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
		8 March 2017

MR JUSTICE COLLINS:

1. This is an appeal against the decision of the Medical Practitioners Tribunal given on 15 December 2016 whereby it found a number of charges of serious professional misconduct which had been alleged against the appellant proved and applied to him the sanction of erasure.
2. The appellant is, of course, a medical practitioner who is a gynecologist. But that said he has clearly maintained an interest in and knowledge of matters outside gynaecology and that is important when one comes to consider the allegations that are made against him in respect of his treatment of a husband and wife who were known as Patients A and B.
3. The sad thing is that at the material time (which is back in 2008) when the relevant services were provided to the patients by Mr Onwude there was a close friendship between him and the two of them and that was connected too with a business venture. The husband was a builder (possibly an architect too) and he had money and it seems his wife also had money, and between them and the appellant, who also had funds that he was able to put towards it, they entered into an agreement, the effect of which was a hospital would be built with the husband as architect and the appellant would be the main doctor in the hospital. As I say, that was an arrangement which came into being at a time when there was a close friendship and unfortunately there came a time when that friendship ceased. It ceased, it seems, partly because the business venture went sour in some way. It matters not what caused what but the result of either the business venture or the lack of friendship was that both arrangements collapsed and that is of considerable importance when one comes to investigate the matters that were relied on against the appellant.
4. What happened was that both husband and wife had needed medical treatment. In respect of the wife, there was a particular ulcerated leg which was attended to by the appellant and in addition to that for some time he dealt with them as if he were their GP. I gather he lived a couple of doors away from them and there was, of course, the obvious ease of access and because of the friendship and because they trusted him the arrangement was made. Indeed one thing that is clear is that there is no suggestion that any of the treatment that he gave at any time was other than appropriate and professional.
5. Be that as it may, he prescribed for them various medicines over a period of time before the relationship broke down. As I say, to that extent, and this was what was found against him, he was acting as their general practitioner would have done and this was something which was said to be contrary to proper dealing in accordance with the requirements of the GMC.
6. The problems came to light because when he carried out the treatment, it was on the basis that he would not charge. He, as I understand it, accepts that that was so far as he was concerned the position at the time, that he was not going to charge. Whether or not there was explicit mention of it at the time, that is whether he actually told them in terms that he was not going to charge, is not entirely clearly. The husband's evidence, at one stage was that he was told that but certainly, as I say, there is no issue but that it was the appellant's intention at that time not to charge.
7. When the relationship broke down and it was necessary to reach some arrangements in relation to the financial effect of the breakdown on the hospital building, at that stage the appellant issued invoices for the treatment which he had afforded both. The invoice to the wife was very high. It was over £60,000. Of course, the ulcer was not the only treatment that was afforded under the arrangements. It was said by them that this was remarkably high and the word outrageous was used in the course of evidence about it but there has not been any evidence elicited which goes to whether that amount was actually an appropriate amount for all the work that was done. It may be that there would have been an argument about the amount but that is not, and was not, materially relevant in the circumstances that had to be taken into account.
8. But the appellant's case in brief and in a nutshell was that the invoices were issued when the arrangements were to be made about who should pay what when the business venture broke down and he says that particularly I think the husband had done some work for him which otherwise he would have had to pay for and he, of course, had given the treatment to them which otherwise would have had to have been paid for and so there was a degree of quid pro quo which was to be dealt with and that was the basis upon which the invoices were issued. He did not, he said, at any time intend that the invoices should create any distress and if properly understood it was his assertion that certainly the husband could not have felt any distress because he knew what they were about. It transpired, he says, that he discovered that the wife was upset and distressed about it but one thing that is clear, although it is put on the basis that it was only an answer to a solicitor's letter, was that he accepted that he would not pursue the invoices.
9. But it was those invoices and conduct that led to the complaint to the GMC and as a result of that a number of heads of charge were brought. The most serious of those and the ones which with I should, I think, deal with first were numbers 12 and 13. These alleged in 12:

"You were not honest and/or open in your financial arrangements with Patient A and/or Patient B in that you failed to inform Patient A and/or Patient B about your fees and charges:

(a) Before asking for Patient A's consent to treatment;

(b) At any time before sending the invoices and/or Statement of Account referred to in paragraphs 9 to 11 [which had set out those matters]."

10. The tribunal accepted the GMC's assertion that not honest amounted to dishonest. The tribunal was mindful of the test to be applied when determining dishonesty. It considered whether the act or omission would on the balance of probabilities be considered dishonest by the ordinary standards of reasonable and honest people and, if so, "whether on the balance of probabilities you realised at the time that your acts or omissions were dishonest by those standards".
11. The tribunal went on to consider the issues. It found that there was no discussion of the issue of payment, and that depends upon paragraph 72 of the GMP, which states:

"You must be honest and open in any financial arrangements with patients. In particular:

(a) you must inform patients about your fees and charges, wherever possible before asking for their consent to treatment."

