Mr Justice Stanley Burnton :
Introduction
- In these proceedings the Claimant seeks an order quashing the decision of the Preliminary Proceedings Committee (“the PPC”) of the General Medical Council (“the GMC”) of 18 March 2004 to refer for public inquiry by the Professional Conduct Committee (“the PCC”) the question whether or not she committed serious professional misconduct in February 1999 in relation to the treatment of Mr Robert Symons, a patient at Basildon Hospital in Essex.
The legislative framework
- Unusually, it is more convenient to summarise the applicable legislative provisions before summarising the facts.
- The GMC is a body corporate. The Medical Act 1983 confers on it extensive powers in relation to the qualification and disqualification and discipline of medical practitioners. Both the PPC and the PCC are committees of the GMC, concerned with the regulation of the profession, that it is required to establish by the Act. Section 42 imposes on the PPC the duty “to decide whether any case referred to them for consideration in which a practitioner is alleged to be liable to have his name erased … or his registration suspended or made subject to conditions … ought to be referred for inquiry by the Professional Conduct Committee or the Health Committee”. Schedule 4 applies to the PPC and the PCC.
- The procedures of the PPC and the PCC are the subject of the Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 (“the Procedure Rules”). Part 1 of the Procedure Rules contains preliminary provisions, in particular as to their interpretation; Part 2 contains the rules relating to initial consideration of cases, in particular, by a medical screener; Part 3 concerns the procedure of the PPC; Part 4 deals with certain intermediates procedures; and Part 5 deals with the procedure of the PCC at the original hearing of a case.
- Charges of serious professional misconduct are heard and determined by the PCC. However, with a view to excluding vexatious or frivolous allegations, such charges are subjected to a filtering process, involving a medical screener and then the PPC. Rule 6 provides that:
Where a complaint in writing or information is received by the Registrar and it appears to him that a question arises whether conduct of a practitioner constitutes serious professional misconduct the Registrar shall submit the matter to a medical screener.
The function of the Registrar is essentially administrative. It is not for him to decide whether a complaint is frivolous or provable: that decision is for the screener and the PPC.
- The medical screener is a registered medical practitioner appointed by the GMC. Rule 6(3) requires him to refer to the PPC a case submitted to him by the Registrar “if he is satisfied from the material available in relation to the case that it is properly arguable that the practitioner's conduct constitutes serious professional misconduct”. When he does so, he must give notice to the practitioner in question of the complaint or information and identify the matters which appear to raise a question of serious professional misconduct; and the practitioner is invited to submit any explanation which he may have to offer. Any such explanation is submitted to the PPC together with the complaint, information and other evidence.
- Rule 11, so far as relevant, is as follows:
(1) The (Preliminary Proceedings) Committee shall consider any case referred to them under Part 2 of these Rules … and, subject to those rules, determine:
(a) that the case shall be referred to the Professional Conduct Committee for inquiry, or
(b) that the case shall be referred to the Health Committee for inquiry, or
(c) that the case shall not be referred to either Committee.
(2) 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:
….
- Rule 14 is headed “Fresh allegation as to conviction or conduct”:
(1) This rule applies where:
(a) in any case relating to conviction the (Preliminary Proceedings) Committee determine that no inquiry shall be held; or
(b) in any case relating to conduct
(i) under rule 6(3) the medical screener decides that no reference to the Committee is to be made; or
(ii) the Committee determine that no reference for inquiry shall be made,
and the Registrar, at any time within the two years following that determination or decision, receives information that the practitioner has been convicted in the British Isles of a criminal offence or has been convicted of an offence elsewhere which, if committed in England or Wales, would constitute an offence or receives information or a complaint as to the practitioner's conduct,
(2) Where this rule applies, the medical screener may direct that the original conviction or complaint be referred, or referred again, to the Committee, as well as the later conviction, information or complaint.
(3) In any case where the decision under paragraph (1)(b)(i) was made before 3rd August 2000, the reference there to the medical screener shall be read as a reference to the President.
- Part 4 of the Procedure Rules concerns “Intermediate Procedures where a case is referred” to the PCC. The PPC retains power to prevent the inquiry by the PCC from taking place. Rule 19, so far as is relevant, is as follows:
“(1) Where, after the Preliminary Proceedings Committee has referred a complaint or information or a conviction to the Committee for inquiry, it appears to the Chairman of the Preliminary Proceedings Committee (having taken into account any observations of any complainant obtained pursuant to paragraph (1A)) that the inquiry should not be held, he may, after consulting a quorum of the Committee, and if they agree, direct that the inquiry shall not be held; and if at the time the direction is given no Notice of inquiry has been sent, rule 17 shall not have effect:
(1A) In any case where there is a complainant the Register shall, before the Preliminary Proceedings Committee considers the case under paragraph (1), communicate or endeavour to communicate with the complainant with a view to obtaining the observations of the complainant as to whether the inquiry should be held.”
- As mentioned above, Part 5 concerns proceedings before the PCC. Rule 24 provides:
“(1) The inquiry shall open by the reading of the charge or charges to the Committee.
(2) After the reading of the charge or charges the practitioner may submit any objection on grounds of law to any change or part of a charge and any other party may reply to such an objection.
(3) If any objection raised under paragraph (2) is upheld no further proceedings shall be taken with regard to the charge or part of a charge to which that objection relates.”
