QUEENS BENCH DIVISION
Manchester Civil Justice Centre
1 Bridge Street West
B e f o r e :
THE HONORARY RECORDER OF MANCHESTER
(sitting as a deputy High Court Judge)
| DR AHMAD ZIA
|- and -
GENERAL MEDICAL COUNCIL
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Mr Pievsky appeared on behalf of the Respondent.
Crown Copyright ©
HHJ Gilbart QC:
(1) The Appellant's fitness to practice was impaired because of misconduct. The misconduct in question related to what was found to be Dr Zia's failure to inform a prospective employer that he was under investigation by the GMC
(2) The Appellant's fitness to practice was impaired because of deficient professional performance when acting as a locum registrar paediatrician at the Cardiff and Vale NHS Trust. The deficient performance was found to consist of
i. Deficient treatment of Child A
ii. Deficient treatment of Child B
(3) He should be suspended from practice for 8 months.
"The assessors will be asked to send a report to the GMC on the standard of your performance. The report will be passed on to two case examiners who will decide what further action to take. The case may be closed, you may be asked to take appropriate remedial action prior to your reassessment or if the GMC considers it necessary in the public interest you may be referred to a Fitness to Practise Panel in accordance with Rule 7(5)."
"If you fail to submit or comply with the assessment Rule 7(6)(a)(i) provides that the allegation may be referred to a fitness to practise panel for determination"
"Functions of the Investigation Committee
(1) This section applies where an allegation is made to the General Council against—
(a) a fully registered person;
(b) a person who is provisionally registered; or
(c) a person who is registered with limited registration,
that his fitness to practise is impaired.
(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of—
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.
(4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel.
(5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel—
(a) they shall give a direction to that effect to the Registrar;
(b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and
(c) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any).
(6) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, they may give a warning to the person who is the subject of the allegation regarding his future conduct or performance.
(7) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, but that no warning should be given under subsection (6) above—
(a) they shall give a direction to that effect to the Registrar; and
(b) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any).
(8) If the Investigation Committee are of the opinion that an Interim Orders Panel or a Fitness to Practise Panel should consider making an order for interim suspension or interim conditional registration under section 41A below in relation to the person who is the subject of the allegation—
(a) they shall give a direction to that effect to the Registrar;
(b) the Registrar shall refer the matter to an Interim Orders Panel or a Fitness to Practise Panel for the Panel to decide whether to make such an order; and
(c) the Registrar shall serve notification of the decision on the person who is the subject of the allegation and the person making the allegation (if any).
"Provisions supplementary to section 35
(1) Rules under paragraph 1 of Schedule 4 to this Act may make provision for—
(a)the Registrar; or
(b)any other officer of the General Council,
to exercise the functions of the Investigation Committee under section 35C above, whether generally or in relation to such classes of case as may be specified in the rules.
(2) Where, by virtue of subsection (1) above, rules provide for the Registrar to exercise the functions of the Investigation Committee under subsections (5), (7) and (8) of section 35C above, those subsections shall apply in relation to him as if paragraph (a) in each of them were omitted.
(3) Section 35C above also applies in a case where—
(a)it comes to the attention of the General Council that a person's fitness to practise is called into question by one or more of the matters mentioned in subsection (2) of that section, but
(b)no allegation to that effect has been made to the Council against that person,
and in such a case section 35C shall apply as if an allegation to that effect had been made to the Council against that person.]"
Investigation of allegations
Initial consideration and referral of allegations
4. — (1) An allegation shall initially be considered by the Registrar.
(2) Subject to paragraph (5) and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.
(a)the Registrar considers that an allegation does not fall within section 35C(2) of the Act; or
(b)in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed,
he shall notify the practitioner and the maker of the allegation (if any) accordingly.
(4) The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of—
(a)whether or not the allegation falls within section 35C(2) of the Act; or
(b)the practitioner's fitness to practise.
(5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed.
Functions of the Registrar in relation to cautions, convictions and determinations
5. (1) Subject to rule 4(5), the Registrar shall refer an allegation falling within section 35C(2)(c) of the Act relating to a conviction resulting in the imposition of a custodial sentence, whether immediate or suspended, directly to a FTP Panel.
