England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9 DJ
		10th July 2013

HH Judge Pelling QC:

Introduction

1. This is the hearing of what was to have been an oral renewal of an application to continue judicial review proceedings but which by agreement between the parties has been treated as the substantive hearing of the claim for judicial review. This course was agreed between the parties because all the relevant information was before the court and in the interests of saving time and costs. The willingness of the parties to adopt this course is to be commended. The decision challenged is a decision of a Fitness to Practise Panel ("FTPP") of the Medical Practitioners Tribunal Service (the judicial branch of the Defendant) that the whole of the FTPP hearing concerning the Claimant is to be held in private. The issue that arises is a short one concerning the circumstances in which it is lawful for a FTPP" to direct that a fitness to practise hearing should take place in private.
2. In the circumstances of this case it was ultimately agreed between the parties and I directed that the hearing before me should take place in private because a public hearing would defeat the purpose of the Defendant's order under challenge in the event that the challenge failed or might do so. It was agreed that a judgment should be delivered in public. I indicated that any material that I considered ought not to be disclosed would be contained in the confidential schedule to the judgment. Following circulation of this judgment in draft a disagreement has arisen concerning whether the material that provisionally I had set out in the Schedule ought to remain there. I have concluded that on balance it should. I have reached that conclusion because I am satisfied that the material in the judgment is sufficient to explain what I have decided and why and because there may be further applications to the FTPP concerning confidentiality that I would not wish to affect one way or the other by publishing information that might prejudice any such application. For the avoidance of doubt the Schedule is confidential to the parties and the court and is not to be published other than following a further order of the court.
3. It was suggested by Ms Grey after circulation of the judgment in draft that I ought to anonymise the name of the Claimant in these proceedings. This is opposed by the Claimant. In my judgment that is not either necessary or appropriate. It was not sought by the Defendant at any stage in these proceedings prior to the circulation of the draft judgment. It certainly was not the course adopted by the Defendant when publishing the public announcement of the decision (described in Paragraph 4 below) that is challenged in these proceedings.

Background

4. The Claimant is a consultant psychiatrist who is the subject of disciplinary proceedings which are to be heard before a FTPP in which he faces allegations by the regulatory arm of the Defendant ("GMC") that include allegations of financial impropriety made by a former patient known in these proceedings as "Patient A". No more detail concerning the nature of the allegations has been disclosed in the course of the proceedings before me. Both parties are content that I should resolve the issue that arises on that basis. Patient A is the principal witness against the Claimant. Patient A suffers from a mental health disorder that is currently in remission. The nature of that disorder is set out in the Schedule.
5. On the 16^th April 2013, the GMC applied for a direction pursuant to either Rule 36(2) or Rule 41(2) of the GMC (Fitness to Practise) Rules 2004 ("the Rules") that the whole of the disciplinary proceedings in relation to the Claimant be conducted in private. The FTPP granted the application under Rule 41(2) but refused the application under Rule 36(2). The only public announcement of that decision by the FTPP was in the following terms:

"The Panel determined that in accordance with Rule 41(2), this hearing will be held in private since the particular circumstances of the case outweigh the public interest in holding the hearing in public."

More details were given in a determination that was delivered in private ("the Private Determination"). The relevant parts of the private determination are set out or summarised in the Schedule to this judgment. In essence, Patient A has asserted that he is not prepared to give evidence unless the whole hearing is conducted in private, and Patient A apparently does not consider a direction that his name be anonymised to Patient A and that he could give evidence from behind a screen would be sufficient protection. None of this has been tested because Patient A did not give evidence at the hearing before the FTPP. There was no evidence before the FTPP that established an objectively reasonable foundation for the stance apparently adopted by Patient A and no such basis for it was asserted by the GMC at the hearing before the FTPP.

6. The FTPP concluded that the hearing ought to be in private because it considered that to refuse would probably result in Patient A not giving evidence at all and the Claimant's defence would not be prejudiced in any way by the hearing being conducted in private because his counsel could still cross examine and make submissions. Overall, the FTPP's view was that the particular circumstances of this case rendered it necessary to hold the hearing in private to achieve a fair hearing of the allegations, which as they put it in the Private Determination "… outweighs the public interest in holding the hearing in public …" . The Claimant challenges that decision as wrong in principle at any rate on the material available to the FTP that decided the issue.

