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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Toth & Anor, R (On The Application Of) v General Medical Council [2000] EWHC Admin 361 (23 June 2000) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2000/361.html Cite as: [2000] 1 WLR 2209, [2000] EWHC Admin 361 |
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CO/2226/98 |
Royal
Courts of Justice
Strand
London WC2A 2LL
23rd June 2000
r
e
EX PARTE
ARPAD
TOTH
Toth
") for judicial review of
two decisions ("the Decisions") of the respondent ("the
GMC
"), the first dated
the 23rd March 1998 ("the First Decision") and the second dated the 23rd July
1998 ("the Second Decision"). Mr
Toth
made a complaint ("the Complaint") to
the
GMC
against his general practitioner Dr Jarman. Under the rules governing
the conduct of disciplinary proceedings by the
GMC
, the General Medical Council
Preliminary Proceedings Committee and Professional Conduct Committee
(Procedure) Rules Order 1988 ("the Rules") made under the Medical Act 1983
("the Act"), complaints against registered medical practitioners
("practitioners") have to go through and survive two filters or processes of
examination before they are heard by the Professional Conduct Committee ("the
PCC"). The first is examination by a member of the
GMC
, (colloquially and
hereinafter referred to as a "screener") to decide whether the complaints "need
not proceed further". If the screener does not so decide, the Preliminary
Proceedings Committee ("the PPC") must then decide whether the complaints
"ought to be referred for inquiry" to the PCC. Only if the PPC does so decide
do the complaints then proceed before the PCC. By the Decisions the screener
decided that the Complaint did not need to be investigated. By this
application Mr
Toth
challenges the legality of the Decisions. Critical for
this purpose is the statutory role of the screener. After these proceedings
were commenced, the
GMC
recognised and accepted that the Decisions are bad
in
law and was agreeable that they should be quashed. But Dr Jarman, who is
entitled as an interested party to address the Court on this application,
though he accepts that the Decisions are bad
in
law, submits that the Court
in
its discretion should not quash the Decisions because to do so would be to
inflict an injustice upon him. The first task before me is accordingly to
decide whether
in
my discretion I should quash the Decisions. If I do decide
to quash the Decisions, the Complaint must to go back to another screener.
There are however continuing disputes between the parties as to the true
construction of the Rules
in
two regards, namely the role of the screener and
the power of the
GMC
to impose obligations of confidentiality on Mr
Toth
as a
condition of supplying him with documents available to the screener.
In
order
to reduce the risk of occurrence of any further error by the
GMC in
relation to
the Complaint if I decide that the Decisions are to be quashed, my second task
is to provide some guidance on these two areas of contention.
Toth
, who
suffered from glycogen storage disease, became hypoglycaemic. Mr
Toth
called
his doctor, Dr Jarman, and he made a home visit. The central complaint of Mr
Toth
is that he and his partner told Dr Jarman of Wilfred's condition and of
his urgent need for intravenous glucose but that Dr Jarman failed promptly to
realise (as he should have done) that Wilfred required intravenous glucose and
instead treated him with sedative drugs. Dr Jarman denies that he was so
informed by Mr
Toth
or his partner. Mr
Toth
alleges that his untreated
condition led to the death of Wilfred on the 16th October 1993,
In
January 1994 Mr
Toth
complained to the Family Health Services Authority
("FHSA") that by his conduct Dr Jarman had committed a breach of his terms of
service as a general practitioner
in
the care provided to Wilfred. On the 5th
March 1994 the FHSA conducted a full oral hearing at which both Mr
Toth
and Dr
Jarman gave evidence. The FHSA found that Dr Jarman was
in
breach of the terms
of service
in
failing to take account of Mr
Toth
's knowledge of Wilfred's
condition, but no sanction was imposed.
