Dr F Abu-Mahfouz v Commission for Healthcare Audit and Inspection (The Healthcare Commission)
[No 2]
[2004] 277.EA
The London Cosmetic Laser Centre Ltd v Commission for Healthcare Audit and Inspection (The Healthcare Commission)
[No 2]
[2004] 278.EA

[CASE MANAGEMENT UNDER PART IV]

PRELIMINARY HEARING

DECISION ON APPLICATIONS MADE UNDER PART IV (CASE MANAGEMENT) IN RELATION TO APPLICATIONS UNDER REGULATION  14(3), 12(1) AND 12(2)

-before-

His Honour Judge David Pearl
President

1.	There was a Preliminary Hearing on November 8th, 9th and 10th 2004 pursuant to Regulations 9(1) and 9(2) to consider three applications for further directions. The Appellants were represented by Miss M. O’Rourke of Counsel instructed by Mayer, Brown, Rowe and Maw LLP, Solicitors, and the Respondent was represented by Mr R. McCarthy QC and Mr M. Curtis of Counsel, instructed by Bevan Brittan, Solicitors. 
2.	I set out the three applications from Miss O’Rourke’s skeleton argument dated 3rd November 2004 and her oral submissions. They  are as follows:
•	That under Reg 14(3), the evidence of eight former patients of the Appellant be excluded in so far as such evidence would involve the trial of issues of professional misconduct and/or clinical negligence issues. It would place an unduly onerous burden on the Appellants in managing the appeal, in part due to the expensive and time-consuming nature of conducting multiple trials within an appeal. Such an approach would not be relevant to the consideration of an appeal against refusal of registration to the Appellants – specifically when such issues formed no part of the original refusal of registration.
•	That there be a Direction under Reg 12(1) (and in category (ii), Reg 12(2)) requiring the Respondent to disclose the following category of documents:
(i)	Communications between the Respondent and former patients of the Appellant, and specifically telephone attendance notes, and memoranda;
(ii)	If the application to exclude the eight former patients is refused, the medical records from the General Practitioners and private cosmetic surgeons of the patients who are called to give evidence;
(iii)	Communications between the Respondent (and its predecessors) and the GMC in respect of matters relating to the Appellants and the GMC, and the Appellants and the patients;
(iv)	Communications between the Respondent and the Media;
(v)	Internal memos relating to the decision whether to deal with the issues as a regulatory matter and whether to initiate criminal proceedings.
•	A Direction under Reg 14(3) to exclude the evidence of Mr Paul Kenyon, a BBC reporter, on the basis that it would be unfair in the circumstances to consider it, as to do so would be to condone and adopt a breach of Article  8 of the ECHR, thereby giving rise to a breach of  Article 6 should the evidence be admitted.
3.	I announced my Decision on each of the three applications with brief reasons at the conclusion of the detailed submissions by Counsel, and I indicated that I would expand on the brief reasons by way of a written determination that would be sent to both parties and placed on the Care Standards Tribunal website in the usual way.

The exclusion of the evidence of the eight former patients.

