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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Toth & Anor, R (On The Application Of) v General Medical Council [2000] EWHC Admin 361 (23 June 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/361.html
Cite as: [2000] 1 WLR 2209, [2000] EWHC Admin 361

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST


CO/2226/98

Royal Courts of Justice
Strand
London WC2A 2LL
23rd June 2000

B e f o r e
MR JUSTICE LIGHTMAN


BETWEEN:
THE QUEEN
and
THE GENERAL MEDICAL COUNCIL
Respondent
EX PARTE ARPAD TOTH
Applicant
DR DAVID JARMAN
Interested Party
- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -

Mr Timothy Straker QC & Mr Clive Rawlings (Instructed by Messrs Russell-Cooke Potter & Chapman, 2 Putney Hill, Putney, London SW15 6AB) appeared on behalf of the Applicant.
Mr Mark Shaw (Instructed by Messrs Field Fisher Waterhouse, 35 Vine Street, London EC3N 2AA) appeared on behalf of the Respondent.
Miss Mary O'Rourke (Instructed by the Solicitor of The Medical Defence Union Ltd, 3 Devonshire Place, London W1N 2EA) appeared on behalf of Dr Jarman.

Judgment
As Approved by the Court
Crown Copyright ©

INTRODUCTION
1. This is an application by the applicant ("Mr Toth") for judicial review of two decisions ("the Decisions") of the respondent ("the GMC"), the first dated the 23rd March 1998 ("the First Decision") and the second dated the 23rd July 1998 ("the Second Decision"). Mr Toth made a complaint ("the Complaint") to the GMC against his general practitioner Dr Jarman. Under the rules governing the conduct of disciplinary proceedings by the GMC, the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order 1988 ("the Rules") made under the Medical Act 1983 ("the Act"), complaints against registered medical practitioners ("practitioners") have to go through and survive two filters or processes of examination before they are heard by the Professional Conduct Committee ("the PCC"). The first is examination by a member of the GMC, (colloquially and hereinafter referred to as a "screener") to decide whether the complaints "need not proceed further". If the screener does not so decide, the Preliminary Proceedings Committee ("the PPC") must then decide whether the complaints "ought to be referred for inquiry" to the PCC. Only if the PPC does so decide do the complaints then proceed before the PCC. By the Decisions the screener decided that the Complaint did not need to be investigated. By this application Mr Toth challenges the legality of the Decisions. Critical for this purpose is the statutory role of the screener. After these proceedings were commenced, the GMC recognised and accepted that the Decisions are bad in law and was agreeable that they should be quashed. But Dr Jarman, who is entitled as an interested party to address the Court on this application, though he accepts that the Decisions are bad in law, submits that the Court in its discretion should not quash the Decisions because to do so would be to inflict an injustice upon him. The first task before me is accordingly to decide whether in my discretion I should quash the Decisions. If I do decide to quash the Decisions, the Complaint must to go back to another screener. There are however continuing disputes between the parties as to the true construction of the Rules in two regards, namely the role of the screener and the power of the GMC to impose obligations of confidentiality on Mr Toth as a condition of supplying him with documents available to the screener. In order to reduce the risk of occurrence of any further error by the GMC in relation to the Complaint if I decide that the Decisions are to be quashed, my second task is to provide some guidance on these two areas of contention.
HISTORY
2. On the 9th October 1993 Wilfred, the five year old son of Mr Toth, who suffered from glycogen storage disease, became hypoglycaemic. Mr Toth called his doctor, Dr Jarman, and he made a home visit. The central complaint of Mr Toth is that he and his partner told Dr Jarman of Wilfred's condition and of his urgent need for intravenous glucose but that Dr Jarman failed promptly to realise (as he should have done) that Wilfred required intravenous glucose and instead treated him with sedative drugs. Dr Jarman denies that he was so informed by Mr Toth or his partner. Mr Toth alleges that his untreated condition led to the death of Wilfred on the 16th October 1993,
3. In January 1994 Mr Toth complained to the Family Health Services Authority ("FHSA") that by his conduct Dr Jarman had committed a breach of his terms of service as a general practitioner in the care provided to Wilfred. On the 5th March 1994 the FHSA conducted a full oral hearing at which both Mr Toth and Dr Jarman gave evidence. The FHSA found that Dr Jarman was in breach of the terms of service in failing to take account of Mr Toth's knowledge of Wilfred's condition, but no sanction was imposed. In January 1995 Mr Toth's solicitors wrote to Dr Jarman a letter before action threatening legal proceedings in respect of Wilfred's death and on the 8th October 1996 commenced proceedings in the County Court for damages under the Fatal Accidents Acts. (On the 7th January 1998 Dr Jarman paid £10,500 into Court in respect of this claim which Mr Toth accepted on the 27th February 1998). On the 14th October 1996 Mr Toth (in person) issued High Court proceedings against Dr Jarman claiming damages for pathological grief reaction resulting from Wilfred's death. (The High Court struck out this application as an abuse of process on the 14th April 1998). On the 25th July 1997 Mr Toth made the Complaint to the GMC alleging that in the care provided to Wilfred on the 9th October 1993 Dr Jarman had been guilty of serious professional misconduct. The GMC only notified Dr Jarman of the Complaint on the 22nd December 1997. Dr Jarman sent his comments on the Complaint to the GMC on the 27th January 1998. On the 23rd March 1998 the screener made the First Decision not to refer the Complaint to the PPC. He wrote to Mr Toth:
"There is a clear conflict of evidence between your version of events and that of Dr Jarman's on the [matter of disclosure of the need for intravenous glucose]. The standard of proof which the GMC works to, by law, is that of `beyond reasonable doubt' ... Therefore, unless you are able to provide further evidence of a legal standard ... the members have concluded that there is no prospect of your allegations being proved to the required standard, and no further action can be taken."
