Jersey Unreported Judgments

2000/149

18 pages

ROYAL COURT

(Samedi Division)

 

27th July, 2000

 

 

Before: M. C. St. J. Birt, Esq., Deputy Bailiff

and Jurats Le Ruez and Bullen

 

 

Between                                        Jennifer Jane Ahluwalia                                    First Appellant

                                                                née Haley                                                                   

                                                (also known as Jennifer Haley)

 

And                                               Jennifer Jane Ahluwalia                                Second Appellant

                                                                née Haley

                                                (also known As Jennifer Haley)

                                          as Executrix of Harpal Singh Ahluwalia

                                                   (also known as Henry Paul)

 

And                                     The Employment And Social Security                       First Respondent

                                                               Committee

 

And                                                  The Health Services                                Second Respondent

                                                        Disciplinary Tribunal

 

Appeal to the Inferior Number of the Royal Court, under Article 36(4) of the Health Insurance (Jersey) Law, 1967, from the decision of the Employment and Social Security Committee and Judicial Review of the findings of the Health Services Disciplinary Tribunal, in relation thereto.

 

 

Advocate D.F. Le Quesne for the representors and the appellants

H.M. Solicitor General for the Employment and Social Security Committee

Advocate A.D. Robinson for the Health Services Disciplinary Tribunal

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

Introduction 

 

1.                  So far as is relevant for these proceedings Article 36 of the Health Insurance (Jersey) Law 1967 ("the Law") provides as follows:

 

2.                                     "(1)Where it is represented to the Committee by any person that the conduct of any approved medical practitioner... (hereinafter in this Article referred to as a "practitioner") has been such as to be prejudicial to the efficient administration of this Law or as to create an unreasonable charge on the Health Insurance Fund, the Committee shall refer the matter to the Health Services Disciplinary Tribunal and the said Tribunal shall enquire into the matter and, if of the opinion that the representation is well founded, shall recommend to the Committee:-

(a)                          that the approval of the practitioner be withdrawn; or

(b)                          where the representation is that the conduct of the practitioner has been such as to create an unreasonable charge on the Health Insurance Fund, that he be required to pay into the Fund an amount not exceeding the amount estimated by the said Tribunal to be that of the additional charges imposed on the Fund by reason of the conduct aforesaid.

(3)Where the Health Services Disciplinary Tribunal recommends to the Committee that a practitioner should be required to pay an amount into the Health Insurance Fund, the Committee may confirm the recommendation and, in such a case, the practitioner shall pay the said amount to the Committee within the period of 28 days from the date of the communication to him of the decision of the Committee, or within such longer period as the Committee may allow and, if he fails to do so, the Committee shall withdraw his approval and the provisions of paragraph (2) of this Article shall apply accordingly."

 

3.                  This case arises out of the exercise by the Employment and Social Security Committee ("the Committee") of its powers under Article 36 and the dissatisfaction of the practitioners concerned with certain findings of the Health Services Disciplinary Tribunal ("the Tribunal") and the consequential decision of the Committee.

 

Factual Background

4.                  On 6th May 1992 the Committee (then known as the Social Security Committee) received a complaint from the then Controller of Social Security ("the complainant") under Article 36(1) of the Law alleging:-

 

(i)                  that the conduct of Dr. Harpal Singh Ahluwalia ("Dr. Paul") and his wife Dr. Jennifer Jane Ahluwalia ("Dr. Haley") had been such as to be prejudicial to the efficient administration of the Law; and

(ii)                that the conduct of the two practitioners had created an unreasonable charge on the Health Insurance Fund ("the Fund").

 

5.                  In accordance with the provisions of the Law, the Committee referred the matter to the Tribunal, the chairman of which was Advocate D.E. Le Cornu.

 

6.                  The Tribunal sat on several occasions during the course of 1993 and 1994 in order to hear evidence.  This was concluded in October 1994.  A final hearing was fixed for some time in November 1994 (we were not told the exact date) in order that closing submissions might be heard.  During the course of the closing submissions of the complainant, a document known as Schedule 3 was produced for the first time.  Schedule 3 was a list of the charges made in respect of all treatments given during the relevant period to the particular patients who were the subject of complaint and which had been paid for out of the Fund. 

 

7.                  On 23rd November 1994 Mr. Le Quesne (who represented both practitioners before the Tribunal and who appears for Dr. Haley in her own right and as executrix of the estate of Dr. Paul in the present proceedings) wrote to the chairman of the Tribunal in order to complain that Schedule 3 was new material upon which the practitioners had not had an opportunity to comment.  By letter dated 19th January 1995 the chairman of the Tribunal accepted that this was new material which had not been tested and agreed to hold a further hearing for that purpose.

 

8.                  For one reason or another this hearing did not take place until 6th and 7th September 1995.  Prior to that an amended Schedule 3 had been produced on behalf of the complainant and supplied to the practitioners.  Mr. Le Quesne accepted the accuracy of the amended Schedule 3 in relation to a particular patient who had given rise to the largest amount of charges ("patient A") but said that he had been unable to check the accuracy of the amended Schedule in relation to all the other patients.  At the hearing he contended that the Schedule was irrelevant. 

 

9.                  The Tribunal delivered its report in December 1995.  In respect of the first part of the complaint the Tribunal concluded that the conduct of the practitioners had been such as to be prejudicial to the efficient administration of the Law and it recommended that the approval of the practitioners under the Law be withdrawn.  No point has been taken on that aspect of the Tribunal's findings.