4.	Miss O’Rourke submitted that the Tribunal was concerned with an appeal from the refusal of registration, and that the Appellants had a reasonable expectation that the ambit of the appeal would be concerned with registration requirements. She argued that the introduction of these witness statements meant that the Appellants now had to deal with another case from the original decision. She drew my attention to Article 6 of the European Convention, and in particular concentrated on the issue of the need for equality of arms. She said that the regulatory body was throwing unlimited resources at an appeal brought in good faith by Appellants with finite means. The Appellants now found themselves facing clinical negligence claims, and/or claims involving potentially a breach of contract. She placed her application on the basis (i) of fairness, (ii) that the introduction of the evidence was abusive in that the decision to refuse registration was flawed and the Respondent was attempting to bolster up the decision, and (iii) that the Tribunal was an imperfect forum for the trial of these issues. 
5.	In reply, Mr McCarthy emphasised that the quality of patient care is an integral part of the issue that the Tribunal will need to decide when considering the merits of the appeal. He submitted that case law makes clear that the Tribunal conducts a merits appeal, and accordingly it is not limited by the factual matrix that existed at the time of the decision ( Lyons v East Sussex County Council [1988] and in particular the first instance decision of Farquharson J analysed by Stanley Burnton J in OFSTED v Spicer [2004] EWHC 440(Admin); Sam Appiah-Anane v NCSC [2002] 96.NC). 
6.	Mr McCarthy drew my attention, also, to the decision letter of 29th January 2004, where the question of patient care is a relevant factor and where the writer of the letter (Ms Beverley Cole) refers to five specific complaints from former patients of the Appellants being contested by the first Appellant at the hearings before the GMC. 
7.	In his skeleton argument, Mr McCarthy submitted that the evidence of these former patients , if true, is extremely significant. In paragraph 8 of the skeleton he stated: “This is proof of Dr Mahfouz’s evident disregard of the Care Standards Act 2000 framework requirements. It links in with the overall picture…that his attitude to the Care Standards Act 2000 framework compliance is at least casual and at worst defiant.” He submitted that the evidence is relevant and persuasive and will assist the Tribunal in determining the case.
8.	Regulation 14(3) of the Regulations states that the President…may direct that a document or the evidence of any witness other than the applicant shall be excluded from consideration because – (a) it would be unfair in all the circumstances to consider it; (b) [not relevant to the present application] or (c) it would not assist the Tribunal in determining the issue.
9.	The Regulations provide the Tribunal with a very broad discretion, that must of course be exercised in accordance with the principles as set down by Article 6 of the Convention. I drew Counsel’s attention to the European Court of Human Rights case of Perna v Italy (2004) 39 EHRR 563. This is a unanimous decision of the Grand Chamber, and in consequence it must carry with it some considerable authority. The Court said: “The admissibility of evidence is primarily a matter for regulation by national law. The European Court’s task is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.”
10.	It is acknowledged by both Counsel that Regulation 14 is drafted in conformity with the European Convention. 
11.	The hearing before the Tribunal is an appeal on merits, and matters subsequent to the decision can be placed before the Tribunal. Client care is an issue that will figure in the decision making process of the Tribunal and I have no doubt whatsoever that the evidence of the eight former patients is relevant, in that it will assist the Tribunal in determining the case. What weight is attached to this evidence is of course a matter for the Tribunal, helped as it may well be by expert evidence from both sides. It is not unfair in all the circumstances to exclude it.
12.	Regulation 14(4) states that instead of excluding evidence, the President may permit it to be considered on such terms as he thinks fit, including the making of a costs order. This is an important safeguard, and although it is not my intention to issue any costs warning at this time, the power to issue one is available.
13.	Thus I decide this application against Miss O’Rourke, and I refuse to make the Direction she seeks under Reg 14(3).

