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
		3 November 2010

1. MR JUSTICE BURNETT: This matter comes before me today for hearing of Dr Khazne's statutory appeal against the decision of the General Medical Council's Fitness to Practise Panel, given on 26 November 2008, that (1) his fitness to practice was impaired; and (2) his name should be erased from the Medical Register.
2. Dr Khazne, who throughout these proceedings and those before the GMC has acted in person, is not here and, as is plain, has no intention of coming to court to pursue his appeal. That is because he does not believe he has the documents necessary to argue it properly.
3. On 17 March 2010 HHJ Mackie QC, sitting as a judge of the High Court, refused Dr Khazne's application for disclosure of, amongst other things, material produced by the National Clinical Assessment Authority as part of a report dated 4 October 2002 and which was concerned with the appellant's performance as a doctor. As I understand it, that material included complaints from patients and from the relevant Primary Care Trust, together with the assessment and test scores carried out by the Clinical Assessment Authority itself.
4. There were subsequently three decisions of professional bodies prior to the hearing and decisions under appeal in this court. First, in 2004 the Committee on Professional Performance directed that Dr Khazne undergo an assessment of his performance and suspended his registration on an interim basis. Secondly, in 2005 the Fitness to Practise Panel noted that Dr Khazne had not undergone that assessment and suspended his registration. In 2006 the Fitness to Practise Panel reviewed the suspension and decided that Dr Khazne's fitness to practice was impaired. It also indicated that he might be assisted if he were to undergo the performance assessments originally ordered before the next review. He did not do so.
5. None of the decisions to which I have thus far referred was appealed.
6. By the time the matter came again before the Fitness to Practise Panel in 2008, Dr Khazne had been out of practice for over 6 years. He had not undergone any further assessments and neither had he demonstrated any steps taken to keep up-to-date; in the language familiar to lawyers, no continuing professional development.
7. That short resume of the history is necessary to understand why HHJ Mackie QC refused disclosure. In short, he considered that the material from the National Clinical Assessment Authority was not relevant to the 2008 review which is the subject of the appeal. The patient complaints and those of the Primary Care Trust, which it is apparent Dr Khazne disputes, were not relied upon by the Panel in 2008. The limit of their reference to the materials from the National Clinical Assessment Authority related to the test scores which that body had applied to Dr Khazne. Those matters had been referred to in the earlier professional conduct proceedings and, as I have said, were never challenged.
8. I should note that Dr Khazne sought other documents from the GMC. It was clear on the material before HHJ Mackie that many of them were not in the possession of the GMC. Be that as it may, Dr Khazne had indicated that he was content to leave arguments about those other documents to the hearing of his appeal.
9. On 27 March 2009 Dr Khazne wrote a long letter to HHJ Mackie QC suggesting that the judge's decision was wrong. It is, I am afraid, quite difficult to distill the essence of the letter, but at the heart was a suggestion that Dr Khazne's problems in his practice started in 2000 and had nothing to do with his capacity as a doctor. Instead, it resulted from a criminal conspiracy to get rid of Dr Khazne and give the practice to an outsider when the other existing partner retired. As Dr Khazne put it:

"After that it got more complicated with a lot of ramifications with personal confrontation".

Dr Khazne took no formal steps to reverse the decision of HHJ Mackie QC which, if I may respectfully say so, was obviously correct.

10. On 9 June this year, Dr Khazne wrote to the court referring to other judicial review proceedings in which he had been engaged and stating that he needed the documents for which he had earlier made application to enable him to pursue his appeal. He made it clear then that he would not come to the hearing in the absence of those documents. He also indicated that if disclosure was not made he would take the matter to Europe.
11. On 5 October he wrote again saying that he did not intend to appear at the hearing of his appeal, and on 21 October he wrote in these terms:

"This is further to my last letter of 5 October, just to let you know my personal opinion regarding the scheduled hearing of this case for 3 November 2010. I hereby formally ask the court that there is no need for such hearing to go ahead, and it is my formal request to the court and to the GMC. The GMC does not need to send anybody for the hearing; the GMC, in my opinion, can phone or write to the court regarding this matter before the hearing date 3.11.10, as we did before in similar circumstances. I leave it to the judge to decide in these circumstances what he/she considers right".

If this letter constitutes an application for an adjournment, I refuse it. This appeal has been listed for months. There is no good reason why Dr Khazne is not here. He is determined to absent himself unless he is provided with various documents which this court has declined to order. The reality is that Dr Khazne has no intention of prosecuting this appeal, except on his own terms. Miss Lee, who appears this morning for the GMC, has told me that her instructing solicitor, Mr Turner, had contact with Dr Khazne yesterday when, once again, he confirmed that he would not be attending.

12. This is Dr Khazne's appeal which he has, in effect, chosen not to pursue. In those circumstances, the appeal will be dismissed.
13. The GMC has sought an order for costs. It is appropriate that I should make an order for costs in favour of the GMC. The only other order I make today is that, in the event that there are any further applications in this matter, they are to be reserved to me to be dealt with on paper.
14. I would add only this. I have carefully considered the grounds of appeal relied upon by Dr Khazne and none appears to me to have any prospect of success at all. That is so when one considers the detail of the hearing before the Fitness to Practise Panel in November 2008 together with the background and very long history in this matter.
15. Miss Lee, is there anything else that I need deal with today?
16. MISS LEE: My Lord, your Lordship has made an order for costs. I do not know if we have a schedule available or whether your Lordship would like to deal with that now?
17. MR JUSTICE BURNETT: Is there a schedule in which I can conduct a summary assessment? It certainly makes sense if I can.
18. MISS LEE: My instructing solicitor points out that on the second page he has put down 2 hours for attendance today because he was not sure, obviously, how long the hearing might take. That obviously would have to be reduced.
19. MR JUSTICE BURNETT: It depends where Mr Turner has come from and is going to, and how he proposes to travel, given today's transport difficulties.
20. MISS LEE: He has come from Manchester I gather.
21. MR JUSTICE BURNETT: Yes.
22. A statement of costs for the hearing has been provided and I am invited to make a summary assessment of the GMC costs rather than order a detailed assessment in default of agreement. The sum claimed, including VAT, is £5,435.60. As Miss Lee rightly points out, the only element of the claimed costs which might properly be reduced in any event concerns attendance at today's hearing for her instructing solicitor; the hearing has been rather shorter than the time originally expected.
23. I am bound to say that, in the light of the voluminous material that has been produced for this hearing and the factual detail that the appeal engages, the total claimed in the statement of costs is a good deal less than I was expecting before the statement of costs was handed up. That said, I will reduce it slightly to take account of the factor I have mentioned and assess costs, including VAT, in the sum of £5,300.
24. MISS LEE: I am very grateful, my Lord.
25. MR JUSTICE BURNETT: Thank you very much.