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||Neutral Citation Number:  EWHC 1061 (Admin)
||Case No. CO/7386/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||24th April 2009
B e f o r e :
MR JUSTICE COLLINS
||THE QUEEN ON THE APPLICATION OF RITA PAL
||THE GENERAL MEDICAL COUNCIL
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Paul Garlick QC (instructed by Birchall Blackburn LLP) appeared on behalf of the Claimant
Mark Shaw QC (instructed by General Medical Council) appeared on behalf of the Defendant
HTML VERSION OF JUDGMENT
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See also: Pal v General Medical Council  EWHC 3621 (Admin) (12 June 2008)
- MR JUSTICE COLLINS: The claimant in this case seeks judicial review of the decision made by a Deputy Registrar of the GMC to refer complaints made against her for investigation under the appropriate procedure.
- That procedure required the Registrar to undertake an initial consideration — I shall go into details in due course — and if persuaded that it was a case that should go forward, the matter would then be considered by those who are now labelled Case Examiners. If they decide that the matter should go further, then the case is considered in a full hearing by the relevant committee of the GMC. This, in the context of this claim, relates to allegations made of professional misconduct, which is referred to in section 35C of the Medical Act 1983 as relating to fitness to practise and whether that fitness to practise is impaired.
- The complaints made against her were in fact four in number. Two of them were regarded as incapable of giving rise to any finding of misconduct, and so were not put forward by the Registrar, two were not. The two in question were an allegation that she had described herself as a psychiatrist, which was said to be wrong and misleading, and an allegation that she had referred, in a blog that she had put out on her website, that enabled those who wished to to go into the record of proceedings held before a committee of the British Psychological Society, concerned with whether a particular psychologist, a member of that society, should be permitted to continue to practise under the aegis of the Society, because it was alleged that he was unfit to do so.
- Those proceedings had been held in private because they related to fitness, as opposed to conduct. The privacy, or the confidentiality, whichever word one likes to use, had been breached by a website in the United States. That was drawn to the claimant's attention. She endorsed the concerns raised in it. As it subsequently appears, the individual in question, who had been the subject of the BPS investigation and proceedings, was not in the least unhappy that the disclosure was made. Nonetheless, in what she promulgated, she gave those interested access to the transcript of the proceedings, and thus the confidentiality was breached. That was the second matter of complaint that was put forward by the Registrar.
- There is a considerable background to what happened in this case. It is a background which is not material, directly, for the purpose of the decision that I have to reach, but historically there have been a number of issues between the claimant and the GMC, and the claimant and particular groups of individuals, particularly organisations fronted by, or of which the complainants against her in this case were members. It is not necessary for me to go into the details; suffice it to say that complaints and counter complaints have been made by and against the claimant from time to time.
- What I have to decide is whether the Registrar in this case, or rather the Deputy — there is no issue about the proper vires of the individual who dealt with the matter — reached lawful conclusions. The statutory provisions that are applicable are now contained in Part V of the Medical Act 1983, and specifically in sections 35A, B and C. There are other relevant sections, but largely they deal with procedure.
- I have already referred, briefly, to section 35C. The commencement of Part V in section 35 provides that the General Council has the power to provide in such manner as it thinks fit advice to members of the medical profession on standards of professional conduct, standards of professional performance or medical ethics. If an allegation is made to the Council against a fully-registered medical practitioner that his fitness to practise is impaired, then the procedure is set out as to how that should be approached. Section 35C(2) provides that:
"A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of—
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence...
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."
There are now regulations which spell out the approach that must be adopted by the Council in order to determine whether any complaint should be put to a full committee.
- The relevant rules were the rules of 1988, until they were replaced by the General Medical Council (Fitness to Practise) Rules Order of Council 2004. The reason I refer to the 1988 Rules is because there have been authorities, in particular a decision of Lightman J in R v General Medical Council ex parte Toth  1 WLR 2209, in which the approach of the Registrar under the 1988 Rules was considered. There is an issue raised in this case as to whether the new rules change that approach and, if they do, the extent to which they achieve that result. That is why it is necessary to refer to the old rules.
- The procedure under the 1988 Rules was that a complaint was then initially considered by the Registrar. Rule 6(1) provided that:
"Where a complaint in writing or information 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 the Registrar shall submit the matter to a medical screener."
Paragraph (3) provided:
"Unless the case is dealt with under the Health Committee (Procedure) Rules... the medical screener shall refer to the Preliminary Proceedings Committee a case submitted to him under paragraph (1), if he is satisfied from the material available in relation to the case that it is properly arguable that the practitioner's conduct constitutes serious professional misconduct."