In
January 1995 Mr
Toth
's solicitors
wrote to Dr Jarman a letter before action threatening legal proceedings
in
respect of Wilfred's death and on the 8th October 1996 commenced proceedings
in
the County Court for damages under the Fatal Accidents Acts. (On the 7th
January 1998 Dr Jarman paid £10,500 into Court
in
respect of this claim
which Mr
Toth
accepted on the 27th February 1998). On the 14th October 1996 Mr
Toth
(
in
person) issued High Court proceedings against Dr Jarman claiming
damages for pathological grief reaction resulting from Wilfred's death. (The
High Court struck out this application as an abuse of process on the 14th April
1998). On the 25th July 1997 Mr
Toth
made the Complaint to the
GMC
alleging
that
in
the care provided to Wilfred on the 9th October 1993 Dr Jarman had been
guilty of serious professional misconduct. The
GMC
only notified Dr Jarman of
the Complaint on the 22nd December 1997. Dr Jarman sent his comments on the
Complaint to the
GMC
on the 27th January 1998. On the 23rd March 1998 the
screener made the First Decision not to refer the Complaint to the PPC. He
wrote to Mr
Toth
:
GMC
works to, by law, is that of
`beyond reasonable doubt' ... Therefore, unless you are able to provide
further evidence of a legal standard ... the members have concluded that there
is no prospect of your allegations being proved to the required standard, and
no further action can be taken."
Toth
could not be provided with copies of
Dr Jarman's comments on the Complaint without Dr Jarman's consent, which he
would seek. Dr Jarman was informed of the First Decision. On the 25th March
1998 Dr Jarman refused his consent to disclosure of his comments because of the
two sets of proceedings commenced by Mr
Toth
against him. On the 10th June
1998 Mr
Toth
who was distraught at the Decisions, the attitude taken by the
GMC
and the pace of the investigation, filed his Notice of Application for
permission to apply for judicial review
in
respect of the First Decision.
Toth
, made the Second Decision reaffirming the First
Decision that no question of serious professional misconduct arose. Again Dr
Jarman was notified of this decision. Mr
Toth
amended his Notice of
Application to challenge the Second Decision also. On the 28th August 1998,
the President of the
GMC
wrote to Dr Jarman informing him of the judicial
review proceedings and that after taking legal advice he was provisionally of
the view that the
GMC
had not followed the correct procedures
in
reaching the
Decisions and that they were legally flawed. Most particularly
in
respect of
the First Decision it was not the role of the screener to resolve conflicts of
evidence; and
in
respect of the Second Decision the screener had no
jurisdiction to reconsider the Complaint after the First Decision had been
made. (I may add that, as will be apparent when I turn to the Rules, the
screener also had no jurisdiction to make the Second Decision because no lay
member concurred
in
it). He added that he was minded that the
GMC
should
consent to an order being made
in
the judicial review proceedings quashing the
Decisions and directing that the Complaint be considered afresh by a different
member (and lay member if necessary), but he invited Dr Jarman's observations
before a decision was made.
GMC
correctly followed its own procedures, but asked to
be advised of the outcome of this unfortunate development as soon as possible.
On the 19th November 1998 the President confirmed the conclusion provisionally
expressed
in
the letter dated the 28th August 1998. On the 21st December 1998
Collins J on the papers granted permission to apply for judicial review
stating: "It is difficult to understand how the assertion that there is a lack
of evidence can be justified." The application thereafter proceeded. Dr
Jarman intervened and evidence was served on behalf of Mr
Toth
, the
GMC
and Dr
Jarman. The application was listed for hearing on the 2nd November 1999, but
on the initiative of Mr
Toth
and with the consent of the
GMC
and Dr Jarman (and
no doubt entirely sensibly) the hearing was adjourned to enable negotiations
for settlement to take place. The matter was then relisted for hearing on the
14th June 2000.