The Issues

7. In essence the issues that arise are (a) whether it was open to the FTPP to conclude that the GMC had established that Patient A had a sufficiently settled intention not to give evidence unless the whole of the FTP hearing concerning the Claimant was in private; and if it was (b) whether such a settled intention ought to lead to the conclusion that a hearing which would otherwise be in public should be directed to be heard entirely in private.
8. The Claimant's case is that (a) the GMC had not adduced any evidence proving a sufficiently settled intention; (b) even if that was wrong, the GMC had not adduced any evidence of an objectively reasonable foundation for that intention; and in consequence (c) the decision of the FTPP to direct that the whole of the FTP hearing concerning the Claimant was an impermissible derogation from the Claimant's right under Article 6 to a public hearing. The Defendant's position is that the FTPP was entitled to reach the conclusion it reached for the reasons that it gave because the consequence of not giving such a direction would be to prejudice the interests of justice because without such a direction Patient A would refuse to give evidence.

Legal Framework

9. Rule 41(1) of the Rules provides that "… hearings before … a FTP Panel shall be held in public …" subject to the discretion conferred by Rule 41(2) that a

"… FTP Panel may determine that the public shall be excluded from the proceedings or any part of the proceedings where they consider that the particular circumstances of the case outweigh the public interest in holding the hearing in public …"

10. It is common ground between the parties before me as it was before the FTPP that this discretion is to be read subject to ECHR Article 6. Article 6 reflects the general rule also to be found in domestic common law in relation to court hearings that the parties to a relevant proceeding are entitled to "… a public hearing …" The rationale for requiring hearings to be in public is the same whether the position is being considered from a Convention or common law perspective. It is because such a procedure:

"… deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors ort with one or more of the parties witnesses identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked …"

- see R v. Legal Aid Board ex parte Kaim Todner [1998] EWCA Civ 958 [1999] 1 QB 966.

11. However, neither the Convention nor the common law rule is absolute. Article 6 is subject to the qualification that:

"… the press and the public may be excluded from all or part of the trial in the interests of morals, public order, or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

Even where one of the Article 6 exceptions can in principle be relied on, the derogation from the general principle ought not to be more than is proportionate – that is the minimum derogation from the general principle necessary for the purpose of protecting the interest that has been identified as coming within the scope of the relevant exception – see Diennet v. France [1995] ECHR 28 at Paragraph 34, where it was recognised that although the need to protect professional confidentiality and the private lives of patients "… may justify holding proceedings in camera, such an occurrence must be strictly required by the circumstances …", where, as in that case, there "… was no good reason to suppose …" that such material would be revealed, then a departure from the general rule could not be justified. This implies a degree of objectivity is required in assessing whether one of the exceptions is engaged and if so whether the proposed response is proportionate.

12. This approach largely mirrors the approach that has been adopted by domestic law. The common law general rule should only be departed from to the extent that such a departure is strictly necessary – see Scott v. Scott [1913] AC 417 per Lord Haldane LC at 437-439, where he defined the circumstances in which a departure could be justified as being ones where ensuring that justice is done "… would really be rendered doubtful of attainment …" without the derogation proposed. Lord Haldane added that the burden lies on the party seeking the derogation "… to make out that the ordinary rule must of necessity be superseded". Thus on an application such as that before the FTPP, the foundation issue that had to be proved was a settled intention on the part of Patient A not to give evidence unless the whole of the hearing concerning the Claimant was in private.
13. The degree to which the general rule is to be departed from is material to deciding whether the departure sought should be granted - see R v. Legal Aid Board ex parte Kaim Todner (ante) where at Paragraph 6 the Court of Appeal said that if "… the restriction relates only to the identity of the witness or a party this is less objectionable than a restriction which involves proceedings being conducted in whole or in part behind closed doors …". The nature of the hearing in respect of which the departure from the general rule is proposed is also material – a derogation from the general rule in relation to an interim hearing is less significant than for a trial or substantive hearing – see R v. Legal Aid Board ex parte Kaim Todner (ante) at Paragraph 7. There could be no clearer case of a hearing falling into the latter category than one that could end with the Claimant's name being erased from the Register of Medical Practitioners.
14. Where a witness refuses to give evidence unless the general rule is departed from, the question that arises is whether a subjectively genuine expression of intention (assuming that such has been established) is sufficient to justify the derogation or degree of derogation sought. In relation to this issue the principles are those to be derived from Paragraphs 8 and 9 of the Court of Appeal's judgment in R v. Legal Aid Board ex parte Kaim Todner (ante). In summary they are:

i) A distinction is to be drawn between parties and witnesses and as to parties between those who initiate and those who defend proceedings;

ii) Generally parties and witnesses have to accept the risk of embarrassment and consequential loss and damage as a result of giving evidence at a public hearing because (a) the protection to which they are normally entitled is a judgment that refutes unfounded allegations and (b) any other approach results in an unacceptable inroad into the general principle. Subject to that:

iii) A person who initiates proceedings will generally be taken to have accepted the public nature of the proceedings initiated;

iv) A Defendant has not chosen to initiate proceedings that are normally conducted in public and so may have a greater legitimate interest in a claim to protection;

v) A witness with no interest in the proceedings has the strongest claim to protection "… if he or she will be prejudiced by publicity …";

vi) Generally, where a party or witness seeks protection, the reasonableness of the claim for protection is important;

vii) "…a party cannot be allowed to achieve anonymity by insisting upon it … irrespective of whether the demand is reasonable. There must be some objective foundation for the claim which is being made.

Discussion

15. The starting point concerns the nature of the relief sought by the GMC. It sought (and obtained) an order that the whole of the hearing concerning the Claimant was to take place in private. Since this was to be the substantive hearing of proceedings which could result in the erasure of the Claimant's registration this is a hearing of the greatest importance to him personally and professionally. The relief sought is at the outer extreme of what might be sought at any rate where national security issues are not in issue. No attempt was made by the GMC to confine itself to an application for a direction for anonymisation of Patient A's name and that Patient A's evidence be given by video link or from behind screens. No attempt was made to limit the scope of the privacy direction to the part of the hearing where Patient A is to give evidence. It sought and obtained an order that the whole of the hearing should be conducted in private because that is what Patient A apparently insisted upon.
16. The status of Patient A is technically that of a witness rather than a party but he is not a witness with no interest in the proceedings. He is the complainant whose complaint underlies the proceedings. Thus whilst Patient A cannot be regarded as a claimant who has initiated proceedings, he is nevertheless closer to that status than that of a witness with no interest.
17. No evidence was adduced from Patient A that enabled a proper assessment to be made as to his true intention. Given that the evidence was that he had capacity to give evidence, that omission is a significant one. I return to this point further later in this judgment.
18. The only evidence as to the reasonableness of Patient A's position is that from Dr Bunn. His evidence on this issue is set out or summarised in the Schedule. His view is that Patient A's position is driven by his personality not by any medically diagnosable condition. His evidence is that objectively all Patient A's legitimate or reasonable concerns could be catered for by anonymisation coupled with Patient A giving evidence from behind a screen. He did not say that what was sought was necessary for the preservation of the health of Patient A. By implication he accepts that Patient A's actual demands are not justified. If Dr Bunn's evidence as to the reasonableness of Patient A's demands is admissible (and I have my doubts as to whether it is other than by reference to whether what was sought by the GMC was necessary to protect Patient A's health) then that evidence suggests that those demands are unreasonable ones. If and to the extent that Dr Bunn's evidence on this issue is not admissible then there was no evidence before the FTPP of an objective foundation capable of supporting a claim that Patient A's demands are reasonable. I accept that there was some hearsay evidence of a fear of reputational damage which I refer to or summarise in Paragraphs 7 and 8 of the Schedule. However what is not explained by evidence is why the anonymisation of Patient A's name and a direction that he gives evidence from behind a screen would not be sufficient to protect against that concern.
19. In my judgment the decision arrived at by the FTPP was tainted by error of law and must be quashed. My reasons for that conclusion are as follows.
20. In my judgment the FTPP fell into error at the outset by not reminding itself sufficiently strongly or at all that the clear default position under Article 6 is that the hearing should be in public. It failed to remind itself that Article 6 creates or declares rights that are the rights of the Claimant and that it was for the GMC to prove both the need for any derogation from those rights and for a need to derogate to the extent claimed.