The matter was then, if those two stages were successfully accomplished, put to the Preliminary Proceedings Committee and it was for them to determine whether the matter should go to a Professional Conduct Committee, where the allegation was one relating to misconduct.
- It was for the Preliminary Proceedings Committee to indicate the matters which, in their opinion, appeared to raise a question whether the practitioner had committed serious professional misconduct and the formal basis of the charge, or charges, to be made against the practitioner. There were thus three stages — the Registrar, the Screener and then the Preliminary Proceedings Committee — each of which had a role to play in deciding whether an allegation should go to a full hearing.
- It is apparent from the wording of rules 6(1) and 6(3) that under the 1988 Rules the role of the Registrar was a limited one. Provided that the information, at face value, made it appear to the Registrar that a question arose whether the conduct constituted serious professional misconduct, there was an obligation to send it to the Medical Screener. It was for the Medical Screener to decide whether it was properly arguable that the practitioner's conduct constituted serious professional misconduct. There was nothing in those rules which indicated that there was an explicit power given to either the Registrar or to the Screener to make independent inquiries and to carry out independent investigations. So, it would appear that what the Rules had in mind was that both the Registrar and the Screener should take the complaint at face value, and it was for the Preliminary Proceedings Committee to make any further investigations, which it had specific power to carry out, in deciding whether the matter in fact should go further; but it is apparent that the Registrar's role in that was a limited one, so far as forming any judgement was concerned.
- The 2004 Rules Order of the Council appear to give, and in my judgement do give, a slightly extended role to the Registrar, albeit not to a very great extent. The rules are contained in schedule 2 of the Order. "Allegation" is defined as meaning an allegation that the fitness to practise of a practitioner is impaired.
- Rule 4 provides, under the general heading "Investigation of allegations":
"(1)An allegation shall initially be considered by the Registrar.
(2)Subject to paragraph (5) and rule 5 [rule 5 is not material for the purposes of this case], where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.
(a) the Registrar considers that an allegation does not fall within section 35C(2) of the Act; or
(b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed
he shall notify the practitioner and the maker of the allegation (if any) accordingly.
(4)The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of—
(a) whether or not the allegation falls within section 35C(2) of the Act; or
(b) the practitioner's fitness to practise.
(5)No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than 5 years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed."
- Rule 7 provides in paragraph (1):
"As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner—
(a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired..."
- The Case Examiners have to decide whether the case should proceed further. If they do, then the matter is put to a full hearing. They have other powers, which include giving a warning or inviting the practitioner to agree to comply with undertakings of one sort or another.
- It is to be noted that under section 35B of the Medical Act there is an obligation upon the GMC to notify of the existence of an investigation. Section 35B(1) provides:
"As soon as is reasonably practicable after the relevant date, the General Council shall notify the following of an investigation by the General Council of a practitioner's fitness to practise—
(a) the Secretary of State, the Scottish Ministers, the Department of Health, Social Services and Public Safety in Northern Ireland and the National Assembly for Wales; and
(b) any person in the United Kingdom of whom the General Council are aware—
(i) by whom the practitioner concerned is employed to provide services in, or in relation to, any area of medicine, or
(ii)with whom he has an arrangement to do so."
- The relevant date referred to in section 35B is defined in rule 13 of the Rules to which I have referred, which reads:
"For the purposes of sections 35A and 35B of the Act, the relevant date shall be the day on which the earliest of the following occurs—
(a) the decision of the Registrar to carry out investigations under rule 4(4) or 7(2);
(b) the referral of an allegation to an Interim Orders Panel;
(c) the referral of an allegation for consideration by the Case Examiners under rule 8;
(d) the referral of an allegation to a FTP Panel; or
(e) the making of a direction that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2."
- As a matter of history, the complaints in question in this case were made between January and March 2007. There were in fact two complainants, but the complaints covered essentially the same matter. On 3rd April 2007 the Assistant Registrar dismissed two of the allegations, and referred two others — the ones to which I have already referred. On 17th April 2007 the claimant was notified that two allegations had been referred by one of the complainants and, on 23rd April 2007, that two of the allegations, essentially the same two, made by the other complainant had been referred. There were then various letters — letters before claim — and it was not in fact until, I think, early July that the then employers of the claimant were notified that the matters had been referred to the Examiners.
