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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cream, R (on the application of) v General Medical Council  EWHC 436 (Admin) (31 January 2002)
Cite as:  EWHC 436 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF CREAM|
|GENERAL MEDICAL COUNCIL|
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MISS J COLLIER (instructed by Field, Fisher Waterhouse, 31 Vine Street, London EC3M 2AA) appeared on behalf of the Defendant
Crown Copyright ©
Thursday, 31st January 2001
The Nature of the Complaint
(a) At the material time the claimant was a consultant at various hospitals;
(b) In 1998, a new consultant post was advertised at Ealing and Hammersmith Hospitals Trusts;
(c) The claimant was a co-signatory of a letter requesting that the appointments procedure be suspended and that he had subsequently sent a letter expressing concerns about the nature of the (proposed) appointment;
(d) The claimant was invited to sit (as a member of) the appointments' committee;
(e) In about October 1998, he received the following information from Professor Dowd, namely:
i) That one of the candidates for the post was closely related to a benefactor of the Hammersmith Hospital,
ii) That one of the members of the appointments' committee, Dr Chu, had received research funds from the benefactor's trusts, and
iii) The trust was likely to continue to act as a benefactor to the Ealing and/or Hammersmith Hospitals;
(f) On 10 November he drew the information to the attention of the appointments' committee shortly before they were to interview for the post;
(g) He took insufficient steps to ascertain the truth of the information in (e)(i) to (iii) above;
(h) The conduct alleged in (f) and (g) above was inappropriate;
(i) He failed to withdraw the allegation or to apologise for having raised it after having been invited so to do.
Such facts amounted to serious professional misconduct.
"In October 1998, prior to interviews, Professor Dowd informed you that she had been told that Dr Chu had received funds from a family trust, which was a benefactor of Hammersmith Hospital, and that one of the candidates ... was related to a trustee of that family trust. Professor Dowd did not disclose to you the source of this information. Between 20 October and 10 November 1998, the day of the interviews, you took insufficient steps to verify this information.
During the morning of 10 November, Professor Dowd provided you with photocopies of two pages taken from Dr Chu's diary as proof of the allegation against Dr Chu. The entries in the diary actually related to another trust with a similar name. When handed the information you have stated in evidence [that] you were unsure if it was the same trust to which Dr Acland was related by marriage, or another which soon after, transpired to be the case. When the interviews were about to commence, despite having no other evidence to support the allegations, you conveyed [them] to some members of the selection panel, and the allegations were put to Dr Chu, who denied them. By disclosing the allegations in this way and at this time, you caused distress and potentially serious professional damage to Dr Chu. This was highly irresponsible. The Committee do not accept that you acted merely as a messenger, passing allegations made by Professor Dowd, and consider that to claim this, is to deny your responsibilities. An individual who repeats such serious allegations, without a proper check as to their veracity, is just as culpable as the originator. The Committee are of the view that because of your misgivings about the post, your judgment was affected and you did not act as would a responsible member of your profession. As the Chair of the appointment panel stated in evidence, you appeared as a 'driven man' and it is our view that this clouded your judgment.
... You failed to withdraw the allegation and to apologise ... You failed to do this and even at the hearing, you have not until the final day, expressed any remorse for your actions maintaining that you have never been accountable.
Although good medical practice indicates that a doctor must act when he ... has concerns about a colleague's conduct, it also states that before taking action, a doctor should do his best to find out the facts, which you clearly failed to do. The guidance further states that a doctor should deal fairly with other colleagues. By your actions you did not treat either Dr Chu or Dr Acland fairly.
... The Committee accept that you did not act maliciously."
The Grounds of Challenge
"Their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past. In Evans v General Medical Council (unreported...) the Board said:
'The principles upon which this Board acts in reviewing sentences passed by the (PCCC) are well settled. It has been said time and again that a disciplinary committee are the best people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee
... The (PCCC) are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are particularly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have the advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.'
