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Cite as: [2006] EWHC 2078 (Admin)

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Neutral Citation Number: [2006] EWHC 2078 (Admin)
CO/4021/2006

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2
27 July 2006

B e f o r e :

MR JUSTICE BURTON
____________________

THE QUEEN ON THE APPLICATION OF THE GENERAL MEDICAL COUNCIL (CLAIMANT)
-v-
DR JANE LM DONEGAN (DEFENDANT)

____________________

Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR RICHARD TYSON (instructed by Field Fisher Waterhouse) appeared on behalf of the CLAIMANT
MR J CAPLAN QC (instructed by Legal Department of the MDU) appeared on behalf of the DEFENDANT

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE BURTON: This has been the application of the General Medical Council for permission to issue a first witness summons against Dr Donegan to produce documents on a date, which we will discuss at the end of this judgment, before the hearing date and indeed before the time for preparation of the notice of inquiry prior to the hearing date of her appearance before the General Medical Council's Fitness to Practise Panel.
  2. I do not propose in this short judgment to discuss the details of the matters which lie behind the allegation which is going to be tried by the Panel, save to say that it relates to her having acted as an expert in cases known as A and D and B and E, which related to family cases where there was a dispute between the father and mother as to whether the respective children should or should not be vaccinated or immunised.
  3. The expert evidence of Dr Donegan, which was not accepted and indeed criticised by the trial judge and in the Court of Appeal on appeal, was to the effect that there was some reason why the children should not be, and/or would be put at risk if they were, immunised or vaccinated, which the General Medical Council now wishes to make the basis of an allegation of unfitness.
  4. There has been a considerable amount of disclosure already, including disclosure sought and, in one case, obtained from solicitors acting for the infants, B and E, in question. What is now sought is four categories of documents direct against Dr Donegan: (1) all correspondence between the doctor and the solicitors for Miss B not already disclosed; (2) ditto in relation to correspondence between Dr Donegan and the solicitors for Miss E; (3) all notes made by Dr Donegan in the preparation of her reports and replies; and (4) Dr Donegan's reply to the second report of Professor Kroll, who was one of the other experts instructed in the case.
  5. So far as the fourth document is concerned, that is asserted already to have been made available, and although it has not yet found its way to the claimant, there is no dispute by Mr Caplan QC, on behalf of the defendant, that that should be and will be made available. The battlefield today before me has been restricted therefore to the first three items, where two points have been raised by Mr Caplan. The first, which is not contested by Mr Tyson, is that an order is required to be made by this court in order to override what would otherwise be the confidentiality of the documents owed by virtue of the fact that they were prepared in the course of correspondence with, and instructions by, the solicitors for Miss B and Miss E. So far as those two are concerned, a letter has been sent by Miss B to the court and to the claimant, firmly objecting to the production of the documents. No indication has come forward from Miss E as to what her attitude is. But with or without that opposition, the court would need to be satisfied that it was appropriate to override the confidence. That the confidence in practice will not be leaked will be ensured by the fact that the order that will be made will secure that the documents themselves are redacted, that is, all confidential references which might identify the children in question will be removed and in part served blanked out. There is no dispute between the parties that that can be done.
  6. Mr Tyson, for the claimant, has referred me to a number of authorities, and in particular and most helpfully to the Court of Appeal decision in A Health Authority v X [2002] 2 All ER 780. He also referred to A v General Medical Council [2004] EWHC 880, a decision of Charles J. Those decisions, and in particular authoritatively that of the Court of Appeal, make it quite plain that in an inquiry into professional conduct, it is appropriate and indeed it ought normally be that an order will be made, provided that there is sufficient protection of a patient's anonymity, where the documents are reasonably required for the purposes of, for example, professional disciplinary hearings. This is of course quite standard in situations, for example, such as investigations into the conduct of lawyers where clients' otherwise confidential matters may well be explored to see whether a lawyer has misconducted himself or herself. Of course, in medical situations the confidence is more sensitive, particularly when children are involved. However, as the Thorpe LJ said in A, the balance comes down in favour of production as it invariably does, save in exceptional cases, and I accept that there is nothing exceptional here.