In
principle terms have been agreed between Mr
Toth
and the
GMC
which include the making of a consent order quashing the Decisions and
directing a reconsideration by a different screener, but (as I have indicated)
certain questions remain between them relating to the construction of the Rules
requiring resolution before the final terms can be formulated. Dr Jarman
however, whilst acknowledging that the Decisions were legally flawed, maintains
that the Court should not exercise its discretion to make any order because to
do so would be unfair to him. Dr Jarman continues to be fully registered and
to practise.
in
judicial review proceedings if
in
all the circumstances it is
just and convenient to do so. The general principle is well established that
if an applicant establishes
in
judicial review proceedings that the decision
which he challenges is bad
in
law, he should be granted relief, and most
particularly an order quashing that decision, unless there are strong reasons
in
public policy for refusing relief or unless to quash the decision would
occasion so great an injustice either to the respondent or to a third party as
to require some other course to be taken. Dr Jarman submits that quashing the
Decisions and requiring the
GMC
once again to entertain the Complaint would
occasion such injustice to him. Dr Jarman argues that Mr
Toth
has already
sought vindication
in
proceedings against him before the FHSA, the County Court
and High Court and obtained a judgment
in
the County Court which Dr Jarman has
satisfied, and that
in
the circumstances he has no interest or no substantial
interest
in
further prosecuting the Complaint. He points out that the
Complaint was only made close to four years after the home visit; that on two
occasions the
GMC
has informed Dr Jarman that the Complaint was not to be
investigated further and that Dr Jarman was
in
nowise responsible for the error
of the
GMC
which invalidated the Decisions. He refers to the evidence which
establishes that the death of Wilfred has seriously affected him and his health
and that the stress has been particularly aggravated by the action of the
GMC
in
first notifying him of decisions not to proceed further with the Complaint
and then re-opening the whole issue. It is however not suggested that his
condition amounts to impairment of fitness to practise, but it does severely
impair the quality of his life and affects his professional activities. He
adds that, if the Decisions are quashed, (assuming the screener and PPC allow
the Complaint to proceed to the PCC), the PCC will be investigating events that
happened some 9 years earlier and the time period before the hearing before the
PCC is likely to be concluded is 2 to 3 years from today. His complaint
against Mr
Toth in
respect of the delay is
in
respect of the period that
elapsed before he made the Complaint and that it was on his initiative (albeit
with Dr Jarman's consent) that the hearing was adjourned for 7 months
in
November 1999. He submits that there is no need for the Complaint to proceed
further and that
in
any event it is clear that at worst Dr Jarman was guilty of
an excusable and understandable clinical misjudgment (and possibly negligence)
and no real case exists for alleging serious professional misconduct.
In
my judgment, Mr
Toth
as the father of Wilfred does have substantial and
continuing interest
in
obtaining a proper investigation of the Complaint, and
there has been no conduct on his part (let alone culpable delay) disentitling
him from obtaining it. The Rules allowed him to delay making the Complaint
until the 25th July 1997 and that delay cannot affect his legitimate
expectation that the Court will require the
GMC
(after two faulty starts) to
proceed with its investigation according to the Rules. I cannot predict the
outcome of the investigation: that is not my role and
in
any event the evidence
is not all one way. There are two victims of the serious and disturbing
failures of the
GMC
to follow its correct procedures
in
investigating the
Complaint, namely Mr
Toth
and Dr Jarman. The adverse effects on his health and
the stress occasioned to Dr Jarman are indeed serious and matters of grave
concern. I have
in
mind
in
particular the effect of the
GMC
twice telling him
that the investigation was at an end and then (
in
effect) resiling from this,
the unduly lengthy and painful period of the investigation into the past and
(if relief is granted) the long road ahead
in
the future. His professional
reputation will continue to be under a cloud until a final decision is reached.