For these reasons the Board will accord an appropriate measure of respect to the judgment of the (PCC) whether the practitioner's failings amount to serious professional misconduct and on the measure necessary to maintain proper professional standards and provide adequate protection to the public. But the Board will not defer to the (PCC's) judgment more than is warranted by the circumstances. The (PCC) conceded, and their Lordships accept, that it is open to them to consider whether the sanction of erasure was appropriate and necessary; and in the latter event either to substitute some other penalty or to remit the case to the (PCC) for reconsideration."
"You must protect patients when you believe that a doctor's or other colleague's health, conduct or performance is a threat to them.
Before taking action, you should do your best to find out the facts. Then, if necessary, you must follow your employer's procedures or tell an appropriate person from the employing authority, such as the director of public health, medical director, nursing director, or chief executive, or an officer of your local medical committee, or a regulatory body. Your comments about colleagues must be honest. If you are not sure what to do, ask an experienced colleague or contact the GMC for advice. The safety of patients comes first at all times."
It will be recalled that the findings of the PCC referred to part only of this advice, namely "before taking action". It was the undisputed evidence given at the inquiry that the claimant had at first resolved to take no action because he considered that the information which had been conveyed to him was no more than gossip or "grapevine ... stuff". Moreover, the information lacked any form of precision. As a reasonable interpretation of the good practice statement, it was not incumbent on a doctor to take any steps to inform himself further as to the facts until he had decided upon "taking action". This makes good sense and must surely be right. Even on a straightforward and uncomplicated understanding of what the statement requires it would obviously be absurd for a doctor who had in fact received no more than an unspecific rumour to take any steps to investigate either its provenance or truth.
"One of the reasons why earlier I said I could give an impression was that [the claimant] was at that moment somebody who was giving all the signs of being under a great deal of pressure. He was, in my phrase, a driven person. I think at one stage he left the room shortly afterwards, and I thought he had gone to make a telephone call. That was an impression that [the claimant] was responding to pressures which were outside [the] room at the time.
I said it was an impression rather than a fact. I felt that [the claimant] was following a brief to protect his professional standing, and this was the reason that he had brought the matter to us; but there was somebody else who I thought might be an unnamed informant who was an influence at the time. I say very clearly that that was an impression I gained. I used the expression 'like a driven person' because there was a conflict going on that had to be resolved in some way...
Very much the messenger. I cannot stress this too strongly. This is why I formed the view at the time that he was a driven man. That was my expression. Whether it fits comfortably today or not, he was not somebody who was motivated to do people harm or anything like that, but he was following a code that he felt he ought to follow."
"Serious professional misconduct is presented as a distinct matter from a conviction in the British Islands of a criminal offence, which is dealt with on a separate basis for a direction by the Committee in section 36(1) of the Medical Act 1983. Analysis of what is essentially a single concept requires to be undertaken with caution, but it may be useful at least to recognise the elements which the separate words contribute to it. Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word 'professional' which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word 'serious'. It is not any professional misconduct which will qualify. The whole matter was summarised in the context of serious professional misconduct by Lord Mackay of Clashfern in Doughty v General Dental Council  AC 164, 173:
'In the light of these considerations in their Lordships' view what is now required is that the General Dental Council should establish conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and such falling short as is established should be serious ... professional misconduct ... it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances. The closest link is where the practitioner is actually engaged on his practice with a patient. Cases may occur of a serious failure to meet the necessary standards of practice, such as gross neglect of patients or culpable carelessness in their treatment, or the taking advantage of a professional relationship for personal gratification."
"If it has to be shown that a medical man, in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency ... The question is, not merely, whether what a medical man has done would be an infamous thing for anyone else to do, but whether it is infamous for a medical man to do ... There may be some acts which, although they would not be infamous in any other person, yet if they are done by a medical man in relation to his profession with regard to
... his professional brethren, may be fairly considered 'infamous conduct in a professional respect' and such acts would I think come within section 29."