(2) Subject to rule 4(5), the Registrar shall refer any other allegation falling within section 35C(2)(c) or (e) of the Act directly to a FTP Panel, unless he is of the opinion that it ought to be referred to a medical and a lay Case Examiner for consideration under rule 8.
Referral to Interim Orders Panel
6. If, at any stage, the Registrar is of the opinion that an Interim Orders Panel should consider making an interim order in relation to a practitioner, he shall refer the allegation to an Interim Orders Panel accordingly.
Investigation of allegations
7. — (1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner—
(a)informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired;
(b)providing him with copies of any documents received by the General Council in support of the allegation;
(c)inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and
(d)informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment.
(2) The Registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8.
(3) The Registrar may direct that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2.
(4) Where an assessment has been carried out in accordance with Schedule 1 or 2, the Registrar shall send a copy of the assessment report to the practitioner.
(5) Where an assessment has been carried out in accordance with Schedule 1, the Registrar shall send a copy of the assessment report to any person by whom the practitioner is employed to provide medical services or with whom he has an arrangement to do so.
(6) Where the Registrar receives information that—
(a)the practitioner has failed to submit to, or comply with, an assessment under Schedule 1 or 2; or
(b)having submitted to an assessment under Schedule 1, the practitioner has failed to comply with reasonable requirements imposed by the Assessment Team;
the Registrar may—
(i)refer the allegation for determination by a FTP Panel, and
(ii)in a case falling within sub-paragraph (b), refer the practitioner to a FTP Panel for the purposes of making a direction under paragraph 5A(3) of Schedule 4 to the Act.
Consideration by Case Examiners
8. — (1) An allegation referred by the Registrar under rule 4(2) or 5(2) shall be considered by the Case Examiners.
(2) Upon consideration of an allegation, the Case Examiners may unanimously decide—
(a)that the allegation should not proceed further;
(b)to issue a warning to the practitioner in accordance with rule 11(2);
(c)to refer the allegation to the Committee under rule 11(3) for determination under rule 11(6); or
(d)to refer the allegation for determination by a FTP Panel.
(3) The Case Examiners may unanimously decide to recommend that the practitioner be invited to comply with undertakings in accordance with rule 10(2) and, where they do so and the practitioner confirms he is prepared to comply with such undertakings in accordance with rule 10(3), they shall make no decision under paragraph (2) accordingly.
(4) As soon as reasonably practicable, the Case Examiners shall inform the Registrar of their decision, together with the reasons for that decision, and the Registrar shall notify the practitioner and the maker of the allegation (if any), in writing, accordingly.
(5) If the Case Examiners fail to agree as to the disposal of an allegation under paragraph (2), or whether to recommend that the practitioner be invited to comply with undertakings under paragraph (3), they shall notify the Registrar accordingly, and the Registrar shall refer the allegation for consideration by the Committee under rule 9.
(6) If, at any stage, one of the Case Examiners is of the opinion that an Interim Orders Panel should consider making an interim order in relation to a practitioner, he shall direct the Registrar accordingly.
Consideration by the Committee
9. Upon consideration of an allegation referred under rule 8(5), the Committee may—
(a)determine that the allegation should not proceed further;
(b)dispose of the allegation by issuing a warning to the practitioner without an oral hearing in accordance with rules 11(2) to (4);
(c)determine that an oral hearing should be held for determination under rule 11(6);
(d)refer the allegation for determination by a FTP Panel; or
(e)where the Case Examiners have failed to agree whether to recommend that the practitioner be invited to comply with undertakings in accordance with rule 10(2), determine that the practitioner be invited to comply with such undertakings as the Committee think fit and direct the Case Examiners to make no decision under rule 8(2) accordingly.
10. (1) Where—
(a)after an assessment has been carried out in accordance with Schedule 1 or 2; and
(b)before the relevant allegation has been determined by the Case Examiners under rule 8 or referred to the Committee or a FTP Panel,
the Registrar considers it appropriate to do so, he may refer the assessment report to the Case Examiners for consideration under this rule.
