Toth, R (on the application of) v General Medical Council

MR JUSTICE ELIAS: The claimant seeks judicial review of the decision of the Professional Conduct Committee ("PCC") of the General Medical Council ("GMC") dated 4th March 2002. The decision was to refer his complaint against Dr Jarman, the interested party in these proceedings, to the Health Committee of the GMC. In essence, the complaint is that whilst in an inappropriate case such a reference is possible, the PCC failed to make certain determinations which were a condition precedent to any lawful reference being made. Permission was granted for this application by Maurice Kay J, but only on part of the application. He refused permission in relation to an argument based on Article 2 of the European Convention on Human Rights and no appeal was made against that determination. The case now raises issues of domestic law only.

I have heard counsel on behalf of both the claimant and the interested party and I am very grateful for the clear, concise and low key submissions that they have made.

The defendant has provided a witness statement from a Ms Smerdon, a solicitor, explaining its position. It has not, however, been separately represented before me. The consent of the Attorney General was also obtained, apparently in case it was thought that these proceedings may be charity proceedings. The Attorney General has, however, chosen not to be represented in the proceedings.

Before considering the factual background, it is helpful to set out, so far as is necessary, the material statutory framework. The governing act is the Medical Act 1983 as amended. Cases of professional misconduct are dealt with by the PCC. Section 36 sets out the sanctions which may be imposed on someone who is found guilty of professional misconduct. It is as follows:

A different committee, the Health Committee, deals with cases where there are concerns that a practitioner's health may render him or her unsuitable to practice. Section 37 provides that:

The PCC has a power in an appropriate case to transfer a case to the Health Committee. The relevant power is found in rule 51 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988. Rule 51(1) is as follows:

It is expressly provided in subrule (4) that if the Health Committee certify to the PCC that the fitness of the practitioner to practise is seriously impaired, then the PCC shall cease to exercise its functions. If, however, it certifies that his health is not seriously impaired, then the PCC must resume its inquiry. This rule reflects paragraph 4 of Schedule 4 to the 1983 Act.

Accordingly, a reference to the Health Committee may disable the PCC from any further consideration of a case. It was in pursuance of rule 51 that the PCC acted in this case.

The PCC itself cannot impose any directions on the practitioner pending its determination. However, by rule 22A it is obliged to refer the case to the Interim Orders Committee ("IOC") if it appears to the PCC that the circumstances are such that the IOC may wish to make an interim order. The IOC is empowered either to impose an interim suspension or to make an order for interim conditional registration. Neither order may last for more than 18 months and any such order is subject to regular monitoring. The period can be extended beyond 18 months by an order of the courts (see section 41A).

The claimant's five year old son, Wilfred, suffered from a metabolic disorder known as glycogen storage disease. As a consequence he required overnight continuous feed by means of an electronic pump and a naso-gastric tube feeding apparatus.

On the night of 8th October 1993, for some reason, the pump mechanism was not effective. Possibly it had inadvertently not been switched on. Whatever the reason, the child received no feed from 10 o'clock that night and became hypoglycaemic in the early hours of the morning. At 7.15 he was having a fit and his parents both administered oral glucose to him using the naso-gastric tube. This produced no response and the parents called Dr Jarman. He visited the house and arranged hospital admission. He provided medication to stop the fit but did not inject intravenous oral glucose. Part of the claimant's complaints is that he ought to have done so and was asked to do so. Wilfred was admitted to hospital but never recovered and died on 14th October 1993 when his life support machine was finally turned off.

The claimant issued proceedings in the High Court claiming psychiatric damage caused to him as a result of the death of his son following Dr Jarman's failure to provide intravenous glucose to Wilfred. Dr Jarman claimed that he was unaware that Wilfred was suffering from the disease and that he had not been alerted to this by the parents. They were understandably distressed at the suggestion that they failed to notify the doctor of this crucial matter. They said that they had requested Dr Jarman to administer intravenous glucose but he had refused to do so.

The learned judge accepted their evidence on this point and also found that it was negligent of Dr Jarman not to have administered the glucose. However, the claim for damages failed on the basis that, notwithstanding the negligence by Dr Jarman, his failings made no difference to Wilfred's condition or his ultimate death as the fatal damage had been caused by the time Dr Jarman was even called.

In short, the court concluded unequivocally that Dr Jarman did not cause Wilfred's death.