 

10.              In respect of the second part of the complaint the Tribunal considered the evidence in relation to eight patients in considerable detail and concluded that there was no clinical justification for the treatment which it described in the report.  The Tribunal therefore found that the conduct of the practitioners had indeed created an unreasonable charge on the Fund and, in accordance with Article 36(1)(b) of the Law, recommended to the Committee that the practitioners be required jointly and severally to pay into the Fund the sum of £63,000.  Their finding on this aspect was as follows:-

 

"Accordingly we have found that the Representation of the complainant is well founded.  Article 36(1) of the Health Insurance (Jersey) Law 1967 provides that in such event we must recommend to the Committee that the practitioners be required to pay into the Health Insurance Fund an amount not exceeding that which we estimate to represent the additional charges imposed on the Fund by reason of the practitioners' conduct.  We have carefully considered all the submissions made to us on behalf of the complainant and the practitioners and we have concluded that the minimum additional charge imposed on the Fund by reason of the practitioners' conduct is £63,000 (sixty-three thousand pounds).  Accordingly we recommend to the Committee that the practitioners be required jointly and severally to pay into the Fund the sum of £63,000 (sixty-three thousand pounds)."

 

11.              The report of the Tribunal was considered by the Committee at its meetings on 15th December 1995, 24th January 1996 and 7th February 1996.  The Committee was advised that it should not review the findings of fact made by the Tribunal.  Its role was confined to considering whether to order repayment to the Fund and, if it did, whether it should do so for the full amount or a lesser amount and whether to allow a longer period for payment than the 28 days referred to in the Law.

 

12.              Mr. Le Quesne and the practitioners attended upon the Committee on 24th January 1996 to put their case.  On 7th February, in relation to the second part of the complaint, the Committee decided to confirm the recommendation of the Tribunal that the practitioners should repay the sum of £63,000 to the Fund, and further decided that  payment should be made within 28 days.  The Committee decided not to apportion the amount because the doctors were running the business as a joint practice.

 

Appeal and Judicial Review

13.              Article 36(4) of the Law provides as follows (where relevant):-

 

(4) ... where a practitioner is required to pay an amount into the Health Insurance Fund in accordance with the provisions of paragraph (3) of this Article, the practitioner may appeal to the Inferior Number of the Royal Court, either in term or in vacation, against the decision of the Committee."

 

14.              The practitioners appealed against the decision of the Committee.  Subsequently they issued a representation seeking judicial review of the findings of the Tribunal.  At a hearing before the Greffier Substitute on 16th December 1998 directions were given as to the conduct of these two actions.  Amendments were permitted to the grounds of appeal and to the representation and it was further ordered that the two matters should be dealt with at the same time.

 

15.              At the hearing before us, Mr. Le Quesne sought to argue that the right of appeal referred to in Article 36(4) was a wide ranging appeal enabling an appeal to be taken against the findings of the Tribunal as well as the decisions of the Committee.  He argued that there was in effect only one decision making process which started with the Tribunal and culminated in the decision of the Committee.  The Tribunal acted, in effect, as a delegate of the Committee in order to investigate the facts and make certain findings of fact.  The Committee then decided whether or not to confirm the recommendations of the Tribunal on the basis of the facts found by the Tribunal.  In effect its function was confined to hearing any "mitigation" available to the practitioners before deciding whether to confirm or vary the recommendations of the Tribunal.  It reached its decision on the basis of the facts found by the Tribunal.  It would be extraordinary, said Mr. Le Quesne, if there were a right of appeal (being wider than judicial review) against the decision of the Committee on whether to confirm the recommendations (i.e. a function analogous to sentencing) but no right of appeal against the findings of the Tribunal that the practitioners had caused an unreasonable charge to the Fund (i.e., by analogy, against conviction).  If this were the case, then, given the limited nature of the Committee's role, the right of appeal purportedly conferred by Article 36(4) was in effect illusory.

 

16.              The Solicitor General and Mr. Robinson objected to this line of argument.  They said that the case had been fought so far on the basis that there were two wholly separate matters, namely an application for judicial review of the Tribunal's findings and an appeal against the Committee's limited decision.  Thus Mr. Robinson had not proceeded nor put in any contentions on the basis that the findings of the Tribunal could be reviewed by way of appeal, as opposed to the more limited approach of judicial review.  He had confined his preparations to matters which would properly fall to be dealt with by way of judicial review.  Similarly the Solicitor General said that she had not prepared the case on the basis that the Committee might have to defend the whole of the decision making process rather than just the limited role which the Committee had in fact undertaken.  Both counsel said that, at this late stage, it was not open to Mr. Le Quesne to seek to change the whole basis on which the case had hitherto been run.

 

17.              The Court agreed that it was too late for Mr. Le Quesne to seek to vary the basis upon which the case had been conducted to date.  It would therefore have to proceed on the basis of an application for judicial review of the Tribunal's findings and an appeal against the very limited functions undertaken by the Committee.

