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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Pal v General Medical Council [2004] EWHC 1485 (QB) (27 May 2004) URL: https://www.bailii.org/ew/cases/EWHC/QB/2004/1485.html Cite as: [2004] EWHC 1485 (QB) |
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QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
BM312260
Sitting at
Northgate South Side Warwick CV34 4RB |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
DR RITA PAL![]() |
Claimant | |
| - and - | ||
(1) THE GENERAL MEDICAL COUNCIL![]() |
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| (2) CATHERINE GREEN | ||
| (3) PETER LYNN | ||
| (4) SARAH BEDWELL | Defendants |
____________________
Official Shorthand Writers and Tape Transcribers
Midway House, 27/29 Cursitor Street, London EC4A 1LT
Telephone: 020 7405 5010
MISS J COLLIER appeared on behalf of the DEFENDANTS
____________________
Crown Copyright ©
JUDGE HARRIS:
clearly out of hand. In February, they stood at something over ,40,000, but the schedule now before the court is seeking some ,84,000. This, on a strike-out/summary judgment application, is a sum which must, in my judgment, be difficult to justify.
adjournment to investigate the possibility of obtaining evidence about the claimant's damages claim (largely the extent to which her work prospects had been damaged), but, in the light of the fact that this was a summary judgment or strike-out hearing and such evidence would be difficult to obtain and very unlikely to be determinative, I did not grant that adjournment.
General Medical Council
("GMC") and/or three of its non-
medical
employees, for whom the first defendants would be vicariously liable. The claims fall into three categories: firstly, under the Data Protection Act 1998; secondly, under the
Human Rights Act; and thirdly, in defamation.
later in this judgment.
"I am not willing to cover the ground that has already been stated. In addition, I am not willing to be interviewed by yourself on a one-to-one basis as I quite simply do not trust either you or the GMC."
"I realise you need to interview me but this does not stop you from progressing with the complaint as you have not covered many areas so far apart from reading the dossier. I have written everything I can remember from notes I have made. The information you have is thus all the information I know and it is up to you to do with it what you wish...
I am not here so that you can blame the slow progress of the investigation on me. There are many things you have not done. Furthermore it is highly unethical to build a case solely on my statement. I don't wish to waste my time with questions that have been covered in the dossier...
When you have done some preliminary investigations then you are welcome to interview me which will have a number of stipulations you agreed to already:
(a) all questions are placed in writing and this agenda is adhered to;
(b) three of my chosen witnesses are present at the time of the interview;
(c) you come to Birmingham on a Sunday to arrive here at 0600 a.m. in the morning [she indicated that that was a misprint for 0900 in the morning];
(d) you can choose any Sunday in September 2000..."
There were various other stipulations made.
"The accusations about victimisation will be difficult to rebut unless we can interview DrPal
. I believe we need to rebut these allegations and proceed with our investigation. We should not now stop any investigation at Dr
Pal
's bidding. For that reason, I advocate a strongly worded letter to Dr
Pal
advising her accordingly."
Letters were sent to the claimant asking her to arrange a meeting.
"I understand from your letter that you do not wish to correspond with us further. While I acknowledge your position, you should appreciate that, in the light of the very serious allegations you make, I must now consider how best to proceed."
"Those of us who have dealt with the case in Conduct are concerned that the correspondence on file suggests that DrPal
may have an underlying health problem. There is of course a dilemma between the rights of someone to bring a complaint without action being taken against them and the need to protect the public if Dr
Pal
does have a health problem.
I have discussed this case briefly with Isobelle and Peter Lynn and they agree that we should seek your advice about whether to formally consider DrPal
's health. The claimant advised me that on a previous case we had taken the decision not to act on health information about a doctor who had come to us because the doctor had written to us on another issue."
"The correspondence on this file shows that DrPal
has been hostile to the GMC and to other organisations and individuals from the outset. We do not know why she is so suspicious of us. She may have had bad experiences or her suspicion may be irrational. I am not a psychiatrist and cannot tell whether she is ill or just disaffected by a system which she appears to
think is all against her."
"There is concern that she may be suffering from mental illness but I would be grateful for your expert views on this. Her correspondence, particularly the documents I have flagged, certainly demonstrates that DrPal
is extremely irrational and I think there must be some concern about this doctor having direct access to patients. However, we need to decide whether we should instigate the health procedures and I note Alan Howes's paragraphs. I agree she would be almost certain to refuse to be medically examined which would mean that we would have to refer her to the Health Committee."
Pal
had explained at the earlier hearing was a typing error for 9 a.m.
answer came back:
"For my part, and particularly given that we have received no complaint or referral about DrPal
, I would be extremely wary of initiating health action. There must be concern about Dr
Pal
but I do not think that we would be justified in taking a case forward under the health procedures."
