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

This is an application for judicial review brought by the claimant, Dr Michalak, against decisions made both by the Registrar and by the General Medical Council Fitness to Practice Panel. The defendant is the General Medical Council.

The application comes about in the following circumstances. Disciplinary proceedings were brought against Dr Michalak and came before the Fitness to Practice Panel (“the FTPP”). Those proceedings began in June 2010. The panel comprised three members, the chairman, a medical member, Professor Hobbs, and a lay member. The panel was quorate, three members only being necessary. However, it is the policy of the General Medical Council so far as is practicable where a lengthy hearing is contemplated that the panel should comprise five members. This obviously is a sensible policy given the real risk that during a lengthy hearing a member or members may become unavailable or even ineligible and then questions arise as to whether the panel is or is not quorate and what steps should be taken to address that. However, in this case, on the material before the court, it appears that it was not practicable within the time limits to arrange for a five-person panel and hence the three members.

There were parallel proceedings, and I put it that way, in the employment tribunal that seemed to have raised the same or similar issues as were before the GMC. The result of the employment tribunal's findings were made known during the course of the GMC hearing. From what I have been able to read, it does seem that Dr Michalak was successful before the employment tribunal. That aspect though does not bear directly on the issues before the court today.

The hearing turned out to be a lengthy hearing. Something like 34 days were taken up and something like 28 witnesses were heard. Those witnesses were the witnesses called by the GMC in support of the allegations made against Dr Michalak. Unfortunately after the hearing had progressed to that point Professor Hobbs, the medical member, became ill and it was clear that he would not be able to resume participation in any resumed hearing in the foreseeable future and therefore the issue arose whether the panel remained quorate and what could be done about it. In short the Registrar decided to substitute another medical member so as to bring the panel back to three members, which would be sufficient for the panel to be quorate, and believed that it was in the interests of justice to make such substitution.

The panel itself did review that decision and appears to have concluded that the substitution was proper and that it would be in the interests of justice to allow the substitution. However, the issue remained as to how the panel should proceed. One procedure that was contemplated was that the new member should simply read the transcripts so as, colloquially, to bring himself up to speed and be on the same footing as the other two members and then the hearing could simply proceed from the point at which it had terminated.

However, the panel took the view that that would not be conducive to the promotion of justice. Having regard to the nature of the case and the evidence that had been presented, the panel believed that it was necessary that the third member, in order to be put in the same position as the two original members of the panel, needed to hear the witnesses live and therefore the decision was that the reconstituted panel should hear all the witnesses again, that was the 28 witnesses, over what would be a very similar if not exactly the same timescale.

In this application challenge is made both to the substitution in principle -- it is alleged that there was no power to make the substitution at all -- but that in any event the procedure that is now contemplated is not a fair and /or a rational one in all the circumstances of the case.

I turn therefore first to deal with the question of substitution and I set out the relevant rules on this matter. The GMC Constitution of Panel Investigation Committee Rules 2004 provide:

“Constitution of Panels

4.

—(1) Subject to rules 5(3) and 6, membership of a Panel shall comprise medical and lay panellists, whose names are included on the list maintained under rule 3(1)(a)(i), selected by the Registrar in accordance with paragraphs (3) and (4) and shall include at least one person whose name is included in the list maintained by the General Council under rule 5(1)(a)(i).

(2)

Subject to rules 5(3) and 6, membership of the Committee or a Registration Decisions Panel shall comprise medical and lay panellists, whose names are included on the list maintained under rule 3(1)(a)(ii), selected by the Registrar in accordance with paragraphs (3) and (4) and shall include at least one person whose name is included in the list maintained by the General Council under rule 5(1)(a)(ii).

(3)

No panellist shall act as a panellist on a Panel or the Committee or a Registration Decisions Panel for the substantive hearing of a case that he has previously considered or adjudicated upon in any other capacity.

(4)

Nothing in paragraph (3) shall prevent a panellist sitting on proceedings before a FTP Panel from sitting on subsequent proceedings before a FTP Panel for the purposes of considering the same case at a review hearing or in relation to a restoration application.

Chairman

5.

