre, and this means that the government has provided him with the facilities that exist under that programme to enable him to work, and this he says is inconsistent with the GMC's decision.
35. The simple answer to that is the two have nothing to do with each other. The GMC's decision is based upon its assessment, which it is entitled and indeed is the only body entitled to reach, as to whether Dr Otote should be able to practise without any bars of any sort.
36. DR OTOTE: My Lord, I would advise that there is no point to put costs here. Why? For one thing, maybe it didn't come through. I wanted to read the whole of my transcript.
37. MR JUSTICE COLLINS: Dr Otote --
38. DR OTOTE: Let me finish.
39. MR JUSTICE COLLINS: Just listen. If you lose you pay is the general rule.
40. DR OTOTE: You don't know why I am saying there is no need for payment. I am trying to analyse it for you. I quite appreciate that if you lose you pay --
41. MR JUSTICE COLLINS: Well you have lost.
42. DR OTOTE: -- but in this case there is some exceptional circumstance in this case. Let me analyse them to you first. First of all, I was — I wanted to read this whole of the transcript to you, because it should have helped you better how to understand --
43. MR JUSTICE COLLINS: No, I read it and there is no need for you to read it.
44. DR OTOTE: Let me finish, because I wanted to bring in some (inaudible) into this. It should have helped you better to understand this case, but it couldn't be read. The General Medical Council prosecuted me before under the health procedure for these same matters, and their case also was dismissed. These same matters. I was trying to read the whole transcript so you would understand it. So it's the same matter, that it was also dismissed, the health case, you didn't even --
45. MR JUSTICE COLLINS: Dr Otote, this has nothing to do with whether you should pay the costs of this appeal.
46. DR OTOTE: But I am coming gradually. Once I get there, you would understand --
47. MR JUSTICE COLLINS: Well get there and get there immediately.
48. DR OTOTE: First of all, I am not the only one that the case was dismissed, but I want you to be lenient in this case because, in spite of the fact that they are talking of costs, I want you to put into consideration (1) I wasn't given the opportunity to read the whole of this transcript, which I wanted to do to explain --
49. MR JUSTICE COLLINS: That is irrelevant.
50. DR OTOTE: I understand, but if I finish you might try to see that there is a point.
51. MR JUSTICE COLLINS: Dr Otote, I have decided against you. I have dismissed your appeal. Now, as I said, and as you recognise, the normal rule is that you have to pay costs if you lose.
52. DR OTOTE: I quite appreciate that, but let me analyse it for you. Thank you, my Lord. I know that the normal rule is you try to pay costs, but this is someone that — I don't have any money. The fact that --
53. MR JUSTICE COLLINS: That is something which you will have to sort out, if I do make an order, with the GMC. Whether they will enforce any application or any order for costs is another matter.
54. DR OTOTE: Let me finish. By the time I finish you will see maybe there is a point. First of all, I am someone, I don't have any money. It's the Citizens Advice Bureau that even help me to bind these bundles. I put it to the GMC that if they could assist me with the bindings of these bundles, it was part of their costs as well. I have saved some of their costs for them. They were saying that okay they would have done the bundle. So I have actually eased their costs for them by even doing the bundle.
55. MR JUSTICE COLLINS: It is your responsibility to produce the bundles as an appellant normally.
56. DR OTOTE: Let me finish. I want you to understand that the only (inaudible) I get it is not even up to the money for me to even eat, uh-huh. They just --
57. MR JUSTICE COLLINS: Dr Otote, as I say, the fact if I do make an order for costs does not mean that that will be enforced. That is out of my control. You will have to negotiate, if I do make an order, with the GMC and they are not going to enforce if they are satisfied that there is no point in doing so. Because obviously if you have no money, there is no point in trying to enforce an order for costs.
58. DR OTOTE: That is it. First of all, I also want you to know, it is not as if (inaudible). I also want you to know that it is not the fact that I am making an issue about these costs. I feel (inaudible) these costs, because I have (inaudible) binding and you said you will do. And secondly, they wrote to solicitors. The court — it is only one solicitor that was registered with your court. I asked the people in the Administrative section. They said there is only one that is actually registered there. So they have bring me costs that there are two solicitors, even your Administrative Court they said there is only one that is registered. They are bringing costs for two different solicitors. It is actually one solicitor that is registered with you.