Judicial authority
- There has been a number of judgments on challenges to decisions of the screener not to refer a complaint to the PPC or of the PPC not to refer a case to the PCC, namely those of Lightman J in R v GMC, ex parte Toth [2000] 1 WLR 2209, of Sullivan J in R (Richards) v GMC [2001] Lloyd's Law Reports (Medical). of Ouseley J in R (Holmes) v GMC [2001] EWHC Admin 321, of the Court of Appeal in that case [2001] EWCA Civ 1372, and of Burton J in R (Woods) v GMC [2002] EWHC 1484 Admin In Holmes the Court of Appeal endorsed what had been said in Toth and in Richards as to the need for the PPC to exercise caution in deciding not to refer a complaint to the PPC. Jonathan Parker LJ, with whom the other members of the Court agreed, referred to those decisions in the following passage of his judgment.
36. In Toth, Lightman J analysed the different stages of the investigative process under the 1988 Rules. In paragraph 14 of his judgment he identified the general principles underlying the process as being:
“(a) the public have an interest in the maintenance of standards and the investigation of complaints of serious professional misconduct against practitioners; (b) public confidence in the GMC and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special and sufficient reason) will be publicly investigated by the [PCC]; and (c) justice should in such cases be seen to be done. This must be most particularly the case where the practitioner continues to be registered and to practise.”
Lightman J went on to describe the role and function of the PPC as follows:
“The PPC may examine whether the complaint has any real prospect of being established, and may themselves conduct an investigation into its prospects, and may refuse to refer if satisfied that the real prospect is not present, but they must do so with the utmost caution bearing in mind the one-sided nature of their procedures under the [1988 Rules], which provide that, whilst the practitioner is afforded access to the complaint and [is] able to respond to it, the complainant has no right of access to or to make an informed reply to that response, and the limited material likely to be available before the PPC compared to that available before the PCC. It is not their role to resolve conflicts of evidence. There may be circumstances which entitle them to hold that the complaint should not proceed for other reasons, but the PPC must bear in mind their limited (filtering) role and must balance regard for the interests of the practitioner against the interests of the complainant and the public and bear in mind the need for the reassurance of the complainant and the public that complaints are fully and properly investigated and that there is no cover-up. In the case of the PPC (as in case of the screener) any doubt should be resolved in favour of the investigation proceeding.”
37. In paragraph 58 of his judgment in Richards, Sullivan J gave a general endorsement of Lightman J's analysis, subject only to certain limited qualifications. In particular, Sullivan J agreed with Lightman J that the PPC:
“... should certainly exercise caution for the reasons given by Lightman J in deciding not to refer a complaint to the [PCC] on the basis that it has no real prospect of being established, having itself conducted a preliminary investigation into its prospects on the documents alone.”
38. Sullivan J went on (in paragraph 58) to qualify Lightman J's statement that it is not the role of the PPC to resolve conflicts of evidence by saying that the PPC “should not normally seek to resolve substantial conflicts of evidence”, on the footing that to do so “would be to go beyond its screening role and to usurp the function of the [PCC]”.
- In Woods, Burton J summarised the principles underlying the provisions of Parts 2 and 3 of the Procedure Rules as follows:
i) They constitute a fine balance between three competing desirables:
a) The protection of the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practise, and the maintenance of standards.
b) The maintenance of the reputation of, and public confidence in, the medical profession, and the legitimate expectation of the public, and of complainants in particular, that complaints of serious professional misconduct will be fully and fairly investigated.
c) The need for legitimate safeguards for the practitioner, who as a professional person may be considered particularly vulnerable to, and damaged by, unwarranted charges against him.
These are articulated in particular by Lightman J in paras 10 and 14 of his judgment in Toth
ii) The filtering exercise is especially required in pursuit of the last of these three principles. It is necessary in order to ensure, given the sensitive and high profile role of doctors and the ease of, and the understandable but often misguided resort to, making complaints against them, with all the time-consuming and damaging consequences for the doctor of such an investigation, that only those cases are taken forward in which there is a real prospect of the complaint succeeding. On the other hand, because of the importance of the other two principles, it is necessary for these filtering exercises not to be ratcheted to too high a level, and that caution should be exercised before filtering out a complaint, so that if there is doubt it must be resolved in favour of referring the matter on for investigation.
In addition, Burton J approved the aide memoire formulated by Robert Englehart QC and Mr Shaw as to the approach to be applied by the PPC in conduct cases. The aide memoire states:
1. In conduct cases the PPC's task is to decide whether, in its opinion, there is a real prospect of serious professional misconduct being established before the PCC. …
2. The “real prospect” test … reflects not a probability but rather a genuine (not remote or fanciful) possibility. …
3. … in performing its task the PPC:
….
(3) should not, … normally seek to resolve substantial conflicts of evidence;
…
- These authorities establish, and indeed it is common ground before me, that the PPC is entitled (and in general obliged) to refer a case to the PCC if it concludes that there is a real prospect that it will be established that the practitioner in question was guilty of serious professional misconduct. If the PPC concludes that there is no such prospect, it should not refer the case to the PCC, but it must exercise caution before so concluding, and must take into account the limitations of the material available to it.
The facts
- Dr David is a consultant anaesthetist with a special interest in intensive care. Since September 1997, she has been employed by the Basildon and Thurrock General Hospitals NHS Trust (“the Trust”).
- Mr Robert Symons was a patient of the Trust at Basildon Hospital in Essex. He was transferred to the intensive care unit on 22 January 1999 in a shocked, hypoxic and comatose condition. Dr David, as the consultant anaesthetist, was responsible for his clinical care. He died on 15 February 1999 following her decision to withdraw care.