The screener went on to say that Mr Toth could not be provided with copies of Dr Jarman's comments on the Complaint without Dr Jarman's consent, which he would seek. Dr Jarman was informed of the First Decision. On the 25th March 1998 Dr Jarman refused his consent to disclosure of his comments because of the two sets of proceedings commenced by Mr Toth against him. On the 10th June 1998 Mr Toth who was distraught at the Decisions, the attitude taken by the GMC and the pace of the investigation, filed his Notice of Application for permission to apply for judicial review in respect of the First Decision.
4. On the 23rd July 1998 the same screener, after considering further representations from Mr Toth, made the Second Decision reaffirming the First Decision that no question of serious professional misconduct arose. Again Dr Jarman was notified of this decision. Mr Toth amended his Notice of Application to challenge the Second Decision also. On the 28th August 1998, the President of the GMC wrote to Dr Jarman informing him of the judicial review proceedings and that after taking legal advice he was provisionally of the view that the GMC had not followed the correct procedures in reaching the Decisions and that they were legally flawed. Most particularly in respect of the First Decision it was not the role of the screener to resolve conflicts of evidence; and in respect of the Second Decision the screener had no jurisdiction to reconsider the Complaint after the First Decision had been made. (I may add that, as will be apparent when I turn to the Rules, the screener also had no jurisdiction to make the Second Decision because no lay member concurred in it). He added that he was minded that the GMC should consent to an order being made in the judicial review proceedings quashing the Decisions and directing that the Complaint be considered afresh by a different member (and lay member if necessary), but he invited Dr Jarman's observations before a decision was made.
5. On the 24th September 1998 Dr Jarman replied that it was not for him to comment on whether the GMC correctly followed its own procedures, but asked to be advised of the outcome of this unfortunate development as soon as possible. On the 19th November 1998 the President confirmed the conclusion provisionally expressed in the letter dated the 28th August 1998. On the 21st December 1998 Collins J on the papers granted permission to apply for judicial review stating: "It is difficult to understand how the assertion that there is a lack of evidence can be justified." The application thereafter proceeded. Dr Jarman intervened and evidence was served on behalf of Mr Toth, the GMC and Dr Jarman. The application was listed for hearing on the 2nd November 1999, but on the initiative of Mr Toth and with the consent of the GMC and Dr Jarman (and no doubt entirely sensibly) the hearing was adjourned to enable negotiations for settlement to take place. The matter was then relisted for hearing on the 14th June 2000. In principle terms have been agreed between Mr Toth and the GMC which include the making of a consent order quashing the Decisions and directing a reconsideration by a different screener, but (as I have indicated) certain questions remain between them relating to the construction of the Rules requiring resolution before the final terms can be formulated. Dr Jarman however, whilst acknowledging that the Decisions were legally flawed, maintains that the Court should not exercise its discretion to make any order because to do so would be unfair to him. Dr Jarman continues to be fully registered and to practise.
DISCRETION TO QUASH
6. Section 31(2) of the Supreme Court Act 1981 provides that the Court can grant relief in judicial review proceedings if in all the circumstances it is just and convenient to do so. The general principle is well established that if an applicant establishes in judicial review proceedings that the decision which he challenges is bad in law, he should be granted relief, and most particularly an order quashing that decision, unless there are strong reasons in public policy for refusing relief or unless to quash the decision would occasion so great an injustice either to the respondent or to a third party as to require some other course to be taken. Dr Jarman submits that quashing the Decisions and requiring the GMC once again to entertain the Complaint would occasion such injustice to him. Dr Jarman argues that Mr Toth has already sought vindication in proceedings against him before the FHSA, the County Court and High Court and obtained a judgment in the County Court which Dr Jarman has satisfied, and that in the circumstances he has no interest or no substantial interest in further prosecuting the Complaint. He points out that the Complaint was only made close to four years after the home visit; that on two occasions the GMC has informed Dr Jarman that the Complaint was not to be investigated further and that Dr Jarman was in nowise responsible for the error of the GMC which invalidated the Decisions. He refers to the evidence which establishes that the death of Wilfred has seriously affected him and his health and that the stress has been particularly aggravated by the action of the GMC in first notifying him of decisions not to proceed further with the Complaint and then re-opening the whole issue. It is however not suggested that his condition amounts to impairment of fitness to practise, but it does severely impair the quality of his life and affects his professional activities. He adds that, if the Decisions are quashed, (assuming the screener and PPC allow the Complaint to proceed to the PCC), the PCC will be investigating events that happened some 9 years earlier and the time period before the hearing before the PCC is likely to be concluded is 2 to 3 years from today. His complaint against Mr Toth in respect of the delay is in respect of the period that elapsed before he made the Complaint and that it was on his initiative (albeit with Dr Jarman's consent) that the hearing was adjourned for 7 months in November 1999. He submits that there is no need for the Complaint to proceed further and that in any event it is clear that at worst Dr Jarman was guilty of an excusable and understandable clinical misjudgment (and possibly negligence) and no real case exists for alleging serious professional misconduct.