But I do not think that these considerations outweigh the legitimate interest
of Mr
Toth
(and of the public)
in
obtaining
in
accordance with the Rules the
investigation into the circumstances surrounding the death of Wilfred which Mr
Toth
requested as long ago as the 25th July 1997. No doubt the
GMC
,
in
view of
the unfortunate history of this matter, will seek to make up for its past
errors by expediting the procedures
in
this case so far as this can be done
with the proper regard to the need of the parties for sufficient time to
prepare, and no doubt the suffering
in
the intervening period by Dr Jarman may
be taken into account by the PCC if the matter gets that far. But
notwithstanding considerable sympathy for the hardship occasioned to Dr Jarman
by quashing the Decisions, I consider that the right course must be to quash
the Decisions and remit the Complaint to a different screener.
GMC
is regulated by the Act. Section 1(3) of the Act provides (amongst
others) for three committees of the
GMC
, namely the PPC, the PCC and the
Health Committee ("the HC"). Section 2 provides for registration by the
GMC
of
medical practitioners. Section 2(3) provides that medical practitioners shall
be registered as fully or provisionally registered or with limited
registration. Section 36(1) provides that, when a fully registered person is
judged by the PCC to have been guilty of serious professional misconduct, the
PCC may direct that his name be erased from the register or that his
registration be suspended or that his registration be conditional on compliance
with conditions imposed by the Committee "for the protection of the public or
in
his own interests". Section 37 provides that, when the fitness of a fully
registered person is judged by the HC to be seriously impaired by reason of his
physical or mental condition, the HC may direct that his registration be
suspended or conditional on compliance with requirements imposed "for the
protection of members of the public or
in
his interests". Section 42 provides
that the PPC shall have the duty of deciding whether any case referred to it
for consideration ought to be referred for inquiry to the PCC or the HC; and
in
any case which it decides ought to be so referred it may make an Order for
interim suspension or interim conditional registration. Section 43 provides
that Schedule 4 shall have effect
in
respect of proceedings before the PCC, the
PPC and the HC. Section 45 sets out the privileges of registered
practitioners. Schedule 4
in
paragraph 1 provides that the
GMC
shall makes
rules for the PCC and the HC and the reference of cases to them by the PPC or
otherwise; and
in
paragraph 4 that where
in
the course of an inquiry into the
case of a practitioner it appears to the PCC that his fitness to practise may
be seriously impaired by reason of his physical or mental condition, the PCC
may refer that question to the HC for determination and the HC shall thereupon
determine this question and certify their opinion to the PCC; and if they shall
certify their opinion that the practitioner's fitness is seriously impaired,
the HC shall proceed to dispose of the case and the PCC shall cease to exercise
their functions
in
relation to the case.
in
writing is received by
the Registrar and "it appears to him that a question arises whether conduct of
a practitioner constitutes serious professional misconduct" he shall refer the
matter to the screener.
in
default of the President acting as
such medical member, the President may nominate the medical member and shall
also nominate a lay member to assist the medical member.
in
support thereof ...
in
support thereof) he shall direct that the complainant be so informed, provided
that no such direction shall be made except with the concurrence of the lay
member appointed under rule 4(5)."
in
any case relating to conduct [the screener] decides not to refer the
case to the [PPC] under paragraph (2), a complainant, informant or practitioner
shall be notified of that decision, but
in
private and Rule 16 that,
where the PPC have decided not to refer a case for inquiry, no complainant or
practitioner shall have any right of access to any documents relating to the
case submitted to the Council by any other person nor shall the PPC be required
to state reasons for their decisions.
GMC
, for any party to require any other party to produce relevant
documents and for a conventional form of trial procedure. The hearing is
in
public and a shorthand note is required to be taken of the proceedings.
in
the Act and Rules to which I have referred are designed
to protect the public from the risk of practice by practitioners who for any
reason (whether competence, integrity or health) are incompetent or unfit to
practise and to maintain and sustain the reputation of, and public confidence
in
, the medical profession. The public have higher expectations of doctors and
members of other self governing professions, and their governing bodies are
under a corresponding duty to protect the public against the incompetent as
well as the deliberate wrongdoer; serious professional misconduct includes
serious negligence; and whether the treatment of a patient constitutes serious
professional misconduct is to be judged by the proper professional standards
in
the light of the objective facts about the individual patient: see
McCandless
v
.
