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

MR JUSTICE DAVIS: The claimant, Dr Fayez Mahfouz, has for a number of years been practising under the style of Cosmetic Laser Surgeon in the West End of London. Dr Mahfouz holds the qualification, amongst others, of MBBS, although he is not a Fellow of the Royal College of Surgeons. The nature of his practice appears sufficiently from the title under which he works. During the course of 2002, certain complaints were made and charges raised by the General Medical Council against Dr Mahfouz. In their final form as amended, the charges read as follows:

Charge 6 involved an allegation that a named person consulted Dr Mahfouz about having some hair removed. It is alleged that Dr Mahfouz "claimed that hair could be permanently removed", that "that claim was unfounded and misleading", and that he "failed to give appropriate advice about pain and scarring". The charges conclude in this way:

In due course, a hearing was convened before a Committee of the General Medical Council, comprising five members: two being professionally qualified surgeons or doctors, and three being lay members. At the hearing, the General Medical Council appeared by counsel. Dr Mahfouz also appeared by counsel, being Miss O'Rourke, and by very experienced solicitors. That hearing started on Monday, 9th June 2003. The time estimate was one of eight days, as I was told, and a number of witnesses were due to be examined orally.

On the evening of Monday, 9th June, an article appeared in the Evening Standard newspaper, which, of course, has a very wide circulation in the London and south-east region. The article is prominently captioned and includes a photograph of Dr Mahfouz, and a smaller photograph of the centre from which he practises in Harley Street. The headline reads "Harley Street surgeon's 'botched operations left women in agony'". Details are given about what had happened at the hearing and what was alleged: Dr Mahfouz, who was described, it is said wrongly, as being Egyptian-born, "who has already been struck off once, is facing claims that he sweet-talked patients into signing up for expensive treatment which left their faces covered in burning sores". The article went on to summarise what had been asserted before the hearing in front of the General Medical Council. The article, having set out what the nature of the charges as alleged were, went on to say that Dr Mahfouz was based at the London Cosmetic Laser Centre, "where he specialises in skin treatment using lasers". The article states that on his website he describes himself as "one of the most prominent cosmetic surgeons" and says that his clinic offers "the most advanced technology, equipment and procedures." The article concluded with these words:

On the morning of Tuesday, June 10th 2003, an article appeared in the Metro newspaper, which again has wide currency in the London area. That again summarises what was stated before the Committee the previous day. It said this, amongst other things:

An article also appeared on that day in the Independent newspaper. That again sets out the details of what was being alleged at the hearing. That article says this, amongst other things:

One point that may be said about the articles, and perhaps it is convenient for present purposes to focus on the Evening Standard article, is that the assertions there made about Dr Mahfouz having been struck off would not, in perhaps the sense lawyers would understand it, amount to similar fact evidence. The circumstances in which he had been struck off were entirely different from what was now being alleged as constituting serious professional misconduct under the charges as particularised. Nevertheless, there is at least this similarity, as Miss O'Rourke pointed out: namely, that both matters involved serious professional misconduct, as established in 1987 and as now alleged in 2003.

On these newspaper articles coming to the attention of Dr Mahfouz and his advisers, concern was expressed and inquiries were made. It transpired that four members of the Committee had read the article in the Evening Standard. One had read the article in the Independent. One had read, or at least glanced at, the article in the Metro paper. It is common ground that the matters referred to in the article, in particular the reference to Dr Mahfouz having been struck off on the previous occasion and other such matters, would not have been adduced as evidence on behalf of the General Medical Council. I was taken to the 1998 Rules in this context, and was shown Rules 27, 28 and 29. Nothing in those Rules explicitly prohibits the adducing of such matters, but it is clearly implicit in the Rules that matters of that kind are not to be relied upon at the stage of seeking to prove the facts which are said to constitute the charges. The previous circumstances of a particular doctor as regards a previous striking out may be admissible, however, at the stage when those facts are proved and when misconduct has been found to be established, and when the Committee is considering what sanctions, if any, to impose.