(2) If after considering the assessment report it appears to the Case Examiners that the practitioner—
(a)is not fit to practise;
(b)is not fit to practise except on a limited basis or under supervision, or both; or
(c)suffers from a continuing or episodic physical or mental condition which, although in remission at the time of the assessment, may be expected to cause a recurrence of impairment of the practitioner's fitness to practise,
they may recommend that the practitioner be invited to comply with such undertakings as they think fit (including any limitations on his practice) and shall inform the Registrar who shall write to the practitioner accordingly, inviting him to state within the period of 28 days from the date of the letter (or such further period as the Registrar may allow) whether he is prepared to comply with such undertakings.
11. — (1) If it appears to one or both of the Case Examiners that an allegation is one with respect to which he or they may wish to give a warning, he or they shall inform the Registrar, and the Registrar shall write to the practitioner to inform him that he is entitled to make written representations within the period of 28 days from the date of the letter.
(3) After considering any representations made by the practitioner, where—
(a)the practitioner has requested that the allegation be referred for an oral hearing before the Committee; or
(b)the Case Examiners otherwise consider it appropriate to do so,
the Case Examiners shall refer the allegation to the Committee for an oral hearing in accordance with this rule.
(5) Where an allegation has been referred to the Committee for an oral hearing under paragraph (3) or (4), the Registrar shall give notice to the practitioner—
(a)particularising the allegation against the practitioner and the facts upon which it is based;
(b)specifying the date, time and venue of the hearing;
(c)informing him of his right to attend the hearing and to be represented at a hearing in accordance with rule 33;
(d)informing him of the power of the Committee to proceed in his absence under rule 31; and
(e)informing him of the Committee's powers of disposal as set out in paragraph (6).
(6) The Committee shall consider any allegation referred to it under paragraph (3) or (4), and shall—
(a)determine that the matter should not proceed further;
(b)dispose of the allegation by issuing a warning; or
(c)where new information adduced into evidence at the hearing indicates that to do so would be appropriate, refer the allegation for determination by a FTP Panel.
(7) Where an allegation has been referred for an oral hearing under paragraph (3) or (4), the order of proceedings before the Committee shall be as follows—
(a)the Presenting Officer shall outline the allegation and the facts upon which it is based and, where the Committee considers such evidence is desirable to enable it to discharge its functions under this rule, may adduce any relevant oral or documentary evidence;
(b)the practitioner may respond to the allegation and, where the Committee considers such evidence is desirable to enable it to discharge its functions under this rule, may adduce any relevant oral or documentary evidence;
(c)the parties may make such further submissions as the Committee may allow;
(d)before making its decision, the Committee may adjourn for further investigations to be carried out, including an assessment of the practitioner's performance or health under Schedule 1 or 2; and
(e)the Committee shall announce its decision, and shall give its reasons for that decision.
(8) In making its decision, the Committee shall, where appropriate, take into account the practitioner's previous fitness to practise history with the General Council or any other regulatory body.
(9) The Registrar shall serve written notification of the Committee's decision upon the practitioner as soon as practicable.
(10) The notice of decision shall—
(a)where the Committee decides that the matter should be referred to a FTP Panel, particularise the allegation against the practitioner that is to be referred; and
(b)where the Committee decides that the matter should be disposed of by issuing a warning, particularise the terms of the warning issued to the practitioner.
Review of decisions
Relevant date for the purpose of sections 35A and 35B of the Act
Rules 2, 3(1)(a), 7(3) to (6), 10(1),10(5)(b), 11(7)(d), 13(e), 17(4)(b),17(8), 19(b), 23(1)(b) and 24(2)(g)
1. In this Schedule "assessment" means an assessment of the standard of the practitioner's professional performance
2 (1) An assessment shall be carried out by an Assessment Team.
(2) The Registrar shall select from the panel of performance assessors appointed under rule 3, an Assessment Team comprising—
(a)a team leader, who shall be a medical performance assessor;
(b)one or more other medical performance assessors; and
(c)one or more lay performance assessors.
