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 WC2A 2LL
		12th June 2008

See also: Pal, R (on the application of) v The General Medical Council [2009] EWHC 1061 (Admin) (24 April 2009)



1. THE DEPUTY JUDGE: I am going to give permission to apply for judicial review in this case. There is very considerable force, in my judgment, in what Ms Grey has submitted and the claim may very well ultimately fail, but I give permission essentially for two reasons. One is that I do regard the case as being arguable and, secondly, that it seems to me that there is a general interest as to what is the correct approach to the role under section 35C)(2) of the Medical Act 1983.
2. I grant permission for judicial review not so much on the basis of the Wednesbury challenge that is advanced to the decision of the Registrar to refer complaints to the case examiners, but rather more as to whether there may have been an error of law, because it does seem from the evidence that the task has been approached on the basis of being an initial screening role, which in all likelihood is a very good and accurate description of the nature of the role, but on another occasion after the event it is described as a very preliminary filtering role. I think that the use of the word "very" suggests that such hurdle as there is, although low, may have been set too low, and one does not know whether or not that would have made a difference to the outcome so far as the question of reference is concerned.
3. This is a renewed application. Permission was refused on the papers by McCombe J on 21st January 2008. Very briefly, since I am granting permission, the claimant doctor is registered with the defendant, the General Medical Council ("the GMC"), and she seeks to challenge their decision to refer two complaints to the case examiners.
4. Events have moved on. The case examiners have closed the case and the GMC, in its acknowledgement of service, makes four points in answer to the challenge: first, that the case had therefore become academic; secondly, that it was never appropriate to challenge the initial assessment decision, the claimant's remedy was to make submissions to the case examiners and/or to await their decision; thirdly, the initial assessment decision, that is the referral to the case examiners of the two complaints, was in each instance justified and involved no arguable error of law; fourthly, that the claimant was out of time.
5. McCombe J accepted these points, and indeed he regarded the claims as hopeless, though I do not know whether or not there was any focus, so far as his consideration is concerned, upon the particular letter annexed to the acknowledgement of service, to which Mr Garlick on behalf of Dr Pal referred me.
6. The grounds for renewal take issue with each of these points, and I must say that in reading the grounds of renewal I found them wholly unpersuasive and that it did appear that the claimant had failed to appreciate the nature of the initial assessment and the limited role of the Registrar.
7. I now, however, have had in addition a helpful skeleton argument by Mr Paul Garlick QC on her behalf, which contains supplemental submissions on each of the four points. On the first point, it is submitted that the position is not academic because the fact of the case having been referred to the examiners has a continuing and ongoing stigmatising effect. Ms Grey strongly disputes that.
8. On the second point, it is submitted that it was appropriate to challenge the referrals because the referrals, in themselves, have adverse professional and practical consequences. So far as those two points are concerned, they seem to me to satisfy, at any rate, a test of arguability and merit further consideration.
9. On the fourth point, delay, it is not accepted that the claim was out of time, but I would not refuse permission on that ground alone.
10. The nub of the matter, in my judgment, is the merits: whether the complaints ought to have been dismissed by the Registrar on the grounds that neither fell within section 35C(2) of the Medical Act 1983; that is whether the complaints appear to raise a question whether the practitioner's fitness to practise is impaired on grounds of misconduct. Mr Garlick deals with this point in paragraphs 9 and 10 of his skeleton argument. I will not read those out. To some extent, it seeks to make a case on the basis of comparison with another case, but the facts of that case are not before the court and are confidential, and appear to me to be irrelevant for present purposes. I also have in mind that in any event that was one of two complaints and that one has to look to see whether either was a justified referral; the other complaint, that is the other one apart from the one upon which Mr Garlick particularly focused, being whether the use of the bald title "psychiatrist" was misleading.
11. As I say, I think the matter has moved on from a naked Wednesbury challenge, and whether or not that was arguable it does seem to me that there is an arguable point as to whether the description of "very preliminary filtering role" was an appropriate one or not. I think that this case illustrates that it may be useful for the court to consider and give guidance as to what the role is, so that those exercising it and involved in its exercise consistently apply whatever may be determined to be the right test.
12. MS GREY: My Lord, may I simply enquire whether your Lordship's grant of permission is limited to that point, i.e. the issue of whether the Registrar applied the right test in granting permission. The grounds, I think I am right in saying, make no reference to the specific letter that your Lordship has focused upon today.
13. THE DEPUTY JUDGE: That is right.
14. MS GREY: And they also raise a number of wider complaints about the whole exercise and the circumstances in which it was taken. It would, if I may say so, be helpful if we knew that the focus of this case was upon the point that your Lordship has just granted permission on.
15. THE DEPUTY JUDGE: Not entirely, no. I am not limiting the case in terms of the merits and Wednesbury. It seems to me that the question of whether or not the right test was applied, and the question of whether or not the test was applied in a Wednesbury unreasonable fashion, have some degree of relationship to each other.
16. MS GREY: Yes.
17. THE DEPUTY JUDGE: And that therefore, in relation to both complaints, the issue of whether or not the referral was justified will be part and parcel of the substantive hearing.