12. Since in this case the appellant had decided that he was not going to charge and the patient knew that he was not going to charge it seems somewhat absurd to say that there should have been information given about his fees and charges. The information was clearly given. It may have been somewhat sub silentio but there was clearly no misunderstanding on the part of the patients as to what the position was, namely that the appellant was not going to charge for the treatment that he gave. The assertion was made by the tribunal that even if he was not intending to charge he should have made that clear that meant he was not open.
13. With great respect to the tribunal, that seems to me to be a finding which no reasonable tribunal could conceivably have made in the circumstances having regard to the fact that it was common ground, and indeed there was evidence from Patient B at one stage that he was told, that there was going to be no charge.
14. The tribunal went on to say that the invoices followed by a statement of account constituted a demand for payment. Clearly they did. They went on:

"The tribunal notes your argument that you sent the invoice merely to quantify your input into a personal and business relationship following a dispute, but there was nothing on the face of the invoice or statement of account to convey that."

15. Clearly there was no reason there should have been if it was to be understood that that was the basis upon which these were submitted. The tribunal then in paragraph 54 went on as follows:

"The tribunal again applied the two stage test for dishonesty. It concluded that by the ordinary standards of reasonable and honest people this was a dishonest action. You did not inform the patient of the fees to be applied yet you sent a demand for payment, a considerable time after. Further, the tribunal finds that in doing so, you must have known that your actions would be judged as dishonest."

16. That, I regret to say, is a finding which no reasonable tribunal could conceivably have reached. Thee most adverse finding against what the appellant had done was, namely having agreed originally not to charge, later when relationships broke down that he sent in invoices having changed his mind. That is not dishonesty. It may be an unpleasant thing to have done. It may be and clearly would be on the face of it possibly a breach of contract and it may equally be that in civil proceedings the patient would have had a cast iron defence if the demand had continued to be made. The fact is, of course, it was not and it was changed.
17. Mr Mant has manfully endeavoured to uphold the right of the tribunal to reach that conclusion. He reminds me that the Court of Appeal has indicated that deference must be given to tribunals of this nature which are expected to have expertise in dealing with these cases, but that sort of issue, namely what the ordinary and reasonable honest person would regard as dishonest, has nothing to do with any obligation to give deference to any tribunal such as was sitting.
18. There is no question, in my judgment, but that they were clearly wrong to regard the appellant as having acted dishonestly and as will become apparent that is a crucial finding because it was that finding which essentially justified the decision of the most serious sanction, namely that erasure should be applied.
19. They then went on to consider the allegation that his actions were intended to cause distress to the patients, which they found proved. He recognised, as he said in his evidence, that receipt of a bill could cause distress but of course that would depend on what they knew about the basis of it. Further, he has indicated that he certainly did not intend to cause distress, and that was his evidence before the tribunal. All they say about that is that they were satisfied that he did intend to cause distress. They give no reasons beyond those that I have already referred to, which do not say very much to justify that particular conclusion.
20. Patient B when he gave evidence was asked about the business arrangements because, of course, it was the appellant's case, as he had set out in his statement, that the invoices were all part and parcel of the financial arrangements that were being entered into in order to wind up the business. But when it came to him asking about those matters Patient B clammed up on the basis that there was a confidentiality agreement and that in the circumstances he was therefore not going to answer any questions about it.
21. The matter was considered, as it clearly properly should have been, by the legal assessor and the decision reached was that as it was a confidentiality agreement and since in any event the panel had no power to direct evidence to be given that was a proper objection raised by the patient.
22. The appellant wanted to pursue that matter and made an application for recall of Patient B and at that stage there was produced the confidentiality agreement, which was seen by the legal assessor, and that agreement contained what I think is a relatively standard provision in such confidentiality agreements (in the case of this agreement paragraph 19) which made it clear that there could be disclosure to, among other bodies, regulatory bodies, which of course includes clearly the GMC. Notwithstanding that, the legal assessor upheld the decision that the witness, Patient B, could rely upon the confidentiality agreement not to answer any questions about the business. From the appellant's point of view that was a crucial issue because it went to the reasons why he had sent the invoices and whether he had acted honestly and the lack of any intent, as he asserted, to cause any distress to either of the patients. For reasons which are not really given, the legal assessor decided that, as I say, the confidentiality agreement protected the witness.
23. Mr Mant accepts inevitably that that was an entirely wrong decision by the legal assessor. This ought to have been admitted and it might then have been that notwithstanding Patient B would still have refused to answer questions. That would have gone to his credibility and the extent to which his evidence ought to have been accepted. Equally, the whole issue might have been properly gone into and it may well have become clear that what the appellant was asserting was indeed correct and that there was a reason for producing these invoices. It may be that he did it in a somewhat cack-handed fashion looking back on what happened but it may well be that the sensible course would have been to send them with a covering letter which spelt out why they were being sent and the full circumstances. Regrettably, as the conduct of the proceedings before the panel shows, the appellant did not always act in a way which furthered his case and indeed the hearing took far too long and he obviously got very upset at what he felt was the hearing not being fair to him because at the end he absented himself and therefore the tribunal did not hear any submissions from him in relation, I think, either effectively to the findings that they were to make against him or any mitigation if they did make the findings against him.
24. It follows from what I have said that, in my judgment, on the evidence that was produced the findings of dishonesty and intent to cause distress were not justified and should never have been made and if there is to be any further hearing should equally never be made. This is not a case where there could be any question of the appellant having acted in any way that was dishonest.
25. I come now to the other allegations which were found proved. They are effectively paired in relation to both A and B. The first two, which relate as far as paragraph 1 is concerned to Patient A and as far as Patient B is concerned paragraph 5, allege that between as far as A is concerned July 2010 and December 2012 and Patient B December 2009 to January he prescribed a number of medications to the patient, with whom he had a close personal relationship.
26. The GMP paragraph 5 stated "wherever possible you should avoid providing medical care to anyone with whom you have a close personal relationship". The 2013 guidance refers specifically to treating family members but that is not limited to family members albeit there is no clear indication anywhere as to how far that should extend. There is in that document (that is the 2013 guidance) this sentence:

"Whether doctors should be free to provide medical care for members of their families, or others with whom they have a close personal relationship, has been a subject of debate over many years."

27. That does not really help anyone very much in deciding where the line should be drawn.
28. Reliance has been placed, among other things, on a decision of this court in Hussein v The General Medical Council [2013] EWHC 3535 (Admin). That was a case in which the relationship was with the doctor's lady friend and so was clearly a close personal relationship. But in the course of his judgment, Phillips J, having referred to the fact that guidance (which in that case was 2006) contained again "wherever possible, you should avoid providing medical care to anyone with whom you have a close personal relationship", he said:-

" ... the Panel found (based on evidence of the GMC's expert witness, Mr Mosken Iskander, which evidence Mr Hussein did not dispute) that there was nevertheless a general and widely understood consensus, prior to November 2006, that providing medical care to friends or family was wrongful. It follows that there was no dispute before the Panel or on this appeal that, to the extent that Mr Hussein did provide medical care to RJ, whether before or after November 2006, he was guilty of misconduct."

29. With the greatest respect to Phillips J, I cannot accept that as being a correct statement of the position. Certainly there has to be considerable care taken if a doctor is to treat someone who is a close friend and the reason behind that is that it is essential always that the medical practitioner maintains objectivity in his dealing with his patient and should not be influenced to do something because of friendship or indeed because the individual is a member of family. There is an obvious risk in some cases that that might be the position but to say that providing medical care to friends was wrongful puts the matter far too high. Does it mean that anyone who befriends his general practitioner is thereafter exuded from being treated by that general practitioner? That of course would be nonsense because, perhaps more so in the country than in town, it often happens that the general practitioner becomes quite a close friend, it may be, of many of his or her patients. There may be circumstances, of course, where particular treatment is needed when the existence of friendship may persuade, and should persuade, the medical practitioner that someone else should deal with the matter on that occasion but to say as has been said that merely being a friend means it is wrongful to treat cannot possibly be right. The question of course is, where does one draw the line? It is not suggested in this case that the treatment given to either of the patients was in any way wrong treatment or treatment which put them at risk or treatment in respect of which friendship might have clouded views in relation to objectively. I recognise that the fact that nothing went wrong and the treatment was successful and proper does not of itself mean that it was right to administer it because the question is whether something might have gone wrong and that always has to be taken into account. But, as one perhaps knows as a matter of common sense, the reality is that it is rarely that this particular concern is raised before the General Medical Council unless something has gone wrong and as a result of that a complaint has been made. But the lack of clarity means, as Mr Mant accepted, that there must be a grey area and it is not possible to say in any given circumstances and certainly not possible to say absolutely that to treat even a close friend is wrongful conduct. All will depend on the circumstances and I am bound to say that in my view in the circumstances of this case even though I entirely accept that close personal relationship goes beyond family and can include close friendships, to suggest that in this case it was serious misconduct is simply not made out and accordingly I do not think that the conclusion reached by the tribunal in that respect can be upheld. The fact that he did have a close personal relationship may well be correct but the allegation against him depends upon the tribunal being satisfied that it amounts to serious professional misconduct and merely to find that there was a close personal relationship does not meet that.
30. Accordingly, it seems to me that it was not appropriate for the tribunal to have relied on that in dealing with the appellant.
31. It is then alleged in each case that in prescribing medications over the period I have already referred to he acted outside his field of professional competence in that he provided primary medical care whilst not possessing qualifications as a general practitioner.
32. There was called before the panel an expert, a Dr Wright. The appellant has submitted that he really was not to be regarded as a proper expert because his experience related to being a prison doctor and dealing with asylum seekers and others who were in a distressed situation and thus he had no general knowledge or experience in dealing with other sorts of medicine.
33. He certainly had a quite impressive background if one looks at his qualification and his standing but it is surprising in a sense that it was necessary for the GMC to put before the tribunal, who are supposed to have some expertise themselves, what actually is required but assuming that that was appropriate, the point that was being made was that the provision was of primary health care, which was to be undertaken by a general practitioner and not a consultant gynaecologist.
34. That I do not doubt stated in that way is correct but what the appellant relied on, albeit it was regarded as not being, it seems, of particular materiality when one sees the reference to the transcript, was that he was, as his authority showed, a doctor, a practitioner, and he kept his hand in in relation to medical matters outside gynaecology and thus he felt that he was perfectly qualified to provide the care that he did and, as I say, Dr Wright in his evidence did not suggest looking at the medication that had been prescribed that any of it was wrongly prescribed or was not entirely appropriate. But it is said that that should be limited to general practitioners and indeed what they rely on particularly is paragraph 32. They say:

"You referred the tribunal to the terms of your licence to practise. It notes that it states clearly that to practise as a GP in the UK health service you are required to be on the General Practitioner Register."