59. MR JUSTICE COLLINS: I am sorry, Mr Thomas....
60. MR THOMAS: My Lord, I am seeking the costs of work done by two separate solicitors working within the GMC.
61. DR OTOTE: You see.
62. MR THOMAS: I suppose Dr Otote's point is that the GMC is the solicitor on record. But it is two separate individuals, Deborah Yates and Janet Gray. I do not think there is anything in the point frankly.
63. MR JUSTICE COLLINS: You often get this. If a firm of solicitors appears on behalf of a client, you may have more than one individual in that firm doing work on a particular case and that is what has happened here.
64. DR OTOTE: No, it is not the firm. GMC is in-house. They are in-house solicitors. It is not a firm, it is just within the GMC.
65. MR JUSTICE COLLINS: Yes, they are perfectly entitled to claim for work done by in-house solicitors.
66. DR OTOTE: But you registered only one, one is officially only registered. The people in the office they said it, they said, no second solicitor is really registered.
67. MR JUSTICE COLLINS: Who are the solicitors? It used to be Field Fisher.
68. MR THOMAS: My Lord, it is in-house GMC solicitors, Deborah Yates and Janet Gray are the two individuals named on the costs schedule.
69. MR JUSTICE COLLINS: What is this point about someone being registered for the purpose of the court?
70. MR THOMAS: My Lord, I assume it is just the GMC's address which is with the court office.
71. MR JUSTICE COLLINS: I am afraid there is nothing in this. As I said Dr Otote, the GMC deal with this in-house, which means that they have their own solicitors or their own legal advisers.
72. DR OTOTE: I think you should give us time here, sir, because first of all the decision also went against me. Let me talk to them. Give us time. Let us adjourn for about ten minutes or so. Give me some time. Let me talk to them.
73. MR JUSTICE COLLINS: No, there is no reason why I should adjourn it at all. All I have to do --
74. DR OTOTE: Just outside, you are not adjourning, you just wait, if you don't mind. I crave your indulgence.
75. MR JUSTICE COLLINS: Dr Otote, what is the point of that?
76. DR OTOTE: So I will have time to talk to them.
77. MR JUSTICE COLLINS: There is nothing to talk about.
78. DR OTOTE: Whether they would agree or not, I don't really know. But you should give me time to talk to them.
79. MR JUSTICE COLLINS: They have already made it clear that they are asking for costs. They are not going to agree not to apply for costs.
80. DR OTOTE: I completely agree with your Lordship, but if you could give me time. Because now they've not really — I can't really do this thing here. I will be talking too much. Just give us only five minutes.
81. MR JUSTICE COLLINS: What is the purpose of giving you any time?
82. DR OTOTE: Five minutes.
83. MR JUSTICE COLLINS: What is the purpose?
84. DR OTOTE: The purpose is for me to put this case that I am putting to you in a clear — in a more clearer fashion to them.
85. MR JUSTICE COLLINS: There is nothing to put Dr Otote. The fact is that they are applying for their costs because you have lost. As say, you can negotiate with them, if I were to make an order for costs, as to whether they should enforce, and you can put forward any argument you wish, that it would be either unfair or you do not have any money or whatever. But that does not affect and cannot affect the principle which applies to all these cases, I am afraid, that the loser pays.
86. DR OTOTE: I quite appreciate that, but I am asking you, give me five minutes of adjournment.
87. MR JUSTICE COLLINS: I am not going to give you any time. It is completely pointless.
88. DR OTOTE: But first of all it is difficult for me to talk now. I would also consulted with the people here, who are here to support me. Give me time to consult with them.
89. MR JUSTICE COLLINS: What do you want to consult about? There is nothing to consult about.
90. DR OTOTE: Surely we can go outside and consult and then we can come back, please.
91. MR JUSTICE COLLINS: I have got another case in the list.
92. DR OTOTE: It is just five minutes, so I can consult with them.
93. MR JUSTICE COLLINS: I do not see any point, but all right. As I say, I will start on the next case and you come back when you have had your consultation with your wife and with the gentleman with you.