 

18.              However the Court has been acutely aware during the hearing of the case of the unsatisfactory nature of this two-pronged approach.  It has indeed rendered the right of appeal conferred by Article 36(4) almost nugatory.  We must emphasise that we have not heard full argument on this matter and we therefore cannot reach any concluded view.  However we would say that it certainly appears to be strongly arguable that the right of appeal conferred by Article 36(4) is to be construed in a generous manner so as to enable the whole decision making process to be the subject of appeal.  The Committee's decisions are taken on the basis of the findings of fact made by the Tribunal.  It appears on the face of it to be eminently arguable that the right of appeal against the Committee's decision should include the right to appeal against the findings of fact upon which that decision is based.  The Tribunal's recommendation can be considered part and parcel of the decision ultimately taken by the Committee.  Certainly this argument remains fully open on any future occasion.

 

19.              The practitioners raised four grounds to support their appeal and/or application for judicial review.  They were as follows:-

 

(i)                  The Tribunal erred in holding that the treatments which were the subject of the complaint were not clinically justified.

 

(ii)                 The Tribunal and the Committee failed to give reasons for their recommendation and decision respectively in respect of the payment of £63,000 and the imposition of joint and several liability.

 

(iii)                 The Tribunal erred in finding that the minimum additional charge imposed on the Fund by reason of the practitioners' conduct was £63,000 and recommending that that amount be repaid and the Committee erred in confirming the recommendation.

 

(iv)                The Tribunal and the Committee both erred in failing to distinguish between the practitioners and imposing joint and several liability.

 

We will deal with each of these in turn.

 

(i) The Tribunal erred in holding that the treatments which were the subject of the complaint were not clinically justified.

 

20.       This ground stated that the Tribunal had acted against the weight of evidence in finding that the treatment of two specific patients (out of the eight who were the subject of complaint) was not clinically justified.  However, following the ruling that he was not entitled to argue that an appeal encompassed the findings of fact of the Tribunal, Mr. Le Quesne withdrew this ground on the basis that, on an application for judicial review, the Court would not review the findings of fact unless it concluded that the Tribunal had reached a decision that no reasonable Tribunal could reach.  Mr. Le Quesne accepted that he could not so contend in this case. 

 

(ii) The Tribunal and the Committee failed to give reasons for their recommendation and decision respectively in respect of the payment of £63,000 and the imposition of joint and several liability.

 

21.       During the course of the hearing, Mr. Le Quesne abandoned this ground in relation to the decision of the Committee and we therefore consider it only in relation to the findings of the Tribunal.  We have set out the relevant extract from the findings of the Tribunal at paragraph 10 above.  Mr. Robinson accepted that the Tribunal had not given any reasons for its recommendation that the additional charge to the Fund was £63,000, nor for its recommendation that liability to repay this sum should be joint and several on the part of the practitioners.  The question for us is as to the effect of that failure to give reasons.

 

22.       We were referred to a number of cases.  Mr. Le Quesne cited Stefan v. General Medical Council (11th March 1999) Times Law Reports, where the Judicial Committee of the Privy Council held that the Health Committee of the General Medical Council was obliged to give at least some brief statement of the reasons which formed the basis of its decision to suspend a medical practitioner indefinitely.  He also referred to R v. Ministry of Defence ex parte Murray (17th December, 1997) Times Law Reports, where the Divisional Court held that, although there was no general overriding principle of law which required a decision making body to give reasons for its decision, fairness would, in the particular circumstances, often demand that it did so.  In that case fairness required that a court-martial should give reasons for rejecting certain evidence in relation to a sentencing hearing.  Mr. Le Quesne also relied strongly on the comments of Lord Mustill in R v. Secretary of State for the Home Department ex p Doody (1993) 3 All ER 92 at 110e and 111a-c.

 

23.       In the course of his submissions Mr. Le Quesne did concede that a mere failure to give reasons in this case was not enough for him to succeed.  He had also to show material from which the Court could conclude that the decision making process might have gone awry.

 

24.       Mr. Robinson emphasised that the cases referred to by Mr. Le Quesne all had a penal element and it was therefore not surprising that the Court had found that a person should know the reasons why he was to be punished (or in the case of Stefan prevented from practising as a medical practitioner).  However the present case was not a question of punishment.  The Tribunal had found that the practitioners had been paid for work which was not clinically justified.  All the Tribunal was doing was ordering that they repay to the Fund the money wrongly paid to them.  The matter was entirely compensatory in nature.  Although at one stage Mr. Le Quesne had sought to categorise the order for repayment as being penal in nature, he ultimately accepted that it was essentially a compensatory payment.  We agree that it was entirely compensatory in nature, being designed to put back into the Fund monies wrongly paid out to the practitioners.

 

25.       Mr. Robinson referred to Peatfield v. General Medical Council (1986) 1 WLR 243 where the Judicial Committee of the Privy Council held that, although the Professional Conduct Committee of the GMC had not given reasons for its decision, there was sufficient material for the Judicial Committee to understand how the decision had been reached.  He submitted that, when one looked at the material before the Tribunal, it was apparent how the figure of £63,000 had been arrived at and that was sufficient. 

 

26.       Finally we refer to the well known passage of Lord Upjohn in Padfield v. Minister of Agriculture and Fisheries and Foods (1968) AC 997 where he said at page 1861 that if a decision maker did not give any reasons for his decision, a Court would be at liberty, if circumstances warranted it, to come to the conclusion that he had no good reason for the decision.

 

27.       In our judgment the law in relation to the giving of reasons can be summarised as follows:-

 

(i)      It remains the case that there is no general rule of common law that reasons for all decisions must be given.