The Disclosure applications under Regulations 12(1) and 12(2)
14.	I need to make a number of general observations on these applications. First, the European case law, to which extensive reference has been made by Miss O’Rourke, deals primarily with Article 6(3) (everyone charged with a criminal offence has the following minimum rights) and, accordingly, this jurisprudence is only of limited assistance. Article 6(1) is much narrower in scope. Proceedings before the Care Standards Tribunal are not criminal proceedings. Likewise, little is to be gained by a consideration of the GMC procedure or the Civil Procedure Rules.
15.	Disclosure of information and documents is governed by Regulations 6, 12 and 14, in particular, of the Tribunal Regulations. These are Convention compliant. 
16.	Secondly, disclosure in my view is required in order to provide a “fair” hearing for both sides. Equality of arms is an important consideration, and one purpose behind the disclosure provisions is to ensure that this equality is achieved in so far as this is possible.  
17.	The usual disclosure arrangements are established at the preliminary hearing held in accordance with Regulation 6. I agree with the point made by Mr N Grant of the Respondent’s Solicitors, who at paragraph 53 of his witness statement states: “Where disclosure in accordance with Regulation 6(2)(a) has taken place and a party seeks disclosure in terms that are wider than the usual terms set by Reg 6(2)(a), the onus is on the party seeking disclosure to show that the documents may assist the Tribunal in determining the case…A party seeking [such disclosure] will obviously have to show that the documents are relevant to the issues in the proceedings. Such an approach would accord with the principle of proportionality since it would enable the Tribunal to ensure that time and costs are not incurred unnecessarily”.
18.	I deal, first, with the application for disclosure of the medical records. I have no doubt at all but that fairness dictates that having decided not to exclude the evidence of the patients under Reg 14(3), I should make a Direction under Regulation 12(2) requiring each of the eight named former patients to disclose the medical records from their GP’s and/or private cosmetic surgeons. These witnesses have been introduced by the Respondent as relevant to the issue of client care. Accordingly, it is only fair for the Appellants to see the medical records appertaining to them.
19.	I was invited by Miss O’Rourke to make a Direction under Regulation 14(4), in effect stating that any failure to sign consent forms and obtain the documents should inevitably mean that such evidence be excluded. I have decided that this is not an appropriate time for such a Direction. “Unless Orders” should not be made prior to ascertaining whether there is compliance, and it would not be an appropriate way to handle the sensitive issue of obtaining the medical records.
20.	In deciding to make a Direction under Regulation 12(2) in respect of the medical records, I have considered Regulation 12(5) and taken into account the need to protect any matter that relates to intimate personal or financial circumstances.  Having taken this into account, it is my decision that fairness in the hearing outweighs any such concerns. In any event, Regulation 12(3) states that it is a condition of the supply of the material that a party shall use it only for the purpose of the proceedings.
21.	I have decided that the Appellants’ application in respect of three categories of document should be rejected. These are (a) the internal memos relating to the regulatory decision and whether or not to initiate criminal proceedings, (b) communications with the media and (c) communications between the Respondent and its predecessors and the GMC in relation to Dr Mahfouz and the GMC and Dr Mahfouz and his patients. 
22.	My reasons for excluding this evidence are as follows. So far as the internal memos relating to the decisions taken in this appeal and the possibility of initiating criminal sanctions are concerned, I have formed the view that this category of document will not assist the Tribunal in determining the case. The documents may be of significance in a judicial review application of the decision making process, but the proceedings before the Tribunal, of course, are of an entirely different character. Communications with the media and with the GMC likewise fall outside the issues that will occupy the Tribunal. The appeal concentrates on past, present and future compliance with the Care Standards Act 2000. 
23.	In contrast, I do make a Direction regarding the disclosure of documentation relating to communications between the Respondent and the eight patients. These are letters that go both ways, written communications, telephone attendance notes, and memoranda concerning these matters. I make no order in respect of draft witness statements, which may well be excluded in any event under Reg 12(4), and which would seem follow from the House of Lords decision in Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) (The Times, November 12th 2004). But even if not technically excluded under that Regulation, I do not think that the production of draft witness statements will assist the Tribunal in determining the case. The witnesses’ evidence is the signed statements that carry the words as set out in Regulation 14(2). The appropriate way to undermine such a statement is by forensic cross- examination.

