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
		24 March 2015

1. MR JUSTICE WARBY: This is a challenge by Mr Manuel Nunez Martinez under section 32(12) of the Dentists Act 1984 to a decision of the Interim Orders Committee ("IOC") of the General Dental Council ("GDC") on 18 November 2014 to impose conditions on his registration.
2. The matter had been referred to IOC by the Registrar following allegations in relation to 39 patients dealt with by Mr Martinez (who I shall call "the claimant") between 1 December 2011 and March 2012. The allegations fell into three categories. First, it was alleged that the claimant did not provide an adequate standard of care for patients. Secondly, it was alleged that he failed to maintain adequate records. Thirdly, he was accused of misuse of patient data and breaches of data protection requirements. By its decision, the IOC imposed 10 conditions on the claimant's dental registration for a period of 18 months.
3. The challenge as presented today by Mr McDonagh, who appears for the claimant as he did below, is directed at the IOC's reasons. It is submitted that the IOC failed to give adequate reasons for the conclusions that were said to justify the imposition of the order. The consequence, it is submitted, is that the court should discharge the IOC's order or revoke it.
4. The claimant graduated in dentistry in Madrid in 2005 and was first registered as a dentist in May 2006 by the GDC. In the period from December 2011 to March 2012 he was employed at Brighton White Dental Studios, of which the practice principal was a Mr Jafari. Following a falling out between them, Mr Jafari on 1 June 2012 made complaints about the claimant to the GDC. He subsequently made a statement and in August 2012 provided a selection of supporting documents from the practice records to the GDC. The case was then considered some time later by an expert, Mr Harrison. He reviewed the claimant's clinical care of the patients referred to, as disclosed by the documents produced by Mr Jafari, and provided a report dated 16 September 2014 entitled Clinical Advice Report - Early Advice. This concluded as follows:

"Overall there seems to have been many and diverse problems with the treatment plans, treatments, radiography, diagnosis and record keeping, albeit with only the complainants side of the story. The registrant should be allowed to give his story as well before a decision can be made, given the selective nature of the reporting of his alleged misdemeanours."

Mr Harrison said this about the clinical issues raised:

"Based on the information provided by the GDC, and in relation to the specific clinical issues raised by the informant, the care provided by Manuel Nunez Martinez from 01 Dec 2011 ... [fell]:

•Significantly below the level of professional practice reasonably expected.

This is because:

Failure to utilise radiography either appropriately or responsibly. Failure to record contemporaneous notes in the patient's file. Inappropriate extractions, failure to take a radiograph prior to a surgical tooth removal in the lower jaw in the Wisdom Tooth position. He put the patient at risk by not following up a reported soft tissue lesion, nor did he refer the patient for specialist opinion.

The registrant did not follow the IR(ME)R2000 regulations appropriately and was careless in his prescription of radiographs and reporting on them.

Failure to complete the patient's records contemporaneously.

This assumes the information given by the complainant is accurate and complete."

5. On 28 October 2014, Mr Jafari's complaint was referred to the IOC by the Registrar of the IOC. The powers of the IOC are governed by section 32 of the Dentists Act 1984. By section 32(4) the IOC is empowered to make an interim order for a dentist's registrations to be suspended for a period not exceeding 18 months or to be subject to conditions for a period not exceeding 18 months if it is satisfied "that it is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of the person concerned". Such orders, if made, are subject to review, the first review to be within a maximum of 6 months from the original order.
6. On 18 November 2014, there was a hearing before the IOC at which the representation was as it is today, with Mr McDonagh for the claimant and Miss Power for the GDC. The Committee, comprising a chair and three panel members (reduced, I think, to two by a recusal) had a legal adviser, Ms Swinnerton.
7. By the time of this hearing there were eight draft charges against the claimant. Six related to the standards of care provided to individual patients. Charge 7 related to failings of record keeping in relation to a list of patients and charge 8 alleged breaches of patient confidentiality, including posting records on social media websites.
8. The case for the GDC relied on the report of Mr Harrison, a letter from Mr Jafari, and the records which Mr Jafari had supplied. The GDC's case was that the evidence supported an interim suspension for the full 18 months, the maximum available. The claimant's case was, in summary, that the complainant, Mr Jafari, was unreliable as he had a grudge against the claimant and was himself the subject of GDC proceedings; and that the documents he had provided to the GDC were selective and had been cherry-picked and gave a false and misleading impression, which would be corrected by examination of the full records. The submission of Mr McDonagh was encapsulated by him at one point in this way:

"When you have got a snapshot provided by someone with an axe to grind the weight to be attached to those criticisms is such that it would not be appropriate to make an interim order at all today."