(3) A person shall not be selected as a member of an Assessment Team in any case where he has been selected to act as a specialist adviser at a previous hearing of the case.
(4) In selecting a medical performance assessor as a member of an Assessment Team, the Registrar shall have regard to the specialty to which the allegation relates.
Proceedings and procedures of Assessment Teams
3. — (1) Subject to sub-paragraphs (2) to (4), and having regard to the nature of the practitioner's employment, the Assessment Team shall adopt such procedures as appear to it to be necessary in order to assess the standard of the practitioner's professional performance.
(2) The Assessment Team may seek advice or information from any person who might, in the opinion of the Assessment Team, assist them in carrying out the assessment.
(3) The Assessment Team shall disclose to the practitioner any written information or opinion received by the Assessment Team which in their opinion may influence their assessment of the standard of his professional performance, and shall afford him a reasonable opportunity to respond.
(4) The Assessment Team shall produce a report on the standard of the practitioner's professional performance which shall express—
(a)an opinion as to whether the practitioner is fit to practise either generally or on a limited basis; and
(b)any recommendations as to the management of the case.
(i) omitting to follow some investigatory procedure such as a CT or MRI scan or variation thereof with which he was unfamiliar because of a failure to keep up to date with current medical practice
(ii) omitting to act on warnings from other members of the medical or nursing staff about the patient's condition;
(iii) indecently assaulting her by conducting an unnecessary examination of her private parts.
The decision whether to warn, obtain undertakings or suspend will depend to a significant degree on which of those allegations are made out. If there was concern that the doctor in question was not au fait with modern clinical practice on scans or investigations, then the results of the schedule 1 assessment would be of great importance on the first allegation. They could well lead to the requirement for undertakings on continuing education and training. They could also affect the second allegation where questions of responsiveness to the views of others could be an issue. But the views of the case examiners would be very important also on the second and third issues, where they could in an appropriate case conclude that the evidence advanced in support of one or other allegation was insufficient to show that there were warnings or any indecency or where material which had come to light cast doubt upon the allegation or that the doctor's response to the allegation had answered any concerns. So if the examiners rejected the second or third allegations, but accepted the first, then the question of referral to the FTP as opposed to warnings or undertakings, is likely to be (or at the very least could well be) answered differently. It is my judgment that the case examiners or investigating committee can take a rounded view, looking at all matters, and in my judgment that is what the Rules provide for. That is an important safeguard for the doctor against whom allegations have been made. I am comforted in my rejection of the GMC argument by the fact that the letter of 11 July 2008 stated in terms that the schedule 1 report would be "passed to the case examiners".
"Starting our investigation – permissions and disclosures.
Where the concerns potentially raise questions about the doctor's fitness to practise, we will start our investigation. Whenever we investigate concerns further, we will disclose the complaint to the doctor and his/her employer or sponsoring body. This ensures that we have a complete overview of the doctor's practice. This exchange also makes our information available to those responsible for local clinical governance.
When we begin to investigate a complaint, we will normally need to obtain further information from the complainant. We will also need their consent to disclose the complaint to the doctor.
We will disclose the complaint to the doctor and ask him/her to provide details of his/her employers or sponsoring body. The doctor will have an opportunity to comment on the complaint.
What happens during an investigation
Our investigation will depend very much on the nature of the concerns raised with us. Our investigation staff will decide on the most effective forms of investigation of the case. An investigation may include:
obtaining further documentary evidence from employers, the complainant or other parties; obtaining witness statements;
obtaining expert reports on clinical matters, etc;
an assessment of the doctor's performance;
an assessment of the doctor's health.
At the end of the investigation – Case Examiners
At the end of the investigation by the GMC of allegations against a doctor the case will be considered by two senior GMC staff known as case examiners (one medical and one non-medical). They can:
- conclude the case with no further action;
- issue a warning;
-refer the case to an FTP panel or agree
No case can be concluded or referred to an FTP panel without the agreement of both a medical and non-medical case examiner. If they fail to agree, the matter will be considered by the Investigation Committee, a statutory committee of the GMC.