35. It goes on:

i. "The tribunal rejected your argument that you did not need separate qualifications to provide primary care as a private doctor and could rely on your primary medical qualification obtained some 30 years ago. It rejected your assertion that [Dr Wright's] evidence applied only to NHS GP's."

36. To practise as a GP does require the individual to be on the GP register but what was the appellant's case was that he was not practising as a GP. True he was providing medical care which a GP would normally have provided but that does not mean, and did not mean, that he was acting as a GP and thus it was his case that he did not feel he needed to be registered as a GP.
37. It seems to me that it may well be that technically he was in breach of that obligation but it is very technical in the circumstances of this case and it really does not seem to me that it should have led to anything other than perhaps an indication that he should not do it again without being on the GP register, if that is what he wished to do.
38. Then we have "you failed to keep any or any contemporaneous records of the treatment and/or medications you provided". The relevant paragraph of the GMP states:

"In providing care you must:

keep clear, accurate and legible records, reporting the relevant clinical findings, the decisions made, the information given to patients, and any drugs prescribed or other investigation or treatment."

39. That is, I do not doubt and I am aware from other cases that I have had to deal with, a fundamentally importantly aspect of any doctor's practice that there is a need to keep proper records. That is both a protection for the doctor because it shows what he did and a protection for the patient as well because there is, if any future problem arises, a record. For example, if the patient has to go to hospital and there is an emergency then it is or can be of the utmost importance that proper records exist so that they can be seen by those who have to treat the patient as a result of whatever has arisen in the emergency. That is only an example but it is an obvious example.
40. The appellant's case was that so far as the medications were concerned invoices showed what had been prescribed and there were photographs which charted the ulcer or the treatment of the ulcer.
41. It seems to me that the tribunal was entitled in the circumstances to decide that there were not sufficient records being kept. In all the circumstances, it may well be that it did and possibly could have done no harm but that cannot be assumed and it seems to me that the appellant did fall short in that respect of what was required of a doctor. The extent to which that should result in any order and, if so, what sanction is a different matter.
42. Then there was the allegation that there was a failure to inform the patients' NHS general practitioner and private general practitioner of the prescriptions that had been given. Both those practitioners were called to give evidence to confirm that they had not received any information.
43. So far as the NHS general practitioner was concerned, it seems that really there is absolutely nothing in that allegation because neither of the patients were attending, and the appellant knew that they were not attending, the NHS GP. They were registered with a NHS GP, which clearly can be the gateway to NHS treatment, but it seems that they were well able to look after themselves privately, in the sense that they had money to pay and preferred to make use of private doctors rather than the NHS. I say nothing as to the advisability of that.
44. Accordingly, it seems to me that the failure to notify the NHS practitioner is not a matter which can conceivably be decided against the appellant.
45. What is relied on is in paragraph 52 of the GMP:

"If you provide treatment or advice for a patient, but are not the patient's general practitioner, you should tell the general practitioner the results of the investigations, the treatment provided and any other information necessary for the continuing care of the patient, unless the patient objects."