In consequence of Dr Mahfouz being notified that a number of the members of the Committee had read some or all of the articles, he, and it may be also his advisers, formed the view that he could not now have a fair hearing. Application was made on Wednesday, 11th June 2003 accordingly. Lengthy written and oral arguments with copious reference to various legal authorities were deployed before the Committee. The Committee itself, as is the usual practice, had the assistance of a legal assessor; in this case a very experienced QC. Having heard the detailed arguments advanced, the legal assessor posed two questions for the Committee. These questions, having been set out by the legal assessor, were then put to counsel for their further submissions. The legal assessor, having heard those further submissions, confirmed his advice to the Committee. The two questions which the legal assessor put before the Committee were these, under the heading "Test":

The Committee then considered their decision over, as I understand it, some two hours. The result of their deliberation was a ruling, which in printed form covers two sides of paper. The ruling reads as follows:

This ruling was handed down by the Committee at 5.17 pm on that Wednesday, 11th June. The following morning, on Thursday 12th June, Miss O'Rourke indicated that Dr Mahfouz and his legal advisers strongly disagreed with that ruling. They asked for an adjournment to enable an application immediately to be made to the Administrative Court with a view, amongst other things, to seeking a stay of the continuation of the proceedings. It should be mentioned that at this stage Dr Mahfouz had elected not further to attend the hearing himself, it being said that he had formed the view, in the light of the ruling the previous evening, that he could not now have a fair hearing.

Having heard argument and having considered the application for an adjournment, the Committee rejected that application. They delivered a ruling on that, at around 11.15 am on Thursday, 12th June. That ruling reads as follows:

After that ruling was delivered that morning, Miss O'Rourke indicated that her and her solicitors' instructions were to withdraw. As it happens, as I was told, the Committee had offered an adjournment of around half an hour to an hour to enable fresh counsel to be instructed, either to apply for judicial review, or alternatively to continue the conduct of the professional conduct hearing in place of Miss O'Rourke herself, while she applied for judicial review and temporary injunctive relief. In the event, Miss O'Rourke and her solicitors having withdrawn, in pursuance of their instructions, the hearing thereafter continued that day and evidence was taken in the absence of Dr Mahfouz and any legal adviser from his side.

Later that afternoon, Miss O'Rourke and her solicitors acting, as it seems to me, with great speed, submitted an application for judicial review and seeking also an interim remedy and a stay of the continuation of the proceedings before the Committee. In the event, this application for a stay came before Maurice Kay J at an oral hearing on the morning of Friday, 13th June 2003, when an interim order staying the proceedings before the Committee was made. Maurice Kay J also gave directions designed to achieve a speedy oral hearing of the application for permission. Thus it is that this matter has come before me today, on Friday, 27th June.

Given the rather unusual circumstances and given the nature of the matter, I raised at the outset of the hearing before me with Mr Englehart QC, appearing with Mr Clarke on behalf of the General Medical Council, and Miss O'Rourke, appearing on behalf of Dr Mahfouz, the suggestion that it might be pragmatic to treat this application for permission as being granted and to proceed with the hearing today as the substantive hearing of the claim for judicial review. Both parties consented to that course, and thus this matter has been heard by me as the substantive application.

In summary -- and it is very much a summary: I bear well in mind the full way in which Miss O'Rourke made her points -- Miss O'Rourke submits that the Committee was wrong to reject the legal assessor's advice as it did. In consequence, she submits, the Committee failed to apply the right test and failed to approach the matter by considering whether objectively there was an appearance of unconscious bias. This, she submits, vitiates the whole ruling. (It should be made clear, I add, that both before the General Medical Council and before me any suggestion of actual bias is disclaimed.) Miss O'Rourke further says, although I think this is something of a secondary point to her argument, that the Committee were wrong to reject the second question which had been proposed by the legal assessor, and she submits that that should have been accepted also. She further criticises the Committee for not giving, as she submits, proper reasons for rejecting the legal advice that they had received. Further, she complains that the ruling makes no mention and pays no regard to Article 6 of the European Convention on Human Rights, and further, she submits that, in any case, the ruling was irrational or plainly wrong.

The second main aspect of Miss O'Rourke's argument, which only arises were she to fail on her first main argument, is that she submits that the decision of the Committee to refuse an adjournment on 12th June 2003 was irrational or plainly wrong, and that decision should be set aside. In overall consequence, Miss O'Rourke seeks, in effect, a declaration that the entire hearing that had taken place so far should be abandoned; there should, she submits, be a fresh hearing before a fresh committee.