This action was only one of a series of proceedings taken by Mr Toth, the claimant. He complained to the Family Health Service Authority in January 1994, alleging that Dr Jarman had breached his terms of service as a GP. The complaint was upheld but no sanction was imposed. In 1996 proceedings were issued for damages under the Fatal Accidents Act. That action was compromised following a payment into court. Then in July 1997 the claimant complained to the defendant about Dr Jarman's conduct. The complaint is not only that Dr Jarman failed to give intravenous glucose, as it is said he ought to have done, but also that he has lied before various bodies, including the court, in asserting that he was not told, either by Mr Toth or his partner, that Wilfred was suffering from the disease and required such treatment.

The matter finally came before the PCC on 27th February 2002, almost nine years after the original incident. In part, the delay was due to the fact that initially the screener had rejected the complaint, but that decision was subsequently overturned on judicial review proceedings in the judgment of Lightman J.

Dr Jarman was not present during the proceedings before the PCC by reason of ill health. At the outset of the proceedings, after the charge had been read, counsel on behalf of Dr Jarman, Ms O'Rourke, who is also counsel before me, raised objection to the charge under rule 24(2) of the 1988 Rules. This entitles a practitioner to object on legal grounds to any charge. If the objection is sustained the proceedings are stayed.

The basis of the submission was that in view of the combination of the delay in the hearing of the case and Dr Jarman's inability to attend the hearing, it would be both a breach of Article 6 and an abuse of process for the case to proceed.

The PCC heard evidence from a number of persons, including in particular two consultant psychiatrists, one was instructed by Dr Jarman, namely Dr Reveley, and one, Professor Weller, was instructed on behalf of the claimant. Each prepared a detailed psychiatric report; indeed Dr Reveley had produced more than one. Dr Reveley concluded that Dr Jarman would not be fit to participate in any proceedings. Professor Weller thought that there would be a 70 per cent chance that he would be able to participate in the future if he took appropriate medication, but recognised that Dr Jarman was refusing to do that.

At the conclusion of the evidence of the psychiatrists, and before any argument had actually been advanced on the application for a stay of proceedings under Article 6 or by reason of abuse of process, the chairman of the PCC announced that the PCC was minded of its own motion to consider referring Dr Jarman's case to the Health Committee. It agreed to hear submissions from the parties before making a final decision.

Having heard representations, the Committee determined to refer the matter to the Health Committee. The Committee, in its decision, first recounted the fact that the expert medical evidence from both psychiatrists raised a question about whether Dr Jarman was capable of performing properly as a doctor, and concluded that in view of this evidence they would refer the case to the Health Committee. They set out six factors which they said they had considered in reaching that conclusion:

The sixth factor purports to deal with the application for a stay on grounds of breach of Article 6 and abuse of process. The Committee there expressed the view that there are sufficient safeguards to enable a fair hearing. Plainly, however, the PCC could not properly reach any such conclusion on the matter since they had heard no argument on the point at all. Mr Owen QC, for the claimant, recognised that this was so. Indeed, after the decision was given the legal assessor to the PCC made it plain that if the matter were to be resubmitted to the PCC following consideration by the Health Committee, then the question whether the proceedings should be stayed would be considered afresh at that point.

The Committee also considered the question of adjournment, and in particular whether it was appropriate to adjourn to give the opportunity for Dr Jarman to undertake a course of treatment as recommended by Professor Weller. It said this:

Dr Jarman's case was considered on 2nd May 2000 by the Health Committee. It found that Dr Jarman's fitness to practice was seriously impaired by reason of his psychiatric health. Accordingly, the PCC had no further role to play.

The Health Committee imposed conditions on Dr Jarman's registration, the effect of which was to prevent him from continuing practice as a GP. He did not appeal the conditions and they have remained in force. As a consequence, he took NHS ill-health retirement from his medical practice and resigned from his partnership.

In general it is in the public interest that complaints of professional misconduct should be properly and publicly considered.

I adopt the observation of Lightman J in the case of R v General Medical Council ex parte Toth [2000] 1 WLR 1290 at paragraph 14, where he said this:

That case was not, however, concerned with the question of the circumstances in which the PCC might properly refer a case pursuant to rule 51 to the Health Committee. That issue has, however, been the subject of two Privy Council decisions. In Crabbie v General Medical Council (Privy Council Appeal No 7 of 2002) a practitioner was sentenced to five years' imprisonment for causing death by dangerous driving and driving with excess alcohol in the blood. The PCC heard medical evidence that the practitioner's fitness to practice may be affected by alcohol dependency. However, they refused a request to refer the case to the Health Committee. They concluded that the nature and gravity of the offence was such that public interest would not be adequately protected by the sanctions of condition or suspension. They considered that an erasure was the only appropriate penalty. The practitioner submitted that the PCC had erred in not making the reference to the Health Committee and had imposed a sanction, namely erasure from the register, which was wrong in principle and manifestly excessive. The Privy Council (Lord Steyn, Lord Scott and Sir Philip Otton) dismissed the appeal. The opinion of the Committee was delivered by Lord Scott. After referring to paragraph 51, he said this:

The Privy Council concluded that the PCC was entitled to find that erasure was an appropriate sanction and accordingly it would have been wrong to refer the matter to the Health Committee.