 

(ii)      However the trend, which might be said to be accelerating, of the law has been towards greater openness in the making of administrative and quasi-judicial decisions.  This has resulted in an increased recognition of the duty upon decision makers of many kinds to give reasons.  The Courts are proceeding on a case by case basis.

 

(iii)     The Court may hold that there is a duty to give reasons in relation to particular types of decisions where fairness demands it (e.g. Murray, Stefan, Doody (supra)).  In these cases a failure to give reasons may, without more, render the decision liable to be quashed.

 

(iv)     Where a decision does not fall within (iii) above, a failure to give reasons may well make it easier for a complainant to get home on some other ground because the lack of reasons will leave the Court in difficulty in considering any justification put forward to support the decision.  As it was put in argument, a failure to give reasons may leave those seeking to uphold the decision on the back foot in the hearing before the Court.

 

(v)     The extent and substance of reasons to be given will depend upon the nature of the decision in question and upon the circumstances of the particular case.  In many cases reasons will not need to be elaborate or lengthy.  Often a few sentences will suffice to give such explanation as is appropriate to the particular situation. 

 

28.       We should add that we found the decision in Murray of considerable assistance in establishing the present state of the law, although we were conscious that we were acting under the handicap of not having seen a proper report of the judgment, but only an extract from the Times Law Reports. 

 

29.       We have considered whether the findings of the Tribunal fall within the category described at (iii) above, so that the failure to give any reasons to support the figure of £63,000 and the imposition of joint and several liability should itself cause the Tribunal's findings to be set aside.  On the one hand the Tribunal was acting in a quasi-judicial manner which would point to the need to give reasons.  As against that, it had no power to make any decision.  Its role was essentially to establish the facts and make recommendations to the Committee.  The final decision lay with the Committee.  On balance we have concluded that fairness does not require that the mere failure to give reasons should result in the findings of the Tribunal being quashed.  However we think that its failure to give any reasons to support the recommendations referred to above was unfortunate and we will have regard to that failure when considering grounds (iii) and (iv) relied upon by the practitioners.

 

(iii) The Tribunal erred in finding that the minimum additional charge imposed on the Fund by reason of the practitioners' conduct was £63,000 and recommending that that amount be repaid and the Committee erred in confirming the recommendation.

 

30.       During the course of the hearing Mr. Le Quesne withdrew this ground of appeal in relation to the decision of the Committee.  We therefore consider it solely in relation to the report of the Tribunal.  In order to consider the point, it is necessary to rehearse briefly the history of the hearing before the Tribunal in relation to this particular issue. 

 

31.       In order to comply with the relevant rules, the complainant filed a "Statement of Facts and Grounds upon which the complainant relies".  Paragraph 2 was in the following terms:-

 

"That the conduct of the practitioners has created an unreasonable charge on the Health Insurance Fund." 

Particulars

Analysis of claims for HIE fees submitted by the practitioners shows the following:-

 

(a)     That for the calendar year 1989 the practitioners claimed HIE fees per patient of 267% above the average for practitioners in the island;

(b)     That for the calendar year 1990 the practitioners claimed HIE fees per patient of 720% above the average for practitioners in the island;

(c)     That for the calendar year 1991 the practitioners claimed HIE fees per patient of 360% above the average for practitioners in the island;

(d)     For the period 1st January 1992 to 31st March 1992 (the most recent available figures at the date hereof) the practitioners claimed HIE fees per patient of 50% above the average for practitioners in the island.

 

The practitioners claims for patient visits and associated services (particularly the use of injections) are excessive by comparison with the island averages and this without clinical or other justification.

 

The excessive cost to the Health Insurance Fund for the period 1st January 1989 to 31st March 1992 can be estimated as being approximately £69,680 calculated by reference to the average value of claims per patient for the island during the period mentioned (see Schedule A)."

 

32.       Subsequently particulars were filed which made it clear that the complainant was saying (rightly) that the test for whether a charge on the Fund was reasonable or not was whether the treatment given by the practitioners was clinically justified.

 

33.       In his opening address to the Tribunal in August 1993 Mr. Robinson, as counsel for the complainant, said this:-

 

"The Complaint goes on to say that the excessive cost to the Health Insurance Fund for the period 1st January 1989 to 31st March 1992 can be estimated as being approximately £69,680 calculated by reference to the average value of claims per patient for the island during the period mentioned.

 

Now those figures were as I say prepared up until the end of March 1992.  We have looked forward to the most recent available figures that are convenient to use and again one has to have a convenient cut off point and so Schedule A has been amended as you will see and the figures are now brought forward to the end of March of this year.  So you will see from Schedule A that the total has increased somewhat to just over £77,000.

 

These figures are only included to give an indication of how the what we would say excessive claims are translated into money -  what that means in money and of course one has to also bear in mind at the end of the day if you are satisfied that the complaint is well founded, some estimate will have to be made with regard to repayment."