7. In my judgment, Mr Toth as the father of Wilfred does have substantial and continuing interest in obtaining a proper investigation of the Complaint, and there has been no conduct on his part (let alone culpable delay) disentitling him from obtaining it. The Rules allowed him to delay making the Complaint until the 25th July 1997 and that delay cannot affect his legitimate expectation that the Court will require the GMC (after two faulty starts) to proceed with its investigation according to the Rules. I cannot predict the outcome of the investigation: that is not my role and in any event the evidence is not all one way. There are two victims of the serious and disturbing failures of the GMC to follow its correct procedures in investigating the Complaint, namely Mr Toth and Dr Jarman. The adverse effects on his health and the stress occasioned to Dr Jarman are indeed serious and matters of grave concern. I have in mind in particular the effect of the GMC twice telling him that the investigation was at an end and then (in effect) resiling from this, the unduly lengthy and painful period of the investigation into the past and (if relief is granted) the long road ahead in the future. His professional reputation will continue to be under a cloud until a final decision is reached. But I do not think that these considerations outweigh the legitimate interest of Mr Toth (and of the public) in obtaining in accordance with the Rules the investigation into the circumstances surrounding the death of Wilfred which Mr Toth requested as long ago as the 25th July 1997. No doubt the GMC, in view of the unfortunate history of this matter, will seek to make up for its past errors by expediting the procedures in this case so far as this can be done with the proper regard to the need of the parties for sufficient time to prepare, and no doubt the suffering in the intervening period by Dr Jarman may be taken into account by the PCC if the matter gets that far. But notwithstanding considerable sympathy for the hardship occasioned to Dr Jarman by quashing the Decisions, I consider that the right course must be to quash the Decisions and remit the Complaint to a different screener.
THE ACT AND RULES
8. The GMC is regulated by the Act. Section 1(3) of the Act provides (amongst others) for three committees of the GMC, namely the PPC, the PCC and the Health Committee ("the HC"). Section 2 provides for registration by the GMC of medical practitioners. Section 2(3) provides that medical practitioners shall be registered as fully or provisionally registered or with limited registration. Section 36(1) provides that, when a fully registered person is judged by the PCC to have been guilty of serious professional misconduct, the PCC may direct that his name be erased from the register or that his registration be suspended or that his registration be conditional on compliance with conditions imposed by the Committee "for the protection of the public or in his own interests". Section 37 provides that, when the fitness of a fully registered person is judged by the HC to be seriously impaired by reason of his physical or mental condition, the HC may direct that his registration be suspended or conditional on compliance with requirements imposed "for the protection of members of the public or in his interests". Section 42 provides that the PPC shall have the duty of deciding whether any case referred to it for consideration ought to be referred for inquiry to the PCC or the HC; and in any case which it decides ought to be so referred it may make an Order for interim suspension or interim conditional registration. Section 43 provides that Schedule 4 shall have effect in respect of proceedings before the PCC, the PPC and the HC. Section 45 sets out the privileges of registered practitioners. Schedule 4 in paragraph 1 provides that the GMC shall makes rules for the PCC and the HC and the reference of cases to them by the PPC or otherwise; and in paragraph 4 that where in the course of an inquiry into the case of a practitioner it appears to the PCC that his fitness to practise may be seriously impaired by reason of his physical or mental condition, the PCC may refer that question to the HC for determination and the HC shall thereupon determine this question and certify their opinion to the PCC; and if they shall certify their opinion that the practitioner's fitness is seriously impaired, the HC shall proceed to dispose of the case and the PCC shall cease to exercise their functions in relation to the case.
9. I turn now to the Rules made pursuant to Schedule 4. The Rules provide for a series of stages and hurdles before a complaint gets before the PCC.
(a) Rule 6(1) provides that where a complaint in writing is received by the Registrar and "it appears to him that a question arises whether conduct of a practitioner constitutes serious professional misconduct" he shall refer the matter to the screener.