A similar approach was adopted by a differently constituted committee of the Privy Council (Lord Steyn, Lord Millett and Gault J) in Sreenath v General Medical Council (Privy Council Appeal No 26 of 2002). In that case a practitioner was found guilty of serious professional misconduct because of behaving inappropriately and indecently to two female patients. Having found the charges proved, the PCC allowed an adjournment for Dr Sreenath to be medically examined. The purpose of this was to determine whether he was fit to give instructions on the question of penalty. The psychiatrist provisionally formed the view that he might be suffering from organic brain damage in the form of dysexecutive disorder syndrome. His counsel sought a reference to the Health Committee, or alternatively an adjournment to enable further medical evidence to be obtained. The PCC refused both applications and directed that his name be erased from the register. One of the grounds of the appeal to the Privy Council was that the PCC ought to have adjourned to enable a more complete medical picture to be obtained so that an informed decision could have been taken as to whether or not to refer the matter to the Health Committee. The Privy Council rejected the appeal. Lord Millett, delivering the opinion, said this:

Both these decisions, therefore, require that whilst the possibility of erasure remains, the PCC cannot lawfully refer the case to the Health Committee. That Committee cannot impose a sanction of erasure and it is one that the PCC may have to impose in the public interest. Whilst that remains a possibility, the PCC should retain jurisdiction. I would only add that even where the PCC does conclude that erasure is not a possible sanction, it may still be inappropriate to refer a case to the Health Committee because the public interest in complaints being determined in public and the need to maintain professional standards may outweigh the advantages of referring the matter to the Health Committee. However, once erasure has been discounted as a possible sanction, the power to transfer arises and it is for the PCC to weigh the considerations for and against exercising that power.

These cases, therefore, impose a material limitation on the power to refer from the PCC to the Health Committee. Ms O'Rourke submitted that they should be limited to their own facts. In each of these cases the PCC have made all material findings of fact and all the evidence had been heard. In each case erasure was considered the appropriate sanction. She submitted that these cases do not assist in determining whether rule 51 can be invoked at the outset of the inquiry, focusing merely on the disposition stage. Indeed, she argued that if these cases were correct, then it would be very rare for a PCC ever to be able to refer a case to the Health Committee at the outset of an inquiry because until it hears the evidence and until it knows details of the doctor's past disciplinary record, if any, it will not be in a position to determine whether it can exclude the possibility of erasure. This, she submits, is at odds with the broad language of the rule.

I accept that a consequence of these decisions is indeed that they will make it very difficult for the PCC to refer any case to the Health Committee at the outset of an inquiry, although I suspect there will be some cases where it will be possible for the PCC to take the view, even at an initial stage, that an erasure would not be appropriate even if the case against the doctor were to be proved. Nonetheless, it seems to me that the principles enunciated in the two Privy Council decisions cannot be limited in a way which Ms O'Rourke suggests. As Mr Owen pointed out, it makes no sense to give the PCC a greater power to refer in circumstances where they are in a greater state of ignorance about the case; yet that would seem to be the consequence of this submission.

Ms O'Rourke also contended that, in any event, I was not bound by these decisions. That is of course technically true, but I would be very reluctant not to follow two decisions of such august committees even if I do not find the reasoning compelling, which in fact I do.

The grounds for appeal allege that the PCC erred in making the reference. The grounds rely upon a number of traditional public law principles. It is said that the decision was irrational, that it failed to take into account relevant considerations and that the powers were exercised for a wrong purpose. But, in truth, all these various formulations, as Mr Owen accepted, came back to the central complaint, namely that the PCC did not ask itself what has been somewhat inelegantly referred to as the "Crabbie question"; that is, it did not ask itself whether it could exclude erasure as a potential sanction. Mr Owen submits that following the Crabbie and Sreenath decisions this constituted a clear error of law. That question has to be asked and the possibility of erasure as a penalty has to be excluded before reference can be made.