46. What is omitted is reference to paragraph 53, which makes clear that, where there has been treatment by a specialist to whom the patient has not been referred by the general practitioner, the obligation is to discover whether there is a general practitioner and who he is and whether information should be given to him or her but, if not, then the specialist is obliged to take care of the after-treatment of the relevant patient and that is precisely what the appellant did so far as the treatment of the ulcer is concerned and the recovery of Patient A from it.
47. So there really is nothing in that in relation to that aspect of the further treatment of Patient A.
48. So far as B is concerned, and perhaps to an extent A, there was some attendance, particularly by B, of the private general practitioner and it may well be that ideally there should have been information given to that individual of what was being provided by the appellant. But it is to be noted that the private practitioner, when he gave evidence, was asked whether he had ever given the information as to what he had been doing, what treatment he had been providing, to the NHS practitioner and he said he had not, he did not think it was necessary to do so and, as he put it, he did not really have time to spend giving that sort of information regularly. It does not seem that he was criticised for that approach and it may well be that the appellant's position was much the same so far as that was concerned but it is difficult to say that they were not entitled to find that he ought to have notified the private practitioner at least of what he was providing, particularly because there were no proper notes. If there were proper notes, it may be that that information was less important but if there were no proper notes then that information becomes the more important if there is something that the private GP has to deal with in the future which might be affected by whatever treatment had been given for whatever condition while they were being dealt with by the appellant.
49. Accordingly, I do not think that it was wrong for the panel to find that proved but again whether that amounts to serious professional misconduct and the extent to which it justifies any action is another matter.
50. It follows that I must allow this appeal.
51. I have considered, of course, Mr Mant's points but it is very unfortunate that this hearing was dealt with in the way that it was. It may well be, and I think it clearly is, that the appellant, who was representing himself, did not put forward his case in the best way that it could have been put forward. It is apparent that he was regarded as having wasted the panel's time in certain respects and one sees interruptions by the chairman, many of which may well have been justified to ensure that the matter was dealt with in the proper fashion, but the one thing that seems to me to be clear from all this is that the appellant's faith in the ability of the tribunal to give him a fair hearing was not maintained and there was an unfortunate lack of confidence in the way that things turned out.
52. As I have said, I am entirely satisfied that the tribunal was wholly wrong to have found dishonesty and was equally wrong to regard the treatment of a close personal friend as something which merited action against him in all the circumstances.
53. It seems to me that the other breaches that I have referred to were to an extent somewhat technical. The only one that has substance is the final one, which relates to him practising without the necessary insurance for a period of I think about 9 months at the hospital at which he was working. It looks as if he may not have put the defence he had, or rather the explanation that he wanted to give, for how that occurred. It was, he said, really without his knowledge. He was uninsured because the one thing that he did not want, for obvious reasons, was to practise whilst uninsured because, on any view, as any doctor knows, that is something which is prohibited and it was some misunderstanding, he says, with the MDU, who were his professional insurers.
54. It is not possible for me to say, going into the matter, that the tribunal was not entitled to find as it did because it does seem that perhaps the explanation that he wanted to give was not as clearly made as it could have been and perhaps should have been but since this matter is going to have to go back for consideration to be given on the matters that are outstanding, in particular that one, it will be of course then for the appellant to produce all the necessary information in order to show what his case really is in respect of that.
55. Mr Mant, the appeal being allowed, the decision will obviously be quashed.
56. MR MANT: Yes, my Lord.
57. MR JUSTICE COLLINS: And I think it will be necessary to remit to consider whether the findings that I have upheld, first of all whether they all amount to serious professional misconduct and, if they do, what sanction should be imposed. It seems to me, I am bound to say, that it is difficult to see how a sanction above condition could be appropriate and I suspect that the appropriate result would be no action. The most serious one is obviously the no insurance. But that is a matter for the tribunal. What you cannot do is to try to resuscitate the serious matters because there is no basis for them.
58. MR MANT: My Lord, could I just seek some clarification as to the basis of that last observation. My understanding, particularly in relation to charge 13 concerning the intent to cause distress --
59. MR JUSTICE COLLINS: No, that goes. I have no doubt that that was a finding that was not one which any reasonable tribunal could have made on the evidence.
60. MR MANT: Very well. The other matter just by way of clarification: at paragraph 53 of the judgment, and this concerns the aspect of -- because obviously charge 12 had two aspects: not honest and not open; my Lord, you dealt with not open in respect of --
61. MR JUSTICE COLLINS: I should have thought not honest followed from what I said.
62. MR MANT: My Lord, the bit that I did not understand you to have dealt with was whether you had actually made any finding in respect of not open.
63. MR JUSTICE COLLINS: I thought I had, I though I had made clear that it was an impossible allegation, in the sense that it was clear on all sides that he was at that stage not going to charge.
64. MR MANT: My Lord, I am sure it is my fault, I am certainly not seeking to quibble with the judgment, but if one looks at the way charge a was framed at page 119 of the bundle --