- The claimant then left her employment. I put it that way, because there is an issue as to whether she was dismissed or whether she resigned. That is an issue which has taken up quite a lot of paper in the case put before me, but is not material for me to decide. If there was a breach of contract in the dismissal, then she may have a private law remedy. If, on the other hand, she chose to resign, that may well mean that she has no remedy there. The real concern here is the fact of the requirement, which is accepted to exist, once there is a referral on to the Examiners, to notify the employers. That can be, for obvious reasons, prejudicial to the individual practitioner. Therefore, it is important — this is emphasised by Mr Garlick QC, and rightly so — that the Registrar properly carries out the task imposed upon him by the relevant rules, because if a case is sent forward which ought not to be sent forward, there is a disclosure to employers which can be said to be prejudicial.
- It is to be noted that if one takes a literal view of rule 13(a), the decision to carry out investigations under rule 4(4) would mean that the relevant date had been established by any inquiry that the Registrar decided to make. Thus, the obligation to disclose is equally triggered. But, of course, it is an obligation which requires disclosure only as soon as is reasonably practicable after the relevant date.
- It seems to me, and I did not understand counsel to dissent from this, that it would not be reasonably practicable to notify in accordance with the obligations under section 35B(1), notwithstanding that inquiries, or investigations, were made by the Registrar, until the Registrar had decided whether or not the matter should go forward, because if he decided that it should not, there would be no investigation which continued and thus no obligation to notify. It would clearly be potentially prejudicial and wrong that an employer should know of a complaint which was regarded as one which had no conceivable merit in it. Accordingly, the approach — and it is the practical approach which, I understand, is in fact adopted — is that the GMC would not decide to notify until the Registrar's decision was reached. That applies to rule 4(4) investigations. There may be circumstances where there are very extensive investigations, though one doubts whether those would ever be likely, where perhaps different considerations might apply. I find it difficult to imagine circumstances where they would. I appreciate that this means that regulation 13(a), insofar as it applies to rule 4(4), may rarely (if ever) have any sensible application, but that seems to me to be an inevitable result of a sensible approach to the obligations arising under the Regulations.
- All this derives from the need to balance the protection of the public as against the effect on a practitioner of having to deal with insubstantial complaints, because it is interesting to note the figures given in the evidence produced before me from the Assistant Registrar who dealt with this case, that some 40 per cent of complaints made to the GMC are disposed of by the Registrar. They have no substance whatsoever. Doctors are clearly vulnerable to complaints which are not going to go anywhere, but equally it is important, in the public interest that care is taken to ensure that any complaint which appears to be one which may have validity is properly investigated and properly dealt with in the public interest.
- Going back to the history in this case, it was in fact on 20th August 2007 that the judicial review claim was filed. There was no application for any interim relief at that stage. On 19th September 2007 the GMC notified the claimant that the Case Examiners had rejected both allegations and that no further action would be taken. Permission to claim judicial review was refused on the papers by McCombe J in January 2008, but in June 2008 permission was granted, not on all the grounds, at an oral hearing by Mr James Goudie QC, sitting as a Deputy Judge of this court. Shortly thereafter, on 18th June 2008, the claimant's name was erased from the register due to her failure to pay the annual registration fee. Effectively she decided that she did not wish to continue to be registered.
- In those circumstances, having regard to the fact that the allegations were not pursued beyond the Examiners, and the fact that the claimant is no longer registered, Mr Shaw QC submits that this claim is in effect now academic, and indeed was always academic from the moment that the Examiners decided that it should not proceed. Mr Garlick submits that that is not the case, because there is a potential ongoing prejudice to the claimant in the fact that the notification was made; and, more importantly, that there is an obligation, having regard to the form in which questions are asked by various NHS bodies, for her to disclose the fact that the matter was put before the Examiners when applying for any new post. She says that she did not make applications because she knew if she answered that question honestly, as she no doubt would, attention would be drawn to the fact of these complaints and that, albeit they had been disposed of at a stage before any hearing, and therefore would be regarded as complaints which were not, on any view, going to result in any adverse finding, there would still be a prejudice.
- The potential prejudice, I suppose, is apparent, but I am bound to say that it would be extraordinarily wrong if any NHS body employing a medical practitioner were in any way adversely affected by the knowledge that a complaint had been made, but had been disposed of by the Medical Examiners. Nonetheless, the fear is there.
- I have had my attention drawn by Mr Shaw to the NHS guidance provisions, which are contained in a document described as a "Code of practice in the appointment of employment of HCHS local doctors" and it is dated August 1997. There are various references in that which are of some materiality. It is made clear that those currently the subject of reservations, or currently the subject of proceedings which have not been completed, should be subjected to further checks by employers. That is obviously right and sensible. But nowhere is it suggested — and it is hardly surprising that this should be the case — that there would be any relevance in finding out whether a complaint had been made which was thrown out without any hearing taking place. Nonetheless, there has been put in the bundle examples of questions that are asked of those applying for jobs. The questioning that is complained about is common to a number of such bodies. It reads thus:
"To the best of your knowledge have you been or are you currently subject to any fitness to practise proceedings by an appropriate licensing or regulatory body in the UK or any other country?"