18. MS GREY: My Lord, I can see that, but if I could be more specific, if I could take your Lordship to the grounds, if your Lordship has it?
19. THE DEPUTY JUDGE: Yes.
20. MS GREY: First of all, the first matter of complaint is to be found at ground 1, that is at page 14 of your Lordship's papers, paragraph 27 onwards.
21. THE DEPUTY JUDGE: Yes.
22. MS GREY: My Lord, I accept that is fairly and squarely within --
23. THE DEPUTY JUDGE: That is what I have just dealt with, but ground 2, you say, has not been run.
24. MS GREY: Ground 2 has not been run. Equally well, ground 3 has not been run. I think ground 4 is an aspect of ground 1, so that is all right, but ground 5, again, is a separate point, I think, failing to give proper consideration. Then ground 7, of course -- sorry.
25. THE DEPUTY JUDGE: Ground 6, procedural impropriety, that is another matter.
26. MS GREY: That is another matter. Ground 7 is really another matter again, because it takes us back to the comparison to the other case, rather than examining this case on its merits. So what would, in my submission, be helpful is if your Lordship were to clarify that your Lordship has given permission on ground 1, I think has refused it on ground 2, refused it on ground 3, and I think refused it on ground 5 and on grounds 6 and 7.
27. THE DEPUTY JUDGE: Can I take it the other way round. Permission then on grounds 1 and 4, is it?
28. MS GREY: Yes. I think that will leave the substance of the case intact, whereas hopefully removing some extraneous matters.
29. THE DEPUTY JUDGE: Yes, thank you.
30. Mr Garlick?
31. MR GARLICK: I would like to comment on that. I can see the force that some of the grounds have not been taken, but certainly in respect of ground 2, it goes to the point of natural justice, it is not something which can be shut out, we would respectfully submit. Equally, ground 3 and the application of the European Convention on Human Rights, there is an issue as to that and it is an issue which should not properly be shut out.
32. THE DEPUTY JUDGE: What is the issue as distinct from --
33. MR GARLICK: The issue would be -- in respect of the conduct of the Registrar, in allowing it to go and failing to adopt the right test, it amounted to a violation of Article 10.
34. THE DEPUTY JUDGE: Is that not in effect an aspect of saying that it was irrational to make the referral because that did not give sufficient weight to freedom of expression?
35. MR GARLICK: It is, and that is but part of the argument.
36. THE DEPUTY JUDGE: Yes. I do not think it is a free-standing ground.
37. MR GARLICK: No, I accept it is not a free-standing ground, but I do not want there to be any doubt or any possibility that, whilst it is not a free-standing ground, it cannot be embraced in other grounds, it is a proper expression of some of the arguments. My learned friend's invitation to effectively strike us out in that ground may well be interpreted in due course by the full court as preventing us from developing arguments in support of other grounds embracing Article 10. I quite accept, of course, the substance of your Lordship's ruling today, and plainly the application will be focused upon that, but to divorce it from those other matters would be artificial, we would say.
38. THE DEPUTY JUDGE: Do you accept that grounds 5, 6 and 7 should go?
39. MR GARLICK: I am afraid I am still catching up on 5, 6 and 7. Well, with respect, ground 5 is not a stand alone ground, but it is certainly something which necessarily has to be argued in support of ground 1 and ground 2. Ground 6, in effect, is precisely the point. The Registrar, we say, did misdirect herself to the extent of her powers and adopted the wrong test. It is merely another way of expressing the point on which your Lordship has in fact given us leave.
40. THE DEPUTY JUDGE: What does it add?
41. MR GARLICK: It does not add anything. What I am concerned about is that I do not want to --
42. THE DEPUTY JUDGE: It would broaden matters out if one was going into allegations of procedural impropriety.
43. MR GARLICK: Well, if I take the word "impropriety" out, procedural irregularity, in other words the wrong test.
44. THE DEPUTY JUDGE: No. I do not think the wrong test is procedural irregularity.
45. MR GARLICK: It would be, my Lord, if for example, and it is here, the Registrar did not in fact carry out the investigation which is envisaged by Rule 4. That is a procedure. It prevented further analysis of the facts, and that would --
46. THE DEPUTY JUDGE: No, ground 6, is an entirely different ground, it actually alleges bias.
47. MR GARLICK: I am not pursuing that. I did not intend to.
48. THE DEPUTY JUDGE: What do you say about ground 7, if anything?
49. MR GARLICK: It is evidential, rather than a stand alone ground.
50. THE DEPUTY JUDGE: Yes. I am going to strike out grounds 2, 6 and 7.
51. Ms, Grey anything further you want to say about grounds 3 and 5? At the moment I am inclined to leave those in.
52. MS GREY: My Lord, I have nothing to say on that. I can see that it will inevitably be raised as part of the substantive.
53. THE DEPUTY JUDGE: Although the ECHR hardly justifies being misleading, and if it is not misleading then one does not need the ECHR.
54. MS GREY: We lose 2, 6 and 7, is that right?
55. THE DEPUTY JUDGE: We lose grounds 2, 6 and 7.
56. MS GREY: I do not have anything further to say, my Lord.
57. THE DEPUTY JUDGE: Thank you both very much.