(b) Rule 4 provides that no case shall be considered by the PPC unless it has first been considered by a medical member of the Council appointed under this rule (i.e. the screener); and that, in default of the President acting as such medical member, the President may nominate the medical member and shall also nominate a lay member to assist the medical member.
(c) Rule 6(2),(3) and (4) provide:
"(2) ... the matter shall not proceed further unless and until there has been furnished to the satisfaction of the [screener] one or more statutory declarations or affidavits in support thereof ...
(3) Subject to Rule 6(4) unless it appears to the screener that the matter need not proceed further he shall direct the Registrar to write to the practitioner -
(a) notifying him of the receipt of a complaint ... and stating the matters which appear to raise a question whether the practitioner has committed serious professional misconduct;
(b) forwarding a copy of any statutory declaration or affidavit furnished under paragraph (2);
(c) informing the practitioner of the date of the next meeting of the [PPC] to which the case may be referred; and
(d) inviting the practitioner to submit any explanation which he may have to offer.
(4) Where it appears to the screener that a complaint need not proceed further (whether or not a statutory declaration or affidavit has been received in support thereof) he shall direct that the complainant be so informed, provided that no such direction shall be made except with the concurrence of the lay member appointed under rule 4(5)."
(d) Rule 10 provides:
"(2) ... [the screener] may direct the Registrar to refer any case relating to conduct to the [PPC] .... Provided that the [screener] shall not decide not to refer a complaint to the [PCC] except with the concurrence of the lay member appointed under rule 4(5).
...
(4) If in any case relating to conduct [the screener] decides not to refer the case to the [PPC] under paragraph (2), a complainant, informant or practitioner shall be notified of that decision, but
(a) shall have no right of access to any document relating to the case submitted to the Council by any other person; and
(b) if the [screener] so directs shall not be entitled to a statement of the reasons for the screener's decision."
(e) Rule 11 provides:
"(1) The [PPC] shall consider any case referred to them under rule 10 ... and ... determine:
(a) that the case shall be referred to the [PCC] for inquiry or (b) that the case be referred to the [HC] for inquiry or (c) that the case shall not be referred to either committee."
(f) Rule 13 provides that before coming to its determination the PPC may cause further investigation to be made.
(g) Rule 15 provides that the PPC meets in private and Rule 16 that, where the PPC have decided not to refer a case for inquiry, no complainant or practitioner shall have any right of access to any documents relating to the case submitted to the Council by any other person nor shall the PPC be required to state reasons for their decisions.
(h) Rules 17-55 regulate the procedure before the PCC. Provision is made for the complainant to have access to documents submitted and representations made to the GMC, for any party to require any other party to produce relevant documents and for a conventional form of trial procedure. The hearing is in public and a shorthand note is required to be taken of the proceedings.
THE STATUTORY SCHEME
10. The provisions in the Act and Rules to which I have referred are designed to protect 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 to maintain and sustain the reputation of, and public confidence in, the medical profession. The public have higher expectations of doctors and members of other self governing professions, and their governing bodies are under a corresponding duty to protect the public against the incompetent as well as the deliberate wrongdoer; serious professional misconduct includes serious negligence; and whether the treatment of a patient constitutes serious professional misconduct is to be judged by the proper professional standards in the light of the objective facts about the individual patient: see McCandless v. GMC [1996] 1 WLR 169. The Act and Rules set out to provide a just balance between the legitimate expectation of the complainant that a complaint of serious professional misconduct will be fully investigated and the need for legitimate safeguards for the practitioner, who as a professional man may be considered particularly vulnerable to and damaged by unwarranted charges against him.
11. At the first stage the Registrar has a ministerial role: so long as there is a complaint (which connotes the making of some form of charge against a practitioner), the complaint is in writing and on its face the complaint raises a real question whether the conduct of a practitioner constitutes serious professional misconduct, he is duty bound to refer the matter to the screener.
12. At the second stage the screener has to exercise a judgment whether "it appears to him that the matter needs not proceed further" (see Rule 6(3)). The problem is to decide what this means in the context in which the words are used. The context includes the following matters:
(a) the screener can decide (if the lay member concurs) that the complaint does not need to proceed further without requiring the complainant to verify the complaint, but he cannot decide that the matter shall proceed further without first requiring such verification (see Rule 6). The latter requirement is a safeguard for the practitioner which the GMC cannot waive, at any rate without the informed consent of the practitioner (see R v. GMC ex parte Stewart 8 October 1997 unreported);
(b) under the Rules the complainant has no right to see the comments of the practitioner on his complaint or indeed any document relating to the case submitted to the Council by any person (see Rule 10(4)(a)) and is accordingly in no position to respond, let alone fully;
(c) if the screener decides not to refer the case to the PPC, he may also direct that the complainant should not be informed of the reasons for his decision (see Rule 10(4)(b)), a situation which may be scarcely calculated to reassure the complainant;
(d) if the screener decides to refer the case to the PPC, he must notify the practitioner and state "the matters which appear to raise a question whether the practitioner has committed serious professional misconduct (see Rule 6)(3)(a));
(e) the screener is only the first of two screening bodies, the second being the PPC, and there is a significant distinction in the language used spelling out their respective duties. In the case of the screener his duty is to decide whether the matter "need not proceed further" (see Rule 6(3)); but in the case of the PPC the duty is to decide whether the case "ought to be referred for inquiry by the PCC or HC" (see Section 42(3)).