65. MR JUSTICE COLLINS: Let me have another look. I am always conscious in an ex tempore judgment I may have overlooked something or got something slightly wrong.
66. MR MANT: This is the determination but it has the charges set out there. So paragraph 12 of the charge and a and b: failing to inform patient A and/or B about your fees before asking for Patient A's consent. I understood in respect of that you had found that both not open and not honest went.
67. MR JUSTICE COLLINS: That goes.
68. MR MANT: But in respect of b you then have: at any time before sending the invoices, and what the panel found at paragraph 53, they noted the argument that "you sent the invoices merely to qualify your input into a personal --
69. MR JUSTICE COLLINS: That is a different point, there was nothing on the face of the invoice. As a matter of fact, he did not --
70. MR MANT: My Lord, sorry, it is 52 that I really should be looking at, that is my fault. Essentially they are saying it constituted a demand for payment, it had not been discussed at any time, that he had not been open. My Lord, my understanding of your judgment would be, having not ruled on that particular point, that that aspect would stand. Is that incorrect?
71. MR JUSTICE COLLINS: No, I think that -- let me see. It is a fact that there had been no mention of any quantum before the invoices were sent and to that extent they can properly say that he failed to inform Patient A and B at any time before sending invoices of the amount, but I do not think that -- no, I mean, I am not going to allow that in relation to openness or in relation to honesty. I mean, if it goes back, it is open to amend, is it not, any charges? They do not have to be the same charges, do they? It has to go back for reconsideration.
72. MR MANT: I think it would slightly depend on the directions that you give under section 40.
73. MR JUSTICE COLLINS: In that case, I shall direct that paragraph 12 as it stands cannot be maintained.
74. MR MANT: My Lord, I think it would --
75. MR JUSTICE COLLINS: I mean, the only ones that can be maintained are the ones that I have found in relation to the informing the general practitioner and keeping the notes. You may be able to produce something to amend in relation to acting as a GP but I do not think so, no; those are the only two, I think, that are outstanding so far as these allegations are concerned, and, of course, the no insurance one.
76. MR MANT: Could I perhaps, and again do excuse me, I do not seek to be impertinent, but could I just have a brief explanation as to the basis on which it was plainly wrong for the panel to find that this doctor had not been open in the context of sending invoices when he had had no discussion?
77. MR JUSTICE COLLINS: The openness relates initially to the dealing with fees et cetera in carrying out the operation.
78. MR MANT: My Lord, b -- and again I am conscious that I should not be quibbling with the judgment, it is certainly not what I seek to do --
79. MR JUSTICE COLLINS: And b, so with both of them, and it was plain that they understood, he understood, everyone understood that at that time he was not charging.
80. That is right, is it not?
81. THE APPELLANT: My Lord, I just have to correct something because I think you have got something wrong.
82. MR JUSTICE COLLINS: By all means.
83. THE APPELLANT: She did not have an operation on the ulcer, she fell in the garden and I treated it twice a day for 1 year. She never had an operation.
84. MR JUSTICE COLLINS: I thought it was an ulcer, had an operation.
85. THE APPELLANT: No.
86. MR JUSTICE COLLINS: I am wrong, I am sorry.
87. THE APPELLANT: She fell down and developed an ulcer.
88. MR JUSTICE COLLINS: I will note that, it was treatment.
89. THE APPELLANT: It was treatment, she never had --
90. MR JUSTICE COLLINS: I am sorry, that was my misunderstanding.
91. THE APPELLANT: -- it was treatment, it was for 1 year of two, three times, sometimes just once a day. So there was not an operation at that point.
92. MR JUSTICE COLLINS: I am sorry, I had misunderstood. She fell in the garden and needed treatment in respect of the wound.
93. THE APPELLANT: The small wound became an ulcer, as I predicted it would, and it was a year short of 2 days. She never had an operation on the leg.
94. MR JUSTICE COLLINS: For 2 years?
95. THE APPELLANT: For a year short of 2 days.
96. MR JUSTICE COLLINS: For about a year?
97. THE APPELLANT: For about a year.
98. MR JUSTICE COLLINS: I am sorry, that is my fault, I had not appreciated that. I am not sure it is clear from the information.
99. MR MANT: So there was the operation in --
100. MR JUSTICE COLLINS: So the reality is that it was understood by them all at the time that he was not charging for the -- and to that extent --
101. MR MANT: The thrust of b is "you did not discuss or mention --
102. MR JUSTICE COLLINS: Certainly so far as the amount was concerned, that is true, he never --
103. MR MANT: But the thrust is b is not only at the time but you did not then before sending the invoice, given that there is duty on doctors, clearly --
104. MR JUSTICE COLLINS: All right, whether that is appropriately put as being not open, it is certainly a fact that before the invoices were sent (and correct me if I am wrong) the amounts that were contained in the invoices were not stated, is that correct?
105. THE APPELLANT: Correct. It wasn't waived, it was just not sent, they didn't ask for it and I didn't send it.
106. MR JUSTICE COLLINS: But when you sent the invoices, that was the first they knew of the amounts that you were --
107. THE APPELLANT: Yes.
108. MR JUSTICE COLLINS: That you can take and do with it what whoever is responsible considers appropriate.
109. MR MANT: My Lord, my concern is this just in terms of the way that matters proceed because obviously it will be under section 40 remitted with such directions as the court --
110. MR JUSTICE COLLINS: The direction is that you cannot assert not honest in respect of either, you cannot assert that he was not open in relation to the outset; the most you can allege, if you think it appropriate, if you want to pursue anything in this respect, is that before sending the invoices he had not indicated the amounts, that was the first they knew, there was no prior discussion of the level of fees, which is not surprising since no-one thought at that time --
111. MR MANT: Or, indeed, my Lord, can we take it, if it were to be reformulated in another charge, it would be not just there was no discussion of the amount, there was no discussion that there would be any liability to pay anything?
112. MR JUSTICE COLLINS: Well, there was not, no, that is right, there was not a discussion there would be liability to pay until the invoices were sent. But, of course, the reason for it was in the context, he says, of the winding up of the business.
