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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 >> Phillips, R (on the application of) v General Medical Council  EWHC 1858 (Admin) (02 July 2004)
Cite as:  EWHC 1858 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DR BRIAN PHILLIPS||(CLAIMANT)|
|GENERAL MEDICAL COUNCIL||(DEFENDANT)|
|MARJORIE HAWKINS||(INTERESTED PARTIES)|
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 G CLARKE (instructed by Field Fisher Waterhouse) appeared on behalf of the DEFENDANT
MR S CRAGG (instructed by Field Fisher Waterhouse) appeared on behalf of the INTERESTED PARTIES
Crown Copyright ©
"Dr Phillips is not on trial for being an old fashioned doctor or for being a brusque doctor or an insensitive and rough doctor, for being an incommunicative doctor, for being an unsubtle doctor or even for being an incompetent doctor. He is on trial for being a deliberate and intentionally indecent doctor. Therefore you have to eliminate those other descriptive possibilities that I just chronicled to you as being alternative explanations for the manner of the examinations that he carried out before you can possibly convict him."
"If you consider that there is a real possibility that the complainants may have told police officers in their initial unrecorded and missing complaint something significantly at variance with their evidence before you, then you should reject their evidence in its entirety. If that is a real possibility, then Dr Phillips has been placed at a real disadvantage in putting forward his case, and it would follow that on the particular count concerned, you could not yourselves rely upon that complainant's evidence and you should acquit upon it."
"If there is a real possibility that Dr Phillips has been placed at a real disadvantage by the loss of such evidence in respect of any one or more of these complainants, then you should acquit on the count to which that disadvantage relates, and it follows that if you consider it arises in all counts, then you should acquit on all counts."
"You also know that it is accepted medical practice that when investigating a neurological complaint, a full physical examination of the patient is appropriate."
"There is no issue here that it was entirely appropriate for such physical examinations to take place, and I will go through in detail what the medical evidence is about such examinations and how they should be performed later."
"During the consultation you conducted a physical examination of Mrs Reid."
"c. You did not adequately explain the purpose of the examination.
d. The manner of the examination was inappropriate and/or indecent."
"You did not offer a chaperone ... The manner of the examination was inappropriate ... You did not adequately explain the purpose of the examination ... [and so forth]."
"As part of that general physical examination, Dr Phillips carried out breast and groin examinations. This was an entirely standard approach on his part arising from his training in general medicine, and from the fact that his medical training at [sic] been at a time when such an approach in terms of a thorough and detailed general examination was considered entirely proper and indeed good practice. May I reiterate that at all times Dr Phillips has conducted himself properly in relation to examinations of the complainants. The breast and groin examinations he has conducted have been entirely proper and consistent with his normal practice."
"There must be some finality to this. I take the view that this is the trial and I am putting my head on the chopping block by saying so. This is the trial."
"The jury acquitted on all counts within an hour. That was a decisive verdict, and a resounding rejection of the Crown's case. Whilst it can properly be said that it only concerned 8 counts out of a total of 34, it should be noted that these were the most serious allegations. And a cameo of the overall picture had all counts be [sic] tried together, the same issues would have been raised. Indeed, the Crown would have relied heavily upon the evidence in respect of these serious 8 counts to support the allegations on the more ambiguous ones. They were in reality the core of its case against Dr Phillips. The verdicts therefore constituted a fatal blow to the entire Prosecution case."
"The real and live contamination issues, which were so fundamental to the first trial ..."
"The absence of those matters which were determined by the Court at the criminal trial in [the] letter of 15th February 2003 [I think that must be the letter of 15th January] makes it clear the GMC has accepted that where the complaints resulted in acquittals they should not be pursued as allegations of misconduct. Had the Crown Prosecution Service offered no evidence on the other counts as they should have done, this would [have] resulted in acquittals on those counts too, and presumably they would not have been pursued either. The Judge ruled in effect that the Crown Prosecution Service, in seeking a trial on the other counts, as opposed to offering no evidence, was abusing the process of the Court -- such that he was then obliged to exercise his power to stay the matter. It is only because of that abuse that there were not acquittals on all counts. It follows that to pursue this matter, the GMC would be exploiting an abuse of process by the Crown Prosecution Service."