That, on the face of it, would appear to require the answer "yes" and of course details, if by "proceedings" one includes any form of investigation.
- It seems to me that there are two possible answers to this which provide the way in which this can sensibly be dealt with. The first is to say that it would be entirely inappropriate for any body which was employing a medical practitioner to form a question in a way which required an answer which disclosed a complaint having been made which was thrown out before any substantive hearing took place. It would be tantamount to saying that there had to be a disclosure of any allegation made, whether or not that allegation was unfounded. Secondly, the question, as framed, talks about fitness to practise proceedings. In my view, any medical practitioner faced with those words would be entitled to take the view that proceedings meant "proceedings at the stage of any hearing", as opposed to merely investigation. Thus, an honest answer to that question by someone in the circumstances of the claimant, would be "no".
- Whichever be the correct way of approaching the matter, I would suggest that those responsible for these forms should very carefully consider whether the wording needs to be changed to make it absolutely clear that the obligation to refer to any proceedings, or any investigation, was limited to those which had reached the stage of a full hearing and a determination one way or the other. It may be that, where there has been a full hearing, even if that hearing has resulted in dismissal of the complaint, circumstances could be shown to be material when one looks at the allegations and the findings. I do not need to decide whether that situation should or should not require disclosure; I am concerned only with the situation that arises in this case, namely dismissal by the Examiners before any hearing takes place.
- I appreciate that there is no representation before me, and no argument on behalf of, the National Health Service, but it seems to me that implicit in the guidance is the situation I have indicated. Mr Shaw has been able to indicate that, certainly so far as the Council is concerned, they would not regard it as in any way necessary for a doctor to disclose voluntarily, nor should it be obligatory for them to disclose that a complaint had been made that has been disposed of in the way that I have indicated. Albeit this is not a matter on which I can give any positive relief, I would hope that these observations will provide some comfort to those who find themselves in the position that the claimant found herself in in connection with the possibility of applying for any further post. Of course, it is open to her, I imagine, to go back on the register if she so wishes and seek further employment in the National Health Service.
- Coming back to the main questions that arise in this case, I have dealt with the general powers and the relevant rules. As I have said, there were two material complaints that the Registrar had to deal with. Put broadly, those were, first, that she described herself as a psychiatrist in three different contexts (in an article in the BMJ in January 2005; in a letter to the governor of a prison in April 2003, which related to the views formed by the claimant of inappropriate treatment — nothing to do with psychiatry — of a prisoner at that prison; and an undated declaration to Companies House — she simply described herself as a psychiatrist); secondly, the involvement in the disclosure, via her website, of the material from the British Psychological Society, the BPS.
- The Assistant Registrar describes, in a statement which she has made for the purposes of the case, her approach to her task. Mr Shaw has urged, and I accept this, that one should look to see the language of the relevant rules and to decide what the obligations of the Registrar were, based on that language. It is to be noted that rule 7(1) is in very similar terms to the old rule 6(1), that is to say that the Registrar has to write to the practitioner, by rule 7(1), stating the matters which appear to raise a question as to whether the fitness to practise is impaired. The old rule 6(1) obliged the Registrar to submit the matter to a Screener if it appeared to him that a question arose where the conduct constituted serious professional misconduct. The reference is to a question, but the question is "What is the question and what are the terms of the relevant question that should be asked?"
- It is interesting to note that the Assistant Registrar says in paragraph 7 of her statement:
"The task is to consider and decide whether 'the allegation' (that a registered doctor's fitness to practise is impaired) falls within section 35C(2) of the Act: a process known within the GMC as 'triage'."
She goes on in paragraph 10 to say:
"The Registrar considers whether the allegation appears, if proved, to raise a question about the doctor's fitness to practise (whether it is capable of supporting a finding of impaired fitness to practise)..."
She equates the question to consideration as to whether the allegation, if proved, meant that it was capable of supporting a finding of impaired fitness to practise.
- It seems to me that that is an entirely correct approach to be adopted. It is no part of the Registrar's functions to decide whether there has been unfitness to practise. Equally, it is no part of his functions generally to make investigations to see whether the facts of the complaint can be established or not. The Registrar will normally look only at the allegations that are made and decide whether, if they are established, they are capable of supporting a finding of professional misconduct, or misconduct in the context of the test that has to be applied.