13. This difference in language between Rule 6(3) and Section 42(3) confirms the obvious fact that the roles of the screener and PPC cannot be intended to duplicate each other, and that decisions are not intended to be made by the screener which the PPC (if necessary, after invoking their powers to investigate further) may be better equipped to make. The screener does not have the task of deciding whether the complaint "ought to proceed further" (the role of the PPC), but to decide whether a negative state of affairs exists, namely whether the complaint need not proceed further (as in the ordinary course it would) to the PPC: the only conclusion on the merits of the complaint required of him before he allows the complainant to proceed is that (as the screener is required to inform the practitioner) the matters stated "appear to raise a question whether the practitioner has committed serious professional misconduct".
14. My conclusions are as follows.
(1) The general principles underlying the Act and Rules are that (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.
(2) There are a series of processes designed to filter out complaints which need not or ought not to proceed further.
(3) The Registrar's role is merely to ensure that the complainant has complied with the formal requirements laid down for investigation of a complaint.
(4) The role of the screener is a narrow one. It is to filter out from the formally correct complaints, not those which in his view ought not to proceed further, but those which he is satisfied (for some sufficient and substantial reason) need not proceed further. For this purpose he must be satisfied of a negative, namely that the normal course of the complaint proceeding to the PPC need not to be followed. The assumed starting point is (1) above and the need referred to is the need to honour the legitimate expectation that complaints (in the absence of some special and sufficient reason) will proceed through the PPC to the PCC. The absence of "need", of which the screener must be satisfied before he can halt the normal course of the complaint to the PCC, connotes the absence of any practical reason for the complaint so proceeding and that for the complaint to proceed to the PCC would serve no useful purpose. There may be no need because there is nothing which in law amounts to a complaint; because the formal verification is lacking; because the matters complained of (even if established) cannot amount to serious professional misconduct; because the complainant withdraws the complaint; or because the practitioner has already ceased to be registered. Wider questions as to the prospects of success of the complaint as to whether the complainant is acting oppressively or as to the justice of the investigation proceeding further do not lie within the screener's remit. So far as they may go to the issue whether the complaint ought to proceed they fall within the remit of the PPC. It is not for the screener to arrogate to himself the role of the PPC and decide whether the complaint ought to proceed further, still less to arrogate to himself the role of the PCC and weigh up conflicting evidence or judge the prospects of success. He must respect the role assigned by the Rules to the PPC (for which the PPC is armed with investigative powers) and recognise that his duty is only to act as a preliminary filter before the more substantive role as filter is exercised by the PPC. Counsel for the GMC and Dr Jarman, in support of their submission that the role of the screener goes far beyond this, rely on a passage in the judgment of Collins J (at p.20) in R v GMC ex p. White (unreported 18th March 1997). In that judgment Collins J sets out the passage in the evidence of the screener in that case setting out the approach which he considered the screener ought to adopt and which the parties in that case accepted as impeccable. This reads as follows:
"The relevant factors for deciding whether there is a prima facie case do to some extent vary on the individual facts of each case. However, in general terms I form my opinion by assessing the seriousness of the complaint and the strength of the evidence. Factors to be included (in no particular order) are: the gravity of the doctor's act or omission, whether there is more than one event or alleged victim; the extent of the risk to members of the public, whether the doctor's actions were deliberate, reckless or accidental, whether the doctor has neglected or negated his professional responsibilities, the detail and nature of the evidence and the length of time since the relevant events occurred. In some circumstances it may also be relevant for me to consider whether the doctor has any past history of misconduct with the GMC. If I am in doubt whether or not a matter should proceed I will always decide in favour of proceeding further."
The question raised in that case was whether the screener had complied with the guideline which he had set himself. Collins J did not need to, nor did he in fact, express approval of that approach as the approach required by the Rules: that issue was not before him. I do not think that the approach adopted is correct.
(5) The PPC's role is to decide whether the complaint "ought to proceed". This language must be read in the context of a scheme under which the complainant has no right to the practitioner's comments on the complaint or other material put before the PPC, and a scheme of which the central feature is the investigation of complaints by the PCC before whom alone there is full disclosure of documents and evidence and a form of hearing where the complainant (and public) can see, and be reassured by seeing, the proper examination of the merits of the complaint. The PPC may examine whether the complaint has any real prospect of being established, and may itself conduct an investigation into its prospects, and may refuse to refer if satisfied that the real prospect is not present, but it must do so with the utmost caution bearing in mind the one-sided nature of its procedures under the Rules which provide that, whilst the practitioner is afforded access to the complaint and 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 its role to resolve conflicts of evidence. There may be circumstances which entitle it to hold that the complaint should not proceed for other reasons, but the PPC must bear in mind its limited (filtering) role and must balance regard for the interests of the practitioner against the interests of the complainant and the public and the complainant 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.