 

34.       The next reference to the question of how quantum should be assessed is in the closing submission of the complainant in November 1994.  Counsel referred to the practitioners' suggested approach to quantum, namely that the Tribunal should add up the cost of each treatment which it found not to be clinically justified and therefore unreasonable.  He pointed out that this would be impossible because of the poor state of the practitioners' medical records and the comparatively limited information held in the departmental records of the Committee.  He suggested two possible approaches.  The first was, as previously, by reference to the level of charges from other medical practices in respect of HIE patients.  He said:-

 

"It is submitted that in estimating the cost, the Tribunal is entitled to bring its own knowledge and experience to bear on the question of whether the eight patients, or any of them, justified claims in excess of the average.  The Tribunal might form the view that none of the eight patients were exceptional and the worst cases amongst them might be found in any island practice dealing with HIE patients.  In that case, a reasonable practitioner with the same number of HIE patients as the practitioners and, including these eight patients, would not be expected to exceed the average level of claims.  In such a case, Schedule A to the Complaint (as amended) simply provides the Tribunal with a cost figure of £77,271 being the amount by which the practitioners' claims exceeded the average cost for all practices during the period of complaint being 1st January 1989 to 31st March 1993."

 

35.       He then, for the first time, put forward an alternative as follows:-

 

"Alternatively, the Tribunal may form the view that the eight patients, or some of them, would have led to the generation of clinically justifiable claims in excess of the average but not of the magnitude claimed by the practitioners.  It is difficult for the Tribunal to gauge how the eight patients compare in terms of cost unless the evidence contained in Bundle 3 (Dividers 14-21 inclusive) is translated into money terms. This exercise is attached as Schedule 3, being a calculation of how much the claims for each patient listed in Bundle 3 would have cost according to the rates applicable at the relevant time."

 

36.       Schedule 3, which was produced for the first time during the closing submissions, extracted from the core information before the Tribunal, the cost of all the treatment given to the patients who were the subject of the enquiry.  The total figure in Schedule 3 was £82,861.30.  Mr. Robinson did alert the Tribunal to the fact that the figures included services given to the patients by doctors other than the practitioners.  The complainant said in the submission that he did not advance a particular figure as being the appropriate amount to be repaid to the fund and left it to the Tribunal.

 

37.       Following the letter from Mr. Le Quesne dated 23rd November 1994 referred to earlier, the Tribunal convened a further hearing on the question of quantum.  In May 1995 the complainant produced an amended Schedule 3 and sent it to the practitioners.  This stripped out the work done by other doctors.  The figure for the eight patients was now £68,026.85.  Mr. Le Quesne accepted that the amended Schedule 3 was accurate in relation to patient A (who accounted for the major part of the figures) but said that he had not checked its accuracy in relation to the other patients, although he accepted that he had had an opportunity to do so. 

 

38.       At the hearing on 6th/7th September, submissions were made.  Unfortunately only parts of these submissions were recorded and therefore we do not have a full record of what was said.  Suffice it to say that Mr. Robinson appears to have referred to the amended Schedule 3 and to have gone through the figures for each patient in turn suggesting some adjustments or deletions which could be made to the figures in order to allow for treatment by the practitioners which was clinically justified.  Because part of the submissions were not recorded, it is not clear what total Mr. Robinson was suggesting should be deducted from the gross sum of £68,026 contained in the amended Schedule 3. 

 

39.       Mr. Le Quesne objected  to this course of action.  He said that the complainant had sought hitherto to quantify the claim by reference to the average figures.  The basis put forward by Mr. Robinson had been produced without notice that morning.  Because of the way the complainant had presented his case so far, the practitioners were not in a position to respond.  The amended Schedule 3 did not assist as it made no allowance for those visits and treatments by the practitioners which had been clinically justified.

 

40.       This objection was rejected by the Tribunal, which allowed Mr. Robinson to proceed and concluded that a figure of £63,000 was the appropriate sum to reflect the fees unreasonably charged.

 

41.       In essence, Mr. Le Quesne has maintained the same position before the Court.  He asserts that, in the written material to the Tribunal and in the opening submissions, the only basis put forward in respect of quantum was by reference to the excess costs of the practitioners over the average for medical practitioners generally in relation to HIE patients.  That sum was £69,680 at the commencement of the proceedings.  In the closing submissions the complainant had still invited the Tribunal to assess quantum on this basis although the amount had by now increased to £77,271 because the figures had been brought forward to 31st March 1993.  As an alternative the complainant had produced Schedule 3.  However that was a flawed document as it included remuneration for treatment given to the eight patients by other doctors.  Although the amended Schedule 3 remedied this defect, it still did not address the question of justified treatment.  It was accepted that some, if not all, of the patients were undoubtedly ill and required medical treatment of one form or another.  All the Tribunal had found was that the nature of the treatment given by the practitioners was to a substantial extent not clinically justified and therefore unreasonable.  However the practitioners were entitled to be reimbursed for that proportion of their visits and treatment which was clinically justified and was therefore reasonable.  It was up to the complainant to put forward a basis for assessing the costs of the reasonable treatment and for the Tribunal to adjudicate on that issue.  No attempt had been made by the complainant to undertake that task before the hearing of 6th/7th September when, for the first time, counsel for the complainant, in his oral submissions, suggested certain deletions from the gross figures in the amended Schedule 3.  No warning had been given as to the basis of these deductions and it was simply not possible for Mr. Le Quesne to meet this new case.  The hearing should have been adjourned for adequate notice of this new basis of calculation to be given, so as to enable the practitioners to have an opportunity of responding.  The proceedings were unfair.  In addition, because no reasons had been given, it was not clear whether the Tribunal had proceeded on the basis of Mr. Robinson's submissions or on some wholly different basis. 