9. The full records were not available at the time of the hearing. That is a matter for concern, real concern in my view, given that the allegations had been made nearly two and a half years earlier and the selection of records relied on had been provided to the GDC as long ago as August 2012.
10. The IOC, having heard submissions, took advice from the legal adviser, which reminded the Committee of five matters in particular: the statutory requirement of necessity under section 34 of the 1984 Act; the limits of the IOC's powers; the need, if satisfied that some order was necessary, to act proportionately and to impose an order that was no longer, and no more severe, than was necessary to guard against any risks identified by the Committee; the need to ensure that any conditions were clear, relevant and addressed to the registrant; and the need to give reasons.
11. Having retired for some time to consider its determination, the IOC handed down a written decision. This was that an interim order was necessary for the protection of the public but that interim conditional registration, as opposed to suspension, was sufficient. Ten conditions were imposed, which it is not necessary to recite in full. The core requirements were to keep the GDC informed of the claimant's professional employment or engagements, to work under the close supervision of an individual approved by the GDC, and to allow his workplace supervisor to report to the GDC.
12. One condition I should refer to was condition 7, which required the claimant to maintain a log detailing every case where photographs had been taken of a patient, and the appropriate consent obtained from the patient for the purposes of future use of the image, and to provide a copy of that log to the GDC prior to any review, or alternatively to confirm that there had been no such cases.
13. The IOC gave these reasons for its decision:

"In assessing whether an interim order is necessary for the protection of the public the Committee had well in mind that these are interim proceedings in circumstances where an investigation is still on-going and where no facts have been found proved. The role of this Committee is not to make findings of fact but to assess risk.

You dispute the factual allegations against you, including the evidential basis upon which Mr Harrison formed his expert opinion. However, disputes of fact cannot be resolved by this Committee. In assessing risk, the Committee had regard to Mr Harrison's report. It was fully aware of your objections to the evidential basis upon which Mr Harrison reached his conclusions, and whilst not making any findings of fact, did have regard to the conclusions of Mr Harrison's report that there are serious and wide ranging concerns regarding your standard of practice in relation to a large number of patients. It was aware that he reached this conclusion notwithstanding the selective disclosure of the patient records and that you also dispute the Complainant's account. The report of Mr Harrison indicates that [there] may be a real risk to patients. The absence of complete patient records does not mitigate that risk.

The Committee considers that the allegations about data protection and confidential patient records are serious and raise concerns about risk to the public."

14. The powers of the court in respect of interim orders made by the IOC are prescribed by section 32(12) of the 1984 Act:

"Where an interim order has effect under any provision of this section, the court may -

(a) in the case of an interim suspension order, terminate the suspension,

(b) in the case of an order for interim conditional registration, revoke the order or revoke, vary or add to any condition imposed by the order,

(c) in either case, substitute for the period specified in the order (or in an order extending it) some other period which could have been specified in the order (or in the order extending it)when it was made,

and the decision of the court on any application under this subsection shall be final."

16. The approach to be taken to an application under this subsection has been considered on several occasions in recent years and it is convenient to refer to a decision of His Honour Judge Gore QC in General Medical Council v Anyuan-Osigwe [2012] EWHC 3984 (Admin) at paragraphs 12 to 14:

"12. From those expressions of principle I come to the view that my approach must be as follows. First, I must decide whether the decision of the Interim Orders Panel was wrong. In making that decision what I have to consider is whether the material indicates that, firstly, the decision the Panel made was necessary for the protection of the public or otherwise is in the public interest, (there being no suggestion here of any legitimate basis for the making of the decision in question), and secondly, in accordance with paragraph 18 of the Interim Orders Panel Guidance, the Panel in deciding to suspend or impose conditions were entitled to have formed a view that there was an impairment of fitness to practise which posed a real risk to the members of the public, and the order was necessary after balancing the interests of the doctor, that is to continue in practice and earn a living and the interest of the public to guard against the risk.