We will inform both the doctor and complainant of the case examiners' decision and their reasons."
"Subject to the provisions of this paragraph, the General Council shall make rules for the Investigation Committee, Interim Orders Panels and Fitness to Practise Panels with respect to -
(a) the reference of cases to the Investigation Committee, an Interim Orders Panel or a Fitness to Practise Panel; and
(b) the procedure to be followed and rules of evidence to be observed in proceedings before that Committee or such a Panel."
"The first ground, A, was that procedural irregularities occurred in the proceedings prior to the decision of the Fitness to Practise Panel. These are said to have included the decision of a screener, made in March 2004, to refer the matter to the Interim Orders Committee. They are also said to include the hearing before the Interim Orders Committee and the decision of the PPC on 6th December 2004 to refer the matter to the Professional Conduct Committee, which has now become the Fitness to Practise Panel. I do not need to go into any examination of these important internal procedures of the General Medical Council. Suffice it to say that, before serious issues, such as are before this court, can be considered by the Fitness to Practise Panel, a good deal of preliminary work has to be undertaken. I do not regard the appellant as having any right or ability to challenge all these preliminary proceedings. The only way that could properly have been done, and that with great difficulty, is by way of an application for judicial review. No such application was made. It would, in any event, by now be very much out of time."
With respect to Hodge J that does not address the terms of section 40 of the Medical Act 1983.
"11. Whether or not there was merit in that contention, if it was to be raised as a challenge in judicial review proceedings it should have been raised within three months of its occurrence or, at the very latest, within three months of the date on which the decision was confirmed, albeit on different grounds, on 16th October 2007."
"Mr Hendy submitted to the Panel that the referral was improper and unlawful and not in accordance with Rule 8(1)(d) of the 2004 Rules. The Panel decided, correctly, that it did not have jurisdiction to entertain such a challenge. Such a challenge could only be made by a claim for judicial review. If it had been and if it had succeeded, a 28Âday hearing with more to come if this challenge does not succeed would have been avoided. The claimant had a choice of remedy: to seek to apply for judicial review or to contest the allegations on their merits. He chose the latter. He must abide by his choice. It is far too late now to bring a claim for judicial review on this ground."
Again, with respect to Mitting J, he does not address the terms of section 40, but of course that case is different because there the fitness to practise panel concluded they had no jurisdiction to hear the argument, which is not the case here. This panel decided they did, heard it and rejected it.
JUDGE GILBART: Mr Pievsky? I will let you start
MR PIEVSKY : I am grateful my Lord. The realistic options in light of your Lordship's judgment are as I understand it, subsection 7(b) or sub section 7(d). If I am wrong ...
JUDGE GILBART : Just say that again would you. 7 ? ...
MR PIEVSKY : My Lord my understanding is that you're considering either 7(b) or 7(d)
JUDGE GILBART : (b) or (d) yes.
MR PIEVSKY : In my submission (d) would be appropriate because the logic of your Lordship's judgment is that the Registrar ...
JUDGE GILBART : (d) concerns remitting to him for him to refer it to a fitness to practise panel, which is again to undermine Rule 4(2). Isn't that the problem?
MR PIEVSKY : I thought you recognised explicitly in the judgment he can do so albeit it has to go to the case examiners for their views. I thought your Lordship said that that was the logic of 7(6).
JUDGE GILBART : Yes I did, but (d) does not address the reference to the case examiners. It only addresses remitting back to the fitness to practise panel.
MR PIEVSKY : Remit the case to the Registrar for him to dispose of the case in accordance with the directions of the court, so you could direct that the case needs to be considered by the case examiners to rectify the defect that you found to have existed. My Lord that appears to us to be a more attractive outcome than (b) where the risk is that if you simply allow the appeal and quash the directions or suspension then, as you have already said, my Lord the findings of fact which are that the doctor did commit misconduct and his performance was deficient and that he should be suspended are rendered null and void and it means that he is able to practise. It is not easy to see how the GMC could deal with those allegations properly.