113. MR MANT: So, my Lord, again it is just for clarity because I am going to be asked.
114. MR JUSTICE COLLINS: I think the sensible think is I am going to ask you, Mr Mant, if you would, to draft the necessary order, which you can obviously pass by the appellant and I will then consider it.
115. MR MANT: I am grateful, my Lord.
116. MR JUSTICE COLLINS: But I think that, as I say, you have to decide, or your people will have to decide, whether you pursue anything in relation to A and B's aspect of the complaints or whether you should actually limit yourself to, if you wish, the non-insurance.
117. THE APPELLANT: I just have a little point to add, my Lord. I did file a judicial review application and it was on the basis that the allegations were just wrong.
118. MR JUSTICE COLLINS: Is that outstanding? That has been dismissed, has it?
119. THE APPELLANT: That was dismissed because it was premature and that is what I am now going to have to do, to now file -- they had their opportunity to redraft the allegations, they had more than a year to do it.
120. MR JUSTICE COLLINS: I know, but all I can do is to allow your appeal. I cannot not send back, at least the no insurance, because they have got to be able to consider that and I have, I hope, made clear that if they wish to pursue anything else in relation to b, it has got to be on a very limited basis.
121. THE APPELLANT: Just a little bit, just to let you know that they have accepted the insurance matter and I have been working for almost 2 years now. So it's not as if I'm sitting at home waiting. But what was important from the erasure was that I was suspended immediately.
122. MR JUSTICE COLLINS: Yes, I know.
123. THE APPELLANT: And so when you're giving them -- I need to know --
124. MR JUSTICE COLLINS: That suspension comes to an end now.
125. That follows, does it not?
126. MR MANT: I think that must follow, my Lord, yes.
127. MR JUSTICE COLLINS: What about costs?
128. THE APPELLANT: You will know, my Lord, I have no experience with cost.
129. MR JUSTICE COLLINS: I am afraid that the costs that are allowed for a litigant in person are very limited. I cannot remember the amounts but there are maximum amounts.
130. THE APPELLANT: My Lord, for a litigant in person, it is two-thirds of what the barrister will charge you.
131. MR JUSTICE COLLINS: It is less than that, I am afraid.
132. THE APPELLANT: 46.5.
133. MR JUSTICE COLLINS: It certainly used to be less than that.
134. Mr Mant, can you remember?
135. MR MANT: Yes, my Lord. It is page 1348 of the White Book.
136. MR JUSTICE COLLINS: Yes, litigant in person.
137. You are quite right.
138. MR MANT: My Lord, you have actually got to read it with the next bit. So I think Mr Onwude has read part of it but not all of it. So the two-thirds are there but then if one looks down to four, the actual costs that will be awarded, so that is the upper cap but the actual amount that can be awarded is where a litigant can prove financial loss costs would be on that basis but otherwise it is an hourly rate as set out in the Practice Direction.
139. MR JUSTICE COLLINS: Which is pretty low.
140. MR MANT: That is £19 an hour. That is page 1372.
141. THE APPELLANT: Is that £19 an hour did you say?
142. MR MANT: £19 an hour.
143. THE APPELLANT: 1-9 or 9-0?
144. MR JUSTICE COLLINS: You are quite right, I am out of date on this. Of course you are entitled to the costs that you have had to pay of lodging the appeal and so on, not of any costs relating to any of the judicial review because it is only in relation to the appeal and you are entitled to costs of preparing and the work you have done in preparing your skeleton and so on, but what you should do is to set out a schedule of the work you say you have done and of the amounts that you say you are entitled to and that you should do within 14 days and send it to the other side and lodge one with the court.
145. THE APPELLANT: Just to say, my Lord, that it is not going to be difficult to show that I have lost my career, my profession, overnight.
146. MR JUSTICE COLLINS: That, I am afraid, is not something that can be dealt with by costs, all that I can award you are the costs that you have incurred --
147. MR MANT: Since that day I have been preparing for this, yes, so I have been preparing for this.
148. MR JUSTICE COLLINS: But what you must do, as I say, is just set out in detail what work you say you have done. If you have sustained any loss in --
149. MR MANT: Yes, in the sense of your rulings today on 14 charges, on the proportion of it and perhaps the more damaging dishonesty part that has been broadcast worldwide, I would just like you to know that --
150. MR JUSTICE COLLINS: If you look, the rule in question is CPR Rule 46.5 and that provides that you would be entitled to costs for the same categories of work and disbursements which would have been allowed if the work had been done or the disbursements had been made by a legal representative. So that entitles you to, at whatever the rate is, £19 an hour, for the work and the amount of costs to be allowed to a litigant in person for any item of work claimed will be where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work. That makes clear that financial loss relates only to, for example, "because I could not work on such and such a day because I spent it doing work preparing for my appeal". That is the only financial loss.
151. THE APPELLANT: I am laughing because I couldn't tell you what financial loss I had while I was sleeping because --
152. MR JUSTICE COLLINS: I do understand that. The only point I make, I am afraid, is that --
153. THE APPELLANT: But I will send it to the other side.
154. MR JUSTICE COLLINS: -- the amounts are permitted for litigants in person are, frankly, fairly small overall but it may be you can get someone to help you. Obviously you will not be allowed more than is reasonable for --
155. THE APPELLANT: One thing that is perhaps more important than the costs we're talking about is that there has been a worldwide announcement on the dishonesty matter. That is the one that stings me and my family and if my Lord says they did not have a right in any form to put dishonesty, does this court have the power to order the other side to do something about the announcements in the British Medical Journal, websites, all of them?
156. MR JUSTICE COLLINS: I am sure that there will be notification. There must be notification to whoever is concerned, the BMJ is an obvious one, of the outcome of the appeal.