- On 30 June 2000, Dr David was suspended from her work as a result of concerns raised by her medical colleagues relating to her work. The Trust requested the assistance of the Joint Liaison Group of the Royal College of Anaesthetists, whose investigation identified 45 patients whose cases raised concerns. Mr Symons was one of those patients. The concerns related to the administration of drugs and the withdrawal of treatment from chronically and terminally ill patients in circumstances in which death might be hastened. Because all of the cases had elements in common, 7 were selected as sample cases for particular scrutiny. Mr Symons' case was not one of them. The Joint Liaison Group suggested that the matter be referred to the police, and in October 2000 the Trust did so. In January 2002, the CPS decided not to bring a prosecution.
- The Trust and the police then referred all 45 cases to the GMC for it to consider disciplinary proceedings. In June 2002, the medical screener referred the 7 sample cases to the PPC. The remaining 38 cases were allowed to lie on the file. By letter dated 23 August 2002, the GMC informed Dr David of the decision of the PPC made on 14 August 2002 that none of the 7 cases should be referred to the PCC.
- Mrs Symons brought proceedings against the Trust alleging clinical negligence and in its care of her late husband. Her solicitors obtained independent expert reports from Dr Ken Alagesan, a consultant in intensive care medicine and anaesthesia. On 24 September 2002, Mrs Symons' solicitors wrote to the GMC enclosing a copy of Dr Alagesan's report. The letter stated:
“Dr Alagesan has asked us to forward his report to you because of his deep concerns about the conduct of Dr David … we feel that the evidence of Dr Alagesan is most strongly suggestive of professional misconduct by Dr David and we understand that Mr Symons' case was not one of those which formed part of your original investigation.”
- Dr Alagesan considers that there was no justification to terminate Mr Symons' care when it was withdrawn. He stated that Mr Symons did not satisfy any of the established criteria for the withdrawal of treatment. Referring to the medication given to Mr Symons when treatment was withdrawn, he said:
It is therefore difficult not to assume that the intention was not a simple withdrawal of treatment but a firm attempt to stop him from breathing. … there is no doubt that the combination of sedation and the removal of airway shortened his life.
In the summary to his report, he stated:
There was no obvious consensus to withdraw treatment. Withdrawal was inappropriate and pre-mature and was done in an unconventional manner.
- By letter dated 20 January 2003, as required by rule 6(4), an Assistant Registrar of the GMC informed Dr David that the medical screener had referred Mrs Symons' complaint to the PPC. The letter gave particulars of the complaint and the stated that it “comprises a letter from (Mrs Symons') Solicitors dated 24 September 2002, a report prepared by Dr K Alagesan and copies of Mr Robert Symons' medical records”.
- RadcliffesLeBrasseur, the solicitors for Dr David, responded to the letter of 20 January 2003 in a letter dated 5 February 2003 that is not in evidence. I assume that it questioned the GMC's proceedings concerning Dr David, given the earlier decision of the PPC not to refer any of the 45 cases to the PCC. The GMC replied by letter dated 10 February 2003. It referred to the decision of the PPC of 14 August 2002 not to refer any of the sample (or other) cases to the PCC and to the receipt by the GMC of Dr Alagesan's report, and stated:
We sought legal advice over whether our previous decision to allow the Symons case to lie prevented us from now screening the concerns highlighted by the report. The advice received suggested that the GMC could consider the report as it constituted new information/evidence not available to the screeners at the time they made their recommendation to proceed on the basis of a sample number of cases. Also, the decision not to include the Symons' case in the sample seven had been an administrative decision which had no basis under the Rules.
- On 24 April 2003, Bevan Ashford, the solicitors acting for the Trust in the proceedings, wrote to the GMC in order to provide it with “details of the concerns expressed by the Trust's expert witnesses, Dr Norman Johnson and Dr David Coates, during the course of investigation of a compensation claim by Mrs Edna Symons arising from the death of her late husband …” the letter stated that Dr Coates had prepared a report that “on the face of it” was generally supportive of the position of the Trust on the liability. However, Dr Coates had made a statement during a telephone conversation on 9 July 2002 with a solicitor at Bevan Ashford. He had said:
… There is a very strong argument for the fact that there was intentional killing. The husband [i.e. Mr Symons] was very ill both mentally and physically and may well not have survived in any event but he wasn't given a chance. … In essence, Dr David precipitated the deceased's death and if he [Dr Coates] was asked to stand in court he would have no option but to accept that there is evidence of intentional killing.
The letter also listed a number of specific concerns arising from Dr Johnson's comments. The letter stated that it has been agreed in draft by Dr Johnson and Dr Coates, and that the Trust agreed that the GMC could liaise directly with them.
- On 23 July 2003, RadcliffesLeBrasseur sent a detailed 12-page letter to the GMC addressing Mrs Symons' complaint. It referred to the decision taken by the PPC in August 2002 not to refer the case of Mr Symons to the PCC, and submitted on behalf of Dr David:
… that it would be improper and unfair for the PPC scheduled the end of this month to sit in deliberation on the complaint of Mrs Symons with a view to deciding whether there are issues of serious professional misconduct which require a referral to the Professional Conduct Committee. Irrespective of such submission on our client's behalf, and whilst reserving the right to pursue further action in this regard, we also submit, with the benefit of our own expert opinion, that, in fact, the complaint does not justify any further action by the Committee, even if it does go far as to consider the facts as alleged.