13. Secondly, in making that decision I exercise original powers as opposed to either appellate or for that matter what are sometimes called public law or judicial review powers and this calls upon me to consider all the relevant evidence and arguments, not only those that existed or were deployed at the time of the decision of the Panel, as indeed seems to me to have been the explicit judgment of Nicol J in Sandler at paragraph 12.

14. Thirdly, in coming to that decision, I must consider what weight, if any, to attach to the decision of the Panel but in doing so I must acknowledge that Parliament has entrusted that expert medical body of professionals powers to apply their own expertise and experience and their own knowledge of public expectations of the professionals they regulate and what is necessary in the public interest and I should not lightly substitute my own decision unless I determine that their view was wrong."

17. The second of the principles referred to by Judge Gore can also be expressed as it was by Arden LJ in General Medical Council v Hiew [2007] 1 WLR 2007 at paragraph 32, where she said this of the opinion of an Interim Orders Panel in a General Medical Council case:

"It is for the court to decide what weight to give to that opinion. It is certainly not bound to follow that opinion. Nor should it defer to that opinion. All that is required is that the court should give that opinion such weight as in the circumstances of the case it thinks fit."

Hiew was a case concerned with the extension of interim orders but I accept Mr McDonagh's submission that this formulation applies equally in the present context.

18. Where factual allegations are disputed, it will normally not be possible for the IOC or the court to arrive at definitive conclusions of fact. What the Interim Orders Committee or Panel in a GMC case will normally have to determine is whether the allegations are credible. The role of the IOC is, as Underhill J emphasised in Kumar v General Medical Council [2013] EWHC 452 (Admin):

" ... not to undertake the definitive examination of the allegations against the doctor or to decide on the fairness of the investigation. The Panel can at most satisfy itself that there is a prima facie case that the allegations are well-founded."

Put another way, the allegations will need to be treated as disclosing a sufficient case unless they are manifestly incredible, or it appears that for some other reason they are bound to be rejected at a final hearing. This may give rise to difficulty in some cases and it may, for example, be said that if only a fuller investigation of the facts was undertaken it would be seen that what is being relied on is a misleading snapshot of the overall picture. If that is said, the IOC or the court will have to do its best to assess on the evidence that is available to it at the time whether that submission is made out. If it cannot uphold such a submission, and the allegations are credible, the tribunal will have to proceed on that basis.

19. The correct approach to risk assessment was considered by Laing J in Howells v General Medical Council [2015] EWHC 348 (Admin), where she said at paragraph 53:

"It is not for the IOP or the court to quantify risk in this way. Once a risk has been shown, unless it can be seen to be a wholly fanciful risk, that in my judgement is sufficient."

20. I accept the submission of Miss Power that the function of the IOC and the court in relation to an interim order is one of risk assessment. This necessarily requires that attention is paid to the nature of the allegations and the evidence which is relied upon to support them. The fact that it is an exercise of risk assessment cannot justify the court ignoring the need to pay attention to the quality of the evidence and the possibility or prospect that it may not be sufficient to justify the view that there is a risk. But there is no threshold specified in the legislation other than the need to protect the public, the public interest and, where applicable, the interests of the registrant. It is not a question of the threshold of a prima facie case.
21. I deal first with the IOC's approach to the clinical and record keeping issues. Mr McDonagh recalls that the submission he made below about the snapshot of records was that the snapshot was not a sufficient basis for a finding of risk. He emphasises these features. First, that the case is based on allegations by a single complainant. Secondly, that this is not a case where there is an overarching allegation or set of allegations made by the complainant which are said to be independent of the documents and illustrated by them. Rather, the case is one in which the complainant has gone through the records, made a selection, and alleged that those records themselves reveal deficiencies in care standards. Thirdly, the contention was, and is, that this is an inherently flawed exercise because the information that is said to be missing from the records produced may very well be found in other documents which Mr Jafari has not produced.
22. To illustrate this point, Mr McDonagh refers to records relating to the extraction of a wisdom tooth. This is said to have taken place without radiography, giving rise to a risk of nerve damage due to the consequent inability to determine the location of the nerves within the mouth, not visible to the naked eye. He makes the point that the mere fact that the record did not show that radiography had been conducted on the occasion of the extraction did not demonstrate that the extraction was carried out without radiography. It was quite possible that another radiograph had been taken at an earlier stage.
23. Mr McDonagh points to the reservations expressed by Mr Harrison, the clinical adviser, in expressing his conclusions. He points to the observation of Mr Harrison that he had not commented on disputes about photographs, and had limited his report to the clinical records provided. He points to a passage on page 124 of the bundle relating to the alleged failure to record patient records contemporaneously, in which Mr Harrison said:

"To follow this up I would need to see the full records of each patient seen by Manuel Martinez ... rather than simply take the word of the complainant."