I was referred in argument today to a number of authorities. It is not, I think, necessary for me expressly to mention all of the ones to which my attention was drawn. The starting point, perhaps, for present purposes can be taken as the case of Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, which is a well-known authority on questions of apparent bias. Then I was referred to the decision in the case of Roylance v General Medical Council [2002] 1 AC 311, this being a Privy Council decision hearing an appeal in a General Medical Council case. The Privy Council there comprised Lord Slynn of Hadley, Lord Clyde and Lord Hobhouse of Woodborough. The facts of that particular case were very different from the present case, but one of the issues arising was the question of bias. In the course of delivering the opinion of the Privy Council, Lord Clyde said this, at page 318:

I was also referred to the decision in Porter v Magill [2002] 2 AC 357. That again was a decision on its own facts and, amongst other things, involved an allegation that what had been read out at a particular press meeting by an auditor as provisional findings might have given rise to bias or an appearance of bias. I put the matter in a very summary way: the factual position is altogether more complex than that. In the course of his speech, Lord Hope of Craighead said this:

My attention was also drawn to the decision of the Privy Council in another medical matter, the case of Subramanian v General Medical Council [2003] Lloyds Medical Law Reports 69. The facts of that particular case have some superficial similarity to the facts of the present case. In that case, the appellant was a locum general practitioner and allegations were made against him. At a consequent hearing before the Professional Conduct Committee of the General Medical Council, it was discovered that both a national and a regional newspaper had reported the fact that the appellant had been found guilty of serious professional misconduct by a previous GMC Committee in 1987. One of the Committee dealing with that case had read that article. The hearing in that case, in the event, proceeded to a full adjudication, and as a result of that adjudication the appellant was found guilty of professional misconduct. He thereafter appealed, and one of the grounds of his appeal was that the proceedings should have been stayed or the determination set aside on the basis of the apparent bias of the Committee. The matter was dealt with by Sir Denis Henry, giving the opinion of the Privy Council, starting at paragraph 8 of the judgment. At paragraph 13, he cites the submissions made by counsel, and formulated the applicable test by reference to the case of Taylor v Lawrence [2000] 2 All ER 353, in essentially similar terms to those to that which had already been set out in Porter v Magill. Sir Denis Henry observed that the test laid proper emphasis on the objective observer being both fair-minded and well-informed, and said this:

Turning then to the attack which Miss O'Rourke makes on the Committee here in failing to adopt the test as posed in question one of the legal assessor's advice, I have to say that I find it difficult to see how it can be said that the Committee posed the wrong test or approached the matter in an erroneous way. The test which the Committee set itself, as it made clear in its reasons, was precisely and exactly that which Lord Hope in Porter v Magill had said was the question to be asked. It seems to me that consistent with all the authorities, including Porter v Magill, that is the way to approach it and it is wrong and indeed potentially dangerous to introduce any glosses. On the contrary, as Mr Englehart pointed out, to pose the question in the way Lord Hope does pose it emphasises the objective nature of the inquiry under hand.

Yet further, I find it even more difficult to see how the Committee could be criticised for not adopting in terms the test set out in question two of the legal assessor's advice. With all respect to the legal assessor, it seems to me that that particular question is, at the very least, a gloss on the question which correctly ought to be proposed. Indeed, it is potentially a misleading gloss because it introduces the real possibility of the matter being approached subjectively, because the whole emphasis has to be on whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased. As it seems to me, in asking oneself what the right approach is, question two does not assist at all in that regard. Indeed, on one view, it might be said to lead people to take their eye off the ball.

As it happens, very recently there has been a further decision in this area: the context, in fact, being that of an appeal from the Employment Appeal Tribunal. The decision is that of Lawal v Northern Spirit Limited [2003] UKHL 35, a decision handed down by the House of Lords just a few days ago. Again, the facts of that case are wholly different to the facts of the present case. It involved the question of whether a fair hearing, putting it in summary form, was not possible when a QC acting for one side had in the past sat as a part-time judge in the Employment Appeal Tribunal with at least one of the lay members hearing the particular appeal in question. The House of Lords decided that that would give rise to apparent bias. In the course of delivering his opinion, Lord Steyn said this. He cited at length from the Porter v Magill case, and in particular the passages which I have mentioned from Lord Hope's speech. It is said by Lord Steyn that, in effect, there is now no difference between the common law test of bias and the requirements under Article 6 of the Convention of an independent and impartial tribunal. Lord Steyn went on to say this, in the context in which he was speaking:

It seems to me that that statement by Lord Steyn is a specific endorsement of the principle stated by Lord Hope of Craighead. Indeed, Lord Steyn in turn affirms that that is the principle to be applied. It is quite true that Lord Steyn goes on to say that, "Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased?" But it seems to me, set in context, that Lord Steyn is then switching his attention to the situation in that particular case. Indeed, that plainly can be seen to be so by the reference to the wing member. He was concentrating on the facts before him. Self-evidently, the only matter that could arise in that particular case on the basis of apparent bias was subconscious bias.