GMC
[1996] 1 WLR 169. The Act and Rules set out to provide a
just balance between the legitimate expectation of the complainant that a
complaint of serious professional misconduct will be fully investigated and the
need for legitimate safeguards for the practitioner, who as a professional man
may be considered particularly vulnerable to and damaged by unwarranted charges
against him.
in
writing and on its face the complaint raises
a real question whether the conduct of a practitioner constitutes serious
professional misconduct, he is duty bound to refer the matter to the
screener.
in
the context
in
which the words are
used. The context includes the following matters:
GMC
cannot waive, at any rate without
the informed consent of the practitioner (see
R v
.
GMC ex parte
Stewart
8 October 1997 unreported);
in
no position to respond, let alone fully;
in
the language used spelling
out their respective duties.
In
the case of the screener his duty is to decide
whether the matter "need not proceed further" (see Rule 6(3)); but
in
the case
of the PPC the duty is to decide whether the case "ought to be referred for
inquiry by the PCC or HC" (see Section 42(3)).
in
language between Rule 6(3) and Section 42(3) confirms
the obvious fact that the roles of the screener and PPC cannot be intended to
duplicate each other, and that decisions are not intended to be made by the
screener which the PPC (if necessary, after invoking their powers to
investigate further) may be better equipped to make. The screener does not
have the task of deciding whether the complaint "ought to proceed further" (the
role of the PPC), but to decide whether a negative state of affairs exists,
namely whether the complaint need not proceed further (as
in
the ordinary
course it would) to the PPC: the only conclusion on the merits of the complaint
required of him before he allows the complainant to proceed is that (as the
screener is required to inform the practitioner) the matters stated "appear to
raise a question whether the practitioner has committed serious professional
misconduct".
in
the maintenance of standards and the investigation of
complaints of serious professional misconduct against practitioners; (b) public
confidence
in
the
GMC
and the medical profession requires, and complainants
have a legitimate expectation, that such complaints (
in
the absence of some
special and sufficient reason) will be publicly investigated by the PCC; and
(c) justice should
in
such cases be seen to be done. This must be most
particularly the case where the practitioner continues to be registered and to
practise.
in
his view ought not to proceed
further, but those which he is satisfied (for some sufficient and substantial
reason) need not proceed further. For this purpose he must be satisfied of a
negative, namely that the normal course of the complaint proceeding to the PPC
need not to be followed. The assumed starting point is (1) above and the need
referred to is the need to honour the legitimate expectation that complaints
(
in
the absence of some special and sufficient reason) will proceed through the
PPC to the PCC. The absence of "need", of which the screener must be satisfied
before he can halt the normal course of the complaint to the PCC, connotes the
absence of any practical reason for the complaint so proceeding and that for
the complaint to proceed to the PCC would serve no useful purpose. There may be
no need because there is nothing which
in
law amounts to a complaint; because
the formal verification is lacking; because the matters complained of (even if
established) cannot amount to serious professional misconduct; because the
complainant withdraws the complaint; or because the practitioner has already
ceased to be registered. Wider questions as to the prospects of success of the
complaint as to whether the complainant is acting oppressively or as to the
justice of the investigation proceeding further do not lie within the
screener's remit. So far as they may go to the issue whether the complaint
ought to proceed they fall within the remit of the PPC. It is not for the
screener to arrogate to himself the role of the PPC and decide whether the
complaint ought to proceed further, still less to arrogate to himself the role
of the PCC and weigh up conflicting evidence or judge the prospects of success.
He must respect the role assigned by the Rules to the PPC (for which the PPC is
armed with investigative powers) and recognise that his duty is only to act as
a preliminary filter before the more substantive role as filter is exercised
by the PPC. Counsel for the
GMC
and Dr Jarman,
in
support of their submission
that the role of the screener goes far beyond this, rely on a passage
in
the
judgment of Collins J (at p.20)
in
R v GMC ex
p. White (unreported 18th
March 1997).