  7. The only live issue that has caused some time to be spent on this application relates to the complication, if any, arising from the decision of Collins J in Meadows v General Medical Council [2006] EWHC 146, which is to be relied on, no doubt, in due course by Mr Caplan QC on behalf of Dr Donegan to indicate that she cannot be pursued in relation to her conduct as an expert. That may be the consequence of Collins J's decision, although Mr Tyson has expressly pointed out that even that judgment left an escape route where, for example, a judge specifically requested or indicated that the matter should be referred to a disciplinary or professional body. No such position occurred here, although Mr Tyson is confident that such was the strength of the criticism of Sumner J and Sedley LJ that, if asked and if necessary, they would in this case do so.
  8. However, absent such possible escape route, the consequence of Collins J's decision might well be a successful application for a stay or a discontinuance of these proceedings against Dr Donegan. However, Collins J's decision has been appealed to the Court of Appeal. It has been appealed, as I understand it, on a macro and a micro basis: the macro basis being to challenge the conclusion that experts are wholly or in part immune; and the micro basis being that, in any event, Collins J's decision that no proceedings ought to have been brought against Professor Meadows could not be justified. Of course, Professor Meadows will be arguing for the opposite on both the macro point and the micro point.
  9. There are consequently four possible results to the Court of Appeal decision. The result of the Court Appeal will not be known until October and the General Medical Council wish to get on with preparation of this case and service of the notice of inquiry, which is required to be served under the rules, prior to the hearing presently fixed for December.
  10. There is an obvious complication in any event, which is that if the Court of Appeal's judgment is forthcoming, for example in the vacation or at the beginning of next term, there is the real possibility of an appeal by either side to the House of Lords, at any rate on the macro point, if that is the turning point in the Court of Appeal decision, and, although it is far from the case that the House of Lords' judgment will necessarily have any impact on other pending matters, the argument might still be run to that effect.
  11. I am entirely satisfied that this application by the GMC is to enable them to get on with preparation, and that the opposition by Mr Caplan is not at the moment an application for a stay of the proceedings. Unless and until there were such an application for a stay, as to whose chances I say nothing, it is quite plain that this case should be got on with, and Mr Caplan did not suggest that there was anything greatly problematic about the contents of the documents.
  12. I am entirely satisfied therefore that (a) it is appropriate to make what even Mr Caplan QC described as the usual order, but one which must be made in order to protect the interests of the children, as to which there are no exceptional circumstances to the contrary; (b) that although Mr Caplan has trailed the position of his client perfectly properly, nothing he has said should prevent the production of these documents, which should consequently now be made.
  13. Would you produce the draft order? It is going to stand more or less in the form it is now in at tab B, but if you could sign it between the two of you for the associate.
  14. MR TYSON: My Lord, could I suggest 28 days, which would be Friday 25 August?
  15. MR JUSTICE BURTON: Why do you not get the reply, which is apparently immediately available, rather more quickly than that. That can be handed over any time, can it not?
  16. MR CAPLAN: 14 days.
  17. MR JUSTICE BURTON: Shall we say 14 days for Dr Donegan to apply and 28 days for the balance.
  18. Now, what do we do about costs? I see they are in brackets at the bottom.
  19. MR TYSON: I apply for costs because, firstly, these applications normally go through by consent in that it is inevitable that the court has to decide the MDU or other defence organisations --
  20. MR JUSTICE BURTON: So it is an order that necessarily had to be made, but it has been exacerbated by the attendance of counsel in opposition.
  21. MR TYSON: Yes.
  22. MR JUSTICE BURTON: How would it have been made if Mr Caplan had not been here? I am not thinking of Mr Caplan's costs unless and until I hear some application from him, but your costs.
  23. MR TYSON: Normally I would not have asked for costs.
  24. MR JUSTICE BURTON: No, no, I understand that, but how would it be done? You would have to come along, would you not?
  25. MR TYSON: I would have to come along on notice, but usually with a letter from the defence.
  26. MR JUSTICE BURTON: I am only asking whether your costs have been increased.
  27. MR TYSON: I incur my costs in any event.
  28. MR JUSTICE BURTON: Is that not the answer, no order as to costs?
  29. MR CAPLAN: No order as to costs, my Lord.
  30. MR JUSTICE BURTON: No order as to costs. Thank you very much.


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