"I do think that she could have a health problem. She is certainly intemperate and possibly paranoid. But at the present time I do not think we have sufficient evidence of ill health to proceed."
memorandum to one Neil Marshall in the following terms, inter alia:
"The first point is that DrPal
has made complaints before which went nowhere and we did consider taking health action against her. If my memory serves me correctly, we consulted [the person that would have been the Screener] but decided that there wasn't sufficient evidence to invoke the health procedures."
Pal
's fitness to practice. The defendants have confirmed in an e-mail of 30th April 2004 that "in respect of the material reviewed by the Screener, there can be no question that you are mentally ill".
Medical
Director of North Cheshire NHS Trust; and secondly, that personal data about her were kept longer than was justified
by the Data Protection Act.
of the article and the information are simply not the same. As to claim 1(d), it is admitted that this is a matter requiring evidence at trial.
"Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes."
The GMC had a policy document in 1997 with a six-month retention time limit. This says:
"Policy on retention of papers. No action cases. Where the doctor is not informed of the complaint dispose of all papers six months from the date of closure of the case."
It is agreed that, since there never was any complaint about Dr
Pal
, she was therefore not informed of one and this provision is therefore prima facie applicable. There is no dispute that the papers have not been disposed of and that it is far more than six months since the closure of the case.
prospects of success might be quite promising.
present no authority.
35 The Human Rights Act Claims
The defendants were enquiring about the claimant's mental state. There is, it is conceded, a prima facie breach of Article 8.1. However, it is urged on the defendants' behalf that the defendants were clearly "acting in accordance with the law under Article 8.2 and only in so
far as was necessary for the protection of health".
"Where information in writing or a complaint in writing is received by the Registrar about any practitioner which raises a question whether the fitness to practice of the practitioner is seriously impaired by reason of his physical or mental condition, the Registrar shall submit the information to the President.
6.2. Unless the information or complaint has been received from a person acting in a public capacity, the matter shall not proceed further unless and until there has been furnished...one or more statutory declarations or other affidavits in support.
6.3. On receipt of the information or complaint, the President may cause such enquiries to be made in relation to the matter as he may think fit."
These provisions, say the defendants, so clearly justify what the defendants were doing in inquiring about the claimant as to make it clear that she can have no reasonable prospect of establishing a breach of Article 8. The onus is of course on the defendants to justify the admitted breach of Article 8.1.
condition? It certainly does not raise the question explicitly.
November 2000 reads: "Her correspondence...certainly demonstrates that
Pal
is extremely irrational."
Pal
's letters are a long way from that in my judgment.
medical
condition impairing fitness to practice. It is at least strongly arguable that the information must be such as clearly to raise the question by its terms and not such as to require investigation by other people to see if an adverse conclusion about the author might possibly be reached. The defendants' contention requires reading in an implication to the rules which, sensibly, limit the right to cause enquiries to be made to the President.
medical
health. If pique or antagonism was indeed their motive - putatively unlikely, but it is not wholly fanciful to see this in some of the language used - then of
course there could be no question of the defendants establishing the Article 8.2 justification.
The two passages in memoranda written by the third defendant are alleged to be defamatory. They are set out in the particulars of claim. The first passage is as follows:
"Her correspondence, particularly the documents I have flagged, certainly demonstrate that DrPal
is extremely irrational and I think that there must be some concern about this doctor having direct access to patients."
The amended particulars of claim continue:
"Mr Lynn's words in their natural and ordinary meaning meant and were understood to mean that the complainant was [which is not any longer to be contended] or alternatively might be suffering from a mental illness. His position as an employee of themedical
profession's governing body adds weight and credibility to these words yet he is unqualified to make such an assertion. Given the overwhelming stigma associated, however unjustly, with mental illness, there can be no doubt that Mr Lynn's comments would cause the claimant to be shunned to be right-thinking members of the community and as such are defamatory under section 2 of the Defamation Act.
In relation to the claimant's alternative case, it is submitted that Mr Lynn's words carried with them his belief that the claimant could be mentally ill but there was no reasonable basis for the same."
"The first point is that DrPal
has made complaints before which went nowhere and we did consider taking health action against her. If my memory serves me correctly, we consulted [name deleted] but decided that there wasn't sufficient evidence to invoke the health procedures."
The pleading continues:
"Mr Lynn's words in their natural and ordinary meaning meant and were understood to mean either (a) that he believed that the claimant was mentally ill but, having investigated the matter, could not prove it; or (b) that he believed that the claimant might be mentally ill but, having
investigated the matter, there was some evidence to support that proposition but his belief, which remained unaltered, could not be proven to the requisite standard."
v
Arts The
Council
of Wales [2001] 1 WLR 1840, paragraphs 37-39), or, to put it another way, it needs to be shown that a jury would be perverse in finding for the claimant. "It is a high threshold of exclusion...The judge's function is no more and no less than to pre-empt perversity", per Simon Brown LJ in Jamil
v The Wall Street Journal [2003] EWCA Civ 1694, paragraph 9.
about direct access to patients, many ordinary people might well conclude that she had some form of mental illness. I do not regard these defamation claims as ones which should be the subject of summary judgment in the defendants' favour.