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
		25 January 2017

1. MR JUSTICE HOLMAN: This case is a statutory appeal by a consultant gynaecologist from the decisions of a medical practitioners' tribunal of the General Medical Council (GMC) finally reached in September 2016. That was the conclusion of a hearing that had lasted, incredibly, for fifty-seven days and had commenced as long before as 2 March 2015.
2. It is right and important to record that at the outset of the hearing the practitioner faced a number of allegations, some of them serious, which were ultimately found not proved against him. So an important part of the fifty-seven days was spent exploring matters of which he was ultimately exculpated.
3. In the end, the tribunal found three matters or allegations proved against the appellant. They were, in brief summary, first, that on 21 July 2008 he did not provide good clinical care for a certain patient, in that he failed to take account of her drug allergy history before prescribing a specified drug for pain relief. Second, that on 31 July 2008 he failed to communicate respectfully with a sister when discussing with her a complaint that she was making about him. Third, that in April 2011 he did not provide good clinical care for a different patient, in that he failed to investigate the endometrium by trans-vaginal ultrasound. Pausing there, it can be seen at once that the first and third allegations related to the competence or quality of clinical care actually provided for two patients on single consultations nearly three years apart. The second allegation was clearly in a different category and related to communication between the appellant and a colleague.
4. Having found those particular matters proved, the tribunal went on to decide that they amounted to serious professional misconduct, that his fitness to practise was impaired, and that his registration should be suspended for three months. It is against that outcome that the appellant now appeals by a notice of appeal given, within time, on 7 October 2016.
5. Inevitably, a hearing which lasted fifty-seven days has generated a phenomenal amount of documentation. The verbatim transcripts alone of the evidence and course of the hearing amount to many thousands of pages. The appellant represented himself throughout the hearing, as he has before me today. That had the effect that the tribunal gained particular insight into him just as I have gained some insight from my interaction with him today.
6. In advance of today's hearing, the appellant issued an application, on full notice to the GMC, for an adjournment of the substantive hearing today so that he could obtain legal representation by a barrister provided through the Bar Pro Bono Unit. He has produced material indicating that his application to the Bar Pro Bono Unit has received relatively favourable consideration, although they inevitably stress that as they rely entirely on volunteers they cannot guarantee that they can find or make available any representation. But their letter dated 23 December 2016 begins as follows:

"We are pleased to say that a senior barrister who reviewed your application has recommended that the Unit will try to find a volunteer barrister to provide the following assistance with your case."

The letter then refers to advice, drafting and representation. That was on 23 December 2016, now about a month ago, albeit that that month includes the Christmas and New Year period. As I understand it, no barrister has currently been identified and certainly no barrister appears in court today.