 

42.       In response, Mr. Robinson accepted that Schedule 3 was only produced at the time of the closing submissions in November 1994 but said that it was drawn from core material (such as the HIE claim form, the "flip charts" etc.) which was before the Tribunal and available to the practitioners.  He accepted that work done by other doctors was included in Schedule 3 but this was pointed out to the Tribunal.  More importantly, the amended Schedule 3 cured this "deficiency".  Its accuracy was accepted by Mr. Le Quesne in relation to Patient A and he had had ample opportunity to check its accuracy in relation to the other patients.  Mr. Robinson submitted that Mr. Le Quesne became wedded to the idea that the complainant was relying upon the average rates for assessing quantum and did not prepare properly in relation to the amended Schedule 3.  He accepted that the deductions which he proposed should be made from the gross figures in the amended Schedule 3 to allow for justified treatment were put forward for the first time during his oral submissions on 6th September but said that they were taken from the evidence before the Tribunal.  They amounted only to submissions, not the production of new material or evidence.  It was counsel's duty to anticipate submissions made from evidence already before the Tribunal.

 

43.       In passing we note two subsidiary points raised by Mr. Le Quesne.  First he pointed out that, on page 6 of its report, the Tribunal, in connection with patient A, had clearly relied upon the original Schedule 3 rather than the amended Schedule 3.  In the absence of any reasons, said Mr. Le Quesne, one must assume that the Tribunal also relied upon the original Schedule 3, rather than the amended Schedule 3, in assessing quantum.  At any rate there was a substantial risk that it had done so.  In response, Mr. Robinson asserted that the reference to the original Schedule 3 was in the context of whether certain treatment was reasonable; i.e., using the analogy with a personal injuries claim, it was on the question of liability rather than quantum.  There was no reason to think that the original Schedule had also been used by the Tribunal when assessing quantum.  In any event, the last sentence on page 6 of the report showed that the Tribunal appreciated that visits and treatment by other practitioners had to be deducted from the original Schedule 3. 

 

44.       The second subsidiary point made by Mr. Le Quesne relates to the period covered.  In the original Statement of Facts and Grounds filed by the complainant, it is clear that the period relied upon was from 1st January 1989 to 31st March 1992 (see for example Schedule A attached to the Statement which calculates the excessive cost to the Fund compared with the average costs of all medical practices).  However the figures in both the original and the amended Schedule 3 were taken up to 31st March 1993, as were the figures for average costs.  The Tribunal had therefore dealt with a period outside that set out in what Mr. Le Quesne referred to as the pleadings.  In response Mr. Robinson referred to a letter from him to Mr. Le Quesne dated 2nd August 1993 when he enclosed an amended Schedule A updating the claim to 31st March 1993.  He also referred to a further letter dated 11th August 1993, which emphasised to Mr. Le Quesne that the figures had been brought forward a year to 31st March 1993.  Furthermore he referred to his opening statement to the Tribunal made on 23rd August 1993 and to the passage referred to in paragraph 33 above, which made it clear that the figures had been updated.  The Court is quite satisfied that the period covered by the complaint was amended before the hearing and that it had been made quite clear to Mr. Le Quesne and the practitioners that this was the case.  We therefore find no merit in this point.

 

45.       Returning to the main issue, we wish to emphasise that written material put before Tribunals of this nature to identify the issues and allegations is not to be treated in the same way as pleadings before a court of law, so that pleading points can be taken if parties depart from the exact detail of the pleaded case.  Tribunals are not courts of law.  The sole question in such cases is whether, taken as a whole, the procedure adopted is fair, so that the person who is the subject of the enquiry has had a clear idea of the case which he has to meet.

 

46.       We have concluded that, in relation to the assessment of the amount to be repaid, the procedure followed by the Tribunal was not fair to the practitioners.  It is clear that until the closing submission in November 1994, the practitioners acted perfectly reasonably in assuming that the complainant was seeking to assess quantum by reference to the average rates for HIE patients (we add in parenthesis that all are now agreed that this was not an adequate basis for assessing quantum).  During the closing submission, the complainant produced Schedule 3 without warning and, whilst not recommending one alternative or another to the Tribunal, offered it as a basis for the Tribunal to assess quantum as an alternative to the average fees basis.

 

47.       It was not a satisfactory basis because:-

 

(i)            it included work done by other doctors in relation to the patients; and

(ii)          it made no allowance for treatment by the practitioners which was reasonable.

 

48.       The first defect was cured when the amended Schedule 3 was produced in May 1995, but the second was not.  No indication was given to the practitioners as to how the amended Schedule 3 was to be used, nor whether the complainant had resiled from his position at the time of his closing submission that the question of quantum could be assessed by reference to average rates. 

 

49.       It was only during counsel's oral submissions on 6th September that a new basis for assessing quantum was put forward, namely making certain deductions from the gross figures in the amended Schedule 3 in order to allow for legitimate treatment.  We accept that we did not hear all the evidence and do not have the familiarity with the subject which the Tribunal must no doubt have had by that time, but we found it very difficult to understand from the transcript the exact basis and nature of the deductions which Mr. Robinson was proposing in relation to the amended Schedule 3.  We accept that it must have been very difficult for Mr. Le Quesne and the practitioners to respond to these points which were being put orally for the first time, and without warning, that morning.