MR FRANCIS: My Lord, in those circumstances, I ask for judgment in those terms, and I also ask for an order for costs?
MR JUSTICE TURNER: You cannot resist either, can you?
MISS COLLIER: My Lord, I cannot resist either. I cannot resist the application for costs because my learned friend and I have discussed if my learned friend were to ask for summary assessment. We would wish to put the argument that we should not have to bear the claimant's costs on the issue of whether he was entitled to a merits review, because that was an issue that was not pursued by Mr Francis at the hearing.
MR JUSTICE TURNER: It is difficult to say that there will be any identifiable costs in that respect.
MISS COLLIER: Well, my Lord, Mr Francis addressed that in his skeleton argument and, therefore, presumably costs were incurred there. We would also say that they should pay.
MR JUSTICE TURNER: This is de minimis.
MISS COLLIER: My Lord, the costs were incurred by the respondent as well on that issue. It was a new issue that had not been raised in the grounds and, therefore----
MR JUSTICE TURNER: I did not decide the issue against him.
MISS COLLIER: Indeed not, but that was because my learned friend decided that he need not pursue it, although he had raised it at a very late stage in his skeleton argument and then decided during the hearing----
MR JUSTICE TURNER: I understand the point you make, but I am against you.
MR FRANCIS: My Lord, so far as assessment is concerned, there is a schedule, I do not know if you have seen it?
MR JUSTICE TURNER: No, I have not.
MR FRANCIS: It amounts to nearly £23,000. I know that my learned friend has some comments to make, and I am afraid I do not know at the moment what they are. But, maybe, if they are matters that are complicated, the matter should be put off for detailed assessment. As I am not sure what the objections are, I am not really in a position to make a submission on that.
MR JUSTICE TURNER: Just a moment. Now, Miss Collier, how are we going to approach this?
MISS COLLIER: My Lord, obviously we accept that a claimant's costs will be higher than those of the respondent, because they have responsibility for preparing the bundles and, of course, leading counsel was instructed. But, nevertheless, these costs are, in fact, more than three times the costs incurred by the respondent. We would say that they are unnecessary high for the following reasons. First of all, it does appear that an unnecessarily large proportion of the work has been done by a partner. My calculation is that the partner spent 28 hours on it, although there were two assistant solicitors and a legal executive also working on it.
MR JUSTICE TURNER: How long did they work?
MISS COLLIER: My Lord, I have not calculated that. They did, for example, attendance on the claimant, they worked half as long as the partner; attendance on others, they worked five hours, as opposed to the partner's nine hours and 18 minutes; and on work done on documents they did 15 hours, as opposed to the partner's 13 hours.
MR JUSTICE TURNER: Yes.
MISS COLLIER: It seems likely that some of those 28 hours spent by the partner could have been done by, at least, an assistant solicitor, or even a legal executive at either £100 or £110 per hour. That would have led to a saving, on my calculation, of around £400.
MR JUSTICE TURNER: It is beginning to sound like a candle end.
MISS COLLIER: My Lord, this is a very substantial bill and, therefore, the candle ends may add up to something.
MR JUSTICE TURNER: Of course, they may. A number of grains of wheat will eventually fill a sack.
MISS COLLIER: Indeed, they will. I hope that it will not take me as long as it would to fill a sack of grains of wheat. But as far as attendances on others are concerned and work done on documents, we find this very high indeed. The entire case was based on the transcript.
MR JUSTICE TURNER: That is 16 hours, is it not?
MISS COLLIER: Well attendances on others is 16 hours. Work done on documents is nearly 30 hours.
MR JUSTICE TURNER: Yes.
MISS COLLIER: But, as I say, the entire case was based on the transcript from the PCC proceedings and on all the documents that were in front of the PCC. There was no need for further witness statements or any issue of disclosure, and so we find it very hard to accept that all those hours can really have been reasonably incurred.