—(1) The General Council shall—

(a)appoint and maintain—

(i)from the list at rule 3(1)(a)(i), a list of panellists eligible to act as Chairman of a Panel, and

(ii)from the list at rule 3(1)(a)(ii), a list of panellists eligible to act as Chairman of the Committee or a Registration Decisions Panel; and

(b)remove from the lists at sub-paragraph (a)(i) and (a)(ii) the names of any person removed from the lists at rules 3(1)(a)(i) and 3(1)(a)(ii) respectively.

(2)

The Registrar shall select a person to act as Chairman in respect of proceedings before—

(a)a Panel; or

(b)the Committee or Registration Decisions Panel,

from the list at paragraph (1)(a)(i) or (1)(a)(ii) respectively.

(3)

If the Chairman selected under paragraph (2) is unavailable for the whole or part of any proceedings, then the Chairman or the Registrar may appoint another panellist, present at the commencement of the proceedings, to act as Chairman for the whole or part of the hearing, as appropriate.

Quorum

6.

The quorum of a Panel or the Committee shall be three panellists, which shall include—

(a)a Chairman selected under rule 5;

(b)a medical panellist; and

(c)a lay panellist.

Validity of proceedings

7.

(1) The validity of any proceedings of a Panel or the Committee shall not be affected by any defect in the appointment of a panellist.”

(2)

Where a panellist is unavailable for the whole or part of any proceedings or becomes ineligible to act during the course of any proceedings and the proceedings are adjourned as a result, then the appeal may proceed notwithstanding that any panellists present at the original hearing are not present at the subsequent were not present at the original hearing, unless the Registrar considers that it is in the best interests of justice to convene a freshly constituted panel.”

(Transcribers’ note: I’ve done this without the bundle, and I haven’t been able to find one online source which shows the whole updated Order in Council, so I apologise if this is not completely correct.)

Paragraph 3 of Schedule 4 to the Medical Act 1983 provides:

“Rules made under this paragraph in connection with the consideration by an Interim Orders Panel or a Fitness to Practise Panel of the making of an interim suspension order or an order for interim conditional registration under section 41A above, or in connection with the review of such an interim order, shall include provision -

(a)

securing that notice that the proceedings are to be brought shall be given, at such time and in such manner as may be specified in the rules, to the person to whom the proceedings relate;

(b)

securing that a person in relation to whom an order has been made shall, if he so requires, be entitled to be heard by the Panel on each occasion on which they review the order”

It is contended on behalf of the claimant that there is no power under those rules for the Registrar to make the substitution. However, in my judgment there is such power. Rule 4, which I have just recited, states in terms that the membership of the panel shall comprise medical and lay panellists selected by the Registrar. That power is not expressly limited to the appointment of a panel at the outset of proceedings. On its face the power is not limited and could in principle be used to appoint panel members at any time. Furthermore it is in the interests of practicality and the proper administration of these disciplinary proceedings that there should be no limitation in principle to that power. It is of considerable importance that if indeed the panel is potentially liable to be inquorate, either because of unavailability or ineligibility, that the Registrar should have the power to appoint a substitute.

It is noteworthy that there are checks upon the exercise of that power. It is clear from Rule 7(2) that the power conferred under Rule 4 could be exercised only if it was in the interests of justice to do so. In other words it seems to me that the limitation in Rule 7(2) should properly be read across into Rule 4 so as to prevent in terms anomalous or unjustified substitution.

Secondly, as with any power of this kind, the power would have to be used for a proper purpose. That constitutes a further check. Furthermore it also appears to me that, given the potential importance of the power, both as regards the GMC itself and the person before it, that proper procedures should be followed. In other words the parties should be told in advance what the situation is and what is contemplated and why it is considered to be in the interests of justice to make a substitution so that both parties may make, if they so are minded, appropriate representations about the exercise of the power.

Furthermore, as indeed happened in this case, the panel itself is responsible for its own procedures and has a duty to ensure at all times that those procedures are fair. Therefore again, in my judgment, there is power, which was exercised in this case, for the panel to consider whether indeed the substitution is for a proper purpose, the proper procedures have been followed and that it is in the interests of justice to make the substitution.

Those points in my judgment are reinforced by paragraph 3 of Schedule 4, which I have recited, and which in my judgment do not limit the power in the way that the claimant suggests.