Mr McDonagh also refers to the clinical opinion that I have quoted, emphasising that the opinion expressed was that the registrant should be allowed to give his story before a decision could be made, given the selective nature of reporting.

24. Against that background, Mr McDonagh submits that the reasons of the IOC failed to engage adequately with the submissions that were before them and the reservations and qualifications that were expressed by Mr Harrison. The reasons do not, he says, explain why his submissions were rejected in terms that enabled his client to understand the outcome.
25. The requirements of the law as to reasons for decisions made in this context are well established, and for present purposes it is sufficient to refer to the GDC's own guidance (paragraphs 30 and 31), on which both counsel relied, which provide as follows:

"30. Whatever the IOC decides to do in a case, it must explain its reasons. This will help show that all relevant issues have been addressed. The registrant, his or her representatives, advisers, witnesses and the public will be able to see why a particular course of action has been taken, without the disclosure of any confidential details relating to the physical or mental health of the registrant, even if they might disagree with the outcome.

31. It is therefore very important to give a comprehensive explanation of every decision made, including procedural decisions. The explanation should always include:

• the factual basis of the decision;

• confirmation or otherwise that the Committee accepted any advice given by an adviser (it is particularly important to give a full explanation of the Committee's position in relation to any advice it has not accepted);

• conclusions on the main submissions made by the parties or their representatives;

• a demonstration that each outcome was considered and the reasons for the chosen outcome. Reasons should be given in sufficient detail so that interested parties may understand why a determination has been made; and

• which part of Standards for Dental Professionals was relevant, if appropriate."

Mr McDonagh emphasised in particular the need for the reasons to demonstrate that each outcome was considered and the reasons for the chosen outcome and that they should be given in sufficient detail so that interested parties may understand why a determination has been made.

26. In my judgment, Mr McDonagh's submission in reliance on Mr Harrison's reservations about the allegation of failure to record matters contemporaneously is a sound one. The clinical adviser was simply not in a position to form a view on that particular issue based on a partial selection of the records, and he made that clear. It follows, in my judgment, that the IOC was in no position to reach a finding as to risk in that respect. However, I do not consider that the reasons of the IOC in this regard are inadequate, as Mr McDonagh submitted. The wording of the last but one sentence of the main passage on this topic might be criticised for its reference to a "possible risk'. As Lord Diplock once said in a different context, "risk is a noumenon", meaning that it could not, strictly speaking, be qualified by an adjective such as "possible". The wording of the final sentence of the relevant passage, with its statement that the absence of the records does "mitigate" the risk, could also be criticised as not being crystal clear.
27. However, whilst these and perhaps other criticisms might be made of the formulation of the passages of the determination that address the question of clinical risk, the question of whether the reasoning is sufficient should, in my judgment, be approached as one of substance. The passage read as a whole indicates, to my mind, sufficiently clearly that the core of the IOC's reasoning was this: first, that the clinical adviser had concluded that the records he had examined revealed on their face many and diverse problems involving a substantial number of patients, including clinical failings; secondly, that the clinical adviser had further concluded that the records indicated a risk to patients; thirdly, that the fact that apparent problems might be explained away, and that the apparent risks might turn out not to be such if the full records were available was not enough to undermine these provisional conclusions of Mr Harrison, which were accepted by the IOC.
28. The IOC's reason for rejecting Mr McDonagh's submissions was, in my judgment, sufficiently indicated. The reason was that it did not accept that it followed from the fact that the records produced by Mr Jafari were only a snapshot, that they carried insufficient weight to justify a conclusion that a risk existed against which it was necessary to guard.
29. In my judgment also, having considered the evidence myself and heard submissions about it, the conclusions of the IOC were not wrong. It is true that individual failings that might appear to exist, judging by the records produced by Mr Jafari, might be explained away by other documents he has not produced or, I would add, by other evidence not documentary; but it is least equally possible that inspection of other records would not remove the grounds for concern.
30. To take an example relied on by Miss Power in the course of her submissions, the report of Mr Harrison includes reference to a case identified as 21410 JW, in which, according to Mr Harrison:

"A lesion is reported during a soft tissue examination but not followed up with a review appointment after 2-3 weeks (to allow innocuous lesions to heal) or a referral for a specialist oral/maxillofacial surgeon for specialist investigations. This is a serious failure, genuinely delaying or denying treatment for something which could be life threatening."

The gist of that criticism, of course, is that the lesion could be indicative of a cancer requiring one or other of the measures identified by Mr Harrison. When one examines the records in question, they do record the patient presenting with a lesion smaller than 5mm in diameter, not fluctuating. They do not include any indication of a follow-up appointment or a referral to a maxillofacial surgeon.

31. Although the point is made by Mr McDonagh that the absence of records within these notes is not proof of the absence of records, this is sufficient indication of risk to justify the need for some interim conditions, in my judgment. The failure to make a record in the notes that are produced by Mr Jafari and relied on by Mr Harrison is evidence that there may have been no follow-up or referral, and that is sufficient, in my judgment, particularly when the consequences could be so serious.
32. The conditions imposed are not the subject of a distinct challenge on behalf of the claimant but I have considered them and, in my judgment, 1 to 6 and 8 to 10 are appropriate conditions to impose in the light of the evidential position. They are relevant, appropriate to the claimant, and necessary to provide reasonable assurance that the risks to members of the public are kept in check.
33. I turn to the question of patient confidentiality and data protection. Mr McDonagh attacks the part of the IOC's reasons that dealt with those issue (the final sentence of the passage from the determination that I have quoted) on the basis that this single sentence does not comply with the GDC's own guidance or the relevant authorities. It amounts to reasons expressed as a conclusion, which fail to disclose the underlying basis for the decision. Mr McDonagh refers in this context to Madan v General Medical Council [2001] EWHC 577 (Admin) at paragraph 64 of the judgment of Newman J. It is not possible, he submits, to ascertain the reasoning that underlies the Committee's conclusion that the allegations "raise concerns about risk to the public".
34. Miss Power submits that the Committee correctly directed itself and that its reasoning, though pithy, is not open to criticism. It is obvious, she says, to the practitioner what is the nature of the risk envisaged. By implication she submits that it would be obvious to the interested third party what it was that the Committee had concluded and why.
35. Whilst it is true that the nature of the exercise in which the Committee is engaged and the manner in which it is carried out moderate to some degree the extent to which it is legitimate to expect detailed reasoning in a determination, nonetheless, in my judgment, the Panel's reasons in relation to this aspect of the matter are deficient. The complaint that the reasons do no more than express the Committee's conclusion is justified. It is not clear from the reasons what risk to the public the Committee has found established in this respect, or why.
36. The consequences, where the court concludes that a Committee's reasoning is inadequate, were considered by Stanley Burnton J in R(Walker) v General Medical Council [2003] EWHC 2308 (Admin), where at paragraph 9 the judge said that:

" ... a lack of adequate reasons, or a decision which is disproportionate in its interference with the rights of the doctor in question, will encourage the Court to examine broadly the decision made by the Committee and substitute its own in a way which it might be less willing to do where the decision appeared to be fully reasoned and proportional."