It is, I think, inherent in Miss O'Rourke's argument that it involves the proposition that the Committee rejected a test that required a consideration in terms of unconscious bias (that is to say, the test specifically proposed by the legal assessor) and therefore, so it is said, the approach of the Committee was wholly flawed. I cannot accept that. The question posed by the Committee, which is entirely faithful to the question indicated as the one to be posed as set out in Porter v Magill, plainly is apt to embrace unconscious bias: it includes all bias. It seems to me that Miss O'Rourke's citations from various submissions made in the course of argument by counsel then appearing on behalf of the General Medical Council, and her reliance on the rejection by the Committee of the legal assessor's advice, do not begin to displace that and do not begin to show that in some way the Committee had rejected the notion that unconscious bias was relevant. Indeed, and in agreement with Mr Englehart QC, it seems to me that, at all events, in the circumstances of this case, it was quite plain and obvious that unconscious bias here was that which was being addressed. No one was suggesting actual bias, and it simply would not fit the facts exemplified by the articles in the newspapers to pose the matter in terms of whether or not a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was actually biased. It is not necessary for me to go so far as Mr Englehart, when he suggests that it is always the case but, when one is considering the concept of apparent bias, subconscious bias will be the only relevant bias. One can think of examples, perhaps rather extreme examples, where that would not necessarily be so. But in my view, given the circumstances of this case, it is so, and unconscious bias was what had to be considered. That could not possibly have been overlooked by the Committee here and, indeed, it is entirely in accordance with the way they formulated the test, which was precisely the Porter v Magill test. I would further point out that the formulation in Roylance in dealing with unconscious bias and the insidious nature of it, shows that, in the ordinary way, unconscious bias will indeed be at the heart of allegations of this kind.

Moreover, the reasons which the Committee gave in the course of their ruling, to my mind, demonstrate that that was the approach they were adopting. It is not necessary for me to set them all out again here. Suffice it to say that those reasons as given, taken in their totality and indeed individually, show that unconscious bias (from the perspective of a fair-minded and informed observer) was indeed what the Committee were considering.

For these reasons, it seems to me that Miss O'Rourke's first line of attack fails. She gains nothing further from her line of attack by reference to question two. Indeed, as I have already indicated, in my respectful view, the second question as posed by the legal assessor was misplaced.

Miss O'Rourke's next complaint is that given that the Committee were departing from the advice given to them by the legal assessor, then contrary to the relevant rules, the Committee failed to give adequate reasons as to why they were departing from that advice. I reject that. In my judgment the Committee gave sufficient reasons and, indeed, they succinctly indicated that, as they saw it, the test should not be re-expressed or glossed in any way: in my view, a legally correct approach. I can see no basis for the suggestion that sufficient reasons were not given. I also think that the Committee was justified in indicating that it was not necessary to address the second question proposed by the legal assessor.

Miss O'Rourke then said that the Committee failed to address Article 6; and it is the case that no reference to Article 6 of the European Convention on Human Rights appears in that ruling. In my view, that is nothing to the point. Once it has been found that there is no apparent bias, applying the appropriate legal test, then it follows that there is indeed here an impartial and independent tribunal. The situation in this particular context means that such a finding is co-extensive with a finding that Article 6 has not been infringed. Indeed, so much is said by Lord Steyn in the Lawal case itself. I reject that particular point.

Then Miss O'Rourke submitted that, at all events, this conclusion was irrational or plainly wrong. I have already read out the Committee's reasons. In my view, the reasons given by the Committee are plainly rational and plainly cogent. Miss O'Rourke criticised aspects of them. She said, for example, the reference to "the aspects of newspaper articles put before the Committee" did not indicate what they had in mind. It seems to me that that is an indication that the Committee were focusing on what the articles said. It seems to me that the Committee were fully entitled to have regard to, in assessing the position objectively by reference to the objective and well-informed observer, the lapse of time since the previous finding of serious professional misconduct, and the different nature of the previous case, and matters of that kind. It was also, I think, relevant, as indeed Subramanian illustrates, that here we are talking about a committee which had the ability to distinguish between admissible and inadmissible evidence, and indeed had a legal assessor who could and would give firm indications as to what the Committee were to put out of their minds as irrelevant evidence. Reviewing all the grounds as put forward by the Committee, and reviewing the decision as a whole, I can see nothing irrational or plainly wrong about it.

In the written grounds advanced in support of the claim as amended, various other permutations or points were put forward on behalf of Dr Mahfouz, but it seems to me, having considered them, that they really do not add anything to the argument.