Mr Owen accepted that a reference to the Health Committee could also be made if the PCC concluded that it could not properly continue to hear the case either because it was an abuse of process or because it would infringe the Article 6 rights of a practitioner were it to do so. He recognised that in those circumstances it would plainly be irrelevant to ask the "Crabbie question". The PCC would simply not be able properly to hear the case at all, and in those circumstances the public interest may well require that there is nonetheless a reference to the Health Committee to determine whether a doctor is medically fit to continue practice.

Accordingly, had the Committee made a determination of the claim by Dr Jarman that these proceedings ought to be stayed, then the matter could properly have been referred to the Health Committee. However, no such determination was made in this case. Indeed, as I have pointed out, the PCC appeared to take the view that they could properly consider the case in the absence of Dr Jarman. Mr Owen accepts that that was made without hearing relevant argument, and he recognises that even if he succeeds in this application, the effect will be that the PCC will at that stage have to consider the argument based on Article 6 and abuse of process and reach a conclusion on it. If the argument is upheld, then a valid reference to the Health Committee can be made. But he says that until they have done that, and whilst they apparently still have jurisdiction to deal with the matter, the PCC cannot refer without asking the "Crabbie question". It is common ground in this case that that question was never asked. As I have indicated, Ms O'Rourke contended that te "Crabbie question" did not have to be asked in these circumstances where the reference was made at the outset of an inquiry. She said that all the Committee then had to do was consider relevant considerations, as this Committee did, and thereafter it had a wide discretion whether to refer or not.

This argument fails for the reasons I have given, namely that I reject her attempted limitation on the effect of the Crabbie and Sreenath cases.

Both parties rightly accepted that it is not for me to determine whether or not erasure may or may not be an appropriate sanction, that is a matter for the PCC to consider.

It follows that, in my judgment, the PCC plainly could not properly refer this matter to the Health Committee at the stage at which it did. It retained jurisdiction in the matter when it had not excluded erasure as a possible sanction. In fairness to the Committee, it ought to be pointed out that it reached its decision before the Crabbie or Sreenath cases had been determined. Moreover, at that stage all counsel were assuming that there was, in principle, the power to refer without the need to reach any conclusion about the appropriate penalty. The debate, it seems, was essentially about whether it was appropriate in the circumstances to do that or whether the case ought to be adjourned for a short period to see whether the taking of medication might improve Dr Jarman's situation, or indeed whether the hearing might fairly be carried on in his absence. However, the claimant is now entitled to benefit from this later jurisprudence, which demonstrates that the Committee acted in error, albeit of a kind unanticipated by anyone at the relevant time.

That is not the end of the matter. Ms O'Rourke strongly urged upon me that even if the PCC did err in law in making the reference, justice would not now be served by quashing that determination. She relied upon three factors in particular. First, she contended that the interests of Dr Jarman would be irretrievably prejudiced if the decision of the Health Committee were now to be set aside. He has complied with the conditions imposed upon him and he has effectively given up practice. It is too late for him to reverse that step. Moreover, if he had been subject to conditions imposed by the IOC rather than the Health Committee, which would have been the outcome had the case not been referred to the Health Committee, then he would continue to receive his salary pending the determination of his case by the PCC. Where the conditions are imposed by the Health Committee, however, the right to receive salary no longer continues. Accordingly, by accepting the jurisdiction of the Health Committee he has suffered financially.

However, as Mr Owen pointed out, it is not the quashing of the decision to refer that would adversely affect these particular rights; rather it was the making of the decision in the first place. Mr Owen submits that Dr Jarman would only be prejudiced if he was subsequently found to be guilty of professional misconduct and if the penalty of erasure were imposed. However, he contends that if a fair hearing can be given, and that is the right and just outcome of the disciplinary proceedings, it cannot constitute unfair prejudice. I agree with that observation.

Ms O'Rourke also placed considerable emphasis on two other interrelated factors. The first is the current state of health of Dr Jarman. I have been referred to a number of reports which testify to the very considerable distress that the continuation of these proceedings will cause. Furthermore, very sadly, his wife has cancer of the spine and her life expectancy is very short. The second factor is that Ms O'Rourke submits that further proceedings would be lengthy, expensive, would exacerbate Dr Jarman's already ailing health, and would inevitably end up, in any event, in the same outcome, namely a reference to the Health Committee. In this context, Ms O'Rourke contends that whilst I cannot determine the merits of the Article 6 or abuse of process argument, nonetheless I should recognise that it is a very strong case and that I ought to give weight to the merits in the exercise of my discretion.