In
that judgment Collins J sets out the passage
in
the evidence
of the screener
in
that case setting out the approach which he considered the
screener ought to adopt and which the parties
in
that case accepted as
impeccable. This reads as follows:
in
general
terms I form my opinion by assessing the seriousness of the complaint and the
strength of the evidence. Factors to be included (
in
no particular order) are:
the gravity of the doctor's act or omission, whether there is more than one
event or alleged victim; the extent of the risk to members of the public,
whether the doctor's actions were deliberate, reckless or accidental, whether
the doctor has neglected or negated his professional responsibilities, the
detail and nature of the evidence and the length of time since the relevant
events occurred.
In
some circumstances it may also be relevant for me to
consider whether the doctor has any past history of misconduct with the
GMC
.
If I am
in
doubt whether or not a matter should proceed I will always decide
in
favour of proceeding further."
in
that case was whether the screener had complied with the
guideline which he had set himself. Collins J did not need to, nor did he
in
fact, express approval of that approach as the approach required by the Rules:
that issue was not before him. I do not think that the approach adopted is
correct.
in
the context of a scheme under which the complainant
has no right to the practitioner's comments on the complaint or other material
put before the PPC, and a scheme of which the central feature is the
investigation of complaints by the PCC before whom alone there is full
disclosure of documents and evidence and a form of hearing where the
complainant (and public) can see, and be reassured by seeing, the proper
examination of the merits of the complaint. The PPC may examine whether the
complaint has any real prospect of being established, and may itself conduct an
investigation into its prospects, and may refuse to refer if satisfied that the
real prospect is not present, but it must do so with the utmost caution bearing
in
mind the one-sided nature of its procedures under the Rules which provide
that, whilst the practitioner is afforded access to the complaint and able to
respond to it, the complainant has no right of access to or to make an informed
reply to that response, and the limited material likely to be available before
the PPC compared to that available before the PCC. It is not its role to
resolve conflicts of evidence. There may be circumstances which entitle it to
hold that the complaint should not proceed for other reasons, but the PPC must
bear
in
mind its limited (filtering) role and must balance regard for the
interests of the practitioner against the interests of the complainant and the
public and the complainant and bear
in
mind the need for the reassurance of the
complainant and the public that complaints are fully and properly investigated
and that there is no cover-up.
In
the case of the PPC (as
in
case of the
screener) any doubt should be resolved
in
favour of the investigation
proceeding.
In
the exercise of their respective jurisdictions the screener and PPC
should be particularly slow
in
halting a complaint against a practitioner who
continues to practise; as opposed to one who has since retired, for the
paramount consideration must be the public's protection
in
respect of those
continuing to practise; and they should at all times bear
in
mind the role of
the HC whenever questions arise of impairment of fitness to practise by reason
of physical or mental condition.
GMC
properly acknowledges the responsibility that
its practices and procedures should (so far as possible) be transparent and to
this end it has decided to adopt a new form of practice as from the 1st July
2000. This is set out
in
a letter dated the 19th June 2000 addressed to me by
the
GMC
which (so far as material) reads as follows:
In
relation to complaints received by the
GMC
after 1 July 2000, any material
submitted by the doctor to the Screener, before the Screener makes his final
decision under Rule 6, will be copied to the complainant unless the Screener
considers that there are `exceptional circumstances' which ought properly to
preclude this.
in
an all or nothing situation. He has the discretion: (a) to allow
disclosure if accompanied by a cross-undertaking; and/or (b) to allow
partial/edited disclosure."