- The only question that further arises is, having regard to the power that is expressly conferred to make investigations, there is, in a given case, an obligation to make any particular investigations. Putting it the other way around, and perhaps the way that is material for the purposes of a claim such as this, whether it would be perverse, and thus unlawful, for her to have reached her conclusion without making any further inquiries.
- Since the general approach, which is implicit, and perhaps even explicit, in the procedure is that the Registrar will look at the allegation made, rather than go into any question as to whether the facts are likely to be established or not, it is difficult to see that there can be any perversity, generally speaking, in failing to make any particular inquiries which go to that issue. Of course, it is desirable, sometimes essential, that inquiries should be made in order to see precisely what actually is being alleged, because frequently allegations made are not at all clear. It may well be that in a given case it is not entirely apparent whether or not there is any foundation for the suggestion that misconduct might be established and it is necessary to find out a little more precisely what the allegation amounts to. It would be wrong, in my judgement, for a Registrar simply to say, "This is a somewhat obscure allegation. Although I recognise that it might be possible to identify what actually was at the heart of it by making some inquiries, I am not obliged to do so, and I throw it out for that reason". That, although it is a matter going the other way from the circumstances of this case, I think, on the whole, would be a wrong approach. Equally, if the allegation depended upon a particular matter, and it was relatively straightforward to find out from an independent source whether that was indeed the true position, because the allegation may state something which can easily be verified one way or the other, then again it may well be that it would be wrong for the Registrar to fail to make the necessary simple inquiry which would sort the matter out one way or another. Those are but examples. One has to look at the circumstances of each individual case to see whether the Registrar did or did not unlawfully fail to make particular inquiries.
- The way she approached the two inquiries, insofar as further investigations were concerned, she sets out in paragraph 12 of her statement. By 12(3) she says this:
"I decided that the BPS allegation and the psychiatrist allegation should be referred to the Case Examiners. I regarded them as allegations falling within section 35C(2) of the Act, in particular: section 35C(2)(a) (impairment by reason of misconduct). The BPS allegation alleged a breach, or an aggravation/extension of a breach, of a confidentiality in a medical regulatory context. The psychiatrist allegation asserted the inaccurate use of a professional medical title/status in three different contexts. I thought that each of those allegations appeared, if proved, to raise a question about the claimant's fitness to practise as a doctor. The prospects of the allegations being established depended on the precise circumstances."
She concluded that the allegations were, in her view, capable, depending on the circumstances, of supporting a finding of impairment.
- What inquiries did she decide to make? She deals with this in paragraph 13. She says as follows:
"Before making my decision I telephoned the BPS to check whether it regarded the material... as confidential and whether it had any concerns about the way in which the claimant's website had handled it. The BPS confirmed that it did, as regards both aspects. I note from paragraph 9 of the witness statement of Stephen Farnworth [the Investigation Officer] that on 23rd April 2007 the BPS confirmed in writing that it considered the material confidential and had not given the claimant permission to disclose it, or widen its disclosure. As regards the psychiatrist allegation, I checked whether the claimant was on the GMC's specialist register and found that she was not."
- So far as the BPS is concerned, in my view it is quite apparent that the Registrar cannot be criticised for sending that matter forward. If the claimant was aware, as was asserted, that the confidentiality had not been waived and, having confirmed with the BPS that they not only had not waived it, but had concerns about the manner in which claimant's website had dealt with it, then there was a matter which was capable of constituting misconduct on the basis that it went to the integrity of the doctor in question. It is true it did not directly concern patient confidentiality, because of course the individual for whom the confidentiality was maintained was not a patient — he was a psychologist who was the subject of proceedings — but that is not a matter which is of central materiality. What is of central materiality for the purposes of that allegation is the actions of the claimant, her state of mind, the knowledge that she may or may not have had as to confidentiality, the reasons that she had for breaking that confidentiality, and the fact that it had been already made public, in the sense that it had been on a website in the United States, could not of itself mean that the wider dissemination, which was made available through the claimant's website, was not something which could be relied on against her.
- Mr Garlick sought to raise an argument — one of the grounds upon which he was given permission — relating to Article 10 of the European Convention on Human Rights. Of course, freedom of speech is important, but the regulation of medical practitioners and professionals in general is something which is clearly in accordance with the law in this country and is necessary for the protection of the public. There can be no question that regulation by the GMC in circumstance such as this is proportionate and thus would mean that there was no breach of the Article 10 rights. In fairness to Mr Garlick, he made it plain in argument, and sensibly and rightly so, that he recognised that his case in relation to the BPS allegation was not particularly strong.