- The expert opinion referred to was that of Dr Neil Soni, a consultant in intensive care. A copy of his report was provided to the PPC. The letter ended:
In conclusion, we do not believe that there is any proper basis upon which the complaint regarding the treatment of Mr Robert Symons could be referred for inquiry by the Professional Conduct Committee. Any such decision would represent a gross injustice to Dr David. We call upon the members of the Preliminary Proceedings Committee to make a firm decision to close this matter now, and once and for all, and allow a dedicated and skilled practitioner to embark upon the rehabilitation of her professional career.
- Dr Soni had given 2 reports on Dr David, one dated 13 September 2001 dealing with the 7 sample cases and one dated 23 July 2003 addressing the case of Mr Symons. In that report he stated that the management of ITU by Dr David (and by her colleague Dr Lowe) “was considered, reasonable and consistent with normal practice”. In his Conclusion, he stated that it was “realistic to suggest that the outcome (i.e., Mr Symons' death) was already inevitable at the stage at which the withdrawal was considered and the decision to withdraw was made”. In relation to the mode of withdrawal, he said, “The dosages used here were modest but probably achieved the desired effect of loss of awareness. They were certainly in the therapeutic range for that intended purpose.” As to the time of the withdrawal of treatment, he said:
I am sure some Units would have persisted and I am equally sure some would have withdrawn sooner. I believe the time at which withdrawal was considered was similar to that in my own practice.
- At its meeting on 29 and 30 July 2003, the PPC decided to adjourn its consideration of Mrs Symons' complaint in order to obtain an expert report. Dr David was informed of the adjournment by letter dated 18 August 2003. The report obtained by the PPC was that of Dr Lawler, an eminent anaesthetist, dated 30 January 2004. He summarised his conclusions as follows:
1.7.1 It is my opinion that, excepting the opinions set out below, the overall care provided to Mr Symons until the last few days of his admission was satisfactory.
1.7.2 It is my opinion, gathered from the notes available to me, that when Dr David considered and made decisions concerning the limitation and withdrawal of Mr Symons' care, she failed to consult relevant clinical colleagues. It is my opinion that this represents a serious lack of judgment in the provision of good clinical care. It is also my opinion that Dr David's communication with all the relatives in the final period of Mr Symons' life might not have been satisfactory.
1.7.3 It is my opinion that, although I believe the final outcome would probably not have changed, the withdrawal of treatment was premature, and that other therapeutic options and/or a longer trial of therapy, were warranted.
1.7.4 It is my opinion that mode of withdrawal of treatment from Mr Symons was at the margins of then current practice, and that the principle of “double effect” was breached.
- A copy of Dr Lawler's report was provided to Dr David's solicitors. Dr Soni produced a third report, dated 13 February 2004, in which he commented on Dr Lawler's report, and reaffirmed his opinion that the decision of Dr David to withdraw treatment from Mr Symons had been appropriate.
- In a letter dated 26 February 2004, Dr David's solicitors made further submissions on behalf of Dr David. They enclosed with that letter a copy of the reports of Dr Coates that had been obtained by the Trust for the purposes of Mrs Symons' negligence claim. They drew the PPC's attention to Dr Coates' opinion, as expressed in that report, on a number of matters, and made the point that the report was in no way critical of Dr David's management of Mr Symons. A copy of Dr Soni's third report was also submitted to the PPC.
The decision of the PPC
- The GMC informed Dr David of the decision of the PPC by letter dated 18 March 2004 (“the decision letter”). It is necessary to set out large parts of it.
As you may be aware, this Committee's role is to determine whether any case, which has been referred to it, ought to be referred for public inquiry by the Professional Conduct Committee. It is for the Committee to decide if, in its opinion, a question is raised whether a doctor has committed serious professional misconduct, which may consequently raise issues about the doctor's registration and fitness to continue to practise. In so deciding, it may consider (using due caution) whether the case against a doctor has any real prospect of being established.
…
RadcliffesLeBrasseur on your behalf have objected that it is improper and unfair for the PPC to consider this case as it had previously been screened out in 2002. The Legal Assessor stated that under Rule 14 (1) (b) (i) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules of Order 1988 (as amended), where the medical screener decides that no reference to the Committee is to be made, and the Registrar, at any time within two years following that determination or decision, receives information or a complaint as to the practitioner's conduct (in this case Dr Alagesan's report, and the concerns expressed by Dr Coates and Dr Johnson) the medical screener may direct that the original conviction or complaint be referred, or referred again, to the Committee, as well as the later conviction, information or complaint. The Committee were also advised that this was not one of the seven cases which had previously been considered by the PPC and therefore there was nothing to prevent this Committee from considering this case. The Committee noted this advice and agreed that they proceed.
…
Therefore it is alleged that your decision to withdraw treatment was inappropriate and premature given Mr Symons' presenting condition. It is alleged that your decision to withdraw treatment in the absence of adequate consultation with either your professional colleagues or Mr Symons' relatives, and that the manner of treatment withdrawal (Diazemules 20 mg and extubation), was inappropriate and brought Mr Symons' life to an end earlier than would have occurred naturally.