The evidence of Mr Kenyon

24.	The Appellants seek to exclude the witness statement of Mr P Kenyon, and the accompanying exhibits; namely the tape of his conversation with the first Appellant (PK1), the transcript  of this conversation (PK2) the tape obtained by a Ms Neville (PK3) and the TV transmission (PK4).
25.	I have decided that all of this evidence should indeed be excluded under Reg 14(3). I believe that it would be both unfair in all the circumstances to consider this evidence (Reg 14(3)(a)) and also that it would not assist the Tribunal in determining the case (Reg 14(3)(c)).
26.	Both Counsel addressed me on the European case law under Article 8, and the interrelationship between Article 8 and Article 6. Having considered their detailed submissions and looked at the case law, I have reached the following conclusions. First, it is my view that there indeed has been a breach of Article 8(1) in this case. Mr Kenyon is an employee of the BBC and he obtained admission onto the premises, and into the private consulting room, by posing as a prospective patient. In fact, he secured admission by using a false name and he concealed equipment for the purposes of obtaining information without consent. His sole purpose was to use this material in a TV broadcast. In Niemetz v Germany (1992) 16 EHRR 97, the European Court stated that Article 8(1) protection could extend to places of work. A similar approach was taken in Halford v UK (1997) 24 EHRR 523 where the Court held that Article 8 was violated in respect to calls made from the applicant’s office. Each case, of course, has to be looked at on its own facts. In this case, I have formed the view that there was an invasion of the first Appellant’s private life, and the case is not readily distinguishable from Niemetz, as Mr McCarthy urged on me to do.
27.	I must consider whether the breach of Article 8 can be justified by Article 8(2). I do not believe it can be so justified, for the simple reason that the breach was not in accordance with the law. There is, in my view, no domestic law that enables such activity to take place in the way that it did in this case. The BBC guidelines have no coercive legal effect, and as I understand the submissions, Mr McCarthy does not rely on them in any event in justification under Article 8(2). 
28.	Mr McCarthy submitted that the law of confidence was relevant in this case and that this law meant that even if there were a breach of Article 8(1), such a breach was in accordance with law. (Tillery Valley Foods v Channel Four Television 2004 EWHC 1075 (CH); Douglas and Zeta Jones v Hello and ors [2003] 1 AER 1087; Campbell v MGN Ltd [2004] 2 WLR 1232).
29.	It is my opinion that these cases are not in issue when considering Article 8(2). In the factual issue that is under consideration before me, there is no Statute that enables the Respondent to say that what took place was in “accordance with the law.” Whether any civil liability can be successfully defended must be a separate issue, and it is not one that is relevant to my consideration. It is not necessary, therefore, to consider whether the breach is necessary in a democratic society and for a legitimate purpose.
30.	Mr McCarthy is correct of course in his assertion that a breach of Article 8(1) that cannot be justified by Article 8(2) does not necessarily mean that evidence obtained in this way should be excluded under Article 6. It is my finding that each case must be looked at on the basis of its own factual matrix. The question should be asked: would the introduction of such evidence be “fair”? In Allen v UK [2003] EHRR 12, the Court referred to “generally recognised international standards which lie at the heart of fair procedure.” 
31.	In applying that test, I have decided that the breach of Article 8 does lead inevitably in this case to the exclusion of all of this evidence under Article 6. The video of the TV transmission (PK4) includes, so I am told, evidence relating to other people who are not being called to give evidence, and includes evidence of no probative value but which is prejudicial. Mr McCarthy I believe accepted that PK4 should be excluded. PK3 is a tape of a conversation between a Mrs N and the Appellant obtained without permission. Mr Kenyon was not present. Again I believe that it is not of probative value and that is should be excluded both for that reason and because, as I understand it, Mrs N is not being called as a witness. PK1 and PK2 (the tape and the transcript of the secret recording between Mr Kenyon and the Appellant), in my view, should not be admitted because it would be unfair to do so. Mr Kenyon was not a “real” prospective patient, and the Tribunal will be hearing from real patients. I cannot see how Mr Kenyon’s evidence adds anything to the body of evidence relating to “patient care” issues that will be before the Tribunal. Inevitably, the witness statement should be also excluded.
32.	Finally, it was urged upon me by Mr McCarthy that even if I were to accept the arguments under Article 8 relating to the first Appellant, that this could not apply to the second Appellant, a company. I am against Mr McCarthy on this submission. The two Appellants are linked in the appeals, they are to be heard together, and it would be totally unfair to distinguish between them in the way advanced by Mr McCarthy.
33.	Thus, I direct that the evidence of Mr Kenyon be excluded under Regulation 14(3).

ORDER ACCORDINGLY

His Honour Judge David Pearl
President
14th  November 2004.