I turn then to the second main issue, which is the question of adjournment, which Miss O'Rourke attacks as being a decision which was not properly open to this Committee and was irrational or plainly wrong. I think it can be said that this particular decision not to grant an adjournment was a stern one. It may be, and I say no more than that, that some Committees might have granted an adjournment of the relatively limited kind that Miss O'Rourke had been seeking. But the question I have to ask is, was it open to this particular Committee to refuse the adjournment which had been sought on the basis that it did? I have come to the conclusion that it was so open to this particular Committee. The reasons they gave had regard to the interests of justice and the desirability of proceeding with the inquiry. They had regard to what was the fact, that a refusal of the adjournment would not affect Dr Mahfouz's right to pursue his application for judicial review. Moreover, it is the case, as I see it, that Dr Mahfouz was in a position to continue to attend through legal representatives at the continued hearing. Even if it is the case that in practical terms Miss O'Rourke may have had to absent herself to prepare for any judicial review application and application for an interim injunction, she had experienced solicitors with her who could have carried on with the hearing, and it is also the case that a short adjournment to enable fresh counsel to be instructed had been offered, but had been declined.

Taking all the circumstances, and directing myself on the footing that it is not for me at this stage to exercise my own mind afresh on this question of adjournment, but first to ask myself whether this Committee could properly refuse to adjourn in the way and on the basis that it did, I have come to the conclusion that no grounds are shown for interfering.

In those circumstances, I have come to the conclusion that this claim should be dismissed.

I should add that Mr Englehart raised some somewhat intricate submissions as to the appropriateness of an alternative remedy, which should, in any event, he submits, have inclined me against this application. I have to say I was not much moved by those. It seems to me that in the rather special circumstances of this particular case, an application for judicial review, as made by Dr Mahfouz, was a proper procedure to adopt. The considerations, of course, might be very different if such an application were made at a conclusion of a substantive hearing, when full findings had been made. But that emphatically was not the position here.

In the result, therefore, I have come to the conclusion that this Committee of the General Medical Council were not required to recuse themselves. I take the view that they approached the matter correctly and reached a conclusion properly open to them. It seems to me that they were justified in approaching the matter in the way that they did. Having also concluded that there is no basis for challenge of the decision not to adjourn, and while expressing an amount of sympathy for Dr Mahfouz in what he perceives to be the position, as I understand it, I refuse these claims.

MR ENGLEHART: My Lord, may I just say this, for your Lordship's benefit and indeed those of my learned friend, I am sure the Committee will consider sympathetically how this matter is to proceed. I say no more, because obviously it is not a matter for me.

My Lord, in the light of your Lordship's judgment, I would ask you Lordship to dismiss the application, and I would ask for costs to be assessed.

MISS O'ROURKE: My Lord, I do not think I can resist that application as far as costs are concerned. It will have to be assessed because neither party has served schedules.

MR JUSTICE DAVIS: Maurice Kay J reserved costs, I think?

MISS O'ROURKE: Yes.

MR JUSTICE DAVIS: That will include the costs for Maurice Kay J. Is there anything else?

MISS O'ROURKE: Yes, my Lord. I would seek permission to appeal your Lordship's order. The main ground would be on the question of unconscious bias. Your Lordship has heard my submission, but I say that the fact that the prosecution counsel expressly said that she would not give a definition of unconscious indicates that they did not, in fact, consider unconscious bias.

MR JUSTICE DAVIS: As I said, I think that is drawing too much out of extraction(?).

MISS O'ROURKE: Indeed. My Lord, she gave no definition of it and, I say, they therefore cannot have considered it because they had not heard both counsel on what the definition was.

MR JUSTICE DAVIS: No, I refuse permission to appeal I am afraid, Miss O'Rourke. I think there is no compelling reason to give permission, and I do not think that there would be a realistic prospect of success.

MISS O'ROURKE: My Lord, can I just raise one question following from that. Your Lordship may well anticipate that we will seek permission from the Court of Appeal. I do not know if Mr Englehart is in a position to indicate that pending us making that application --

MR JUSTICE DAVIS: Now, as a matter of practical reality, could this Committee be reconvened in the next day or so?

MR ENGLEHART: I am told it is going to be September inevitably.

MR JUSTICE DAVIS: You do not need stay a stay from me, even if I were minded to grant one.

MR ENGLEHART: If by some mischance that were to change, we would tell Miss O'Rourke.

MR JUSTICE DAVIS: Nevertheless, Miss O'Rourke, if you do wish to seek permission to appeal from the Court of Appeal, you may consider it advisable to do that as soon as possible.

I thank both counsel for their submissions.