She referred me to an observation of my own in Brabazon-Drenning v UK Central Council for Nursing and Midwifery and Health Visiting [2000] CO/490/2000, in which I suggested that it would be a rare case where it would be appropriate for a committee judging the professional conduct of a practitioner not to adjourn the case where there was unchallenged medical evidence that the practitioner could not withstand the rigours of a disciplinary process.

Mr Owen submits that it would be wholly wrong for me to speculate as to what the outcome of any further consideration by the PCC would be. He points out that the Committee did reach a view, albeit without hearing argument, that it would be possible to have a fair hearing even if Dr Jarman were not able to give evidence. He does not accept that this could not be a proper route. He observed, for example, that on Professor Weller's view Dr Jarman would have a good chance of being able to participate in the proceedings if he were to take appropriate medication, and he submits that there is at least a respectable argument that if Dr Jarman's inability to attend the hearing stems from his personal decision not to take medication, then he ought not to be able to invoke Article 6. He emphasises that it is the function of the PCC to determine whether Dr Jarman is able to give evidence, and if not whether a fair trial could be held in his absence, and he suggests that I would be usurping its jurisdiction if I were to accept the submissions of Ms O'Rourke.

I accept Mr Owen's argument, although not without some misgivings.

The circumstances surrounding Wilfred's tragic death has blighted the lives of both the claimant and Dr Jarman, and no doubt their close relatives also. I confess that I do wonder what good will be served by yet further prolongation of these matters relating to events which occurred over ten years ago. But I must recognise that the claimant plainly continues to feel deeply aggrieved by what he alleges was the misconduct of Dr Jarman, and if he remains determined to pursue the complaint, then he is entitled to require it to be properly heard in accordance with the law. As Lightman J observed in the Toth case, to which I have made reference: "The party who establishes the decision is bad in law is entitled to relief unless to grant it would occasion so great an injustice to the defendant or to a third party as to require some other course to be taken". In this case, I recognise that it will cause further suffering to Dr Jarman for these proceedings to be resuscitated yet again, but I do not think that to grant relief could be said to cause great injustice. Dr Jarman's lawyers will be able to canvass all the concerns about his health when seeking to persuade the PCC that he cannot now attend the hearing and would not receive a fair trial in his absence. There is clearly very powerful ammunition to deploy in that submission.

I would have acceded to Ms O'Rourke's argument if it were plain beyond peradventure that the same conclusion to refer to the Health Committee would inevitably have to be reached even if the PCC were now properly to address the issues. Given the history of this matter, it would have been wholly wrong to have required the parties to incur the additional cost of, and undergo the emotional stress involved in, a further hearing simply in order for the PCC formally to reach a decision which it was plain it had to reach. But, as powerful as Ms O'Rourke's arguments are, I cannot put her case that high, particularly bearing in mind that the Committee was inclined to consider that there could be safeguards to ensure a fair trial even in the absence of Dr Jarman. Moreover, I have only heard the briefest of arguments on the merits of her application to stay the proceedings. It would be a rare case indeed where a court could confidently predict the outcome of a fresh consideration in such circumstances. I am satisfied that this is not such a case.

It follows that, in my judgment, there is no reason to refuse the relief which the claimant seeks. I accordingly quash the decision of the PCC to refer the matter to the Health Committee. As both counsel accept, the necessary consequence of that is also to quash the decision of the Health Committee itself. That Committee was never lawfully seized of the issue before it.

MR RAWLINGS: My Lord, on the issue of costs, there are potentially some arguments that may need to take place, particularly with regard to the General Medical Council's involvement.

MR JUSTICE ELIAS: Of course, they will want to make observations.

MS O'ROURKE: My Lord, indeed. They are present through their solicitor but not through counsel, and my understanding is that they would wish counsel to be able to attend to argue on that point.

MR RAWLINGS: It may be sensible to adjourn the issue of costs pending the parties perhaps agreeing a costs order, and if that is not possible the matter be relisted after 28 days.

MS O'ROURKE: It might need to be sooner than that bearing in mind the end of term, but otherwise I would be in total agreement with that. We may well be able to come to some sort of agreement between the three parties.

MR JUSTICE ELIAS: Right. Just bear in mind that if it is not before the end of July then it may be quite difficult.

MS O'ROURKE: Maybe 14 days?

MR RAWLINGS: Yes.

MR JUSTICE ELIAS: Say 14 days, and if you need a bit longer then obviously --

MR RAWLINGS: Thank you, my Lord.

MR JUSTICE ELIAS: Thank you very much.