- So far as the psychiatrist allegation is concerned, the only check made was whether the claimant was on the specialist register. She was in fact employed as a locum psychiatrist, no question about that. It seems to me that it was not likely, to put it certainly on that level, that this could result in any misconduct finding, because she clearly was entitled to regard herself as a psychiatrist. Her use of that term certainly could not have misled, in the circumstances, anyone who had a sensible approach to the realities of the situation. Nonetheless, what is said is that it was not necessary for the Registrar to go further than she did. In all the circumstances, once it was known that she was not on the specialist list, that was sufficient to provide the possibility of a finding against her. Mr Garlick, accepted, inevitably and rightly, that for a medical practitioner to describe herself as having an expertise, putting herself forward as having such an expertise, when, strictly speaking, she was not entitled to it, is capable of amounting to misconduct. That is obviously right, but in the circumstances of this case the claimant was certainly not doing that.
- I am bound to say that it seems to me that, even without the information that eventually came before the Examiners, and which led the Examiners to decide that the case could not go forward, this was at best a borderline case. It is difficult to impose upon the Registrar, and wrong to impose upon a Registrar, an obligation to exercise discretion in a way which, as it happens, would have led to a decision that was likely to mean that the case did not go forward. It is only if that decision was perverse, and the threshold for perversity is a very high one, as Mr Garlick recognises.
- I am bound to say that my views have fluctuated during the course of this hearing. As I indicated to Mr Garlick at the outset, it seemed to me that he was on very strong ground in relation to this particular allegation but, having heard Mr Shaw, I recognise the force of the argument that it was wrong to suggest that a simple telephone call to the Royal Society of Psychiatrists would have given the answer. That would have established the fact that from 2005 she was an affiliate, but of course the allegations related, at least in part, to the use of the expression before that. Equally, one can say that on the face of the allegations the use of that term is not one which could have misled any recipient in any particular way. For example, the letter to the prison governor was concerned with physical matters for a particular prisoner, and had nothing to do with his mental health. Thus, in a sense, the assertion that the claimant was a psychiatrist might have lessened, rather than strengthened, the concerns that she was expressing. Those concerns were expressed as a doctor, not as a psychiatrist.
- If this allegation had been the only one put forward, then I am bound to say that I would have been far more inclined to say that it was one which should not have been allowed to go forward, but in all the circumstances, as the other one, in any event, went forward, I do not think it is necessary for me to reach a final conclusion on this matter, particularly as, as it seems to me, it is important that the Registrar's discretion be regarded as properly exercised on the basis that it is not for her to go into the factual element, other than for the purpose of clarification as to precisely what the circumstances are, or if there is a matter which would be easily ascertained and which would provide a clear answer one way or the other; that, for example, is the importance of the investigation in relation to the BPS.
- There are two other matters that I should deal with, which result from it. First, I referred to Toth. In that case Lightman J said this in paragraphs 11 and 12 of his judgment, on page 2217:
"11.At the first stage the Registrar has a ministerial role: so long as there is a complaint (which connotes the making of some form of charge against a practitioner), the complaint is 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.
12.At the second stage the Screener has to exercise a judgment whether 'it appears to him that the matter need not proceed further'..."
Then he sets out certain matters which the Screener would have to take into account and makes the point that there is a significant distinction between the language used spelling out the respective duties of the Screener and the Preliminary Committee, PPC.
- It may well be that when one looks at the 1988 Rules, one can say that the question posed for the Registrar is indeed the more limited one, having regard to the role of the Screener. Whether it is appropriate to describe his functions as ministerial is perhaps not the point, and it may be that the use of that word is not entirely helpful, but it is clear from the present rules that there is a judgmental aspect to the Registrar's approach, if only in that by rule 4(3)(b) he has to decide whether an out-of-time allegation can be proceeded with in the public interest, and under rule 4(4) he has to decide whether he carries out any investigations appropriate to the consideration of the practitioner's fitness to practise. So it is, as I see it, that when one looks at the question that is referred to in rule 7(1), the question is essentially whether the allegation is capable of producing a finding of misconduct. That, as it seems to me, is indeed the approach adopted by the Assistant Registrar in this case, and is an approach which is entirely correct and appropriate in dealing with cases. It is not for the Registrar to make any extensive inquiries and he cannot be criticised, in my judgement, if he limits his inquiries in the manner which I have indicated.