The claimant makes specific points against this interpretation. The claimant refers for example to the used of the word “appeals” in Rule 7.2. However it seems to me that when the rule is read in its full context “appeals” there is really referring to the proceedings in general and substitution could not sensibly, if one has regard to the obvious purpose for which the rule was intended, be limited to appeals. The claimant makes a point about the language of adjournment and suggests that that should be strictly applied and therefore the power only be exercisable strictly speaking if unavailability causes an adjournment. However that again would seem to me to run contrary to the purpose of the Rule and in any event, in this particular case, it would not be wrong to treat what has happened as creating an adjournment and so falling within the scope of the rules.

The main point made by the claimant is that the power should be limited to those cases where all, in this case three, members of the panel are present and on some more occasions one of them is not present and is not designed for a case where someone has become completely unavailable or ineligible and a substitution is made of a completely new member.

As I have said, that in my judgment would defeat the purpose of the Rule and would have very detrimental consequences for the conduct of such disciplinary hearings. Furthermore that interpretation is not really consistent with the language which contemplates a panellist becoming ineligible during the course of a hearing and therefore not being present at a later stage. Therefore it seems to me that the language of the Rule contemplates the very case where someone becomes ineligible and there is a substitution.

So for those reasons I hold that, on a proper construction of the Rules, taking account both of the language and the purpose of the provisions, that there was indeed a power in principle to make the substitution that was made in this case. What, however, has given me great trouble is the fairness and indeed the rationality of the final conclusion reached by the panel, for the following reasons. A situation arose where a member was to be substituted who would not have the same information and background as the other two members. That is a situation that occurs in practice with some regularity and the way in which it is solved is often to allow that particular new substituted member to have access and to read into the transcripts carefully so as to have the same kind of information as the originally constituted members. It is generally acknowledged that that is not a perfect solution because in some cases the way in which the evidence was given can be significant and therefore a person who has not heard the witness may be at a disadvantage to those who have. Appellate courts time and again refer to the advantage that a first instance judge has had over an appellate court in the consideration of evidence because that first instance judge has heard the witness and has observed the demeanour and the manner in which that evidence has been given.

However, in some cases it is concluded that, having regard to the nature of the case and the evidence that has been given, the potential for injustice is relatively slight and that the advantages for the administration of justice in general countervail such slight disadvantage that has been perceived. The general advantages of course lie in the fact that it is then unnecessary for the hearing to be duplicated with all the additional cost, use of resources and anxiety to one or both parties of having to go through yet again a full hearing, when that is not strictly necessary because other measures can be taken.

However, that was not the course that the panel thought was right in this case. The panel having regard to the nature of the allegations and to the nature of the evidence that was given concluded firmly that it would not be conducive to fairness, particularly fairness to the claimant, if it proceeded in that way and that is why it reached the decision that it did. However, it seems to me that that then causes serious problems, because what is now contemplated is that two members of the panel should hear all the evidence again for the second time. That evidence of course is essentially prosecution evidence if I may use that language in the context of disciplinary proceedings. That in itself would seem to me to give rise to an impression of unfairness that those two members are hearing a second time the prosecution case. But more importantly it seems to me that the third member would be put in an entirely different position. The third member would not have had the advantage as the first two have had of seeing those witnesses on the previous occasion. In a case where the panel has already concluded that the nature of the evidence and the nature of the case is such that it is important that the panel members should have heard and seen the witnesses, it seems to me most unsatisfactory that one of them then will have seen the witnesses on one occasion and the other two will have seen the same witnesses on two occasions. There is a real risk in such circumstances that different impressions of the weight of the evidence that has been given could be formed and that therefore there would be real potential for tension between the two original members and the third who is placed in an entirely different position. I say that because of the precise premise upon which the panel proceeded in this case.

If there were indeed substantial advantages in the course chosen by the panel, then it may be that such substantial advantages could act as countervailing considerations to the potential for inefficiency and indeed injustice that the proposed course would cause. However, I am not at all persuaded that there is any advantage whatsoever in the course proposed by the panel in comparison to an alternative by which a fresh panel entirely would be constituted to hear the case again. It has been suggested on behalf of the defendant that there would be advantages in terms of firstly the opening for example having already been heard by two members of the panel and therefore proceedings could be shortened by the course adopted and secondly that the two existing original panel members have the advantage of having been into the case already and have seen documents and are familiar with the documentation.