…
On 15 February 1999, you informed Mrs Symons that Mr Symons required further ventilatory support and was not weaning. On 16 February 1999, you spoke with the family of Mr Symons and informed them that there was no possibility of survival off the ventilator and the notes indicate sedate and extubate. The Committee noted that the notes indicate that on 16 February 1999, Mr Symons was extubated after being given intravenous Diazemules at 14:10 and asystole occurred at 15:10. The Committee noted Dr Lawler's view that the extubation was possibly premature, and that although Mr Symons had a refractory pulmonary condition, this might have responded to antibiotics and may therefore have merited a more protracted period in ICU. It also noted Dr Lawler's concern about the use of Diazemules (a respiratory depressant) when the patient already had morphine, and the fact that the 20 mg dose was given as a single bolus, rather than gradually. It considered that Mr Symons had not therefore been given the chance to breathe spontaneously.
In considering the evidence, the Committee also considered the reports of Dr Alagesan, Dr Soni and Dr Lawler in which there is a clear conflict. The Committee noted that Dr Alagesan was of the view that withdrawal of treatment was inappropriate, but that Dr Soni concluded that the decision to withdraw treatment was acceptable. The further report from Dr Lawler concludes that withdrawal was too early and recommends that a 2-3 week period to see whether the pulmonary condition improved with aggressive antibiotics should have been considered in the light that Mr Symons was a relatively young man with only one organ that required support (the respiratory system), and that there was (for example) no evidence of cardiovascular dysfunction and evidence of another aggravating infection had not been excluded. Dr Lawler is also critical that you failed to consult sufficiently with your other colleagues.
The Committee noted that there is clear evidence that you consulted with the family in relation to the clinical management of Mr Symons, although the decision to withdraw treatment is a medical one and does not require consent of family members. The Committee also noted that there were no guidelines from the General Medical Council at the time of this complaint, but that ITU departments would have had their own guidelines. The Committee have not had sight of the ITU guidelines.
The Committee note that you have admitted that you should have consulted more widely with colleagues prior to the decision to withdraw treatment.
The Committee considered that your alleged actions were at the margins of permissible clinical practice. It noted the considerable variation in the experts' views, including the possibility that the withdrawal of treatment may have been premature. It noted that the allegations related to this single case, and was of the view that the heads of charge in 3 were unsustainable. However it considered that there was a considerable public interest in testing allegations concerning the ethical question of the withdrawal of treatment, particularly where, as in this case there had been very limited consultation with colleagues, possible premature withdrawal of treatment and a high dose of sedative. Given the considerable divergence in the experts' opinions, including Dr Alagesan's trenchant criticisms of the level of care provided by you, the Committee determined that the allegations at Head of Charge 4 if proved could reach the threshold of serious professional misconduct, and that it was in the public interest for the case to be referred to the Professional Conduct Committee.
The Committee determined that the allegations, if proved, would raise a question of serious professional misconduct, which may consequently raise issues about your registration and fitness to continue to practise. It determined that a charge should be formulated against you on the basis of the complaint and that a public inquiry into the charge should be held by the Professional Conduct Committee.
- The charges against Dr David that have been referred to the PCC are as follows:
a. Your decision to withdraw treatment was inappropriate and premature given Mr Symons' presenting condition.
b. You made the decision to withdraw treatment in the absence (of) adequate consultation with either your professional colleagues or Mr Symons' relatives.
c. The manner of treatment withdrawal (diazemuls 20 mg and extubation) was inappropriate and brought Mr Symons' life to an end earlier than would have occurred naturally.
Your actions as outlined above were inappropriate, unprofessional and not in the best interests of your patient.
The grounds for judicial review
- As summarised in Mr Hendy's and Miss Chudleigh's skeleton argument, the grounds for judicial review are as follows:
(1) The GMC erred in deciding to re-open the Symons case.
(2) The material before the PCC was not capable of proving beyond reasonable doubt that Dr David's conduct fell so far short of the standard expected of her by the profession that no reasonable practitioner in her position would have done or omitted to do what she did or did not do in relation to the charges.
(3) In considering whether to refer the matter to the PCC, the PPC failed to consider whether there was a real prospect of establishing serious professional misconduct.
(4) The PCC took into account an impermissible matter, namely that there was a considerable public interest in testing allegations concerning the ethical question of the withdrawal of treatment. Alternatively, the PCC [sic] give disproportionate weight to this factor.
(5) The PPC failed to take into account a material and important piece of evidence in Dr David's favour, namely the report of Dr Coates.
The approach of the Court on an application for judicial review of a decision of the PPC to refer a case to the PCC
- By way of preliminary, Mr Shaw submitted that, just as the authorities to which I have referred above require the PPC to exercise caution when deciding not to refer a case to the PCC, so this Court should exercise caution when considering whether to quash a decision of the PPC to refer a case to the PCC. The factors that bear upon the decision of the PPC, such as the fact that it considers the evidence on paper only, with no opportunity for the evidence of witnesses or experts to be tested by cross examination, or for contradictions to be investigated, and the desirability of public investigation of legitimate complaints made against a medical practitioner, are equally relevant to judicial review of a decision of the PPC. In addition, the practitioner against whom charges have been preferred has alternative remedies. She may apply to the Chairman of the PPC under rule 19 for a direction that the inquiry shall not be held. Of greater practical importance in a case such as the present, where the facts are being extensively canvassed before the PPC, is the right of the practitioner, under rule 24 (2), to submit an objection on grounds of law to any charge. If that objection is upheld, no further proceedings are taken. By definition, any ground for judicial review is an “objection on grounds of law”, and may therefore be raised under rule 24.
- Mr Hendy, very fairly, accepted that it is appropriate for the Court to exercise caution in the present context. However, he pointed out that if a practitioner were to submit an objection under rule 24, the case against her would have gone to a public hearing, with the attendant damage to her reputation and cost.