- Finally, there is a question as to whether this form of judicial review is appropriate in any event, that is to say judicial review of a decision to send the matter on to the Examiner. I understand the concern that whilst it is being considered by the Examiner, there is an obligation to disclose to employers and there may be, in the circumstances, a potential prejudice to the practitioner. As it seems to me, depending obviously on the nature of the allegations, and certainly when I am dealing with allegations such as were made in this case, it would be entirely irrational for an employer to take any action which prejudiced the employee at that stage until it was known whether the matter was to go further and what the views of the Examiners were. Even at that stage it may be that it would be wrong to take any adverse action. Given any employer who acts reasonably, it is difficult to envisage that the requirement to notify would, in a case such as this, have any adverse effect. It certainly should not.
- It seems to me that in those circumstances, although of course the jurisdiction to make orders of judicial review exists, it is a jurisdiction that would only most exceptionally be appropriate to exercise. As always in this jurisdiction, I am reluctant to say never, because one can then always find a case in which the facts are such that it is apparent that it may be that the jurisdiction should be exercised, but the protection for the individual lies in the fact that the matter has to be considered by the Examiners before it can go further. It may well be that if the Examiners decide that the case should go on, and there are good grounds for suggesting that that is a decision which is flawed as a matter of law, then at that stage it may well be that judicial review can be appropriate, because obviously it is a far more serious situation for the practitioner if the matter is to be put to a full hearing. It would be rare, no doubt, for such a claim to be regarded as valid, but nonetheless, it is a stage at which one can see judicial review might be more readily exercised.
- I am bound to say that, recognising as I do the concerns that have led to this claim being continued, I do not think that it was an appropriate one to be brought. As a matter of fact, it was disposed of by the Examiners. Accordingly, I do not propose to grant any relief. As it seems to me, this claim must fail.
- MR SHAW: My Lord, one point of housekeeping, and then costs if I may. I think, if I heard you correctly, in the middle of the judgment you referred to Mr Farnworth as the relevant Examiner.
- MR JUSTICE COLLINS: Yes, I did, and it occurred to me when I said it that that was wrong.
- MR SHAW: I heard the hesitation in your voice. He is actually the Investigation Officer.
- MR JUSTICE COLLINS: I will correct that when it comes to the transcript. You will appreciate that in extempore judgments one tends to make the odd mistake.
- MR SHAW: That is my only picking point. As regards costs, the claim having been dismissed, we do apply for our costs, but only to a relatively limited extent. The claimant had the benefit of public funding from September 2007, as I said at the end of mew skeleton argument, and I do have a schedule in relation to the costs that we incurred up to that date. May I pass it up?
- MR JUSTICE COLLINS: Those would not be pre-lodging costs. You would only be entitled to costs after 20th August.
- MR SHAW: As I understand it — I will check — these are the costs during that interval.
- MR JUSTICE COLLINS: Yes, between 20th August whatever the date is in September.
- MR SHAW: In September.
- MR JUSTICE COLLINS: You are entitled to more, thereafter, subject to Mr Garlick, but it would be in the usual terms, not to be enforced... et cetera.
- MR SHAW: I completely agree with your observation. I will hand up the schedule and check.
- MR JUSTICE COLLINS: Mr Garlick has seen this, I take it.
- MR SHAW: I believe he has. Perhaps not. (Handed).
- MR JUSTICE COLLINS: It is an awful lot.
- MR SHAW: It has been confirmed to me that it is from August to September. It comes to under £6,000 plus a little VAT. I invite your Lordship, for the sake of tidiness, to deal with it this afternoon. I leave it to you to decide what is an appropriate proportion, given the remarks in the judgment, but I would say we should have the majority of those costs.
- MR JUSTICE COLLINS: They do seem rather high for that short period of time. That presumably includes preparing the acknowledgment of service.
- MR SHAW: I am told to up to and including the acknowledgment of service.
- MR JUSTICE COLLINS: So effectively includes the acknowledgment of service costs.
- MR SHAW: Yes, the acknowledgment of service, and the summary grounds.
- MR JUSTICE COLLINS: Yes, but you had advanced knowledge in the very full pre-action protocol letters.
- MR SHAW: Yes.
- MR JUSTICE COLLINS: I think I am bound to say, I am afraid, that these are grossly excessive for acknowledgment of service costs.
- MR SHAW: My Lord, I have said all I want and need to say. I am happy to leave it to your Lordship to pick a number. I say we should have more than half of them, but I am not going to split hairs for what is a fairly small proportion of the overall costs in any event.
- MR JUSTICE COLLINS: Mr Garlick, as a matter of principle I think that you are in difficulty in opposing an order for costs, when you were legally aided under the usual terms, in terms about enforcement. What about the pre-legal aid costs?