"The main issues raised by Dr Phillips's solicitors are:
a. Double jeopardy. As the GMC have not included any of the matters which have already been determined by the court at the criminal trial within the Rule 6 letter this makes it clear that the GMC has accepted that where the complaints resulted in acquittals they should not be pursued as allegations of misconduct."
"I have been asked to advise the Preliminary Proceedings Committee as to whether they should refer to the Professional Conduct Committee allegations which have previously been the subject of criminal charges and in relation to which an order had been made by a Crown Court Judge that they should be stayed."
"Given that the General Medical Council have not indicated any intention to prosecute the doctor for those offences in respect of which he was acquitted in the Crown Court, it is unnecessary for me to advise in relation to those. Suffice to say that the General Medical Council have obviously made the right decision in that respect."
"It is right to say that the purpose of the PCC is different to that of the Crown Court but the factual issues that they would have to grapple with in this case would very much the same."
"The gravamen in respect of each charge is the allegation of indecency, without which the committee are unlikely, in my view, to find Serious Professional Misconduct."
"In order for the Committee to find the allegation of inappropriateness or indecency proved, they would have to find that Dr Phillips had no clinical purpose in touching these patients in the way they said he did and that he was doing so for self gratification. Thus the factual issue before the PCC and that which was before the Crown Court is in fact very much the same. The word 'inappropriate' in these circumstances does not add very much to the word 'indecent' given that the Committee would need to find that there was no clinical justification for the touching before they could find his conduct to have been either indecent or inappropriate."
"In all the circumstances therefore, although it would be a matter for the PCC to exercise their judgment independent of the finding of the Crown Court, I would advise that the very likely outcome would be that this case would be stayed for abuse of process in respect of those counts already stayed by the Judge."
"... in these particular circumstances it would be difficult to try the doctor on those eight charges before the PCC."
"... the factual issues they would have to grapple with in this case would be very much the same."
"The reality in this case is that the General Medical Council would [subject to there being material he has not seen] be relying on the same material which was presented to the jury and upon which the jury acquitted the doctor."
"I have been obviously been confused by previous correspondence which suggested to me that even in case where former patients of Dr Phillips had appeared in the Criminal Court and he had been acquitted, this would be no bar to the General Medical Council considering their complaint. I had thought that all the complaints from the former patients had been referred to the GMC PCC, but I understand that this is not the case.
"In the circumstances, the following of my clients, who gave evidence at the criminal proceedings, would like their complaints to be considered, first of all by the screener, and thereafter, if appropriate, by the Preliminary Proceedings Committee and therefore, if appropriate, by the Professional Conduct Committee.
"I therefore would be grateful if you would provide me with the appropriate authority for my clients to sign. This may not be necessary in the circumstances, and if you confirm how we should proceed, I can let you have copy police statements and details of the individual cases."
"I think that these cases show a pattern, which the PCC may well consider unprofessional behaviour constituting serious professional misconduct."
"When referring a case to the Professional Conduct Committee the Committee shall indicate the convictions, or the matters which in their opinion appear to raise a question whether the practitioner has committed serious professional misconduct, to be so referred and to form the basis of the charge or charges:
"Provided that, where the Committee refer any case relating to the Professional Conduct Committee and the Solicitor (or the complainant) later adduces grounds for further allegations of serious professional misconduct of a similar kind, such further allegations may be included in the charge or charges in the case, or the evidence of such grounds for further allegations may be introduced at the inquiry in support of that charge or those charges, notwithstanding that such allegations have not been referred to the Committee or formed part of the subject of a determination by the Committee."