- I accept that, for the reasons given by Mr Shaw, it is appropriate for the Court to exercise caution in a case such as the present. That caution is particularly appropriate if the Court is asked (as it is in the present case) to assess evidence of medical practice, or expert medical reports, with a view to determining whether the PPC could legitimately conclude that there is a real prospect of a charge or charges being proved. The Court, unlike the PPC, is not medically qualified; and it may intervene only if it concludes that the view taken by the medically qualified Committee was perverse. The degree of caution that is appropriate is, however, significantly less if the issue before the court is whether the PPC correctly interpreted or applied the Procedure Rules.
- I appreciate that a hearing before the PCC involves stress, adverse publicity and cost for the practitioner. However, where the decision in question is that a case should be referred to the PCC, the Court must take into account that the decision of the PPC is not determinative of any civil (or other) right or obligation of the practitioner. The practitioner will have a fair trial before the PCC, and if innocent of serious professional misconduct can expect to be vindicated. When it decides to refer a case to the PCC, the PPC is not obliged to give extensive reasons for its decision, and the scrutiny of the Court on judicial review is not required to be, and should not be, intensive.
Ground 1: the GMC erred in deciding to re-open the Symons case
- It seems that Mr Symons' case was one that the screener decided in 2002 not to refer to the PPC (so that rule 14(1)(b)(i) applied), rather than one which the PPC had determined should not be referred to the PCC for inquiry (in which case rule 14(1)(b)(ii) applied). This point is, however, immaterial. In either case, the effect of rule 14 (2)is that the screener could not lawfully direct that Mrs Symons' complaints be referred to the PPC unless the GMC had received “information … as to the practitioner's conduct” within the meaning of rule 14(1).
- The information relied upon by the GMC as justifying the reference of Mrs Symons' complaints to the PPC was the report of Dr Alagesan. Mr Hendy submitted that an expert report cannot constitute “information” within the meaning of rule 14. He pointed out that the GMC itself, in the letter of 10 February 2003, was equivocal in referring to that report as “new information/evidence”. He submitted that “evidence” is not the same as “information”; and that the reference in rule 14 to “information” requires some new fact to be put before the GMC, such as evidence that Dr David did something previously unknown, rather than a new opinion about facts already considered.
- Mr Shaw submitted that a new medical report is itself new information within the meaning of rule 14.
- Rule 14 only applies where there has not been a substantive inquiry into the conduct of a medical practitioner; where it cannot be said that he or she has been acquitted of any charge on a full consideration of the evidence; where the inquiry that has taken place is only a preliminary inquiry. The word “information” has a wide natural meaning, and in my judgment there is nothing in rule 14 or its context to require its natural meaning to be rejected in favour of a narrower meaning.
- The word “information” in the Rules is frequently used in association with, but in apparent distinction from “complaint”: see, for example, rules 6 and 18 and rule 14 itself. The meaning of “complaint” is clear. A letter from a medical practitioner, enclosing a report on the conduct of another practitioner, and stating that the author thought that it should be brought to the attention of the GMC, would not be a “complaint”, but the letter together with the report would constitute “information” for the purposes of rule 6. If so, there is no reason why such a medical report should not constitute “information” within the similar context of rule 14. In rule 5, “information” is used without association with “complaint”. Rule 5 envisages, I think, a letter from, for example, a court or prosecuting authority informing the GMC of a conviction of a practitioner. The authority sending the letter would not be a “complainant”, and the letter would not constitute a complaint. I do not think that “information” is used in any different sense in rule 5 from its meaning in rule 14.
- In my judgment, the fact that it is the opinion of a medical practitioner that another practitioner's acts were outside the range of acceptable professional conduct is itself “information”. Take the case of a complaint that is unsupported by any expert medical evidence. It might be understandable that the screener or the PPC might decide that it should not be referred to the PCC. If the complainant were then to submit a report of an eminent medical expert to the effect that the conduct of the medical practitioner in question was seriously out of accord with accepted and acceptable practice, it would be unfortunate if the PPC could not consider it in order to decide whether, in the light of that report, the case should be referred to the PCC.
- Furthermore, I do not think that Mr Hendy's distinction is practical; and it involves unnecessary and undesirable distinctions. It implies that the PPC could reconsider a complaint if it could find in the new expert report evidence of some material fact that had not previously been in evidence. It would require the screener or the PPC to scrutinise a new expert report to see if there was any such new fact referred to, and for that purpose he or it would have to have in mind all of the facts previously evidenced. That does not appear to me to be a fruitful exercise. A new report may include a different interpretation of contemporaneous medical records from that previously put forward: is that interpretation new “information”? In my judgment, it is. And what if the new report is more cogent than that previously before the Committee? Or is the report of a practitioner of greater experience and eminence than that previously considered by the Committee? In my judgment, in such circumstances, the new report may be considered because it is new information within the meaning of rule 14.
- There is, however, a further reason why this ground does not assist Dr David. Rule 14 relates to the reference by the screener to the PPC, not to the consideration of a case by the PPC: see rule 14(2). If a case is referred in circumstances where that is not permitted by paragraph (1), it is the screener who acts unlawfully. Dr David could have challenged the screener's reference of her case to the PPC as soon as she learned of it. She did not do so. Instead, her solicitors, in their letter dated 23 July 2003, called upon the PPC to make a decision to close the matter. The present proceedings are out of time to challenge the decision of the screener; there is no formal application for an extension of time; no application was intimated until Mr Hendy's submissions in reply; and in any event there are no grounds to extend time, having regard to the terms of that letter.