37. Approaching the matter on that basis, the first point to make is that the allegations before the IOC fell, as I have said, into distinct categories; deficiencies in relation to patient confidentiality and data protection being separate and distinct from clinical failings and poor record keeping on the other hand.
38. I do not regard the deficiencies of the IOC's reasoning in respect of this third category of allegation as impinging on the soundness of its conclusions in respect of the others.
39. The question then arises of what I should go given the opacity of the Committee's reasoning on the patient confidentiality issue. I note that only one of the 10 conditions imposed by the Committee is specifically related to this issue. That is condition 7, which I have quoted before.
40. It is open to me to reach my own conclusion on the issue in the light of the evidence before me. I could, alternatively, revoke the relevant condition, potentially leaving it open to the GDC to make a further application if so advised.
41. It seems to me, however, that the just and proportionate course is to reach my own conclusion, given that the evidence is before me and the nature of the issue is such that the expertise of the Committee is of less significance in relation to its assessment than it is in relation to matters of clinical practice.
42. The evidence in relation to this issue derives largely from Mr Jafari who, in a letter made essentially four allegations. They were: (1) a refusal to treat patients without their consent to do whatever he pleases with photographs that he takes of them; (2) a breach of the data protection policy of the practice by downloading patients' information to a portable storage device; (3) thirdly, the placing on a picture sharing internet site, Picasa, of a patient photograph; (4) Finally, there is alleged a repeat of the activity of downloading confidential patient data, this time to a personal computer.
43. The allegations of Mr Jafari included reference to a screensaver picture under a folder entitled Dani, and Mr Jafari said this:

"We know that at least one of the patients on this screensaver ... had never given him consent to do this with her photos. Every folder seems to contain the person's full facial picture, dental pictures, medical history and full dental treatment plans."