94. DR OTOTE: And also with the GMC.
95. MR JUSTICE COLLINS: No — well that is up to Mr Thomas, if he wants to.
96. MR THOMAS: My Lord, I have nothing to say or anything I want to hear from him.
97. MR JUSTICE COLLINS: I cannot imagine there is anything, but if you really want to have time to consider what you want to say about costs, I will give you five minutes.
98. DR OTOTE: Thank you.
99. MR JUSTICE COLLINS: I am sorry Mr Thomas.
(The case of Johnson was interposed) (The case of Dr Otote was resumed)
100. MR JUSTICE COLLINS: Yes, Dr Otote. Now what do you want to say?
101. DR OTOTE: My Lord, I have to crave your indulgence again in this matter. We have no money and ability, and we ask for the court's mercy on account of this. I also have to crave your indulgence that you — if on the other hand, if you say you don't want to leave it for today on the matter of costs, to give me time, you know, to liaise with the Citizens Advice Bureau. Within the short time that you have given me I have not been able to take any legal --
102. MR JUSTICE COLLINS: I am afraid it will not help.
103. DR OTOTE: I quite appreciate that, sir, but within the short time that you've given me, you know, I have not been able to take any legal advice on this matter. And it is in the interests of justice, you know, for an appellant in person, you know, to take legal advice on an issue.
104. MR JUSTICE COLLINS: The trouble with that Dr Otote is that if I did give you that opportunity, then there would be further costs incurred because it would be necessary for the other side to deal with any further application and any further hearing. That is not in anyone's interest.
105. DR OTOTE: No, because I can come (inaudible) if that is the case. But you should appreciate that no matter may be the costs that they would incur I can come here, is that there is justice. And justice has to be done in this case. And as I am an appellant in person, mind you, I am not a solicitor and I need to consult with a solicitor properly. I need to see the Citizens Advice Bureau.
106. MR JUSTICE COLLINS: Dr Otote I would entirely accept that if there was any purpose in it, but there is not any, that is the problem.
107. DR OTOTE: You might say that there is no purpose, but there is the purpose of the interest of justice. At least let it be written down that a solicitor was consulted in this case. It is only a solicitor that is the access to justice in this case. I have not had the time within the short period that you have given me. I didn't have any prior knowledge about the matter of costs today. All that was fixed for today was the hearing.
108. MR JUSTICE COLLINS: You told me that you were well aware of the principle that costs follow the event, that if you lose you pay.
109. DR OTOTE: No, it is the only the hearing that was listed for today. I just came here for that. I didn't obtain any legal advice. And within the short time that you have given me, I have not been able to take any legal advice.
110. MR JUSTICE COLLINS: All right.
111. DR OTOTE: Justice needs to be done in this case for an appellant in person.
112. MR JUSTICE COLLINS: All right. Thank you.
113. No, I am afraid Dr Otote --
114. DR OTOTE: We've not finished. (Dr Otote indicated towards Mrs Otote)
115. MR JUSTICE COLLINS: Yes?
116. MRS OTOTE: Thank you my Lord. Thank you for giving me the opportunity at least to talk, at least for just two minutes. Please this is (inaudible) I don't want to where to start, I don't know where to end. We've gone to GMC several times --
117. MR JUSTICE COLLINS: You haven't got any money, is really what it boils down to, does it?
118. MRS OTOTE: Pardon?
119. MR JUSTICE COLLINS: You have not got any money?
120. MRS OTOTE: No, I don't have any money. I have three kids, ages 3, 7 and 10 years old (inaudible) and I am the one paying for it. I have been doing this for many years. I don't know where to start, I don't know where to end. We came to court today hoping that at least one or two things will change. It is like everything remains the same. He doesn't have an account whatsoever. He doesn't have a bank account whatsoever.
121. MR JUSTICE COLLINS: No, I understand.
122. MRS OTOTE: I quite appreciate he lost the case (inaudible) put it like that. But the costs they're coming up with, please, I don't know what to say. If they could just please forget about the costs, because there is no how we will be able to pay the costs. We find it difficult to eat. This is (inaudible). I just don't know what to say. (Mrs Otote started crying)
123. DR OTOTE: It is impossible. I think the other side needs to appreciate that you can't someone to go and steal, because this is totally — not impossible, totally impossible.