7. I am willing to grant, and do grant, the adjournment which the appellant seeks. This is his first application for an adjournment in this case. Pending the substantive hearing of his appeal, he is, and will remain, suspended so that the public will remain protected from him. Indeed, as he points out, as the original suspension was imposed for a period of three months which has already elapsed, the person most prejudiced by an adjournment and further prolongation of this appeal is himself. In saying that, I do not at all overlook - and indeed I am very sensitive to - the phenomenal costs of this whole case to the GMC who will now incur yet further costs as a result of adjourning.
8. During the course of today I have given consideration, with both the appellant himself and Mr Peter Atherton (counsel who appeared throughout the fifty-seven-day hearing and now appears today), to the scope and proper focus of this appeal. I, of course, have a discretionary power whether or not to grant the adjournment. In deciding to grant the adjournment, I can link that discretion with the exercise of other very important discretionary powers and duties upon the court by Rules 1.1 and 1.4 of the Civil Procedure Rules, including within them 1.4 (2) (b) and (c), and also Rule 3.1 (2) (k). All these rules, separately and in combination, confer upon the court both a power and a duty to limit the issues and to exclude certain issues from consideration.
9. Quite frankly, and with all due respect to the tribunal, this case must have got completely out of control before them. It is wholly disproportionate that a tribunal should find itself spending as many as fifty-seven days at phenomenal expense hearing the sort of issues which arose in this case, including those allegations which were found not proved.
10. There is, frankly, a serious risk that, unless I exercise robust case management powers, the appeal to this court could become no less uncontrolled.
11. Further, in their correspondence, the Bar Pro Bono Unit emphasised that there is a limit to the amount of time that any barrister could reasonably be expected to act on a pro bono basis and that that is normally considered to be about three days, which includes not only presentation of an appeal of this kind but preparation for it. Quite bluntly, if this appeal remains uncontrolled and the huge number of lever arch files and thousands of pages of documents remain "in circulation" for the appeal, no barrister will be found who will be willing to take it on.
12. At section 5 of his original appellant's notice, the appellant, acting in person, set out in ten paragraphs aspects of his case and in effect his summary grounds of appeal. Paragraphs 7, 8, 9 and 10 of that section are to the effect that the Panel erred in adjudging findings which they had made to amount to serious professional misconduct and, accordingly, erred in finding that his fitness to practise is impaired, and erred in imposing the sanction of suspension.
13. I do not in any way whatsoever pre-judge the outcome of this appeal, which will fall to be considered entirely in his own discretion and judgment by the judge (who is unlikely to be myself) who finally hears the appeal. But I do indicate that it does seem to me that the appellant has good and well arguable points within those matters in paragraphs 7 to 10. Consideration of those points does not require immersing in hundreds, let alone thousands, of pages of documents, and essentially falls to be considered by careful reading and consideration of the formal written record of the determination of the tribunal, which itself extends to some 84 pages. It is, in my view, highly unlikely that many documents will require to be considered on this appeal other than that formal record of the determination itself.
14. My purpose by the order which I make today is to slim the focus of this appeal right down to those essential matters raised by paragraphs 7 to 10, and to focus the appeal very specifically upon the actual record of determination by the tribunal. That has the effect and huge advantage from the point of view of the appellant himself that the appeal becomes manageable and relatively concise, and one which one could reasonably expect many barristers acting pro bono to agree to undertake.
15. It is not for me to trespass in any way on the discretions and decisions of the Bar Pro Bono Unit. They themselves have already recorded in a passage that I have quoted from their letter of 23 December 2016 that a senior barrister has recommended that the Unit should try to find a volunteer barrister. I wish merely to reinforce that recommendation by saying that it seems to me that the appellant does have a good arguable case on the limited but important points raised in paragraphs 7 to 10. It is a case for which he certainly needs and deserves skilled legal representation if it can be made available for him.
16. Paragraphs 1 to 6, however, are another matter. These essentially amount to complaints about case management and procedural decisions taken by the tribunal during the course of the very long hearing, or to the weight or lack of weight which they decided to attach to certain evidence adduced by and on behalf of the appellant. So he complains about some decisions to refuse certain applications for adjournments, although other adjournments were granted. He makes a complaint about the ruling in relation to the so-called five-year rule, and a complaint about decisions to refuse applications to admit or adduce further evidence. All such matters are quintessentially case management decisions for the tribunal concerned. It is only very exceptionally that this court on appeal will consider - let alone reverse - case management decisions of that kind.
17. So far as the weight of evidence is concerned, he complains about decisions of the tribunal to attach no weight to certain of his witnesses, including expert witnesses. This again is quintessentially a matter for the tribunal who heard the witnesses, heard the case as a whole, and who were best placed to decide what weight to attach. More generally, by paragraph 6 of section 5, he appears to attack the actual findings of fact made. Quite frankly, it is unrealistic to suppose that this court on appeal is going to get behind the primary findings of fact made by the tribunal after so lengthy a hearing. That, however, is a different question from whether or not the primary facts as found do or do not amount, in any given case, to misconduct, let alone serious misconduct.
18. So, for those reasons, I make an order which firmly rules out any further consideration of the matters under paragraphs 1 to 6. Subject always to the overriding discretion of the judge at the substantive appeal, this appeal will be firmly limited to consideration of whether the facts as found do amount to misconduct and, if so, whether it was serious misconduct and whether his fitness to practise is impaired, and the proportionality of, and necessity for, the sanction of suspension.
19. All this will require a very slimmed down volume of documents. I propose to limit the papers to be used at the hearing, or lodged with the judge, to the small core bundle which Mr Atherton prepared for today, with the addition of any passages from other documents that Mr Atherton considers essential to include. I will, of course, allow to the barrister, once instructed on behalf of the appellant, a right to put in one additional bundle not exceeding two-hundred pages, but the documents in any such bundle must be limited to those which the barrister considers essential to the disposal of the appeal.
20. In this way I hope, today, to have cut this appeal down to manageable proportions and to have focused it on the only real issues that sensibly arise for consideration. I have not in any way done so hostile to the appellant. On the contrary, I hope, by the orders I make and by the terms of this judgment, to provide help to him, to make his appeal manageable, and to make it of a kind which a barrister acting pro bono may reasonably be expected to undertake.
21. Mr Atherton, would you, very kindly, have this order typed up, properly headed and so on, and lodged with today's associate. I will hand back to you, Dr Oyesanya, that little clip you gave me for today. I will retain the other documents for the purposes of correcting a transcript of the judgment and then they will go on the court file. Is there any other matter that you now wish to raise or say, Mr Atherton?
22. MR ATHERTON: Would your Lordship intend to reserve costs?
23. MR JUSTICE HOLMAN: Yes.
24. MR ATHERTON: I am grateful.
25. MR JUSTICE HOLMAN: Is there anything you wish to raise or say, Mr Oyesanya?
26. THE APPELLANT: Just to say I am very grateful. Thank you.
27. MR JUSTICE HOLMAN: That it very concise. (To Mr Atherton) You can add in, Mr Atherton, that the costs of today are reserved.
28. THE APPELLANT: Is that the same as costs - - - - -
29. MR JUSTICE HOLMAN: Reserved.
30. THE APPELLANT: - - - - - in the case?
31. MR JUSTICE HOLMAN: No. The costs of the hearing today - the GMC will have incurred costs being here today obviously, you have not but they have because they will pay Mr Atherton - the question of whether or not you should pay or contribute to those costs will be considered at the conclusion of the appeal, and not today.