Ground 2: the material before the PPC was not capable of proving beyond reasonable doubt that Dr David was guilty of serious professional misconduct
- This ground requires the Court to consider the material before the PPC in order to determine whether it justified the referral of the charges against Dr David to the PCC. It is a reasonableness challenge, as distinguished from Ground 3, which is a reasons challenge. The claimant must establish that the decision made by the PPC was one that no reasonable Committee, correctly applying the Rules, could have reached: i.e., that no reasonable Committee, on the material before it, could have concluded that there was a real prospect of the charges against Dr David being proved, on the applicable criminal standard of proof, and being held to constitute serious professional misconduct.
- For this purpose, Mr Hendy took me through the expert medical reports before the Committee in some detail, but particularly to those of Dr Soni. He referred me to the familiar principle established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Clearly, if Dr David's treatment of Mr Symons was consistent with practice followed by a substantial body of competent practitioners, it is at least difficult to see that it constituted serious professional misconduct.
- Mr Shaw, for his part, took me to the contrary opinions expressed by the experts on whom the GMC proposes to rely, and to qualifications expressed in the reports of Dr Soni. He referred me to the qualification to Bolam established in Bolitho v City & Hackney Health Authorities [1998] AC 232. I am bound to say, however, that it could only be in exceptional circumstances, if at all, that acts by a medical practitioner that were consistent with a widely accepted medical practice that on analysis was found not to be logically supported (see Lord Browne-Wilkinson at 243D-E) could be held to constitute serious professional misconduct.
- There is a conflict of expert medical evidence as to the acceptability of Dr David's conduct in relation to her treatment of Mr Symons. But just as the PPC should be cautious before seeking to resolve factual disputes, so it must be cautious before seeking to resolve disputes between medical experts. As stated in the aide memoire, the PPC should not normally seek to resolve substantial conflicts of evidence; and that includes expert evidence. And if the PPC should be cautious, this Court, for the reasons mentioned above, should be even more cautious.
- An expert report is only as good as the assumptions on which it is based; and we have all seen cases in which, expectedly or unexpectedly, the factual assumptions made by an expert witness have proved wrong, and his opinion invalidated as a result. The facts on which the expert reports in the present case are based to a significant extent have not been explored by cross examination or determined: why, for example, Dr David did not consult any medical colleagues before taking the decision to withdraw treatment. In addition, the evidence of the medical experts has not been explored by cross examination. Their evidence as to accepted or acceptable medical practice may in due course be found wanting.
- For these reasons, in my judgment only in the clearest of cases could be appropriate for this Court, on an application for judicial review, to scrutinise the expert medical evidence before the PPC with a view to deciding whether it could reasonably have referred a case to the PCC.
- Both parties referred me to the passages in the expert reports that relate to each of the charges faced by Dr David. In my judgment, it cannot be said in respect of any of the charges referred that there was no expert medical evidence before the PPC that could justify a conclusion that there was a real prospect of establishing serious professional misconduct. Unless that can be shown, in general, this Court should not interfere with a decision made by that Committee, including as it does medically qualified members. In the present case the conflict of medical opinions does not justify the conclusion that the PPC could not reasonably have concluded that there was a real prospect that serious professional misconduct on the part of Dr David might be established in relation to each charge. I take by way of example charge 4(c). Mr Hendy submitted that the evidence supporting this charge was weak. Dr Alagesan's report includes the following statements:
It is generally acceptable to make patients comfortable and alleviate stress when treatment is being withdrawn. Mr Symons was already on a morphine drip. Therefore it was unnecessary to give him such a large dose (20mg) of diazemuls as a single bolus, which is a strong sedative and respiratory depressant with the capacity to stop or slow the breathing. In addition, such a large dose of a strong sedative will also make it difficult for the patient to maintain a patent airway to breathe through. It was therefore possible that Mr Symons was forced not only to lose his urge to breath but was also forced to lose his ability to keep a clear airway to breathe through by removing his tracheostomy tube. It is reasonable to expect an anaesthetist or an intensive care doctor to know what such a combination of manoeuvres would produce in a sick patient – airway obstruction and ventilatory failure, hypoxia and death. It is therefore difficult not to assume that the intention was not a simple withdrawal of treatment but a firm attempt to stop him breathing. Withdrawal of treatment should mean just that. In this case, assuming there was justification to do so, the proper way would have been to simply disconnect from the ventilator and let nature take its course. Of course judicious use of sedatives and anxiolytics would have been appropriate. Suppressing the patient's brain with large doses of sedatives and compromising or helping to block their airways should not be a part of it. There is no doubt that the combination of sedation and the removal of the airway shortened his life.
- That is sufficient to entitle the Committee to include this charge. I add, however, that where all of the charges relate to the same patient and the same incident (here, the withdrawal of treatment from Mr Symons leading to death), and the practitioner can show that the decision of the PPC as a whole is perverse or otherwise unlawful, it is only exceptionally, if at all, that the Court should review the individual charges or their formulation with a view to quashing one or more, but not all, of them. The formulation and amendment of charges are very much matters for the PPC and the PCC.
In considering whether to refer the matter to the PCC, the PPC failed to consider whether there was a real prospect of establishing serious professional misconduct.
- As mentioned above, this is the reasons challenge. The issue is whether the letter of 18 March 2004 shows that the PPC did not conclude that there was a real prospect of the PCC finding that Dr David had committed serious professional misconduct in the respects charged.