- MR GARLICK: I would say this, and quite forcefully, first of all, there was a very, very full letter before protocol. Thereafter, the respondents changed on, I think three occasions, the terms of references. The term of reference to the Case Examiners was changed on a number of occasions, largely as a result of matters which were put forward on behalf of the claimant. We would respectfully submit it is wholly inappropriate for the respondents to have costs occasioned by them in perfecting their referral to the Case Examiners.
- MR JUSTICE COLLINS: What they are saying is that these are the costs, and they have recognised that they are only entitled to costs for work done as from 20th August, in relation to meeting the claim which you have made.
- MR GARLICK: Then they are grossly excessive.
- MR JUSTICE COLLINS: I entirely agree with you, and I have already said that, but, prima facie, they would be entitled to the costs of producing the acknowledgment of service, which came before you got legal aid.
- MR GARLICK: Yes.
- MR JUSTICE COLLINS: The only question is, what is an appropriate sum for that?
- MR GARLICK: That is the only question, but it is an extremely difficult question to answer. I am not avoiding it. This is not a criticism, we have not even seen this schedule before. It is impossible for us to deal with it. It is not even particularised. If this was coming for a costs taxation, it would be impossible to deal with it, because it is not even in particularised form.
- MR JUSTICE COLLINS: I know. I follow that entirely. The only point I am making is that I think they are entitled to what is reasonable for the period between 20th August and wherever it was she got legal aid.
- MR GARLICK: Yes.
- MR JUSTICE COLLINS: When was the acknowledgment of service served? Let us have a look at the dates.
- MR SHAW: 20th September. It is on the very last page of my skeleton argument.
- MR JUSTICE COLLINS: When did you get legal aid? What was the relevant date?
- MR GARLICK: It will take me a moment to get the date, I am afraid. (Pause). My Lord, I apologise, those instructing me did in fact send me a copy of the certificate as an additional document which I have not put into bundle. I apologise for that.
- MR JUSTICE COLLINS: You do not need to put it into the bundle.
- MR GARLICK: I have not put it anywhere. It is on my desk in chambers, so I cannot even refer to it. (Pause). I think there is reference in the skeleton argument of my learned friend.
- MR JUSTICE COLLINS: There is somewhere. He does not have it as one of his dates. It was when you changed solicitors, was it not, or was it after that? No, it was after that.
- MR GARLICK: May we make a very, very quick telephone call that will resolve it?
- MR JUSTICE COLLINS: Yes, of course.
- MR GARLICK: Thank you very much indeed.
- MR JUSTICE COLLINS: It is better, if possible, to sort this out, rather than have extra costs incurred as a result.
- MR GARLICK: Yes, my Lord. We can see on 27th July 2007 the claimant applied for funding.
- MR JUSTICE COLLINS: Yes.
- MR GARLICK: According to the skeleton argument — this is page 23 of my learned friend's skeleton argument — on 10th September 2007 the claimant was granted --
- MR JUSTICE COLLINS: It is 20th August 2007, according to your skeleton argument, bottom of page 4.
- MR GARLICK: Yes.
- MR JUSTICE COLLINS: You say that legal aid was granted on 20th August, which was the date on which the claim was made, but that would not seem to accord with what the defendants say.
- MR GARLICK: Indeed, not. It does not.
- MR SHAW: My solicitor has found the certificate in question:
"Take note that a certificate of public funding dated 20th August 2007 issued to the above-named... [and so on]"
I do not know whether it was sent to us.
- MR JUSTICE COLLINS: In that case she is protected throughout. You can have your costs order, but under the usual legal aid terms.
- MR SHAW: It depends whether any costs were incurred between service and 20th August.
- MR JUSTICE COLLINS: No, it is the fact of protection that matters, not post service on you.
- MR SHAW: My solicitor has drawn to my attention why we thought it was 10th September, because the notice of funding of the case is dated, and sent to us, on 10th September.
- MR JUSTICE COLLINS: That is not the relevant date.
- MR SHAW: The relevant date is the certificate. Your Lordship is right. It will be the normal order.
- MR JUSTICE COLLINS: He is entitled to an order for costs, but on the usual legal aid terms.
- MR GARLICK: On the usual terms.
- MR JUSTICE COLLINS: He can have that, but no more.
- MR GARLICK: Thank you.
- My Lord may we thank you for sitting for a long day today.
- MR JUSTICE COLLINS: Yes, sunny Friday afternoon. It is a bit late.
- MR SHAW: We are very grateful.
- MR JUSTICE COLLINS: Obviously it was right to dispose of this. I am sorry that I had to do it by extempore judgment. It could perhaps have been more polished if I had had the time to consider it more.
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