(6) In the exercise of their respective jurisdictions the screener and PPC should be particularly slow in halting a complaint against a practitioner who continues to practise; as opposed to one who has since retired, for the paramount consideration must be the public's protection in respect of those continuing to practise; and they should at all times bear in mind the role of the HC whenever questions arise of impairment of fitness to practise by reason of physical or mental condition.
DOCUMENTS
15. Under the Rules it is apparent that neither before the screener nor before the PPC is the complainant entitled to see the material made available to the screener or the PCC. But today with the imminent coming into force of the Human Rights Act 1998, the GMC properly acknowledges the responsibility that its practices and procedures should (so far as possible) be transparent and to this end it has decided to adopt a new form of practice as from the 1st July 2000. This is set out in a letter dated the 19th June 2000 addressed to me by the GMC which (so far as material) reads as follows:
"In relation to complaints received by the GMC after 1 July 2000, any material submitted by the doctor to the Screener, before the Screener makes his final decision under Rule 6, will be copied to the complainant unless the Screener considers that there are `exceptional circumstances' which ought properly to preclude this.
One such exceptional circumstance will be where disclosure could cause `substantial harm' to the doctor and/or to a third party e.g. by the disclosure of confidential medical material.
When the Screener considers that disclosure would involve `substantial harm' he is not in an all or nothing situation. He has the discretion: (a) to allow disclosure if accompanied by a cross-undertaking; and/or (b) to allow partial/edited disclosure."
In anticipation of this change of practice the GMC has agreed with Dr Jarman and Mr Toth that much of the documentation to be put before the new screener shall be disclosed to Mr Toth, but an issue cannot be resolved by agreement, namely whether a confidentiality obligation can be imposed on Mr Toth in respect of certain confidential medical material relating to Dr Jarman's health. It is incumbent on me to resolve this issue. It goes without saying that I am not concerned to consider whether, and if so how far, this material can be relevant to any decision to be made by the screener: it is not apparent to me that it is.
16. Whilst the GMC is not bound to make such disclosure to a complainant of material put before the screener, it is not precluded by the Rules from doing so and accordingly it is free to do so at any rate unless precluded from doing so by a confidentiality obligation owed to the party supplying the material. The issue raised is whether, as a condition of voluntarily making disclosure to Mr Toth of confidential medical evidence relating to the health of Dr Jarman and accordingly of material which Dr Jarman has every reasonable ground to wish should remain confidential, the GMC can insist on Mr Toth providing an undertaking of confidentiality. Mr Toth submits that, as the GMC has no statutory power to exact such an undertaking, it cannot require such an undertaking as a condition of making voluntary disclosure. I reject this submission. The statutory power to require an undertaking is only relevant where there is a statutory obligation to make disclosure. There is no such obligation. In the absence of such statutory obligation, if the GMC voluntarily in accordance with the principles of fairness decides that in principle disclosure should be made, it is entirely free to impose conditions which likewise accord with the principles of fairness. In my view in insisting on respect being afforded by Mr Toth for the confidentiality of the medical evidence relating to Dr Jarman's health, the GMC is acting entirely properly. To do otherwise would be calculated to discourage practitioners from submitting relevant, but confidential, material to the GMC for consideration by the screener. Mr Toth has no legitimate ground for objecting to furnishing the undertaking: he can only legitimately require to see and use the material for the purposes of the hearings before the screener and (if the matter proceeds further) before the PPC. I accordingly hold that the GMC is entitled as a condition of making the material available to him to require Mr Toth to give an undertaking of confidentiality limiting the use and disclosure to use for the purposes which I have referred to.
CONCLUSION
17. I accordingly quash the Decisions and direct that the Complaint proceeds before another screener, and I direct that the screener exercise his duties having due regard to the guidance as to his statutory role provided in this judgment. I also hold that the GMC is entitled to require of Mr Toth an undertaking of confidentiality in respect of any confidential medical evidence adduced by Dr Jarman before the screener as a condition of supplying the same to him.
*****

POST JUDGMENT PROCEEDINGS
Friday 23 June 2000
MR JUSTICE LIGHTMAN: For the reasons set out in the judgment which I have handed down, I shall quash the decisions of the General Medical Council.
MR STRAKER: My Lord, there are two linked consequential matters: first, the form of the order and second, the question as to costs. As far as the latter is concerned, I would respectfully ask for my costs, which application, as I understand it, is not resisted on the part of the General Medical Council. I respectfully suggest that there can be an order for costs against both the General Medical Council and against the interested party.
MR JUSTICE LIGHTMAN: This point does not concern you. The GMC will pay your costs.