- The letter of 18 March 2004 must, of course, be considered as a whole. In addition, it is appropriate to take into account that it was not written by a lawyer.
- The Committee was clearly aware of the “real prospect” test: it referred to it in the second paragraph of the letter, although it would have been more appropriate to have stated that the PPC must (not may) consider whether the case has a real prospect of being established. The decision letter contains a good summary of the facts, including the expert evidence. In the crucial paragraphs of the decision letter, namely the last 2 paragraphs set out at paragraph 29 above, the words “if proved” were used. I think it implicit in those words that the Committee considered that the charges were capable of being proved, and that if the allegations as to Dr David's conduct were proved, they were capable of constituting serious professional misconduct. The words “if proved” in the decision letter are to be contrasted with the expression “unsustainable” applied to the charges that the Committee decided not to refer to the PCC. A charge is “unsustainable” in this context if there is no real prospect of its being proved. On this basis, the Committee did conclude that there was a real prospect of serious professional misconduct being established, in the sense that “real prospect” is used in this context.
- However, I have to admit to being puzzled by the statement, in the decision letter, that the Committee considered Dr David's alleged actions being “at the margins of clinical practice”. The origin of this phrase appears to have been paragraph 1.7.4 of Dr Lawler's report, cited above. However, Dr Lawler used the expression to refer to the mode of withdrawal of treatment, not to the decision to withdraw treatment or its timing. Furthermore, it is not the function of the PPC to reach such conclusions: that is for the PCC. The phrase is used in the letter before the conclusion that the heads of charge in 3 (which related to Mr Symons' treatment before the decision was made to withdraw treatment) were unsustainable and the conclusion that the heads of charge 4 (concerned with the withdrawal of treatment) are provable. It may be that the writer of the letter intended to convey that the alleged actions of Dr David were on one side or the other of the line between acceptable practice and the unacceptable.
- However, given the cautious approach required of the Court on this application, and the strong criticisms of Dr David in the medical opinions relied upon by the GMC, I do not consider that the uncertainty as to what the Committee meant in referring to the margins of clinical practice justifies this Court interfering with its decision. It is a matter that can be raised on behalf of Dr David, if she is so advised, under rule 19 (which may be particularly appropriate to this issue) or rule 24 of the Procedure Rules.
- It follows that this head of challenge fails.
The PPC took into account an impermissible matter, namely that there was “a considerable public interest in testing allegations concerning the ethical question of the withdrawal of treatment”. Alternatively, the PCC give disproportionate weight to this factor.
- I have considerable sympathy with Mr Hendy's submission that in general the PCC is not the appropriate forum to investigate genuine ethical questions. Serious professional misconduct normally involves conduct going beyond established ethical rules. Where there are ethical disputes affecting medical practice, the GMC may provide advice under section 35 of the 1983 Act; and such advice must be particularly valuable where there are no established rules of practice. A medical practitioner who acts inconsistently with such advice may be guilty of serious professional misconduct. But where there are genuine but conflicting views as to the appropriate ethical medical response to a defined situation, held by responsible bodies of medical men, and there is no relevant guidance of the GMC or applicable legal rule, it may be difficult to see that conduct consistent with one of those views could be serious professional misconduct.
- However, I think that to read the decision letter as stating that the PPC referred Dr David's case to the PCC because of the public interest in the resolution of a controversial ethical question is too literal a reading. No such ethical question is to be seen in the charges, or in Dr Alagesan's trenchant criticisms, or in the submissions made on behalf of Dr David to the PPC; or, indeed, in the submissions made on her behalf to me. If the Committee thought that the case turned on a seriously disputed ethical question, it is difficult to see that they could have concluded that the charges, if proved, could reach the threshold of serious professional misconduct, as they clearly did. What I think that the Committee had in mind was the public interest in cases concerning the withdrawal of treatment. Whether treatment should be withdrawn involves an ethical question, to which the Committee referred, but that does not mean that there are not rules as to proper medical conduct in such cases. The public interest in a public inquiry into, and the determination of, substantial allegations of serious professional misconduct in cases in which a medical practitioner has withdrawn treatment, leading to the death of the patient, is an interest that the Committee was entitled to take into account.
- Moreover, if the Committee did conclude that there was a real prospect of serious professional misconduct being established, and I have held that it did, it was bound to refer the case to the PCC. The fact that there is an ethical question involved does not justify a refusal to refer to the PCC, unless that ethical question is so controversial and fundamental to the case that on analysis there is no such real prospect. There is no such ethical question in this case.
The PPC failed to take into account Dr Coates' report.
- This point is unsustainable. Although the decision letter did not refer to Dr Coates' report as such, it stated that the PPC had considered Dr David's solicitors' letters of 23 July 2003 and 26 February 2004. As mentioned above, the letter of 26 February 2004 enclosed Dr Coates' report and expressly drew the Committee's attention to his opinion on a number of matters, presumably those opinions most favourable to Dr David. The Committee could not have considered the letter without taking into account Dr Coates' written report.
- It follows that I am unable to accept the factual basis for this ground of challenge. Given the conflict of expert medical opinion referred to above, and the statements made by Dr Coates contained in Bevan Ashford's letter of 24 April 2003, I do not think that it would be appropriate to quash the decision of the PPC even if the factual basis of this ground of challenge were established. If the Committee had not previously taken it into account, having regard to those matters, I do not think that consideration of that report could reasonably have affected its decision.
Determination
- For the reasons set out above, the claim for judicial review of the PPC's decision will be dismissed.