I am not persuaded that those are indeed substantial advantages here. The opening was relatively short and counsel for the claimant accepted that if there were a rehearing there would be no objection, so long as indeed the case would be presented in the same way, to the members of a putatively newly constituted panel looking at the opening. There would also possibly be opportunities for a fresh panel to have advanced sight of some of the documentary material.

Furthermore this is a case where there appear to be potentially substantial disadvantages in the course chosen by the panel for entirely different reasons. The first of those is that, as explained earlier, the ordinary policy for the GMC is to have a five-person panel to prevent the very difficulties that have arisen in this case from arising. What is contemplated again is a lengthy hearing and exactly the same problem could arise. It is hoped that it would not but there is always a risk. If there were a fresh panel there would be the opportunity on this occasion to have a five-person panel so as to reduce and in real terms to eliminate the risk that has arisen in this case.

Secondly, the matter has now become a lengthy one because the hearing began in June 2010. If it is resumed in the way that is proposed it will take a considerable period before a final decision is taken. A freshly constituted panel can get on with the case and make a decision as soon as is reasonably practicable.

The third element has arisen relatively recently but it does appear from materials to which I was referred that the Chairman of the panel may not be an eligible person. It appears that he was not on the proper list for selection as a chairman and serious questions arise as to whether he has been appropriately trained and so on. This casts something of a cloud over these proceedings, but does in my judgment reinforce the sense of not proceeding in the way that is proposed but to consider seriously the reconstitution of this panel and beginning the case again before such a constituted panel.

Therefore I shall for those reasons quash the decision that has been made. I have held that in principle there is power to make a substitution and therefore the matter needs to be remitted to the defendant for the defendant to consider what action should be taken as a matter of law and as a matter of correct policy to allow, if that be the case, the proceedings to continue.

MR EADIS : My Lord before turning to the issue of costs may I just clarify my understanding. Your Lordship has of course ruled that the power exists …

MR JUSTICE PARKER : Yes.

MR EADIS : You mention quashing a decision. Is the assistant Registrar's decision of 1 April to substitute specifically Dr Sinclair one that you have quashed? I cannot myself see any way back for Dr Sinclair from the ruling you have just given or any participation that he could meaningfully have in the hearing. One can see difficulties, however, if that decision is not quashed that he is of course a party to any further possible case management.

MR JUSTICE PARKER : Well I think it follows from that … The panel has now ruled that it would be unfair to proceed on the basis of Dr Sinclair simply seeing the transcript.

MR EADIS : Yes

MR JUSTICE PARKER : And I have held that it would be unfair to proceed the way that the panel has proceeded. And therefore had that been known at the time that substitution originally arose substitution would not have been ordered.

MR EADIS : Thank you. So the 1 April decision is quashed though not for want of the power to make it.

MR JUSTICE PARKER : Yes.

MR EADIS : Thank you. So far as costs are concerned, I do apply for my costs on behalf of Dr Michalak. At various points in my paperwork I have said that she is a privately paying litigant for reasons I need not go into. I understand that there may have been yesterday afternoon some reconsideration of the position by the MDU. All I will say to you because I have not seen anything in writing is that I do not invite you to treat her as a privately paying client or any other sort of paying client. I do not know what the position truly will be. It should be irrelevant to the substantive order in any event who is underlying and underwriting it. We have had to come here. The attitude of the GMC on the 1 April was that it was nothing to do with the panel so technically I suppose we could have come straight away but we decided to exhaust our domestic remedies. The costs below are not recoverable though we should have won the argument.

MR JUSTICE PARKER : Yes

MR EADIS : Dr Michalak was forced into this position by a decision both by the Registrar and the panel of this council to do something that was unfair.

MR JUSTICE PARKER : Yes.

MR EADIS : I have costs schedules, my Lord. One each. In essence ours is £5,000 less than the defendants. The bottom line figures are all inclusive of VAT.

MR JUSTICE PARKER : Yes.

MS GRAY : My Lord on the subject of costs clearly the claimant is entitled in principle to some at least of their costs. I just have a few specific points to make.

MR JUSTICE PARKER : Yes

MS GRAY : The first is that we have substantively won on the issue of jurisdiction which was undoubtedly an element in the costs of these proceedings.