124. MR JUSTICE COLLINS: I fully understand that. The position is, as I have indicated, that normally costs follow the event, that is to say one of the hazards of litigation in this country is that the loser pays the winner's costs. That is not an inevitable result, but it is the usual result unless there are exceptional circumstances.
125. DR OTOTE: There are exceptional circumstances.
126. MR JUSTICE COLLINS: The exceptional circumstances here are said to be essentially that the appellant is frankly unable to pay any sum by way of costs. That is on the face of it always a powerful argument, but I am afraid that the court's approach in that sort of case is to say that that does not preclude the making of an order for costs, but that it is for the GMC in this case to decide whether there should be enforcement of any order for costs.
127. They are entitled in my judgment to an order, but they should very carefully consider in the circumstances whether there is any point in pursuing Dr Otote for those costs. The fact is that because he is suspended he is not able to work, and he is not able --
128. DR OTOTE: Fend for himself.
129. MR JUSTICE COLLINS: -- to have gainful employment as a doctor. In those circumstances, he is obviously not in a position to pay at this stage. Accordingly, as I have said, I am prepared to, indeed I think I am bound, to make an order in favour of the GMC, but I do seriously ask them to consider whether it is appropriate in all the circumstances to enforce that order.
130. MR THOMAS: My Lord, of course the GMC would not want to throw good money after bad --
131. MR JUSTICE COLLINS: Exactly.
132. MR THOMAS: -- quite apart from any considerations of fairness.
133. MR JUSTICE COLLINS: Of course.
134. MR THOMAS: May I just mention that the costs of the Privy Council hearing are still outstanding, as an indication of the GMC's approach in these matters.
135. MR JUSTICE COLLINS: As I say, you can have your order on the usual terms.
136. MR THOMAS: In the amount of the costs schedule?
137. MR JUSTICE COLLINS: Sorry?
138. MR THOMAS: In the amount of the costs schedule?
139. MR JUSTICE COLLINS: I have not seen a schedule.
140. MR THOMAS: My Lord I will pass up a copy, because we would ask for summary assessment.
141. MR JUSTICE COLLINS: Have you seen the amount that they are asking for Dr Otote?
142. DR OTOTE: No solicitor has been consulted in this matter.
143. MR JUSTICE COLLINS: They have in-house solicitors.
144. MR THOMAS: My Lord, if I may say --
145. MR JUSTICE COLLINS: They seem a bit high.
146. MR THOMAS: My Lord, if I may say, Dr Otote has adopted the approach of not only bringing an appeal but bringing an appeal, as your Lordship has said, in a diffuse manner. The court has not been troubled with all the paperwork in this case --
147. MR JUSTICE COLLINS: No, no.
148. MR THOMAS: -- and many of the points which were raised by Dr Otote, which had to be considered by my instructing solicitor and myself, have not been developed at this hearing. But my Lord, when you have an appellant raising a whole plethora of arguments and inundating the GMC with a large amount of material, it is incumbent upon the GMC to be able to assist the court in opposing the appeal to be able to consider that material and those arguments.
149. MR JUSTICE COLLINS: I take your point, but I still think that this is frankly on the high side. There is an element of discretion. I appreciate the difficulty, but the fact is that the vast majority of these grounds were utterly hopeless, and it would have been clear to anyone that there was no merit in, as I say, the vast majority of those grounds. There were one or two which needed to be concentrated on. Although, as I say, I have some sympathy, I think that the amount claimed is too high for the circumstances of a case of this nature. It is, I am afraid, an expensive business going to law, but I am not going to order the sum of £10,000. I think that is excessive. What I am prepared to do is to make an order in the summary assessment of £6,000. It is a global sum. But I repeat, that will only be enforced if the GMC decide that there is money to be obtained, and they have not sought to enforce the Privy Council costs as I understand it.
150. DR OTOTE: No, they pursued me. They have pursued me until I started telling them, that what is the appropriateness of costs. I can't pay.
151. MR JUSTICE COLLINS: That you cannot get blood out of a stone, as they say.
152. DR OTOTE: Just like I informed them now, because they did not even allow me to consult a solicitor now. There is no way I can pay. I was trying to even talk to them. It is impossible in these circumstances --
153. MR JUSTICE COLLINS: I have done the best I can for you to give the indications I have, that they should think very carefully before they enforce against you in the light of your financial situation, and as your wife has indicated.