MR STRAKER: My Lord, yes. It is a matter of indifference as far as the Legal Aid is concerned. My Lord, I do not press that matter further.
As far as the order is concerned, your Lordship should have received, I suspect, an order drafted by my learned friend, Mr Mark Shaw, for the General Medical Council.
MR JUSTICE LIGHTMAN: I have not seen it.
MR STRAKER: My Lord, can I pass that up?
MR JUSTICE LIGHTMAN: Shall we just deal with the matter of costs?
MR STRAKER: My Lord, yes.
MR JUSTICE LIGHTMAN: Does anybody want to make any submissions on costs?
MR SHAW: My Lord, my position on costs is that I do not resist paying Mr Toth's costs, subject to discount in relation to the MDU. What I say is that Mr Toth recovers costs in part as a result of the application by Miss O'Rourke on behalf of Dr Jarman resisting relief at all. That application was defeated and therefore the GMC should not have to pay the entirety of Mr Toth's costs.
I have submissions also on the position as regards costs as between myself and Dr Jarman, but I will leave that for the moment.
MR JUSTICE LIGHTMAN: Just pause for a moment. Part of the decision, and a fair part of the argument, related to the other issues I had to deal with, namely the role of the screener and the documentation. They are matters of general importance for the GMC and they are matters which really have been brought to public attention (if I may use that expression) by virtue of the decisions themselves. Those matters had, sensibly, to be resolved on this application, had they not? What I am suggesting to you is that, as I say in my judgment, Dr Jarman as well as Mr Toth is a victim of those decisions. It seems to me somewhat hard that in those circumstances Dr Jarman should have to pick up any of the costs.
MR SHAW: I do not dispute anything your Lordship has said, and that is why I do not resist paying the lion's share, if you like, of Mr Toth's costs. What I do say is that the issues, as your Lordship has indicated, range wider than the screener test and the undertaking issue into the question of whether any relief should be granted at all. As soon as the MDU was on record, as it was last August, saying that that was going to be its position, there was going to have to be a hearing. At least half of the hearing was devoted to the question of relief and I say therefore that it would be equally harsh for the GMC to have to pick up the entire tariff in respect of Mr Toth's costs. That is the way I put it.
MR JUSTICE LIGHTMAN: I see.
MISS O'ROURKE: My Lord, I would seek to resist the application the Dr Jarman should pay any of Mr Toth's costs. As your Lordship held in judgment, and indeed as I submitted, there are two victims of the GMC's failures. Your Lordship has described those failures as serious and disturbing. Dr Jarman has already faced the position that he has twice been told by the GMC that he is in the clear and then he has had to face these proceedings. In my submission, it is legitimate that he did intervene in circumstances where they were minded to go ahead, ignoring his interests, your Lordship has recognised that he did have an interest. Indeed, the question of discretion always falls to be considered in the granting of relief. My Lord, in those circumstances, when the parties were going to have to come before the court anyway and there were substantial issues between them, where the whole mess has been created in the first place by the actions of the GMC, in my submission, it would be wrong to punish Dr Jarman any further by asking him to pay costs when he is already going to pay the costs of the GMC's mistakes in terms of its impact on him. My Lord, that is what I have to say on having to contribute to Mr Toth's costs. I say it is only right and proper that the GMC should pay those.
My Lord, as far as my own costs are concerned, there might be an argument that the GMC should pay some of those costs, and certainly in respect of other issues arising in respect of (inaudible) etc, but I do not in fact make that application. My Lord, in those circumstances I say there is all the more reason why in the circumstances should not be ordered to pay some of Mr Toth's costs.
MR JUSTICE LIGHTMAN: In all the circumstances of this case I think justice is properly done if I merely direct that the GMC should pay the entirety of Mr Toth's costs. I recognise that part of the hearing was taken up with the issue raised by Dr Jarman as to whether or not the court in its discretion ought to quash the decisions, but it seems to me that nonetheless the GMC should pay the costs. It will be noted, as I said, that Dr Jarman is a victim of the serious failures by the GMC in this matter and it is also to be recognised that two other issues arose regarding the position relating to documentation and the role of the screener, which were matters of general interest to the GMC. Those matters having been resolved at the same time, I think justice requires that the entire burden should fall on the GMC. I shall make no order in respect of Dr Jarman's costs. The sole order will be that the GMC pays Mr Toth's costs.
MR STRAKER: My Lord, I am obliged. My Lord, the other consequential matter was the form of the order. This was drafted by my learned friend Mr Mark Shaw.
MR JUSTICE LIGHTMAN: Have you had a chance to check it?
MR STRAKER: My Lord, yes.
MR JUSTICE LIGHTMAN: Have you given him your comments?
MR STRAKER: My Lord, I have.
MR JUSTICE LIGHTMAN: Is it all agreed or not?