MR JUSTICE PARKER : Yes

MS GRAY : And it is not sensible in those circumstances for us to ask for the costs of that issue to be offset.

MR JUSTICE PARKER : No, a proper discount should be made

MS GRAY : Indeed my Lord and so …

MR JUSTICE PARKER : Are you suggesting any ?

MS GRAY : I would suggest a third my Lord, a third off the claimant's costs. It is not half and half. it reflects that the balance of the argument went their way but I would suggest a substantial discount given that to some extent that we would be entitled to our costs of that issue, so that is my first point of principle. In relation to the costs as claimed just a number of points. We do not take any point on the rates that are claimed but we do say that the attendances of the claimant are high at 16.6 hours. That is a very substantial time given that much of this work must have been done (inaudible) as a result of the hearing below so we would invite you to halve that. Secondly my Lord over the page under the subject of travel to and attendance at the hearing I would hope that my learned friend's solicitors would agree that that should be adjusted to reflect the fact that this has now become thanks to your Lordship's expedition a half day hearing and that should now be four hours rather than seven hours at £90 per hour. Finally my Lord I understand from those behind me that the claim for photocopying is not generally allowed and the couriers are a reflection if I may say so of the fact that the documents were served late and really it should not be necessary we would say to incur courier fees as opposed to simple submission by the DX.

MR JUSTICE PARKER : Where do I find that?

MS GRAY : Sorry my Lord, those are right at the bottom just above the grand total.

MR JUSTICE PARKER : Oh I see

MS GRAY : Photocopying nearly £900 couriers, £320 odd. So we invite you to put a line through those.

MR JUSTICE PARKER : Yes.

MR EADIS : My Lord, so far as the substantive order is concerned I accept of course that I have lost on the jurisdiction point. That point involves looking at essentially four bits of paper and nothing else. As you can see from the letter of Mr Geddes on 1 April the GMC had already turned its mind to its powers. They had all the materials, the argument though elegantly forcefully and successfully contested essentially followed the same course in this court that it did below. There has been no impact on the costs. What has cost money is the need to familiarise oneself with the case so as to address the fairness point and indeed the chronology that you have from the GMC must have taken a very considerable time to compile, so I do not accept that anything like a third should be discounted to reflect our defeat on one issue we have …

MR JUSTICE PARKER : Well I think it was suggested you should only get a third of your costs.

MS GRAY : No, my Lord. I was suggesting a discount of a third

MR JUSTICE PARKER : A discount of a third right

MS GRAY : Yes I think too to suggest that they should only recover a third would be optimistic in the extreme.

MR JUSTICE PARKER : Right, so it’s a discount of a third

MR EADIS : It is

MR JUSTICE PARKER : Yes

MR EADIS : Yes, that is in my submission an excessive discount. I do not concede any is right in principle. So far as the facts of the bill are concerned, your Lordship will be aware and I will be careful what I say that this case is put on health grounds as well as conduct grounds in the tribunal elsewhere. It may be the case and I put it no higher than that that client care in some cases is more difficult and time consuming than others and of course one has had to tease out with Dr Michalak such matters as the funding of this application, the reason that her lawyers no longer felt able to act and so on. I do not accept for one moment that 16 hours is an excessive amount. I don't know about the photocopying and the reason for that I am afraid and I don’t know about the couriers or what was served, when it was served and why couriers were engaged. The geography of the matter, if it matters, is the hearing took place in Manchester. My solicitor as is Dr Michalak is based in Leeds and I am based in London, but I do not think I got anything by courier. It may be that the court did I do not know.

MR JUSTICE PARKER: Yes. Well as for the items it does strike me that notwithstanding what you say about 16, I am going to allow you ten hours on that to round it up. It seems to be a fair point in relation to travel and I will allow you four hours for that. I will take out the photocopying and couriering and as for the discount, it seems to me that the claimant has substantially succeeded but nonetheless there was a very significant issue and an important issue relating to the powers. On the other hand the ruling on that is probably of greater general significance to the defendant than to the claimant and I think in all the circumstances a 20 per cent discount would be fair and reasonable, so you will be entitled to 80 per cent of your costs. Thank you very much.

MR EADIS : Thank you very much.