21. It was submitted on behalf of the Defendant that the failure to acknowledge that Article 6 creates or declares rights that are the rights of the Claimant was immaterial because the FTPP had referred to the public interest in the hearing being in public and the public interest and the Claimant's interest are indistinguishable. I regard that as mistaken. First, it is important in and of itself to remember that the right that is being derogated from is that of the Claimant to have the FTPP proceedings against him heard in public. It is this that leads to the conclusion that the onus rested on the GMC to establish the need for the derogation sought and that the Claimant had a real and personal interest in the outcome rather than being concerned merely to uphold a public interest. Secondly the suggestion that that the Claimant's interest in having his Article 6 rights upheld are congruent with those of the public does not make it any less the case that it is the Claimant's rights that are being derogated from. That point is one that it is critical to identify before considering whether and if so to what extent those rights should be derogated from. Thirdly, at least some of the reasons why a public hearing is the default position are potentially of great importance to the Claimant personally. Those include (a) the deterrence of inappropriate behaviour on the part of the court or tribunal concerned and (b) the reduction or elimination of uninformed and inaccurate comment about the proceedings.
22. The FTPP considered that requiring the hearing to be conducted in private would not have any impact on the ability of the Claimant to defend himself. That this was so was not challenged by the Claimant. The FTPP considered that this should be weighed against the effect of a refusal by Patient A to give evidence and led to the conclusion that the public interest in having the hearing in public was outweighed. In my judgment this too was mistaken. Ultimately precisely the same point can be made in every case where a direction is made that a hearing should take place in private but it is largely if not wholly beside the point. The reasons why public hearings are so jealously guarded are those identified by the Court of Appeal in R v. Legal Aid Board ex parte Kaim Todner (ante). The notion that the Claimant's counsel will be able to cross examine and make submissions does not provide an answer to the loss to the Claimant of any of those benefits.
23. Given that it was common ground that Rule 41(2) was to be read subject to ECHR Article 6, and given that the default position is that the FTPP hearing concerning the Claimant should therefore be in public, it was incumbent on the FTPP to explain which of the exceptions to Article 6 enabled it in its view to make the order ultimately made. Had this approach been adopted it would have led the FTPP to consider more critically the evidence it was being asked to act upon.
24. The Defendant maintains that it proceeded correctly by balancing the principle that the FTPP hearing should be in public against what it characterises as the more fundamental principle that justice is done. This led it to conclude that the demands of Patient A should be acceded to. This is an incorrect approach and one that resulted in error. As I have explained already the starting point is the default position established by Article 6 that requires the hearing to be in public. No question of such balancing arises. If the Defendant's approach was correct then the general rule would be departed from on every occasion when pragmatic considerations apparently required such an approach to be adopted.
25. Having clearly identified the default position and on whom the onus lies to justify a departure from the general rule, the correct next stage is to identify the facts that are said to justify departing from the general rule and the evidence that is relied on by the GMC as establishing those facts. None of this was done. It could not have been a desire to protect Patient A from reputational damage that led to the conclusion reached because that would have been catered for by screens and anonymisation as Dr Bunn accepted and as the FTPP appears to have accepted – see Paragraph 16(d) of its summary defence. It follows that the only basis for making the order could have been a conclusion that Patient A would not give evidence unless the whole proceedings was in private. On this issue the Panel concluded that a public hearing would "probably" result in Patient A not giving evidence at all and that "given the entirety of the medical evidence … this assertion should be regarded as a serious statement of his intention".
26. The Claimant submits that there was no evidence to justify this conclusion or that the conclusion was one that no reasonable panel properly directing itself could have reached. The FTPP was advised by the legal assessor that it should reach its own view as to whether to take at face value Patient A's assertion that he would not give evidence unless the whole hearing was in private. The FTPP asserts that it accepted that advice. This advice was preceded by the discussion between the legal assessor and Ms Neale concerning this issue. Ms Neale made it clear that she accepted that Patient A had asserted that he would not give evidence but that she had not been given the opportunity to test whether, and therefore could not and did not accept, that assertion to be genuine or settled because Patient A had not been produced to give evidence. Ms Neale's position on this point could not have been more clearly put by her as recorded in the transcript at page 40G-41E. As the legal assessor observed "…that still leaves a quandary for the panel to know on what basis it is hearing the application…" to which Ms Neale replied "… on the evidence that has been called". Although she was invited to address this point by the legal assessor, counsel for the GMC before the FTPP (not I emphasise Ms Grey) did not do so.
