The Judicial Committee of the Privy Council Decisions

Aaalamani v. General Medical Council (GMC) [2003] UKPC 8 22nd January 2003

Privy Council Appeal No. 74 of 2002

Dr. Hossain Aaalamani Appellant

v.

The General Medical Council Respondent

FROM

THE COMMITTEE ON PROFESSIONAL

PERFORMANCE OF THE GENERAL MEDICAL COUNCIL

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ORAL JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL UPON A PETITION

TO DISMISS AN APPEAL FOR NON-PROSECUTION

Delivered the 22nd January 2003

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Present at the hearing:-

Lord Millett

Lord Browne-Wilkinson

Sir Andrew Leggatt

[Delivered by Lord Millett]

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1. This is a petition by the respondent, the General Medical Council ("GMC"), for the dismissal of Dr Aaalamani's appeal for non-prosecution by reason of his failure to lodge his Case within the time limited. Dr Aaalamani's appeal is against a direction by the GMC's Committee on Professional Performance, given on 3rd September 2002, that for a period of three years Dr Aaalamani's registration should be subject to a number of conditions.
2. The background is that in February 2001 the GMC's attention was drawn to concerns about Dr Aaalamani's professional performance as a locum consultant in psychiatry at Whitchurch Hospital in the Cardiff and District Community NHS Trust. In October 2001 Dr Aaalamani agreed to undergo an assessment of the standard of his professional performance by an Assessment Panel appointed by the GMC. The assessment was carried out in January and February 2002. Two consultant psychiatrists were members of the Panel, Dr Lowe and Dr Fowlie. They reported their concerns at the standards of Dr Aaalamani's performance and in March 2002 the Interim Orders Committee imposed conditions on his practice as an interim measure, as they thought for the protection of the public. Dr Aaalamani has applied for judicial review of that decision but that issue is not before their Lordships. Subsequently the Assessment Panel found that Dr Aaalamani's professional performance was seriously deficient, in particular in core psychiatric skills, knowledge of legal procedures in mental health, and his ability in case studies.
3. The case co-ordinator referred the case to the Committee on Professional Performance and Dr Aaalamani was notified of the referral. On 6th August 2002 the GMC wrote to him by letter which was posted by special delivery which notified him of the referral to the Committee on Professional Performance for a performance hearing to take place on 3rd September 2002 at the Council's offices.
4. On 16th August a firm of solicitors, Messrs. Wellbeck Anin, wrote to the Committee on Professional Performance thanking them for their letter of 6th August together with the enclosures. It follows from the reference to the letter of 6th August that Dr Aaalamani's solicitors had received a copy of the letter notifying him of the date of the hearing. It is an obvious inference that they received the copy from him. The solicitors informed the Council that they had informal discussions with Dr Aaalamani at the beginning of August and that he had informed them that he was going abroad. They did not know the date of his return but thought that he would still be out of the country on 3rd September. They appeared, at that stage, to be out of contact with him. The GMC replied to the solicitors to say that the Chairman of the Professional Performance Committee had decided nevertheless that the hearing would go ahead on 3rd September but that it would be open to Dr Aaalamani to request an adjournment on the first day of the hearing. Thus Dr Aaalamani must have been aware of the date of the hearing but had gone abroad, no doubt for good personal reasons, as he has explained to the Board this morning and with which their Lordships sympathise, but had not left any instructions to ask for an adjournment on the date of the hearing.
5. The hearing went ahead. Dr Aaalamani was not present. The solicitors did not attend to ask for an adjournment and Dr. Aaalamani had not written to ask for an adjournment. The first question the Committee had to consider was whether Dr Aaalamani had been notified of the date of the hearing. They were shown the correspondence which provides evidence that he had been notified of the date of the hearing because he had passed the relevant letter on to his solicitors. They also had evidence from the special delivery tracking service of Consignia to show that the special delivery letter addressed to Dr Aaalamani had been delivered. Accordingly there was evidence upon which they could conclude, as they did, that he was aware of the date of the hearing. They then proceeded to hear the evidence which was opened to them in considerable detail and reached the conclusion that, as found by the Assessment Panel, his standards of professional performance fell below what was required. In order to give him an opportunity to demonstrate that he was capable of achieving the necessary improvements in his standards the Committee directed that for a period of three years his registration should be conditional upon compliance with certain requirements. There were a number of conditions; it is not necessary to go through them all but two of particular importance were that he was to complete a programme of structured retraining under the educational supervision of a trainer approved by the Post Graduate Dean and he was to confine his medical practice to National Health Service hospital training grade posts where his work would be closely supervised by a consultant approved by his trainer.
6. On 30th September, after he had discovered what had happened, he lodged an appeal to the Board. On 21st October the Record of the proceedings was delivered by the GMC to Dr Aaalamani. The Registrar granted a seven-day extension of time for the lodging of the parties' respective Cases. On 25th November 2002, the last day of that period, the respondent's Case was lodged, but Dr Aaalamani's Case was not lodged. It has not yet been lodged. On 29th November the GMC were informed by the Registrar that Dr Aaalamani's Case had not been lodged and on 23rd December the GMC petitioned to dismiss the appeal.
7. Dr Aaalamani has appeared before the Board to explain the reasons for his failure to lodge his Case. He says that he is unable to do so because he has not obtained access to his files. He says that he requires the whole of his files in order to prepare his appeal. It appears from this that what he really wants to do - and he confirmed this in his argument before the Board – is to challenge the underlying findings of the Assessment Panel. Their Lordships attempted to explain to him that that would not be possible before the Board, that the time for challenging those findings was before the Professional Performance Committee, and that the Board will not retry the case which was heard by the Professional Performance Committee. Dr Aaalamani's proper course was to apply to the GMC for a rehearing. Their Lordships are not recommending in any way that he should do so because he would need good grounds for asking for a rehearing. But only the GMC can examine Dr Aaalamani's standards of performance. It is not the function of the Board to do so.
8. Their Lordships have considered the papers carefully to see whether there might be any point of law which it would be open to Dr Aaalamani to argue before their Lordships in the course of an appeal but they are unable to discern any, either from the papers which they have seen or from the Record of proceedings below, and their Lordships have been told by counsel for the GMC that in the voluminous correspondence between the parties the Council and its legal representatives have not been able to detect a ground of appeal upon which Dr Aaalamani could properly rely. In those circumstances their Lordships will humbly advise Her Majesty that the petition should be granted and the appeal accordingly dismissed. The appellant must pay the respondent's costs.