In
anticipation of this change of practice the
GMC
has agreed with Dr Jarman
and Mr
Toth
that much of the documentation to be put before the new screener
shall be disclosed to Mr
Toth
, but an issue cannot be resolved by agreement,
namely whether a confidentiality obligation can be imposed on Mr
Toth in
respect of certain confidential medical material relating to Dr Jarman's
health. It is incumbent on me to resolve this issue. It goes without saying
that I am not concerned to consider whether, and if so how far, this material
can be relevant to any decision to be made by the screener: it is not apparent
to me that it is.
GMC
is not bound to make such disclosure to a complainant of
material put before the screener, it is not precluded by the Rules from doing
so and accordingly it is free to do so at any rate unless precluded from doing
so by a confidentiality obligation owed to the party supplying the material.
The issue raised is whether, as a condition of voluntarily making disclosure to
Mr
Toth
of confidential medical evidence relating to the health of Dr Jarman
and accordingly of material which Dr Jarman has every reasonable ground to wish
should remain confidential, the
GMC
can insist on Mr
Toth
providing an
undertaking of confidentiality. Mr
Toth
submits that, as the
GMC
has no
statutory power to exact such an undertaking, it cannot require such an
undertaking as a condition of making voluntary disclosure. I reject this
submission. The statutory power to require an undertaking is only relevant
where there is a statutory obligation to make disclosure. There is no such
obligation.
In
the absence of such statutory obligation, if the
GMC
voluntarily
in
accordance with the principles of fairness decides that
in
principle disclosure should be made, it is entirely free to impose conditions
which likewise accord with the principles of fairness.
In
my view
in
insisting
on respect being afforded by Mr
Toth
for the confidentiality of the medical
evidence relating to Dr Jarman's health, the
GMC
is acting entirely properly.
To do otherwise would be calculated to discourage practitioners from submitting
relevant, but confidential, material to the
GMC
for consideration by the
screener. Mr
Toth
has no legitimate ground for objecting to furnishing the
undertaking: he can only legitimately require to see and use the material for
the purposes of the hearings before the screener and (if the matter proceeds
further) before the PPC. I accordingly hold that the
GMC
is entitled as a
condition of making the material available to him to require Mr
Toth
to give an
undertaking of confidentiality limiting the use and disclosure to use for the
purposes which I have referred to.
in
this
judgment. I also hold that the
GMC
is entitled to require of Mr
Toth
an
undertaking of confidentiality
in
respect of any confidential medical evidence
adduced by Dr Jarman before the screener as a condition of supplying the same
to him.
in
the judgment which I have
handed down, I shall quash the decisions of the General Medical Council.
GMC
will pay your
costs.
Toth
's costs, subject to discount
in
relation to the MDU. What I say is that
Mr
Toth
recovers costs
in
part as a result of the application by Miss O'Rourke
on behalf of Dr Jarman resisting relief at all. That application was defeated
and therefore the
GMC
should not have to pay the entirety of Mr
Toth
's
costs.
GMC
and they are matters which really have been
brought to public attention (if I may use that expression) by virtue of the
decisions themselves. Those matters had, sensibly, to be resolved on this
application, had they not? What I am suggesting to you is that, as I say
in
my
judgment, Dr Jarman as well as Mr
Toth
is a victim of those decisions. It
seems to me somewhat hard that
in
those circumstances Dr Jarman should have to
pick up any of the costs.
Toth
's costs. What I
do say is that the issues, as your Lordship has indicated, range wider than the
screener test and the undertaking issue into the question of whether any relief
should be granted at all. As soon as the MDU was on record, as it was last
August, saying that that was going to be its position, there was going to have
to be a hearing. At least half of the hearing was devoted to the question of
relief and I say therefore that it would be equally harsh for the
GMC
to have
to pick up the entire tariff
in
respect of Mr
Toth
's costs. That is the way I
put it.
Toth
's costs. As your Lordship held
in
judgment, and
indeed as I submitted, there are two victims of the
GMC
's failures. Your
Lordship has described those failures as serious and disturbing. Dr Jarman has
already faced the position that he has twice been told by the
GMC
that he is
in
the clear and then he has had to face these proceedings.