44. The claimant's answers to those allegation are set out clearly in the transcript of the proceedings before the IOC and are to this effect. He had concerns about the way that the practice had handled record keeping and that is why he downloaded onto his own devices. He says he had appropriate consents for all the photographs he had taken and for the use that he made of them, and that the one individual whose photograph had been put on the Picassa site had expressly requested that this be done in order that the photograph could be available to another dentist. Put shortly, the photograph was to be an online dental record. The claimant says that the process was undertaken in a way that was secure and which did not make the photograph available to the public at large.
45. In my judgment, the evidential picture that was before the IOC and is before me is sufficient to justify a conclusion that it is necessary and proportionate to impose on the claimant the condition at 7 in the interests of protecting patients and in the public interest.
46. I accept that the allegation that would appear on the face of it to be by far the most serious, involving the use of Picassa, does not on analysis support that view. An explanation was given, which was supported by copy emails, that the posting was made with the patient's consent. It might be that that explanation would prove on examination to be unsound but it was not disputed. If the consent given was not express, that might be a flaw. But the existence of such an issue would not, in my judgment, of itself justify the condition imposed.
47. However, the allegations of downloading practice records to a separate device on two separate occasions, and the second after a warning, seem to me to justify a reasonable concern, notwithstanding the claimant's explanation, that he had displayed a cavalier attitude to data protection. His case, that he was concerned about practice record-keeping being inadequate, may turn out to be a good one. But it is not possible to conclude on the evidence available that the concerns expressed by Mr Jafari are fanciful, or unfounded, or so affected by the falling out between the parties that they should be rejected.
48. Further, there is an allegation that facial photographs were taken and may have been used without the appropriate consents. The question of whether consents were obtained for all the photographs taken and for the use made of them is not one that could possibly be resolved by the Committee or by me. There was an allegation that was apparently credible, and there is still such an allegation, that at least one individual had not consented to such use. That, coupled with credible allegations of a cavalier attitude towards the safety of personal data, supported the view, and continues to support the view, that the interests of patients and the public interest make it necessary and proportionate to impose a condition of the kind contained in condition 7.
49. In the result, the application will be dismissed. But I add two things. First, I emphasise that neither I nor the IOC have made any findings of fact against the claimant. The merits of any allegation that may in due course be made against him remain to be assessed and there are at the moment no proceedings against him. The matter remains to be considered by an investigations committee.
50. Secondly, I repeat that the delay in this case should be a matter for considerable concern. On the one hand, a practitioner who it is considered may pose a risk to patients if left to practise unsupervised has been left to do so for a period of over years after those allegations were first made. On the other hand, by the time investigations and IOC proceedings were initiated in the autumn of 2014 the full records relating to the patients in question had still not been obtained. There has now been an interim conditional registration order based on a partial picture only and it is expressed to last for the maximum period of 18 months.
51. I am told that a meeting of the investigation committee was due to be held in January but was deferred because the full records were not available then, and it was accepted that this was required before a meeting took place. It is now late March. I am not asked to address the duration of this order but there is, it seems to me, a real risk of injustice to this practitioner if he is subjected to this order for its full period because the GDC has failed to investigate in a timely fashion.
52. The order of the IOC is to be reviewed, indeed must be reviewed, within the next 2 months. It seems to me that the GDC should approach that review on the basis that records should be available and the Committee should be asked to consider the material relied on by the complainant in the context of the full records if by that stage the matter has not become before an investigation committee, and probably even if it has.
53. If the records are still not available, and if the investigation committee has still not met to consider the matter, then the GDC should take that into account when reviewing the interim order, and in particular its duration. It should ask itself why the records are not available, if they are not, and consider the impact of their unavailability on the proportionality of this order, bearing in mind the need to take account of the legitimate interests of the practitioner. By that time, the GDC will, or should, have further information in any event due to the degree of monitoring that the order involves.
54. Those are my reasons.
55. MISS POWER: My Lord, thank you very much. The respondent to the challenge made by the claimant would seek the normal order for costs following the event. Now, in relation to costs, my Lord should have been provided with a costs schedule by both parties.
56. MR MCDONAGH: I have not, or if I have it has not reached me. It may be that it has got part way through the system.
57. MISS POWER: It is being handed up now, my Lord. My Lord, the grand total of the costs schedule for the respondent is in the sum of £3,352, that is including all fees, expenses and VAT. In my respectful submission, this is extremely low and it is far lower than the costs which we have seen in the authorities, which I have cited in my skeleton argument, for comparable proceedings. It can be contrasted with the costs schedule that would have been put before you if my learned friend had succeeded, which gives a grand total of £15.797.04. Whilst it is accepted that claimants are likely to have somewhat higher costs than defendants or respondents in application of this kind, the difference, in my respectful submission, is marked. If I may make the submission, I myself was extremely surprised at the modesty and moderation of the costs schedule. I would ask my Lord to grant it in full. It is rare indeed that I would make a submission of that kind, my Lord. I have nothing more to say on the matter.
58. MR JUSTICE WARBY: Can I just say this. VAT is often a bit of a bugbear. Are you clients not able to recover that? Are they not registered?
59. MISS POWER: Let me just take instructions. My Lord, I think it may be necessary to make a call to somebody senior at the GDC for this information. May I seek the court's indulgence for a very brief adjournment?
60. MR JUSTICE WARBY: Yes. Mr McDonagh?
61. MR MCDONAGH: My Lord, I suspect counsel's fees are subject to VAT but the charitable nature of the GDC would preclude a VAT application on their part.
62. MR JUSTICE WARBY: That is how it works, is it?
63. MR MCDONAGH: In my experience. My Lord, unusually, I am going to invite your Lordship to make no order for costs. The application has been unsuccessful but your Lordship has highlighted some reservations about the original hearing and concluded that the basis of the submissions made as to the criticisms identified by Mr Harrison about his conclusions and the caveat, my reliance on that was the sound one, and indicated, in fact, that the Interim Orders Committee was in no real position to make a finding of risk in relation to that report. Similarly, in relation to the data protection matters, once again your Lordship has accepted that the phraseology of the determination is properly criticised, though your Lordship, of course, has taken an overall approach and delved into the arena to that extent and there is other criticism of the wording of the original determination in relation to the clinical concerns. In those circumstances, perhaps unusually, the appropriate order would be no order for costs, let the costs lay where they are. Of course, the other overriding matter is that the records, some two and a half years after the original allegation and indeed some 3 months after the interim order, have not been provided and been available today, which may be another factor for the just decision to be no order for costs in those circumstances.
64. MR JUSTICE WARBY: Thank you, Mr McDonagh.
65. In my judgment, Mr McDonagh's submissions have considerable force, in the circumstances of this case. It seems to me that he has made good a number of criticisms of the reasons of the IOC and, although the overall conclusion is that the order below stands, substantial costs have been devoted, with justification, to those criticisms. I also do take into account as part of the overall justice of the matter that if the records had been available at least by this stage, some 4 months after the IOC hearing, it would have been possible to avoid what may well be, seems likely to be, some further argument on another occasion and costs would be increased by at that. I have been given no reason, no justification, for the absence of the records at this stage. So the order is in the end, no order as to costs.
66. We have not had an associate here but I do not think it will be very difficult for counsel to agree the order, if you would be so kind, and send one through.
67. In the end, the VAT point did not matter but I think I got the answer from Mr McDonagh. Thank you very much.