27. As I have explained, the onus rested on the GMC to show that derogation from the Claimant's Article 6 rights was necessary and proportionate. It chose not to call Patient A to give evidence. The medical evidence from Dr Bunn on this issue included evidence [89] that Patient A's wish that the hearing be in private was his "preferred position". There was a suggestion based on material in the possession of the GMC that the idea of a private hearing had originally come from Dr Bunn. He disputed that to be so [111] but did not answer Ms Neale's question as to whose idea it was. Whilst none of this is decisive, it is clear that it is an issue that could and would have been explored with Patient A had he given evidence.
28. Demonstrating that a direction that the FTPP hearing against the Claimant should be in private is necessary and proportionate because a critical witness will not otherwise give evidence is not achieved by asking the FTPP to accept at face value something that the GMC could and should have been established by evidence. The supposedly settled intention of Patient A was critical to the application. It was not and could not be explored in cross examination because the critical evidence could only come from Patient A and he was not produced by the GMC to give evidence. The Claimant had not been given any opportunity to explore the genuineness of Patient A's assertion that he would not give evidence unless the whole hearing was in private. If that was not established by the evidence then the application was in my judgment one that could only fail other than to the extent conceded – that is the annonymisation of Patient A's name and a direction that Patient A giving evidence from behind a screen.
29. In my judgment there was no evidence from which the Panel could conclude that Patient A would not give evidence and indeed the Panel did not reach such a conclusion. It decided only that Patient A would probably not give evidence. In my judgment that was not a sufficient basis for derogating from the Claimant's Article 6 right to a public hearing, at any rate where there was no evidence that the position adopted by Patient A was objectively justifiable.
30. Even if this is wrong and I should conclude that the evidence before the Panel was sufficient to enable it to rationally conclude that Patient A would not or probably would not give evidence unless the whole hearing was in private, there was no evidence of objective justification for the position adopted by Patient A and it is not suggested that there was. As I have emphasised, the onus was on the Claimant to prove that the derogation from the Claimant's Article 6 rights was necessary and proportionate and had they wished to assert that Patient A's position was objectively justifiable it was for the GMC to adduce such evidence.
31. In my judgment this omission was of itself one that was fatal to a conclusion that a direction that the whole of the FTPP hearing concerning the Claimant should be in private was necessary and proportionate. As the Court of Appeal emphasised in Kaim Todner (ante) generally where a party seeks protection the reasonableness of the protection sought is an important consideration. The required level of justification may not be high – it was described in Kaim Todner (ante) as being "… some objective foundation for the claim being made" – but its absence is likely to be fatal given the jealousy with which the right to a public hearing is guarded and because (as the Court of Appeal said in Kaim Todner (ante)) if this requirement is not insisted upon it will lead to unacceptable inroads being made into the general principle.
32. Here as I say there was no evidence that objectively justified an order that the whole of the FTPP proceedings concerning the Claimant should be in private.

Conclusion

33. In those circumstances, and for those reasons, the decision made by the FTPP directing that the substantive hearing of the GMC's case against the Claimant be heard in private must be quashed.
34. The Claimant sought a further order that the hearing must be in public. Ms Grey objected to that because the GMC might wish to bring a further application to like effect between now and the start of the substantive hearing or at the start of the substantive hearing. Ms Neale has made it clear that any such application will be opposed and the jurisdiction of the GMC to make such an application is likely to be challenged as well. I make no comment about that. Any subsequent application will have to be determined on the facts as they are then. It is not necessary or appropriate that I make the further order sought by Ms Neale.