JUDGE GILBART : I just want to test that if I may, Mr Pievsky. Surely the effect of the appeal would be to put matters back as they were in the summer of 2008 and there would be the reference to the case examiners
MR PIEVSKY : My Lord, I'm genuinely not sure about that but the concern of those instructed is that if you quash the direction then we are at the end of the process and the allegations have ....
JUDGE GILBART : So you say that under (d) I could give directions to the Registrar. He is to refer it to the case examiners. The problem I have with that is the Rules specifically allow for the case examiners to decide that no further action should be taken. If I operate under (d) it has to involve a reference to the fitness to practise panel. Are you saying that there is a way of drafting this so that it can allow for the procedure whereby the case examiners would approach their case under Rule 8?
MR PIEVSKY : Can I just clarify ...
JUDGE GILBART : Do you understand what I mean?
MR PIEVSKY : I think so my Lord. The logic of your Lordship's judgment is not ... are you saying that the case should have gone to the case examiners for consideration ....
JUDGE GILBART : Yes.
MR PIEVSKY : ... as to whether it should go any further notwithstanding what 7(6) says.
JUDGE GILBART : Yes. That ... not that allegations should go no further but the allegations made regarding child A, B and C should go no further.
MR PIEVSKY : Well of course the allegations, as I said in my skeleton argument, is the allegation of a person's fitness to practise has been impaired. It's a unitary question.
JUDGE GILBART : Any allegation has to be referred to the case examiners. I am afraid, Mr Pievsky, the problem is the GMC has put itself in this position by bypassing the procedure which the Privy Council approved. That is why you are in this difficulty.
MR PIEVSKY : My Lord can I briefly take instructions ...
JUDGE GILBART : Can we, can we look at C? No, we will look at B. If I quash the direction, that will mean that the allegation has not been determined, won't it?
MR PIEVSKY : My Lord it is very helpful that you indicate that ...
JUDGE GILBART : Well it must do.
MR PIEVSKY : If that is the intention of your Lordship then ...
JUDGE GILBART : It must do, mustn't it? And if the allegation has not been determined then the procedure must take its course. I have not allowed the appeal on the basis that the conclusions of the fitness to practise panel were unjustified factually, I have said nothing about that, but in the real world you are not going to proceed further with B and you are not going to proceed further with the allegations that were not made out at the FTP, especially because many of them turned out on examination to be based upon a misunderstanding of what had happened.
MR PIEVSKY : Yes after hearing from the witnesses, yes.
JUDGE GILBART : Yes.
MR PIEVSKY : As long as it is not to be suggested that the GMC cannot deal with the substance of the matter after your Lordship's judgment, then I am very grateful for that indication.
JUDGE GILBART : Well, we will hear what Dr Zia says as well. Dr Zia what do you say?
DR ZIA : Yes thank you. (inaudible) put forward as an abuse of process and all the other points (inaudible) the fact findings of the fitness to practise panel. The fitness to practise panel took a decision, which is that the fact findings that the fitness to practise panel took are invalid because they are based on ...
JUDGE GILBART : I am sorry, don't misunderstand me. The effect of my judgment is that the fitness to practise decisions are done away with. Now what I have just been discussing with Mr Pievsky is whether that means that the allegations are done away with or whether that means that we go back to the situation in 2008 and the allegations still exist and they have to be pursued properly.
DR ZIA : I think I have put that argument in my skeleton argument in terms of the fact-finding from the fitness to practise panel that we have not considered yet and it's a very substantial inference that I put forward on my skeleton argument that I think the GMC should have considered that fact-finding as proof against the evidence which was presented to the fitness to practise panel especially when (inaudible).
JUDGE GILBART : Well if that is what you say, there are two ways forward aren't there? One is that I indicate that the appeal is going to be allowed as I have indicated and I then hear submissions, because it relates to the orders I should make. Or the other is that I allow the appeal, quash the decision of the fitness to practise panel and then you are at liberty to make any submissions you wish within the proceedings before the GMC.
DR ZIA : I think that (inaudible) the whole findings should be quashed out, not only an abuse of process but the findings, the findings itself for the whole process. I mean I don't know if I say that I'm being prejudiced against the GMC but there is a set of rules that the GMC have the opportunity to look at the evidence as they are under a duty to do and they haven't done it and I think the whole allegations should be quashed out by the GMC.