In
my submission, it
is legitimate that he did intervene
in
circumstances where they were minded to
go ahead, ignoring his interests, your Lordship has recognised that he did have
an interest. Indeed, the question of discretion always falls to be considered
in
the granting of relief. My Lord,
in
those circumstances, when the parties
were going to have to come before the court anyway and there were substantial
issues between them, where the whole mess has been created
in
the first place
by the actions of the
GMC
,
in
my submission, it would be wrong to punish Dr
Jarman any further by asking him to pay costs when he is already going to pay
the costs of the
GMC
's mistakes
in
terms of its impact on him. My Lord, that
is what I have to say on having to contribute to Mr
Toth
's costs. I say it is
only right and proper that the
GMC
should pay those.
GMC
should pay some of those costs, and certainly
in
respect of other
issues arising
in
respect of (inaudible) etc, but I do not
in
fact make
that application. My Lord,
in
those circumstances I say there is all the more
reason why
in
the circumstances should not be ordered to pay some of Mr
Toth
's
costs.
In
all the circumstances of this case I think justice is
properly done if I merely direct that the
GMC
should pay the entirety of Mr
Toth
's costs. I recognise that part of the hearing was taken up with the issue
raised by Dr Jarman as to whether or not the court
in
its discretion ought to
quash the decisions, but it seems to me that nonetheless the
GMC
should pay the
costs. It will be noted, as I said, that Dr Jarman is a victim of the serious
failures by the
GMC in
this matter and it is also to be recognised that two
other issues arose regarding the position relating to documentation and the
role of the screener, which were matters of general interest to the
GMC
. Those
matters having been resolved at the same time, I think justice requires that
the entire burden should fall on the
GMC
. I shall make no order
in
respect of
Dr Jarman's costs. The sole order will be that the
GMC
pays Mr
Toth
's
costs.
in
this respect. The suggestion that I would
respectfully canvas before your Lordship is that 4, 5, 6 and 7 are,
in
the
light of your Lordship's judgment, unnecessary. The whole matter is now
explicit
in
your Lordship's judgment, which is referred to at paragraph 3,
rendering those paragraphs otiose. That is the only observation I make. So it
is a matter really of style more than substance.
In
the light of your Lordship's
decision about costs, paragraph 8 should
in
my respectful submission now read
as follows: "The
GMC
to pay costs of Mr
Toth
to be assessed if not agreed."
Second, could I ask your Lordship to order legal aid assessment of the
applicant's costs
in
accordance with the legal aid scheme?
in
the judgment.
in
terms of 1, 2
and 3, and I will add an order for costs: that the
GMC
will pay the costs of Mr
Toth
and for legal aid taxation.
in
relation
to the latest version of the judgment.
GMC
does not accept that Dr Jarman was told a second
time that the complaint had been rebuffed. Your Lordship refers to that I
think on three separate occasions
in
the judgment.
in
the course of the hearing.
in
the judgment, I have checked it. It appears that that is not the case.
Certainly the
GMC
has no record of that.
in
a letter to my clerk, saying that this needs correcting,
and at the same time take it up with Dr Jarman's counsel.
in
the middle of the page. Paragraph 12.
in
the bundle to it. The relevant letter,
if letter it was, is not
in
the bundle at all. Those at the
GMC
tell me that
they believe -- although they have not checked it -- that no such communication
was made. Miss O'Rourke has not been able to produce to me any primary
document evidencing the same and given that your Lordship makes three
references --
GMC
that that was not correct.
in
the forefront of her submissions that there was double notification, without
any prior intimation to me, without any further evidence filed, you say that
that matter is wrong? Is that right?
in
early
August the period of unease on his part was very, very short. I have made my
submission to your Lordship.
in
the disciplinary proceedings, that is a matter for you. How that is dealt
with
in the disciplinary proceedings will be a matter for the PPC. Subject to
that, I thank counsel very much for their help.