MR JUSTICE TURNER: What do say was the reasonable number of hours per each head?
MISS COLLIER: We would suggest that for both a figure of half would have been reasonable. That on my calculation would save £2,600.
MR JUSTICE TURNER: Yes, it is almost a candle.
MISS COLLIER: It is more than 10 per cent of the total, my Lord. The other point that I have already made, and you found against me, was the preparation of the skeleton on the application for a merits hearing, so I will not repeat myself on that. So, therefore, I would ask your Lordship to reduce the bill by £3,000.
MR JUSTICE TURNER: That is before VAT comes in, is it? Yes.
MR FRANCIS: My Lord, so far as----
MR JUSTICE TURNER: I have to say that attendances on others and work on the documents do appear to me, in terms of hours, requiring justification.
MR FRANCIS: My Lord, might I say two things about that? Firstly, attendances on others. This is case in which the medical defence unit has been supporting Dr Cream, and, unusually, this case actually, as your Lordships knows, has involved not only their support for a doctor in relation to his conduct, but actually their own involvement in the conduct in effect. Therefore, there has been a need for, firstly, partner level support, a level which would perhaps be unusual in these cases.
MR JUSTICE TURNER: I am not so troubled about that as what we are looking at, 16 hours for attendances on others and 30 hours. I note that you not only had a consultation but also a brief fee and pre-hearing consultation, points not taken by Miss Collier. The necessity of both?
MR FRANCIS: I can explain those. The initial conference was in relation to the decision whether or not there should be an appeal, and the subsequent one, in a matter which was, if I may say so, very fact-heavy, was a review of the matter in the light of the arguments put forward.
MR JUSTICE TURNER: Plainly so.
MR FRANCIS: My Lord, so far as the documents are concerned, there was actually, I know this from personal knowledge, quite considerable difficulty in deciding what documents should be in the essential reading bundle and what should not be, because the documents, as you know, in the full bundle were of some considerable length, and that may have taken more time then you would expect in a case of this nature. Clearly, if you find that too many hours have been spent, then we would have no quarrel with that.
MR JUSTICE TURNER: I am not persuaded that 16 hours and 30 hours can be fully justified.
MR FRANCIS: Yes.
MR JUSTICE TURNER: I find the role which I am required to fulfil at this point rather unsatisfactory. Am I an honest broker trying to broke an agreement between you?
MR FRANCIS: Well, my Lord, it is difficult.
MR JUSTICE TURNER: Unless there is some concrete concession I think I am bound to send this for detailed assessment.
MR FRANCIS: Certainly, on instructions, in relation to attendance on others a concession of 3 hours will be made, but it does not sound as though that will satisfy my learned friend.
MR JUSTICE TURNER: I think it is five hours short by my reckoning.
MR FRANCIS: My Lord, can I just take instructions? My Lord, we would be content with a reduction of 8 hours.
MR JUSTICE TURNER: And on the 30 hours on documents? In my role as honest broker I would be minded to say 20.
MR FRANCIS: Take it down to 20?
MR JUSTICE TURNER: Yes, take it down to 20.
MR FRANCIS: We are getting up towards half a sack, I think.
MISS COLLIER: My Lord, we would accept 20, yes.
MR JUSTICE TURNER: There we are. The bill will be adjusted in accordance with those concessions and agreements, and the costs will be recovered accordingly.
MISS COLLIER: Thank you, my Lord. My Lord, I apply for permission to appeal on grounds that we have a real prospect of success in showing that there was a duty on the claimant to act before 9th and 10th November, and that this matter does fall within the definition of professional and, therefore, serious professional misconduct.
MR FRANCIS: My Lord, I would submit that there is no real prospect of that on the basis of reasons which your Lordship has found to be utterly perverse in relation to the evidence.
MR JUSTICE TURNER: I think I am bound to take that view.
MISS COLLIER: My Lord thank you.
MR JUSTICE TURNER: Thank you.