MR STRAKER: It is not in this respect. The suggestion that I would respectfully canvas before your Lordship is that 4, 5, 6 and 7 are, in the light of your Lordship's judgment, unnecessary. The whole matter is now explicit in your Lordship's judgment, which is referred to at paragraph 3, rendering those paragraphs otiose. That is the only observation I make. So it is a matter really of style more than substance.
My Lord, the other observation is this. In the light of your Lordship's decision about costs, paragraph 8 should in my respectful submission now read as follows: "The GMC to pay costs of Mr Toth to be assessed if not agreed." Second, could I ask your Lordship to order legal aid assessment of the applicant's costs in accordance with the legal aid scheme?
MR JUSTICE LIGHTMAN: I would prefer to leave out 4, 5, 6 and 7 because I think I have dealt with it in the judgment.
MR SHAW: My Lord, I do not resist that. It is a matter of style, as my learned friend has said.
MR JUSTICE LIGHTMAN: What I shall do, I shall make the order in terms of 1, 2 and 3, and I will add an order for costs: that the GMC will pay the costs of Mr Toth and for legal aid taxation.
MR STRAKER: I am much obliged, my Lord.
MR SHAW: Can I address your Lordship on one or two final matters in relation to the latest version of the judgment.
MR JUSTICE LIGHTMAN: Yes?
MR SHAW: My Lord, the GMC does not accept that Dr Jarman was told a second time that the complaint had been rebuffed. Your Lordship refers to that I think on three separate occasions in the judgment.
MR JUSTICE LIGHTMAN: I was told that in the course of the hearing.
MR SHAW: Your Lordship was.
MR JUSTICE LIGHTMAN: And you did not contradict it.
MR SHAW: I accept that, my Lord, but, since it has come into some prominence in the judgment, I have checked it. It appears that that is not the case. Certainly the GMC has no record of that.
MR JUSTICE LIGHTMAN: Tell me, when did this matter come to your attention?
MR SHAW: When I read the judgment on Wednesday, my Lord.
MR JUSTICE LIGHTMAN: What troubles me is that you should have taken this matter up with me in a letter to my clerk, saying that this needs correcting, and at the same time take it up with Dr Jarman's counsel.
MISS O'ROURKE: My Lord, my learned friend did take it up with me.
MR JUSTICE LIGHTMAN: And is it agreed that there was no notice or is there a dispute?
MISS O'ROURKE: My instructions are that he did receive correspondence at the beginning of August and that is what I told your Lordship. It appears Miss (Inaudible's) witness statement and there was no reply.
MR JUSTICE LIGHTMAN: Can we just have a look at that?
MR SHAW: My Lord, the relevant page of the bundle is page 211 of Bundle 1.
MR JUSTICE LIGHTMAN: It is counsel's responsibility to raise these points before we get to court and before I hand down a formal judgment. That is the whole point of handing down a formal judgment.
MR SHAW: I apologise for the delay. I have been trying as of yesterday to resolve it.
MR JUSTICE LIGHTMAN: But you should have notified my clerk that there was an outstanding question to be resolved. Page?
MR SHAW: Page 211 in the middle of the page. Paragraph 12.
MR JUSTICE LIGHTMAN: "He was upset to learn there had been a further review...."
MR SHAW: That is the only reference in the bundle to it. The relevant letter, if letter it was, is not in the bundle at all. Those at the GMC tell me that they believe -- although they have not checked it -- that no such communication was made. Miss O'Rourke has not been able to produce to me any primary document evidencing the same and given that your Lordship makes three references --
MR JUSTICE LIGHTMAN: I really am troubled about this on your part. The whole thrust (if I may put it) of the very powerful submissions made on Dr Jarman's behalf was the effect of twice being told that these complaints were to be discontinued and then being told that the complaint was now to be pursued. That was the whole thrust of her submissions on hardship and not a murmur came from the GMC that that was not correct.
MR SHAW: Certainly that was the thrust of it, but I do suggest to your Lordship that the second communication was by no means a point of great substance for Dr Jarman.
MR JUSTICE LIGHTMAN: That is a very, very different question. The effect on him of the second communication may be a matter which may be relevant before the PPC. You are now saying to me, as I understand it, that though the evidence said that he was told this again, and though Dr Jarman's counsel put in the forefront of her submissions that there was double notification, without any prior intimation to me, without any further evidence filed, you say that that matter is wrong? Is that right?
MR SHAW: That is what appears at the moment, my Lord, yes, very clearly. What I do say is that even if that communication had been made, on any view it is accepted that on 28 August -- that is very shortly afterwards -- Dr Jarman was told that the matter was being re-opened. So even if he was told in early August the period of unease on his part was very, very short. I have made my submission to your Lordship.
MR JUSTICE LIGHTMAN: I am not re-opening the matter. I have dealt with it on the evidence and submissions before me. If you want to raise that matter again in the disciplinary proceedings, that is a matter for you. How that is dealt with in the disciplinary proceedings will be a matter for the PPC. Subject to that, I thank counsel very much for their help.

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