R (Clinton) v General Medical Council  EWHC 3304 (Admin)
In the absence of demonstrable prejudice to the registrant, an abuse of process argument will be difficult to sustain.
C was the subject of fitness to practise proceedings in relation to complaints made by female patients that he had conducted physical examinations without clinical reason. Like allegations had been brought some time previously and were not found proven, but the press coverage resulted in the making of further allegations by the three complainants in the instant case.
C sought judicial review of a refusal by the Medical Practitioners’ Tribunal Service [‘MPTS’] to stay the case against him after it was discovered that each of the complainants had been provided with the case examiners’ decision, a summary of the allegations made by the other complainants, information about the previous proceedings, information about a suspected breach of an interim order, the conclusion of an expert witness that C’s conduct had fallen seriously below the standard expected, a summary of C’s response to their allegations, and an analysis by the case examiners of the strengths and weaknesses of the evidence.
C had argued at first instance that the proceedings should be stayed on the basis of the second limb of the two categories of abuse – because their integrity was so damaged that it ought to have offended the MPTS’ sense of justice and propriety to try the case.
Deficiencies in disclosure guidance
The disclosure in question had resulted from Rule 8(4) of the GMC’s Fitness to Practice Rules 2004, which states in relation to notification of a case examiners’ decision:
As soon as reasonably practicable, the Case Examiners shall inform the Registrar of their decision, together with the reasons for that decision, and the Registrar shall notify the practitioner and the maker of the allegation (if any), in writing, accordingly.
The MPTS read this as a requirement that the complainant be notified not only whether there will be a substantive hearing but also the reasons for that decision.
The MPTS considered the Fitness to Practise National Investigation Manual, which states at paragraph 8.6:
in all cases the IO will write to all interested parties and inform them of the outcome. The letters will normally include the CE decision reasoning in full but there will be some instances where they should not. For example, the doctor’s health must remain confidential at all times; and the Complainant is only entitled to receive information that relates to their complaint. If the IO is ever in doubt as to what should be included in these letters, they should seek IM advice. The letter should also include a schedule of the actual particulars which have been referred to the tribunal…
The MPTS concluded that the guidance was defective because it failed to address the risk of contamination of complainants’ evidence through inappropriate disclosure.
The MPTS then considered paragraph 10 of the same manual, which states that where an allegation is referred for a substantive hearing, the Investigating Officer should write to the “complainant referrer”, inserting the case examiners’ decision in full insofar as it relates to that particular complainant’s complaint, with the exception of any references to health.
The MPTS noted that the policy again fails to deal with the possibility of contamination, and found that the disclosure of details of the entire case against C to each complainant was in breach of the requirement to disclose only the details of a complainant’s particular allegations.
The MPTS found that the requirement in the policy document Sharing Fitness to Practise Information – Operational Disclosure Guidance to disclose the case examiners’ decision and “full reasons for the decision” to the complainant was, again, defective, because it did not distinguish between cases where there would be a substantive hearing and those that were not being referred and did not deal with the risk of contamination.
Decision of the MPTS
The MPTS found that the oral evidence given by the witnesses was not “materially affected” by the disclosure. It was no different to the evidence set out in their witness statements, which had been made before receiving the case examiners’ decision. There was no demonstrable prejudice to C. The GMC had not acted in bad faith but in an effort to keep the complainants informed about the progress of the case. The MPTS concluded that the public interest in proceeding with C’s case outweighed the public interest in maintaining public confidence in the regulatory system. They dismissed the application for a stay.
C was granted permission to apply for judicial review.
Standard of review
Choudhury J considered the decisions in R v Maxwell  UKSC 48, Warren v Attorney General of Jersey  UKPC 10, R (on the application of Squier) v GMC  EWHC 299 (Admin), R v Latif  1 WLR 104 and CHRE v GMC and Saluja  1 WLR 3094. He concluded:
“In my judgment the role of the reviewing court… is to consider whether or not the decision of the tribunal to refuse a stay was perverse or was one which no reasonable tribunal could have reached” [paragraph 22, emphasis added].
He rejected C’s submission that the tribunal’s decision need not be afforded any great deference because a decision as to a stay is not a matter “within their special expertise”:
“When it comes to assessing whether the integrity of the system has been compromised to such a degree as to render it morally repugnant to continue proceedings, the specialist tribunal is well-placed to decide that issue. It has a better understanding of the professional context in which the charges have been brought and also a better understanding of the public interest in the maintenance of the integrity of the system… I do not accept [C’s] submission that I should simply decide what is right and effectively substitute my view for that of the tribunal…” [paragraphs 25-26].
Choudhury J dismissed the application. He rejected C’s argument that the MPTS erred in taking into account prejudice:
“In my judgment it is quite clear from the authorities that prejudice is to be taken into account and may be highly relevant, though not necessarily determinative… one of the factors to be taken into account in a limb two case is the seriousness of any violation of the defendant’s rights… any assessment of the seriousness of any violation will necessarily involve the degree to which the defendant has been prejudiced by it…” [paragraph 27].
He was also unconvinced by C’s submission that the gravity of the GMC’s failings required a stay:
“…if all that was required to grant a stay was a finding of a serious failing in procedure then the balancing exercise to which all the authorities refer would be rendered otiose. The tribunal could simply find that there were defects in procedure and proceed to a stay. But that is not all that is required. The tribunal must go on to consider whether, in the light of those defects, the public interest in ensuring that standards are upheld and grave crimes are prosecuted is outweighed by the public interest in the integrity and fairness of the process. In my judgment that is precisely what the tribunal in this case did.”
He held that the MPTS has correctly identified as relevant factors the absence of prejudice, the absence of bad faith on the part of the GMC, the fact that there were charges by three individuals in respect of separate matters, and the fact that the charges were serious. They had borne in mind that C was no longer in practice but he was entitled to apply to be re-admitted to the register. The tribunal’s analysis could not be said to be “unreasonable or perverse”, and “the decision was one that it was entitled to reach”.
This case emphasises the high bar for an application to stay for abuse of process, and the even higher one for judicial review. An application for review is unlikely to succeed where the tribunal have applied their minds to the relevant factors and have reached a conclusion in the light of those factors. The test is Wednesdbury unreasonableness. Moreover, an application for a stay will generally require proof of some detriment to the registrant, regardless of the seriousness of the prosecutor’s misconduct.
Anyone considering an abuse application under limb 2 must bear in mind the changed landscape following the criminal case of Warren v Attorney General of Jersey, in which a conviction was upheld where the Jersey police had unlawfully inserted audio and tracking devices into Warren’s French hire car to be driven through France, Belgium and the Netherlands, despite the French and Dutch refusing permission for this to be done, where the Jersey police had deliberately lied to the French police about the nature of the audio device; where the Jersey prosecutor had on one view encouraged the police to act in this way; and where but for the unlawful and misleading conduct of the police the prosecution could not have happened at all. The Privy Council held that the lower court had to balance the public interest in ensuring those accused of serious crimes are put on trial and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute. The Privy Council held that lower court was not unreasonable to conclude that the public interest in trying an accusation of major drug trafficking outweighed the executive misconduct – even misconduct of such magnitude.
It is clear that registrants face an increasingly uphill battle in arguing for a stay of proceedings on the ‘limb 2’ basis that it would be unfair for the proceedings to continue.
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