JUDGE GILBART : But let's just understand. If you had succeeded in your argument before the fitness to practise panel at the beginning that it was an abuse of process then what would have happened is that they would have had to start again.
DR ZIA : Exactly. You start again but they would have looked the medical records and looked at the key evidence, and at this point if you look at my skeleton argument say if you look at my skeleton argument you would and the GMC as well would see that there was no merit if they had considered this case properly when the steps that were necessary to go as put forward on their website. They would have looked at the merits and the case would have been dismissed by the case examiners because there's so much evidence (inaudible)
JUDGE GILBART : Thank you. Do you want to say anything else Mr Pievsky?
MR PIEVSKY : No, my Lord
JUDGE GILBART : Mr Pievsky has argued that I should act under subparagraph (d) of paragraph 7. In other words I should remit the case to the Registrar for him to refer it to a fitness to practise panel to dispose of the case in accordance with the directions of the court. Dr Zia contends that the findings of the fitness to practise panel should be quashed as being unsupportable. I cannot accept Mr Pievsky's submission. The vice at the heart of this problem is that this matter did not go to the case examiners, so referring it to the fitness to practise panel under subparagraph (d) does not cure the vice. So far as Dr Zia is concerned, while I have sympathy with him, it seems to me that the fundamental point which he raised himself before the fitness to practise panel and rightly so was that the case had reached that point without proper investigation. It follows that the logic of that is that none of the decisions made by the fitness to practise panel can stand. It seems to me therefore that the only course that is open to me is to allow the appeal and to quash the direction appealed against, but I make it plain that in my judgment the allegations are still extant and the GMC must follow the procedure it should have followed in the summer of 2008.
What I am about to say is entirely obiter but should be said. It would be very surprising indeed, having read the evidence, that the GMC will continue with the allegations relating to child B and many of the allegations which in the event failed. That is a matter for their judgment and I cannot bind them. So that is the order of the court.
We will now pass to the next stage which is costs. Dr Zia you have won. Have you got an application for costs?
DR ZIA : Yes.
JUDGE GILBART : Have you passed details of your costs claim to Mr Pievsky?
DR ZIA : I haven't passed them across. I don't know how the procedure works ...
JUDGE GILBART : That is how it works. What I will do is I will rise for a few minutes and Mr Pievsky can consider them. But before we do that Mr Pievsky do you have any other applications?
MR PIEVSKY : My Lord, do you mean not in relation to costs?
JUDGE GILBART : Yes. Are you applying for permission to appeal/
MR PIEVSKY : Yes I am.
JUDGE GILBART : Yes.
MR PIEVSKY : Very briefly my Lord. The GMC submits firstly that the issue of the proper relationship between Rules 4, 7 and 8 of the Rules is an important question and one that ....
JUDGE GILBART : I would like to hear Dr Zia. Dr Zia, Mr Pievsky is applying for permission to appeal. I am bound to grant him permission to appeal, If I consider that he has arguable points; do you want to say anything?
DR ZIA : I think we had this discussion during the course of this two years, we had this discussion before the Fitness to Practise Panel and (inaudible) In my opinion the rules set are quite clear and even the GMC themself put the Rules clear in the website. That is a summary of the interpretation of the Rules which would of course be seen the public but that is how the GMC themselves interpreted the rules and now we have in the High Court the GMC says interpretation of the rules are different but that in view of the interpretation of them that these Rules are as summarised on the website. I think you should be rejecting this application for appeal because we have extensive discussion of these rules now for about a year.
JUDGE GILBART : Thank you. I think you should have permission to appeal. I think there is a point of public importance here, Mr Pievsky. I say that with no enthusiasm but I consider you should have permission to appeal. I will rise now for 15 minutes to enable you to consider Dr Zia's claim for costs. How many copies have you got, Dr Zia?
DR ZIA : I only have one copy
JUDGE GILBART : Well let's get it copied and I would like to see it. So let me know when you are ready. I will assume about half past.