 

50.       The sense of unfairness is added to by the lack of reasons.  How did the Tribunal fix upon the figure of £63,000?  Did it accept the amended Schedule 3 and agree the deductions suggested by Mr. Robinson?  Alternatively did it make some other deductions?  Did the Tribunal erroneously work from the original Schedule 3 as is suggested by their reference to the original Schedule in the report?  Did it revert to the average rate basis which had been relied upon by the complainant for so long?  The answer to all these questions is that we have no idea because the Tribunal has not explained how it reached the figure of £63,000.

 

52.       Taken in the round, we are satisfied that the procedure followed in this case was not fair to the practitioners as they were not given adequate opportunity to respond to the new basis upon which the complainant was inviting the Tribunal to assess quantum.  To this can be added the fact that the Tribunal did not give any reasons for its decision and the Court therefore has obtained no assistance in deciding whether this apparent lack of fairness was cured in any way.

 

53.       We wish however to emphasise one point.  During his submissions before us and before the Tribunal, Mr. Le Quesne was inclined to assert that any assessment of quantum would require a detailed analysis of every single treatment and visit in order to see if it dealt with clinically justified matters or not and that if, because of the inadequacy of the practitioners own medical records, the necessary detailed information was not available, his clients were entitled to the benefit of the doubt.  In extremis, if it was not possible to be certain of quantum, no award should be made.

 

54.       We do not accept this approach.  It will be for the complainant to set out the basis of assessing quantum upon which he relies and produce such material and evidence in support of it as is available.  Having considered the parties' submissions, the Tribunal will then have to do the best it can with the material before it.  It is often the case that, when assessing damages, a Court cannot be certain of the exact amount and has to make the best assessment it can in the circumstances.  The same goes for the Tribunal.  The fact is that the practitioners carried out a considerable amount of work which the Tribunal has found not to be clinically justified.  They were therefore overpaid by the Fund.  It is entirely just that they should have to repay the amount which they have been wrongly paid.  If the figure cannot be established to the last penny, the Tribunal will have to do the best it can with the material before it, taking a broad approach if that is all that can be done.  It will, however, need to explain the basis upon which it is proceeding.

 

55.       We emphasise that our decision involves no finding on whether the figure of £63,000 is right or wrong.  We have no way of judging that.  Our decision is based only upon the fairness of the procedure adopted by the Tribunal in reaching that figure.

 

(iv) The Tribunal and the Committee both erred in failing to distinguish between the practitioners and imposing joint and several liability.

 

56.       Mr. Le Quesne argued that Article 36 refers in its heading to disciplinary proceedings.  It provides that the doctor whose conduct has created the unreasonable charge is the only person who can be required to repay the additional charges caused by his conduct to the Fund.  One doctor cannot be ordered to pay for the wrongful conduct of another.  The only exception is where there is a partnership.  However there was no evidence of partnership in this case.  Without evidence of a partnership the Tribunal had to make discrete findings as to the additional charges caused by clinically unjustified treatment by Dr. Haley and Dr. Paul respectively.

 

57.       In response, Mr. Robinson said that there was indeed evidence of a partnership and it came from Dr. Paul himself.  He referred the Court to an extract from the transcript of Dr. Paul's evidence to the Tribunal where he said that he and his wife were in partnership together.  Furthermore the practitioners had drawn no distinction between themselves in the conduct of their practice.  Thus the claims for payment from the Fund were sometimes signed by Dr. Paul and sometimes by Dr. Haley.  Any particular claim form could include claims for treatment both by Dr. Paul and by Dr. Haley.  Thus Dr. Haley had signed claim forms in respect of treatment carried out by Dr. Paul as well as herself and vice versa.  In the space for "doctors stamp" on the claim form, the practitioners had inserted "Doctors H. Paul and J. Haley".  Thus they had drawn no distinction in respect of the treatment or the claims.  Payment was made to the practice and did not distinguish between the doctors and the treatment each had individually carried out. 

 

58.       Even if Mr. Le Quesne was technically correct (which Mr. Robinson did not accept), the Court should not in its discretion grant any relief.  No point had ever been taken on this aspect prior to the Court proceedings.  The practitioners had run a joint defence before the Tribunal.  At no stage had it been suggested that a distinction should be drawn between them.  The Tribunal recommended joint and several liability in respect of repayment.  Subsequently Mr. Le Quesne and the practitioners appeared before the Committee at its meeting on 24th January 1996 when the Committee was considering whether to confirm the recommendations of the Tribunal.  Despite raising a number of arguments in relation to the figure of £63,000 and the recommendation for payment, no point was taken concerning the recommendation that liability for the payment should be joint and several.  It was therefore too late for Mr. Le Quesne to raise the point for the first time before the Court. 

 

59.       The Solicitor General, on behalf of the Committee, supported Mr. Robinson's contentions.  She made two further points.  First she pointed out that not only had Mr. Le Quesne addressed the Committee orally at its meeting but he had followed this up with a written submission.  That submission made no point in relation to the recommendation of the Tribunal for joint and several liability.  Secondly she related the facts of the case to Article 36(1) of the Law.  Where a practice was run jointly, as here, with no distinction being made between which practitioner signed the HIE claim form, where one claim form was in respect of work done by either practitioner, and where payment was made to the practice, both parties were responsible for all the unreasonable charges and were therefore both liable to repay those charges.  Responsibility for the unreasonable charges was both in fact and law that of the practitioners jointly on the facts of this case.