157. MR MANT: My Lord, there are usual procedures for this. I do not know off the top of my head precisely what it is but certainly the register will be amended accordingly and that is published on the website.
158. MR JUSTICE COLLINS: If that is not done, you can draw that to my attention in due course.
159. THE APPELLANT: My Lord, I hope I do not have to.
160. MR JUSTICE COLLINS: As I say, I hope that you will not have to.
161. MR MANT: My Lord, I am afraid there is an outstanding matter of reserved costs. Langstaff J --
162. MR JUSTICE COLLINS: That was the out of time point.
163. MR MANT: That is right.
164. MR JUSTICE COLLINS: On the face of it, you should pay for that, should you not, because it was your assertion that he was out of time, which you did not maintain?
165. MR MANT: The principle is pretty straightforward.
166. MR JUSTICE COLLINS: What was Langstaff J's order?
167. MR MANT: I am afraid it is not within the bundle.
168. MR JUSTICE COLLINS: It is in one of the bundles because I have seen it but I cannot remember which bundle.
169. MR MANT: Essentially, to give you a bit of context, it was one of those busy permission lists and we were stuck at the back.
170. MR JUSTICE COLLINS: Was it court 37?
171. MR MANT: Yes, I think it was.
172. MR JUSTICE COLLINS: I did see it this morning. I had not appreciated it was court 37. Somewhere, as I say, I have seen his order.
173. MR MANT: Thank you. Perhaps if I just hand up a very short correspondence clip as well to put it into context and a copy for the doctor as well.
174. MR JUSTICE COLLINS: It just says costs reserved.
175. MR MANT: Yes.
176. MR JUSTICE COLLINS: So I must deal with those.
177. MR MANT: Yes. What the order does is provide a bit of context because essentially what happened is the GMC had treated the appeal as out of time because it was lodged a day after they had calculated the final day but it was a Sunday. So it was actually me, when I looked at it when I was instructed I noted this point and as a result a letter was sent 11 days before the hearing, saying: we now accept that it is in time, can the hearing be vacated. I should say that the application to appeal, the appeal notice, included an application to extend time, so it was listed not just because the GMC had pointed out that --
178. MR JUSTICE COLLINS: Yes, and there was some costs claimed by Mr Padfield in respect of --
179. MR MANT: Yes, so essentially what happens is we withdraw on the 10th. Then on the 13th we invite the court to vacate the hearing. Obviously at this stage the GMC has no idea that the doctor has instructed anyone or incurred any costs on the 13th. Dr Onwude writes saying that he does not want the hearing vacated, there is then a letter to the court on the 14th where he insists that the matter remain listed. I think in doing some double-sided copying we may have missed a letter because over the page is actually a letter he sent to the GMC, so I am afraid there is a page missing, but you will get the broad thrust, I think, without it. So he writes to the court insisting that it remains listed to determine the point about nullity. So he says no, in fact you need to strike out the whole tribunal proceedings as a nullity because of errors in service and he then sent this letter to the GMC that we had two options: to accept -- and the nullity application, I should say, includes a claim for damages as well, so he is setting out not just that is a nullity but the court should award damages.
180. MR JUSTICE COLLINS: It looks to me that it may be that -- I think there was an issue of costs there --
181. THE APPELLANT: I have something to say.
182. MR JUSTICE COLLINS: -- I am not going to decide that here and now, that must be included in the written observations that both you and your side make in relation to the costs reserved and the costs issue before --
183. THE APPELLANT: I would like to be heard, sir, because you have heard one aspect of the story --
184. MR JUSTICE COLLINS: I know, I appreciate that other side --
185. THE APPELLANT: -- starting from 13th February. The panel made a decision to recommend erasure, immediate suspension, on 15/16 December. The panel did not send that notification until 6 weeks later. So I just heard that I had been struck out and I have walked all the corridors here finding out the Court of Appeal, judicial review and in the end I put in a judicial review, which the GMC accepted, only to be told the Friday before the Monday that I should have come to -- it wasn't -- a judicial review will not do. So I had to come in on Monday morning to refile it on 26 January, that would be 6 weeks since the notification came out and that notification had information this is not a judicial review, this is section 40, this is your right to appeal, this is your right to appeal against publishing your name on the website. I didn't get that until 6 weeks later and so sitting down there knowing that my rights was going to be taken away I had to look for counsel and we then worked at it, trying to find out a way of getting us back on time and then on 10th February we then hear from them to say that oh, you're not actually out of time. Well, at that point I had incurred costs.
186. MR JUSTICE COLLINS: I fully understand that and I saw that but that is why I say in considering costs as a whole, because I have to consider those costs reserved by Langstaff J and the costs of today because obviously they will have to be, if there is any question of set-off, set-off or added. So what I would like you to do, please, is to put in writing your reason for saying that you are entitled both to yours and to Mr Padfield's.
187. THE APPELLANT: Some of that has already been done but we will get it together.
188. MR JUSTICE COLLINS: Some of it is there already, I appreciate, but it is 4.20 pm and I think that it is better done that way and you can do the whole issue of costs together. I said 14 days, I will make it longer if you want? Do you want more?
189. THE APPELLANT: We have done most of it.
190. MR JUSTICE COLLINS: Okay, 14 days.
191. You obviously have 14 days thereafter to respond.
192. THE APPELLANT: 14 days will be fine for us.
193. MR JUSTICE COLLINS: They can respond and you have 7 days after you receive their response if you want to make any response to their response and then it will come before me and I will decide the matters on the papers. Thank you for your help. I hope this will bring to an end your difficulties.
194. THE APPELLANT: Thank you, my Lord.
195. MR JUSTICE COLLINS: Because certainly now there is no question but that immediately your suspension is lifted. You appear to have a fair amount of support here.
196. THE APPELLANT: Family and friends.