 

60.       We remind ourselves that the provisions of Article 36(1)(b) of the Law are essentially compensatory.  Doctors who have been paid out of the Fund for work done that is not clinically justified should reimburse the Fund.  In this case the practitioners made no distinction between themselves.  They each signed claim forms in respect of treatment carried out by the other; payment was made to the practice; Dr. Paul gave evidence to the effect that they were in partnership.  We accept Mr. Le Quesne's assertion that the use by a layman of the term "partnership" does not necessarily prove conclusively that there was in truth a legal partnership but, taken together with all the other evidence that the practice was run as a joint practice without distinction between the two practitioners, we are satisfied that there was ample evidence of partnership and ample evidence upon which the Tribunal could recommend and the Committee could confirm that the liability should be joint and several.  We further agree with the Solicitor General's analysis of the application of Article 36(1)(b). 

 

61.       Although the Tribunal did not give any reasons for its recommendation that liability should be joint and several, the Committee did give reasons for confirming that recommendation, namely that the practitioners were running the business as a joint practice.  Given that neither the practitioners nor their advocate objected to this aspect of the Tribunal's recommendation, we do not think that any unfairness was caused by the Tribunal's failure to give reasons on this point.

 

62.       If we had thought that the ground was justified, we would nevertheless have agreed with Mr. Robinson and the Solicitor General that it is now too late for the practitioners to take this point, having failed to do so before the Tribunal or, more particularly, the Committee.

 

Conclusions

 

63.       Mr. Robinson and the Solicitor General argued that, even if we were to find in the practitioners' favour on any of the grounds, we should, in our discretion, not remit the matter to the Tribunal or to the Committee.  They asserted that there had been much delay on the part of the practitioners both in relation to the hearing before the Tribunal and the pursuit of these Court proceedings.  They were particularly critical of the failure of the practitioners to pursue these proceedings with despatch.  They also said that the practitioners had been guilty of misconduct in that they had been obstructive of the complainant's investigation and generally in relation to the hearing before the Tribunal, which had concluded that their evidence was simply not to be believed in many respects. 

 

64.       We accept that there is a discretion as to whether to grant a remedy in judicial review proceedings even where grounds for relief are made out.  We note the delay in this matter.  By their dilatory pursuit of these proceedings, the practitioners have come perilously close to persuading the Court not to grant them any remedy.  However Mr. Le Quesne has put forward various reasons to explain, if not entirely justify, the delay and we are persuaded on balance that the importance of ensuring a fair hearing outweighs the delay which has occurred.

 

65.       Accordingly we quash the finding of the Tribunal insofar (but only insofar) as it relates to the recommendation that the sum of £63,000 should be paid into the Fund as representing the amount estimated by the Tribunal to be that of the additional charges imposed on the Fund by the conduct of the practitioners.  We remit that aspect of the matter to the Tribunal for further consideration.

 

66.       The decision of the Committee concerning the sum to be paid was based upon the recommendation of the Tribunal, which we have been found not to have been reached fairly.  Accordingly we allow the appeal to that extent and remit the matter to the Committee for further consideration following any further recommendation of the Tribunal as to the amount which should be paid to the Fund by the practitioners.

 

67.       We appreciate the difficulties which face an ad hoc tribunal of this nature which is made up of busy practitioners, but it is clear to us that the hearing lasted far too long, with long gaps between sessions.  Although the health of Dr. Paul undoubtedly contributed to this, so did the availability of members of the Tribunal.  The matter must now be addressed with despatch.

 

68.       We do not see that it should be a lengthy process.  It will be for the Tribunal to decide for itself how to proceed but, in case it is of assistance, we would envisage that matters might well proceed by way of an early, but short, hearing for directions at which the Tribunal would give directions as to the procedure to be followed.  We would anticipate that all that would be needed would be for the complainant to be directed to file an appropriate statement setting out the exact basis upon which it would be inviting the Tribunal to assess quantum and any material to be relied upon in support of that assessment.  There is no reason why the timetable for this should be too generous.  At the directions hearing the date for the substantive hearing should also be fixed and every effort should be made to allow sufficient time for that hearing to proceed to completion in one sitting, without the need for adjournment to further dates, which would then have to be fixed.  This matter has gone on for far too long and, provided that it acts fairly, the Tribunal will find this Court supportive of any efforts which it makes to conclude these further hearings at the earliest opportunity.

Authorities.

 

Stefan v. General Medical Council (11th March 1999) Times Law Reports.

 

R v. Ministry of Defence ex parte Murray (17th December, 1997) Times Law Reports.

 

R v. Secretary of State for the Home Department ex p Doody (1993) 3 All ER 92 at 110e and 111a-c.

 

Peatfield v. General Medical Council (1986) 1 WLR 243.

 

Padfield v. Minister of Agriculture and Fisheries and Foods (1968) AC 997.

 

Fairview Farm Ltd-v-I.D.C. (30^th October, 1996) Jersey Unreported. CofA.

 

R-v-Westminster City Council, ex p Ermakov [1996] 2 All ER 302 C.A.

 

R.-v-Doncaster Metropolitan Borough Council ex p Nortrop (1996) 28 HLR 862.